Brief for the Respondent in Opposition — C & G Boat Co. v. Crescent River Port Pilots Ass'n

INDEX OF AUTHORITIES

PAGE

Dampskibsselskabet Atalanta A/S

Et Al vs. United States, C.C.A.

5, 31 F. 24 961 (1929)------~-- 3 a

Guy v. Donald, U.S. Sup. Ct.,

203 U.S. 399, Sup. Ct. 63, 51

L. Ed. 245 (1906) -------------- ie he

Kuhn vs. S/S Seatrain Georgia,

1963 A.M.C. 1226, U.S.D.Cc.,

ee ae N.Y. (1963) ee ee eee 3

Liv General vs. Pilots Association

for the Bay and River Delaware,

and Henry V. Rice and all other

members for the Bay and River

Delaware, U.S.D.C., Del., 254

F. Supp 447 (1966) ------------- 3

The City of Reading and the City

of Dundee, C.C.A. 3, 103 Fed.

696, 108 Fed. 679 (1901)------- 3

The Griffdu, U.S.D.C., S.D.

Texas, 25 F. 2d 312, (1928)---- 3

The Manchioneal, C.C.A. 2, 243

Fed. 801 (1917) ---------------- 3

United Fruit Company vs. Mobile

Towing & Wrecking Company;

Mobile Harbor Pilots Associa-

tion, an unincoporated associa-

tion; Mobile Harbor Pilots

Association, a corporation, and

Percy Manders, Jr., U.S.D.C.,

S.D., Ala. 177 F.S. 297 (1969)-

1

IN THE

SUPREME COURT OF THE

UNITED STATES

NO. 71-1650

C & G BOAT COMPANY, INC., ET AL.,

Petitioners

vs.

CRESCENT RIVER PORT PILOTS ASSOCIATION,

ET AL.,

Respondents

On Petition for Writ of Certiorari to

the United States Court of Appeal for

the Fifth Circuit

RESPONDENTS’ BRIEF

IN _ OPPOSITION

TO: The Honorable Chief Justice and the

Associate Justices of the Supreme

Court of the United States

“ke kkek &

Respondents, Crescent River Port

Pilots Association, Et Al, respond herewith

to the petition for a Writ of Certiorari,

to be issued from this Honorable Court to

the United States Court of Appeal for the

Fifth Circuit, seeking review of the af-

firmance summarily and per curiam of a

—

2

summary judgment of dismissal by the District

Court of Respondents from this lawsuit.

Respondents pray that the request for Writ

of Certiorari be denied.

ARGUMENT.

Petitioners’ question of the existence

cf a doctrine of immunity of ship pilots

from vicarious tort liability was unequivo-

cally answered in the affirmative,by this

Honorable Court in Guy v. Donald.+

The Fifth Circuit, in Dampskibsselskabet

Atalanta A/S Et Al vs. United States,<“a

case on all fours with the instant litiga-

tion, applied Guy v. Donald, immunizing

Louisiana pilots from vicarious tort

liability, and stated its principle as

follows:

“The fundamental principle under-

lying the exemption of pilots

associations from liability for

negligence of their members in per-

forming their duties as pilots, is

that the association exercises no

control over the manner in which

those duties are to be performed,

and, therefore, a pilot cannot be

said to be an agent of the assoc-

iation in that respect."

1. Guy v. Donald, U.S. Sup. Ct., 203 U.S.

399, 27 Sup. Ct. 63, 51 L. Ed. 245

(1906)

2. Dampskibsselskabet Atalanta A/S Et

Al vs. United States, C.C.A. 5, 31 F.

2d 961 (1929)

3

In the Atalanta decision, the Fifth Circuit

denominated the entire partnership -

vicarious liability argument raised herein

as “immaterial” when it said:

", » « For the purposes of this

case, it is immaterial whether a

pilots' association be considered

a partnership or not."

The very same arguments which these petition

ers raise, relative to the applicability

of Louisiana Law of Partnership to the

pilots association, were made to the Fifth

Circuit in Atalanta, and rejected in deny-

ing claims of vicarious liability by the

defendant pilot association.

Among the circuits, there is no con-

flict as to the applicability of the

immunity principle of Guy v. Donald, to

voluntary ship pilot associztions and their

members. The issue of thac immunity has

been raised in the Second, Third and Fifth

Circuits, and in certain districts. It has

been uniformly maintained from 1901 to

date.3 In no case has the immunity been

3. The City of Reading and the City of

Dundee, C.C.A. 3, 103 Fed. 696, 108 Fed. 679 7

(1901); Guy v. Donald, U.S. Sup. Ct., 203

U.S. 399, 27 Sup. Ct. 63, 51 L. Ed. 245

(1906); The Manchioneal, C.C.A. 2, 243 Fed.

801 (1917); The Griffdu, U.S.D.C., S.D.,

Texas, 25 F. 2d 312 (1928); Dampskibsselska- >

bet Atalanta A/S Et Al vs. United States,

C.C.A. 5, 31 F. 2d 961 (1929); Kuhn vs.

S/S Seatrain Georgia, 1963 A.M.C. 1226, U.S.)

D.C., S.D., N.Y. (1963); Liv General vs.

Pilots Association for the Bay and River

Delaware, and Henry v. Rice, and all other

members for the Bay and River Delaware, U.S.)

(Footnote continued on next page) j

4

questioned even in a dissenting opinion.

Whether it be the Virginia pilots of

onald Louisiana pilots of

- > ii ss

cf

nll An

stk . ’ or

Pilots of Louisiana herein, the immunity

from vicarious tort liability is equally

and uniformly applicable on the Guy v. Donald

principle.

CONCLUS TON

For the foregoing reasons, the petition

for certiorari should be denied.

Respectfully submitted,

to _.

W. NE

for Crescent River

Pilots Association

2008 International Trade

Mart Building

New Orleans, Louisiana 70130

Footnote No. 3 (Continued)

D.C., Del., 254 F. Supp. 447 (1966); United

Pruit Company vs. Mobile Towing & Wrecking

Company; Mobile Harbor Pilots Association,

an unincorporated association; Mobile

Harbor Pilots Association, a corporation,

and Percy Manders, Jr., U.S.D.C., S.D.,s

Ala., 177 F.S. 297 (1969).

CERTIFICATE

I, the undersigned member of the Bar

of this Court, do hereby certify that I

have served two copies of the foregoing

brief in opposition to certiorari upon

George B. Matthews, 1800 National Bank of

Commerce Bldg., New Orleans, La. 70112;

Samuel C. Gainsburgh, 1718 National Bank

of Commerce Bldg., New Orleans, La. 70112;

H. Barton Williams, 1700 Hibernia Bank

Bldg., New Orleans, La., 70112; and Maurice

L. Burk, 348 Baronne Street, New Orleans,

La. 70112, attorneys for all petitioners,

and interested parties in this application

for certiorari, by mailing the same to them

postage prepaid, at their addresses above

stated, this /7rH day of July, 1972.

JOSEPH W. NELKIN