Petition for Writ of Certiorari — Powers v. Bethlehem Steel Corp.
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FILE D
JUL 9 1973
In the |] MICHAEL RZDEK, JR.,CLE
Supreme Court of the United Staten
Octoser Term, 1973
No. 73-86
DONALD E. POWERS,
PLAINTIFF, PETITIONER,
v
BETHLEHEM STEEL CORPORATION,
DEFENDANT, RESPONDENT,
v.
McKIE LIGHTER CO., INC.,
DEFENDANT, RESPONDENT,
and
DONALD E. POWERS,
PLAINTIFF, PETITIONER,
v.
' McKIE LIGHTER CO., INC.,
DEFENDANT, RESPONDENT.
PETITION FOR WRIT OF CERTIORARI TO
j THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
MicHaezz B. Lartt, Ese.
Rosert S. Wore, Esq.
} Kaptan, Latri anD FLANNERY
89 State Street
Boston, Massachusetts
Of Counsel: Attorneys for Petitioner
Dav B. Kaptan, Eso.
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Blanchard Press, Inc., Boston, Mass. — Law Printers
DAIRY
Pe gr o SOHAL ONTO
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TABLE OF CONTENTS
Page
pe I a oe ee hha aa And 2
A eon aS ala A RN RE re 2
III Questions Presented ............. Pee pieces? 3
a ee gee ie we cae coe 3
rE AE I ss ne ccs kien cux ees 4
VI History of Proceedings ..................... 7
VII Consideration Governing Review on Certio-
Rt ee woe ee ee a Ce ee 8
ata Ace RA Me ey tle Ae Rata entre 10
I ee ee eons te ire ae 20
X Appendix
A.) Opinion of the United States District
Court for the District of Massachusetts dated
I en ee ag gt aac « 21
B.) Judgment of the United States District
Court for the District of Massachusetts dated
Tg etc ns get he a ee ees 30
C.) Opinion of the United States Court of
Appeals for the First Cireuit dated April 9,1973. 31
D.) Judgment of April 9, 1973 in Powers v.
Bethlehem Steel Corporation .................. 41
E.) Judgment of April 9, 1973 in Powers v.
McKie Lighter Co., Inc. ................. 42
F.) Docket Entry of Judgment dated pues 9,
1973 in Powers v. Bethlehem Steel Corporation . 43
G.) Docket Entry of Judgment dated April 9,
1973 in Powers v. McKie Lighter Co., Inc. ..... 45
H.) Memorandum and Order of United States
Court of Appeals for the First Circuit dated May
ro 2 ee Ss) oe 47
eR ee Ne Se ee
li Table of Contents
Page
TABLE oF CITATIONS
Cases
Atlantic Transport Co. v. Imbrovek, 234 U.S. 52
(REE RR aeape erate sre mneeptons set's Py er er OE ee 15, 16
The Bart Tully, 251 F. 856 (6th Cir. 1918) ........ 9, 15
Berton v. Tietjen & Lang Dry Dock Co., 219 F. 763
8 ERR nerereer res 8 weer eernnrs ery Pere 8
Biggs v. Norfolk Dredging Company, 360 F.2d 360
OU Ste ND ccs eee ae a tiacee 9, 14, 17
Barniff v. Jackson Avt. — Gretna Terry, Inc., 280
eo EF FS. eS errr ye 12
Brinegar v. Iron Ore Construction Company, 302 F.
Supp. 630 (E.D, Ark. 1969) .............---.-5+-. 12
Charles Barnes Co. v. One Dredge Boat, 169 F. 895
ee | eee errr eee 8, 11
Colby v. Todd Packing Co., 77 F. Supp. 956 (Alaska
rr rns Sem tet y 11
Cook v. Beldon Concrete Poedudte, Inc., 472 F.2d 999
es ee: ae erry Rete ee 8, 13, 16
Executive Jet Aviation, Inc. v. City of Cleveland, 409
oe ener rer a hee ore Te 9, 15, 16
The General Cass, Fed. Cas. No. 5307, p. 170 (E.D.
I IS acs, Cord wah sre Reeth tens cae 12
Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469
PO Salk: Lanicy ows nid ped ee ewe Gen 15, 18
Grimes v. Raymond Concrete Pile Co., 356 U.S. 252
I oes act enue tes yc aeons meen eee 10, 14, 17
Guilbeau v: Falcon Seaboard Drilling Co., 215 F. Supp.
OE Ba ID fics cae Fe ih ans oo ee il
Hark v. Antilles Air Boats, Inc., 41 U.S.L.W. 2506-07
Rr Ny nc de va ee ee eae ene eee? 9, 18
The Haxby, 94 F. 1016 (E.D. Pa. 1899) ..........-- 18
Table of Contents iii
Hess v. United States, 361 U.S. 314 (1960) ......... 18
The Hezekian Baldwin, 8 Ben. 556, Fed. Cas. No.
ES RRR ICT O Rey Bete FG Fr el a eee Seal: 15
John J. Lesnor Co. v. U. S., 182 F. 573 (9th Cir. 1910),
cert. denied, 220 U.S. 609 (1911) ................. 13
Kenny v. New York, 108 F.2d 958 (2nd Cir. 1940) .. 8, 11
Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638
I RS AMEE PERS Ph NED Met Rit ie Lg 9, 10
McWilliams Dredging Co. v. United States, 105 F.
a ee ee ee 15
Miller v. Thomas M. Zowe, Jr. & Associates, Inc., 328
Pm EM, BONED ook cs ces cae ieeesna vars 11
Moores v. Louisville Underwriters, 14 F. 226 (W.D.
Ry Pinte te oe Mom ee I Ae 8
Muntz v. A Raft of Timber, 15 F. 555 (E.D. La.
gee ee ee ee) a 8, 11
Nacirema Operating Co., Inc. v. Johnson, 396 U.S.
212 (1969), reh. denied 397 U.S. 929 (1970) ....... 15
New Bedford Dry Dock Co. v. Purdy, 258 U.S. 96
sera ok EE ee ee 9, 11
Nogueira v. New York, N.H. & H.R.R., 281 U.S. 128
ES eral teach ea eee ond 9, 11
Of'shore Company v. Robinson, 266 F.2d 769 (5th Cir.
Re A Ree hn Hae oa 11, 12
Peck v. U. S. Steel Corp., 315 F. Supp. 905 (Minn.),
aff'd 446 F.2d 891 (8th Cir. 1970) .............. 8, 11
The Pioneer, 30 F. 206 (E.D. N.Y. 1886) .......... 12
Pleason v. Gulfport Shipbuilding Corporation, 221
We ee Oe ee PD Ce oo ee ook eens 10
Raft of Cypress Logs, Fed. Cas. No. 11, 527 (W.D.
CI 20 cog eres ee ee wee yo 8
The Robert W. Parsons, 191 U.S. 17 CRORE cee ke 16
Seabrook v. Raft of Railroad Ties, 40 F. 596 (S.C.
iv Table of Contents
Pa
Sprately v. Tidewater Construction Corporation, 238 ‘i
F. Supp. 650 (B.D. Va. 1965) ................. 14417
Stafford v. Perini Corporation, 475 F.2d 507 (1st Cir.
RSID, TERS SEs RE Penne oe erg erry 9, 14, 17
Stanley v. Guy Scroggins Construction Co., 297 F.2d
Re OD os ee hee ees ceca ens 9, 14, 17
Tregoning Boat Co. v. United States, 15 Cust. Ct. 196,
ee a eek os Se pee evs 8, 11
United States v. A Raft of Timber, 13 F. 796 (S.C.
BE og lc Uaraiie cpccatee twin Satine aie 11
United States v. Bruce Dry Dock Co., 65 F.2d 938
=. ee errr me er ore eee 9, 15
United States v. Moran Towing & Transportation Co.,
S74 98 O66 (6th Civ. 1067) ......- 225.0005 5.. 8, 11
United States v. One Rafi of Timber, 15 F. 555 (E.D.
a RPE 5s aces ines noe Ore At en a ena 8
Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971),
reh, denied 92 S. Ct. 731 (1972) .................. 15
Statutes
te OM: St Ee nr s eee 3, 10
Oe ee Se CI ee 4, 10
Ob TG. SE CHRTN) ... 2 2. oe ei es 3, 7
GD 7c oh ee ee tn eee ee gp wees 4,7
6 URC. OR. GD... 2 o-oo eis, 4, 10
Miscellaneous Authority
Corpus Juris Secundum, Vol. 94, §1. ........-.-.---- 1B
Gilmore & Black, The Law of Admiralty 30 (1957) .. 10
Moore’s Federal Practice, Vol. 7A, p. 2311 - 14 (1972). 10
An the ;
Supreme Court of the United States
Ocroser TERM, 1973
No.
DONALD E. POWERS,
PLAINTIFF, PETITIONER,
Vv
BETHLEHEM STEEL CORPORATION,
DEFENDANT, RESPONDENT,
v.
McKIE LIGHTER CO., INC.,
DEFENDANT, RESPONDENT,
and
DONALD E. POWERS,
PLAINTIFF, PETITIONER,
v.
McKIE LIGHTER CO., INC.,
DEFENDANT, RESPONDENT.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
To roe HonoraBLeE Curer JUSTICE AND THE ASSOCIATE
JUSTICES OF THE SUPREME Court OF THE UNITED States:
Petitioner, Donald E. Powers, respectfully prays that
a writ of certiorari issue to the United States Court of
Appeals for the First Circuit to review the judgments of
2
that Court entered on April 9, 1973 in the above-entitled
actions pursuant to an Opinion rendered by that Court on
the aforesaid date. A Petition for Rehearing was denied
by said Court on May 10, 1973. The said judgments have
been docketed and copies of those entries are appended
hereto as Parts F and G of the Appendix. The judgments of
April 9, 1973 are in the official record of the United States
Court of Appeals for the First Circuit and copies are
appended hereto as Parts D and E of the Appendix. The
Memorandum and Order of May 10, 1973 denying rehear-
ing is also in the official record and a copy is appended
hereto as Part H of the Appendix.
I
Opinion Below
The opinion of April 9, 1973 of the United States Court
of Appeals for the First Circuit does not yet appear in
the official reporter. It is contained in the official record
of said Court and a copy of said opinion is appended
hereto as Part C of the Appendix. The Memorandum and
Order of May 10, 1973 by the United States Court of Ap-
peals for the First Circuit also does not appear in the
official reporter. It is contained in the official record of
said Court and a copy is appended hereto as Part H of
the Appendix.
It
Jurisdiction
The judgments of the United States Court of Appeals
for the First Circuit now sought to be reviewed were en-
tered on April 9, 1973. Entry was made pursuant to an
order dated that same day. On a Petition for Rehearing
filed April 23, 1973, rehearing was denied on May 10,
3
1973. Entry of that denial was also made May 10, 1973.
Therefore, this petition falls within the time prescriptions
of Title 28 of the United States Code, Section 2101.
Jurisdiction to review the aforesaid proceedings exists
by virtue of Title 28 of the United States Code, Section
1254.
Il
a Questions Presented
1. Is a raft a vessel for the purposes of the General
Maritime Law?
2. Did a cause of action for negligence occurring on a
raft in navigable waters arise within the scope of ad-
miralty and maritime jurisdiction?
IV
Statutes Involved
The case involves the following statutes:
“The district courts shall have original jurisdiction,
exclusive of the courts of the States of:
(1) Any civil cases of admiralty or maritime juris-
diction, saving to suitors in all cases all other rem-
edies to which they are otherwise entitled . . .”’
28 U.S.C. §1333 (1970), Vol. 7, p. 7568.
‘The word ‘vessel’ includes every description of
water craft or other artificial contrivance used, or
capable of being used, as a means of transportation
on water.’’
1U.S.C. §3 (1970), Vol. 1, p. 2.
“The word ‘vessel’ includes every description of
water craft or other contrivance used, or capable of
— ——e
4
being used, as a means of transportation on water,
but does not include aircraft.”’
19 U.S.C. §1401(a) (1970), Vol. 5, p. 4974.
‘‘The term ‘vessel’ includes all water craft and other
artificial contrivances of whatever description and at
whatever stage of construction, whether on the stocks
or launched, which are used or are capable of being
or are intended to be used as a means of transporta-
tion on water.”’
46 U.S.C. §801 (1970), Vol. 10, p. 11469.
Any seanmian who shall suffer personal injury in
the course of his employment may, at his election,
maintain an action for damages at law, with the right
of trial by jury, and in such action all statutes of the
United States modifying or extending the common-
law right or remedy in cases of personal injury to
railway employees shall apply; and in case of the
death of any seaman as a result of any such personal
injury the personal representative of such seaman
may maintain an action for damages at law with the
right of trial by jury, and in such action all statutes
of the United States conferring or regulating the
right of action for death in the case of railway em-
ployees shall be applicable. Jurisdiction in such ac-
tions shall be under the court of the district in which
the defendant employer resides or in which his prit-
cipal office is located.
46 U.S.C. §688 (1970), Vol. 10, p. 11451.
Vv
Statement of Facts
On or about October 6, 1967, the plaintiff, Donald E.
Powers, was employed as a pile driver and dock builder
a rss eS
—
5
by the McKie Lighter Co., Inc. (hereafter McKie). In
the course of his employment, the plaintiff was required
to perform many duties on or about navigable waters.
(R.A. 19-25, 28-32, 99, 284, 304, 305) These duties included
the handling of dories, rafts and lighters. (R.A. 20-25)
Often the plaintiff would serve as a deckhand aboard
MeKie vessels and assist in navigation. (R.A, 20-23, 28,
29, 31, 32, 43, 99, 260, 284, 285, 304, 305) While the plain-
tiff was navigating a raft owned by the defendant McKie
on the aforesaid date, the plaintiff sustained grave per-
sonal injuries losing an eye and incurring substantial
coronary damage. (R.A. 45-48, 258, 304, 305)
At the time of the injury, the plaintiff was standing
aboard a raft approximately twenty-five feet long by five
feet wide. It was positioned next to a pier owned, operated
and controlled by Bethlehem Steel Corporation, (herein-
after Bethlehem). The raft was being used to transport
men and equipment to work sites, activity which was
typical of the manner in which the raft had been used by
the plaintiff for nearly two months previously. (R.A. 25-
32, 43, 45, 158, 260, 284, 285, 304) Indeed, the raft had
been navigated on various occasions across great stretches
of open water in order to perform similar tasks. (R.A.
28-32, 260, 284, 285)
The raft was being used by the defendant McKie in per-
formance of its dockbuilding contract with the defendant
Bethlehem. Under that contract, the defendant McKie was
required to repair certain pilings supporting piers in a
shipyard owned and operated by Bethlehem. (R.A. 357a).
The work performed under that contract commenced in
August of 1966. (R.A. 22). As a further part of that con-
tract, it was the obligation and practice of the defendant
Bethlehem to supply equipment to employees of the defen-
dant McKie for dockbuilding and pile driving activities
ae
6
on or near Bethlehem piers. (R.A. 27, 28, 33, 34, 39, 40,
50)
The accident occurred when a light supplied by Beth-
lehem exploded and bulb fragments entered the eye of
the plaintiff. (R.A. 45-48, 288, 307).
The defendant Bethlehem had supplied to employees of
the defendant McKie certain lighting facilities to illumin-
ate working areas around and under the piers. On the
day of the accident, an employee of the defendant Beth-
Iehem gave to an employee of the defendant MeKie a
long cable with a plug at one end and a socket and bulb
unit at the other without shields or reflectors. (R.A. 33,
34, 39-43, 258, 304-315) Bethlehem lighting equipment was
often devoid of protective shields or reflectors in spite of
the custom and practice in the dockbuilding industry to
the contrary. (R.A. 33, 34, 39, 241, 242, 295, 315) It was
also supplied in spite of prior complaints to officers of
Bethlehem and of McKie that unprotected bulbs had been
popping and that protected lighting was not always sup-
plied. (R.A. 35, 37-39, 58, 59, 61, 121, 152, 153, 256, 261,
262, 289, 315)
The bulb exploded at approximately 5:30 a.m. It was
suspended from a cord tied off on a pier. ( R.A. 44, 45, 46)
It hung down over the water and was positioned over the
head of the plaintiff. (R.A. 42, 45)
The plaintiff was injured while in the process of moving
the aforesaid raft and looking up at the bulb. (R.A. 42,
45) He did not have an opportunity to inspect the bulb
prior to explosion and was not involved in securing the
lighting equipment to the pier. (R.A. 39-45, 119, 158, 223)
The plaintiff was unable to see or inspect the condition
of the lighting equipment because of both darkness and
InIb positioning. (R.A. 42-45, 119, 148, 172)
7
VI
History of Proceedings
Subsequent to the injury, the plaintiff commenced sep-
arate suits against McKie Lighter Co., Inc. and Beth-
lehem Steel Corporation. As against McKie Lighter Co.,
Inc., the plaintiff alleged causes of action under the Mer-
chant Marine Act of 1920, 46 U.S.C. §688 (1970) (here-
inafter the Jones Act) and the General Maritime Law
for unseaworthiness, maintenance and cure. As against
Bethlehem Steel Corporation, the plaintiff alleged negli-
gence. Jurisdiction of the McKie action was founded on
both 46 U.S.C. §688 (1970) and 28 U.S.C. §1333 (1970).
Jurisdiction of the Bethlehem action was based on 28
U.S.C. §1332 (1970). Both actions were brought and con-
solidated for trial in the United States District Court
for the District of Massachusetts.
The jury returned verdicts of $275,000 against both
defendants, jointly and severally. However, the District
Court entered judgmen‘s notwithstanding the verdicts in
favor of both defendants on May 23, 1972. The Court
ruled that the raft on which the plaintiff was injured was
not a vessel. Furthermore, the evidence was such as to
require the application of state law on the issue of Beth-
lehem’s negligence. Any cause of action for negligence
arose outside the scope of admiralty and maritime juris-
diction. The plaintiff was unable to sustain his burden of
proof under state law.
The plaintiff appealed the entry of the aforesaid judg-
ments to the United States Court of Appeals for the First
Cireuit pursuant to 28 U.S.C. §1291 (1970). On April 9,
1973, said Court of Appeals affirmed the rulings of the
District Court.
A Petition for Rehearing was filed with the United
—
8
States Court of Appeals on April 23, 1973. Said petition
was denied on May 10, 1973.
VII
Considerations Governing Review on Certiorari
The decision of the Court of Appeals for the First
Cireuit sought to be reviewed falls within the scope of
Rule 19 of the Rules of the Supreme Court of the United
States, and this petition should be allowed.
In particular, the decision conflicts with decisions of
other Courts of Appeal on the same matter. Other ap-
pellate decisions have held a raft to be a vessel.
Compare Kenny v. New York, 108 F.2d 958 (2nd
Cir. 1940) ; United States v. Moran Towing & Trans-
portation Co., 374 F.2d 656 (4th Cir. 1967) ; Peck v.
U. S. Steel Corp., 315 F. Supp. 905 (Minn.), aff'd
446 F.2d 891 (Sth Cir. 1970) where rafts were held
to be vessels with Cook v. Beldon Concrete Products,
Inc., 472 F.2d 999 (5th Cir. 1973) where raft-like ob-
ject was not a vessel, Note that district courts are in
hopless confusion. Compare, e.g., United States v.
One Raft of Timber, 13 F. 796 (S.C. 1882); Muntz
v. A Raft of Timber, 15 F. 555 (E.D. La. 1883); Sea-
brook v. Raft of Railroad Ties, 40 F.596 (S.C. 1889);
Charles Barnes Co. v. One Dredge Boat, 169 F. 895
(E.D. Ky. 1909) ; Tregoning Boat Co. v. United States,
15 Cust. Ct. 196, C.D. 971 (1945) where raft-like ob-
jects were classified as vessels with Raft of Cypress
Logs, Fed. Cas. No. 11, 527 (W.D. Tenn. 1882);
Moores v. Louisville Underwriters, 14 F. 226 (W.D.
Tenn. 1882); Berton v. Tietjen € Lang Dry Dock Co.,
219 F. 763 (N.J. 1915) where raft-like objects were
held not to be vessels.
_
9
No other appellate decisions have found a lack of ad-
miralty and maritime jurisdiction under similar facts.
See generally Stafford v. Perini Corporation, 475 F.
2d 507 (1st Cir. 1973); Biggs v. Norfolk Dredging
Company, 360 F.2d 360 (4th Cir. 1965); Stanley v.
Guy Scroggins Construction Co., 297 F.2d 374 (5th
Cir. 1961) where persons doing similar work had
causes of action arise in admiralty. See also United
States v. Bruce Dry Dock Co., 65 F.2d 938 (5th Cir.
1933) and The Bart Tully, 251 F. 856 (6th Cir. 1918)
where causes of action arose in admiralty without
the involvement of ‘‘vessels”’.
This decision concerns an imnortant question of fed-
eral law which hos not been, but should he settled by this
court. This decision defines the extent of admiralty and
maritime jurisdiction when a persen js injured aboard
a non-vessel on navigable waters. The issue as stated was
specifically reserved under the recent decision in Evrecu-
tive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 253
(1972). Lower federal courts have reachcd conflicting con-
clusions on this issue sinee the Exrccutire Jet decision.
Compare Powers v. Bethlehem Steel Corporation, No.
72-1197 (1st Cir. April 9, 1973) with Hark v. Antilles
Air Boats, Inc., 41 U.S.L.W. 2506-07 (V.I. 1973).
This decision concerns two federal questions and con-
fliets with the applicable decisions of this court. First,
this court has ruled that a raft similar to the one at bar
may be a vessel for the purposes of applying the General
Maritime Law.
Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900).
See also New Bedford Dry Dock Co. v. Purdy, 258
ae
—"
10
U.S. 96 (1922); Nogueira v. New York, N.H. € IRR,
281 U.S. 128 (1930).
The decision of April 9, 1973 did not hold the raft at bar
to be such a vessel.
Second, this court has ruled that persons performing
the same work as the plaintiff performed herein were in-
volved in maritime service and engaging in maritime ae-
tivity.
Grimes v. Raymond Concrete Pile Co., 356 U.S. 252
(1958).
The decision of April 9, 1973 held that the plaintiff was
not engaged in a maritime service or activity.
As a result, certiorari should be granted.
VIII
Argument
T. A Rarr May Be a VESSEL FoR THE PURPOSES OF THE
GENERAL Maritime Law.
Vessels are defined as:
“« . , floating structures capable of transporting some-
thing over water.”’
Gilmore & Black, The Law of Admiralty 30 (1997).
See also 1 U.S.C. § 3 (1970); 19 U.S.C. §1401 (a)
(1970); 46 U.S.C. § S01 (1970); Pleason v. Gulfport
Shipbuilding Corporation, 221 F. 2d 621 (Sth Cir.
1955); 7A Moore’s Federal Practice 2311-14 (1972).
Several decisions have specifically considered the ques-
tion of whether or not a raft is a ‘‘vessel’’. In Knapp,
Stout & Co. v. McCaffreu, 177 U.S. 638 (1900), the Su-
preme Court held that a raft could be a vessel for the
purpose of invoking admiralty jurisdiction to establish
a lien for towage. Similarly, a raft could be a vessel for
the purposes of making awards for salvage and enforcing
the rules of navigation.
11
Muntz v. A Raft of Timber, 15 F. 555 (E.D, La. 1883) ;
United States v. A Raft of Timber, 13 F. 796 (S.C.
1882).
Construction and shape do not appear to be determin-
ative. In United States v. Moran Towing € Transporta-
tion Co.. 374 F.2d 656, 663 (4th Cir. 1967), it was strongly
suggested that a wooden raft came within the definition
of ‘vessel’? provided in 1 U.S.C, § 3 (1964). Similarly, a
raft composed of eross-ties lashed together was held to
be a ‘vessel’? in Seabrook v. Raft of Railroad Cross-Ties,
40 F. 596 (S.C. 1889). In Tregoning Boat Co, v. United
States, 15 Cust. Ct. 196, C.D. 971 (1945) a ‘lifeboat’? 17
feet long, 7 feet wide and only 30 inches deep shaped in
a manner remarkably like a raft was also ruled to be a
“vessel”.
See generally, New Bedford Dry Dock Co. v. Purdy,
958 U.S. 96 (1922) (car float) ; Nogueira v. New York,
NI. & H.R.R., 281 U.S. 128 (1930) (ear float); Kenny
v. New York, 108 F. 2d 958 (2nd Cir. 1940) (seow
used as fireworks platform); Offshore Company v.
Robinson, 266 F. 2d 769 (Sth Cir. 1959) (submersible
oil drilling rig); Peck v. U. S. Steel Corp., 315 F.
Supp. 905 (Minn.), aff’d 446 F. 2d 891 (Sth Cir. 1970)
(barge without motive power of its own) ; Colby v.
Todd Packing Co., 77 F. Supp. 956 (Alaska 1948)
(floating fish trap of logs); Miller v. Thomas M.
Zowe, Jr. & Associates, Inc., 328 F. Supp. 54 (Ark.
1971) (16 foot flat bottomed boat); Charles Barnes
Co. v. One Dredge Boat, 169 F. 895 (E.D. Ky. 1909)
(floating structure supporting pump); Guilbeaw v.
Falcon Seaboard Drilling Co., 215 F. Supp. 909 (La.
1963) (submersible oil drilling rig).
12
The test is simply whether or not the craft is used for
transportation.
The General Cass, Fed. Cas. No. 5307, p. 170 (ELD,
Mich. 1871); The Pioneer, 30 F. 206 (E.D.N.Y. 1886).
Certainly the facts of this case indicate that the raft
at bar qualified as a ‘‘vessel’’. It was repeatedly used to
transport men and equipment over navigable waters. It
was propelled by oar-like sticks operated by men aboard
the raft, lines which were pulled or released by men aboard
the raft and tugs which towed the raft.
A decision holding that a raft could not be a vessel as
a matter of law would have the result of condoning the
use of ‘‘makeshift’’ and perhaps unsuitable water craft
in place of more seaworthy and substantial barges or
scows. The defendant has used a ‘‘makeshift’’ vessel for
economic reasons and now claims that this economy mea-
sure may constitute a method of avoiding liability for in-
juries.
See generally Brinegar v. Iron Ore Construction Com-
pany, 302 F. Supp. 630 (E.D. Ark. 1969) (makeshift
pontoon oil carrier held to be a vessel and therefore
unseaworthy when capsized and paralyzed plaintiff.)
At the very least, the question of whether or not a raft
it a vessel should be left to a jury sitting pursuant to the
Jones Act.
Braniff v. Jackson Avt. — Gretna Terry, Inc., 280
F. 2d 523, 526-27 (5th Cir. 1960); Offshore Drilling
Company v. Robison, supra.
13
I Tue Puarwtirr’s Cause or Action AGaAInst THE BETH-
LEHEM STEEL CorporaTION AROSE WITHIN THE SCOPE
or ADMIRALTY AND MARITIME JURISDICTION, AND THE
GeneraL Maritime Law SHovip Have Been APPLieED.
(a) The raft was not ‘‘.... an extension of the pier,
itself an extension of the land.”’
Powers v. Bethlehem Steel Corporation, No.
72-1197, p. 8, (1st Cir. April 9, 1973).
A pier is defined as ‘‘. ... a projecting quay, wharf, or
other landing place.”’
The Haxby, 94 F. 1016 (E.D. Pa. 1899). See also, 94
C.J.S. § 1; John J. Lesnon Co, v. U. S., 182 F. 573
(9th Cir. 1910), cert. denied 220 U.S. 609 (1911).
There was no evidence before the Court of Appeals that
suggested that the raft on which the plaintiff was injured
was intended to be used as a ‘‘landing place’’. While it may
be conceded for the purposes of this section of the argu-
ment that the aforesaid raft was not a vessel,
Cook v. Belden Concert Products, Inc., 472 F.2d 999
(5th Cir. 1973)
it is not conceded that it was part of a pier. As the Court
of Appeals pointed out in its April 9, 1973 Opinion, the
raft was often used as a work platform whose mission
was unrelated to ‘‘landing’’ operations.
No case has been found by the petitioners which pro-
vides a precedent for ‘‘grafting’’ a raft to a pier. Even
the Cook decision failed to go so far. In fact, the Cook
decision only held that such a raft or work platform was
Oe ee PaP EIN
14
not a vessel. It did not hold that it was a pier or extension
thereof.
The effect of the April 9, 1973 Opinion is undesirable
in that it destroys uniformity of maritime law and en-
courages inconsistency of jurisdiction. In Spratley v. Tide-
water Construction Corporation, 238 F. Supp. 650 (E.D.
Va. 1965), a pile driver on a barge was permitted to pro-
ceed in admiralty. There was no attempt to graft the barge
to the piles so as to remove admiralty jurisdiction. In
Biggs v. Norfolk Dredging Company, 360 F.2d 360 (4th
Cir, 1965), there was no suggestion that the barge serving
as a work platform became part of the bridge. In Grimes
vy. Raymond Concrete Pile Co., 256 US. 252 (1958), the
Court did not even suggest that the barge was an exten-
sion of pilings driven into the ground. Consequently, all
of these cases were permitted to proceed in admiralty.
See also Stafford v. Perini Corporation, 475 F.2d 507
(1st Cir. 1973); Stanley v. Guy Scroggins Construc-
tion Co., 297 F. 2d 374 (5th Cir. 1961).
(b) Admiralty jurisdiction exists without the pre-
sence of a vessel.
One of the most significant differences between the plain-
tiff’s case against McKie Lighter Co., Inc., and that
against Bethlehem Steel Corporation was the necessity
of proving the existence of a vessel. As against McKie,
the plaintiff had to establish the presence of a vessel in
order to claim crewmember status as well as a breach of
the warranty of seaworthiness. As against Bethlehem,
however, the plaintiff only had to demonstrate that his
injury was sustained on navigable waters. The presence
of a vessel was not required to invoke admiralty and
maritime jurisdiction and the consequent application of
the General Maritime Law for negligence.
—
—
15
It. is well settled that admiralty jurisdiction in non-
aviation cases depends solely on the situs of the injury.
Executive Jet Aviation, Inc. v. City of. Cleveland,
409 U.S. 253 (1972); Victory Carriers, Inc. v. Law,
404 U.S. 202 (1971), reh. denied 92 S. Ct. 731 (1972);
Nacirema Operating Co., Inc. v. Johnson, 396 U.S.
212 (1969), reh. denied 397 U.S. 929 (1970); Grant
Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922) ;
Atlantic Transport Co. v. Imbrovek, 234 U.S. 52
| (1913).
The presence of a vessel is not required.
Atlantic Transport Co, v. Imbrovek, supra; Execu-
tive Jet Aviation, Inc. v. City of Cleveland, supra.
' It is sufficient that a ‘‘marine object’’ be involved.
McWilliams Dredging Co. v. Un'ted States, 105 F.
Supp. 582 (E.D. La. 1952).
Accordingly, non-vessels such as floating pontoon
wharves
The Bart Tully, 251 F. 856 (6th Cir. 1918)
floating dry docks
United States v. Bruce Dry Dock Co., 65 F. 2d 938
(5th Cir. 1933)
floating elevators
The Hezekian Baldwin, 8 Ben. 556, Fed. Cas. No. 6449
and floating rafts
McWilliams Dredging Co. v. United States, supra at
588,
16
have been held to be the subject of admiralty and maritime
jurisdiction. No decision cited by the Court of Appeals in
its opinion of April 9, 1978 is contrary to this analysis,
Precedent cited in the Cook opinion is supportive of
the above contention. The decision in The Robert W. Par-
sons, 191 U.S. 17 (1903), was relied upon heavily in Cook
and is typical in reasoning. In that case, the Supreme
Court was faced with the question of whether o1 not a
canal boat was a vessel for the purpose of recognizing a
maritime lien for dry dock repairs. In the course of re.
solving that issue, the Court considered first the nature
of a vessel and second the extent of admiralty jurisdic.
tion. With reference to the first issue, the Court found
that floating dry docks, floating wharves, ferry bridges,
gas floats and sailors’ bethels were not vessels for the
purposes of enforcing maritime liens, Since only a vessel
could be the subject of a maritime lien, there was no ob-
ject over which an Admiralty Court could exercise its
jurisdiction.
With reference to the second issue, however, the Court
expressly recognized that repairs performed on a floating
dry dock were within admiralty jurisdiction as being per:
formed on navigable waters. Even though the dry dock
was not itself a vessel, activities performed on said dry
dock were within admiralty jurisdiction.
(c) The plaintiff was associated with a maritime ser-
vice and performing maritime activity,
The Supreme Court has recognized admiralty and mar-
itime jurisdiction where there is a marine service,
Atlantic Transport Co. v. Imbrovek, supra at 61, 62.
or marine activity.
Executive Jet Aviation, Inc, v. Cleveland, Ohio, supra.
17
Ample evidence was either offered or introduced to es-
tablish both elements herein.
The plaintiff was engaged in servicing pilings support-
ing piers. Testimony of Willard Appley, an expert called
by the plaintiff, was offered to the effect that it was the
custom and practice of seamen to engage in such work.
Said expert was also prepared to testify that such ser-
vicing was traditionally performed by seamen aboard
seows, lighters, barges and other similar vessels. Said
testimeny was, however, excluded, Jack Ward, another
expert called by the plaintiff, was prepared to testify that
the rafts on which the plaintiff worked were used as if
they were true vessels, This evidence was also excluded.
The plaintiff was permitted to testify that the raft on
which he was injured was moved over navigable waters
almost daily and that he assisted in said navigation.
Lastly, all construction work performed by the plaintiff
promoted shipping activity in general through pier main-
tenance,
Cases previously adjudicated on the basis of similar
evidence have ineluded holdings that such activities could
qualify a plaintiff as a seaman.
Biggs. v. Norfolk Dredging Company, supra; Grimes
v. Raymond Concrete Piling Co., supra; Sprately v.
Tidewater Construction Corporation, supra; Stafford
vy. Perini Corp. supra; Stanley v. Guy Scroggins
Construction Ce,, supra,
Once qualified as a seaman, it is impossible to claim that
the plaintiff lacked a nexus to maritime service or mar-
itime activity. The acknowledged nature of a seaman’s
duties precludes such a claim. The plaintiff was perform-
ing a maritime service aboard a maritime object, a raft.
18
Note that all of the aforecited cases involved vessels,
However, the absence of a vessel in this action does
not change the nature or quality of the plaintiff's
actions. If such were the case, airplane personnel in-
jured in transoceanie flight would be precluded from
recovering in admiralty. See generally, Hark v. An-
tilles Air Boats, Inc., 41 U.S.L.W. 2506-07 (V.I. 1973).
Even if the plaintiff were not performing seaman’s duties
aboard a vessel in navigation, he still fell within admiralty
and maritime jurisdiction because he was engaged in a
maritime activity and was hurt on navigable waters.
See generally, Grant Smith-Porter Ship Co, v. Rohde,
Gonsalves v. Morse Dry Dock & Repair Co., supra.
As a result, the plaintiff as a construction worker in-
jured on navigable waters while repairing piers was en-
titled to prosecute his causes of action in admiralty.
See generally, Hess v. United States, 361 U.S. 314
(1960).
If the Court of Appeals is permitted to rule that this
cause of action arose outside admiralty and maritime
jurisdiction, that Court will destroy the uniformity within
the General Maritime Law.
As considered previously, other pile drivers have been
entitled to recover in admiralty given facts nearly iden-
tical to those established herein. The only distinction be-
tween those eases and the one at bar is that in those eases
‘‘vessels’’ were involved while in this ease only a ‘‘raft”
was present. All cases pertained to injuries sustained on
navigable waters. All cases pertained to plaintiffs servicing
piers positioned in navigable waters. For this Court to
permit the Court of Appeals to abandon the ‘‘locality”’ test
of admiralty jurisdiction and distinguish the maritime
nature of the plaintiff’s duties herein from those of other
successful plaintiffs is not to look to maritime service or
activity but solely to the presence of a vessel. This is
_ ——!,
19
contrary to the present status of our jurisprudence and
will destroy the uniformity so carefully molded by the Su-
preme Court.
Various hypothetical situations may fully demonstrate
the problems created by the Opinion of the Court of Ap-
peals. Assume that a vessel is standing off-shore waiting
to dock at a pier. However, before the vessel may do so,
the pier must be prepared by having fenders affixed to
pilings. A seaman is sent from the vessel to affix said
fenders. In order to perform his work, the seaman stands
aboard a hastily constructed raft on the very waters
where the vessel is to be docked. While performing his
work on the raft and moving the raft from piling to
piling, he is injured as a result of a defect in the raft and
the negligence of the pier owner. According to the Opinion
of April 9, 1973, this cause of action could not arise in
admiralty.
Assume that a person is employed to erect a pier and
had served prior to his employment as a pile driver aboard
a steel hulled lighter two hundred feet long and seventy
feet wide. On this occasion, he is ordered to drive piles
from a raft two hundred feet long and seventy feet wide
composed of logs. This raft is not designed in such a
manner as to be capable of being navigated over great
open stretches of water. However, the raft is repeatedly
towed over open water. The raft is equipped with heavy
pile driving equipment. On a certain day the raft is
towed several hundred feet into a shipping channel and
moored to a pile. More piles are then driven for the
construction of a pier. While piles are being driven, the
worker is injured as a result of a defect in the raft and
the negligence of the owner of the pier. According to the
Opinion of April 9, 1973, this cause of action would not
arise in admiralty.
Both of the above hypotheticals pertain to injuries sus-
—_—_——e
mca
20
tained on navigable waters. Both of the above pertain to
maritime service and activity. Neither of the above in-
volve a ‘‘vessel’”’ as defined in the Opinion of April 9,
1973. Both cases fell within admiralty jurisdiction prior
to April 9, 1973. Both cases are now outside the scope of
admiralty jurisdiction in the First Circuit. The petitioners
can find no decisions in any other jurisdiction which reach
a similar result.
Ix
Conclusion
The United States Court of Appeals for the First Cir-
euit has rendered a very significant decision which will
have a confusing effect on Courts attempting to deal with
admiralty and maritime jurisdiction. First, the decision
will eause considerable confusion as to what constitutes
a vessel. Second, the decision will cause an unreasonable
restriction of admiralty and maritime jurisdiction as well
as destroy the uniformity of admiralty law. As a result,
it is respectfully submitted that the time has come when
this Court should define the term ‘‘vessel”’ and guide the
lower courts in delineating the scope of admiralty and
maritime jurisdiction as it applies to injuries sustained
on navigable waters.
Micwagt B. Lattt, Ese.
Rosert S. Wo re, Esq.
Kapuan, Latti axp FLANNERY
89 State Street
Boston, Massachusetts
Attorneys for Petitioner
Of Counsel:
Davin B. Kaptan, Eso.
21
APPENDIX A
Untrrep States District Court
District or MASSACHUSETTS
Civil Action No. 69-941-C
Dona.p E. Powers
v.
BETHLEHEM STEEL CoRPORATION
Civil Action No. 69-942-C
Donatp E. Powers
v.
McKie Licuter Co., Ixc.
OPINION
May 23, 1972
Carrrey, Chief Judge
These two civil actions, both of which arose out of the
same industrial accident, were consolidated for purposes
of trial. A six-day jury trial was had and the defendants
in both cases moved for a directed verdict pursuant to
Rule 50, Federal Rules of Civil Procedure, both at the
end of plaintiff’s cases and at the conclusion of all the
evidence. Both cases were submitted to a six-person jury
under leave reserved and the jury returned a verdict for
plaintiff in each case in the amount of $275,000. So much
of the case as involved a claim-over by Bethlehem Steel
against McKie Lighter in the event the jury found against
Bethlehem was withdrawn from the consideration of the
jury by stipulation of counsel for McKie and Bethlehem
and submitted for determination by the Court.
Taking the evidence in the light most favorable to plain-
tiff, it appears that a contract was entered into between
Bethlehem Steel and McKie Lighter on July 12, 1966.
EEF Se 8 EN
22
The contract provided for McKie to do certain work to
repair concrete pilings of Pier 3 and to repair and replace
the fender system of Pier 2 at the Boston shipyard of
Bethlehem Steel. Under the contract, McKie was to install
concrete jackets on 53 concrete piles which supported the
pier. This involved wire brushing all existing resteel and
eonerete surfaces coming in contact with the new work,
installing removable steel and concrete forms, and furnish-
ing and placing reenforcing steel and concrete.
Plaintiff Donald E. Powers is presently 38 years of age.
At the time of the accident he was 33. He was then and
is now a member of Local 56, Carpenters and Piledrivers
Union. He has not at any material time ever been a
member of the National Maritime Union. His employ-
ment as a piledriver immediately prior to his job at
Rethlehem Steel involved piledriving work at the Boston
City Hospital; in Harvard Square, Cambridge; and at the
Merchants National Bank on State Street, Boston. There
was no evidence that Mr. Powers did any work of any
kind on the high seas or on or near the waterfront
prior to the work at the Bethlehem shipyard. There was
evidence that he and other employees of McKie had worked
at the Bethlehem yard in 1966. Powers himself began
working at Pier 2 in August of 1966, replacing fenders
along the side of the pier. He also worked on Pier 3
during August and September 1966, as a member of a
group of McKie employees who were replacing some con-
demned concrete pilings. The work continued through
December of 1966, and part of this time Powers worked
as McKie’s foreman. When it became necessary for the
McKie employees to work on the under-side of the pier,
or on the side of the pilings which was accessible only
from underneath the pier, they used either of two rafts
as platforms. One raft was 4 feet wide and 25 feet long.
The other was 10 feet wide and 25 feet long. They were
ODE LA RIES EOL FRAPS GONE ONG
pots PPS RE pee ID SG ORL 4 pan, . .
- 3 . J PELTED IGOR DIS LUI LEME LOY, IP IE OLA
_—_
23
made of 12x12 timbers, lashed or bolted together. They
had no decking or protective edge. It appears from the
evidence that at all times during the performance of
the contract these rafts were tied by lines either to
the side of the pier or to pilings supporting the pier,
and that they were maneuvered in under the pier and out
alongside the pier by pulling on the lines or by hand-
grabbing the pilings and pulling thereon while standing
on the rafts. The line-pulling was done either by one or
two men standing on the raft or by men standing on the
pier. These rafts contained no means of self-propulsion,
no power, no navigational equipment, no lights, no sleeping
quarters, no permanently affixed equipment of any kind.
Because of the shadow cast by the pier, artificial lighting
was necessary to illuminate the area in which work was
being done under the pier. For this purpose, extension
lights were plugged into a source of electricity on the pier
and allowed to dangle over either side of the pier. On the
day of the accident, either Powers himself or one of his
co-workers had plugged in two extension cords, owned
and supplied by Bethlehem Steel, one of which was
dropped over the harbor side and the other over the land
side of Pier 3, at approximately the place where the two
rafts were tied up and where the crew was about to begin
working.
Shortly after six o’clock on the morning of October 6,
1967, Powers and Ward, another McKie employee, went
down a ladder onto the 4’ x 25’ raft. Powers testified that
as he stood on the raft an electric light bulb which was
in a socket at the end of an electrical cable was approxi-
mately 10 to 12 feet directly over his head, that he looked
up toward the bulb, and almost immediately thereafter the
light bulb exploded causing several fragments to penetrate
his left eye. After many hospitalizations at the Massa-
chusetts Eye and Ear Infirmary this eye was enucleated.
24
Neither Powers nor anyone else who testified gave any
evidence whatsoever as to the cause of the light bulb’s
exploding. Powers, however, did testify that during the
many months in which he had previously worked on the
Bethlehem Steel premises as an employee of McKie, other
light bulbs had ‘‘popped’’ and that he was aware of
several prior explosions.
I. As to Bethlehem’s Motion for a Directed Verdict
There was no evidence adduced at the trial that any
object of any kind struck the light bulb, that any force
or trauma was applied to the light bulb from any exterior
source, nor was there any evidence that the bulb itself
ever touched the water or the harbor or any other sub-
stance or thing external to the bulb. There was likewise no
evidence of any electric current abnormality, voltage drop,
current increase, or any other occurrence which could be
characterized as an electrical abnormality of any sort
which could conceivably have contributed to the explosion
of the light bulb. Nor was there any evidence on the basis
of which a finding could be made that Bethlehem knew
or should have known that this bulb would explode.
It is clear that the relationship between Bethlehem and
plaintiff was that of an owner of land to an employee of
an independent contractor hired by the landowner to do
work on his premises. It is equally well-settled that in a
diversity ease the federal court will apply the law of the
state in which it sits, including its law of Conflict of Laws.
Klazron Co. v. Stentor Electric Mfg. Co., 313 U.S. 487
(1941) ; Sampson v. Channell, 110 F.2d 754, 760-61 (1 Cir.
1940) ; Juliano v. Hobart Mfg. Company, 200 F. Supp. 453,
aff’d. 303 F.2d 830 (1 Cir. 1961). There is no question
but that a Massachusetts court would apply Massachusetts
law to the facts of this case. Lima v. Pennsylvania R. Co.,
105 F. Supp. 97, 98 (D. Mass. 1952); Strogoff v. Motor
RSPEI PSA IGE p a haa
—
25
Sales, Inc., 302 Mass. 345, 347 (1939); Restatement of
Conflict of Laws, Second, Ch. 7, sec. 146.
Recent Supreme Judicial Court decisions, including
Burr v. Massachusetts Electric Co., 356 Mass. 144 (1969)
have reiterated the long standing rule that:
‘The defendant, thus, owed him the same duty as it
owed its own employees, and that duty was to disclose
hidden defects of which the defendant was aware or
of which in the exercise of reasonable care it should
have known. Except in cases of hidden defects, the
employer owes no duty to alter the conditions where
the work is to be done or to make them safe for
the employee. Williams v. United Men’s Shop, Inc.,
317 Mass. 319, 320; Sparkes v. Kepnes, 339 Mass.
349, 351.’’ (p. 147.)
The Court, in Burr, then made an observation which is
dispositive of the instant case (also at p. 147):
‘“There was no hidden defect here. Burr knew of the
existence and location of the wires; and even if not
warned of their danger, he should have realized that
they might be energized. There is no duty to warn of
dangers which are obvious... .’’
On Powers’ own testimony, he knew that light bulbs with-
out reflectors or metal protective cages were being used
on this job. He also knew and testified that these bulbs
“popped”? from time to time. There is no evidence as to
what caused the bulb which injured him to pop, and there
likewise is no evidence, direct or circumstantial, from
which a finding could be made that any latent defect was
involved herein since plaintiff himself testified to his
awareness of the condition he now says caused his injury.
Further, even if on some theory not apparent to this
court a bulb which exploded for an unknown reason could
be considered a latent defect within the meaning of Massa-
chusetts law, the plaintiff still may not prevail as there
—
26
is not a scintilla of evidence in this case to form a basis
for a finding that defendant knew, or with the exercise of
reasonable care should have known, of its existence.
Accord: Gobern v. Metals and Controls, Inc., 418 F.2d 290
(1 Cir. 1969).
Paraphrasing the above-quoted language from Burr to
fit the facts most favorable to plaintiff, the paragraph
would read:
‘‘There was no hidden defect here. Powers knew of
the existence, condition, and tendency to occasionally
explode on the part of the unprotected light bulbs.
There is no duty to warn of dangers which are
obvious.’’
Accordingly, the motion of defendant Bethlehem Steel
Corporation for a directed verdict is allowed.
Il. As to McKie’s Motion for a Directed Verdict
On the evidence in this ease, the relationship between
Powers and MeKie was that of employee and employer,
and it is clear that based on this relationship Powers
filed a claim against McKie pursuant to the Longshore-
men’s and Harborworkers’ Compensation Act, 33 U.S.C.
§901, et seq. It is also clear that Powers received an
award pursuant to his claim for compensation as a harbor-
workers in the amount of approximately $39,000. A portion
of the Longshoremen’s and Harborworkers’ Act, 33 U.S.C.
§905, provides in pertinent part:
‘“‘The liability of an employer prescribed in (904 of
this title shall be exclusive and in place of all other
liability of such employer to the employee.’’ (Empha-
sis added.)
If this plain language of Congress means anything at all,
it means that a person in the position of the plaintiff herein
who files a claim for compensation qua harborworker,
who testifies at that hearing under oath (as Powers
while under cross-examination admitted he did) that he
told the Commissioner who conducted the hearing on his
compensation claim that he always was a piledriver, has
precluded himself from thereafter seeking to enforce any
other type of liability upon his employer. In short, the
statute provides that having exercised rights under the
Longshoremen’s and Harborworkers’ Compensation Act,
plaintiff has made what Congress has ordained to be a
binding election among possible remedies. That plaintiff
and his counsel should realize the binding nature over and
above the direct and unambiguous language of 38 U.S.C.
§905 quoted above, is further evidenced by the language
in (903(a), Title 38, which states in relevant part:
‘‘No compensation shall be payable in respect of the
disability or death of (1) a master or member of a
crew of any vessel.’’
If Powers was, in fact, a member of a crew of a vessel
at the time of the accident, this supposed fact was certainly
known both to Powers and his counsel at the time he or
they made the decision to pursue his remedies under the
Longshoremen’s and Harborworkers’ Compensation Act
and seek a remedy which Congress had withheld from
seamen.
That remedies to a single plaintiff against his employer
are not available under both the Jones Act and the Long-
shoremen’s and Harborworkers’ Compensation Act has
been specifically held by the Court of Appeals for the
Fifth Cireuit in Bodden v. Coordinated Caribbean Trans-
port, Inc., 369 F.2d 278 (1966). See, also, Moore Dry Dock
v. Pillsbury, 100 F.2d 245, 247 (9 Cir. 1988); and Dixon
v. Oosting, 238 F. Supp. 25, 27 n.1 (E.D. Va. 1965). The
Court of Appeals for the Fifth Cireuit likewise has ruled
that a longshoreman who has recovered against his
employer under the Compensation Act may not thereafter
impose Jones Act liability upon his employer. Ocean
28
Drilling & Express Co. v. Berry Bros. Oilfield Service,
377 F.2d 511 (5 Cir. 1967).
Substantially the same ruling, adverse to petitioner, was
handed down as the law in this Cireuit in DeMartino y,
Bethlehem Steel Co., 164 F.2d 177 (1 Cir. 1947), a case
in which the Court of Appeals ruled, in substance, that
exercising the option to impose liability on one ’s employer
under the Compensation Act is a legally binding election
which precludes subsequent resort to the Jones Act as
against the employer.
Over and above the statutory preclusion just discussed,
and as a separate, independent and additional ground for
this decision, I rule that there was no evidence on the
basis of which plaintiff could be found by a jury to have
been a seaman or to have been engaged in work on a vessel,
It is well-established law that whether or not a person
is a seaman depends on the nature of his duties and whether
or not they are maritime in character. Gale v. Union Bag
& Paper Co., 116 F.2d 27 (5 Cir. 1940). Plaintiff’s duties
are described as follows in the contract between his em-
ployer and Bethlehem Steel:
‘«., (McKie Lighter) shall provide for but not limited
to the installation of concrete jackets on 53 concrete
piles...consisting of wire brushing of all existing
resteel and concrete surfaces coming in contact with
the new work, the furnishing and installation of re-
movable steel and concrete forms, the furnishing and
placing of all reinforcing steel and concrete, the fur-
nishing and installation of all expansion bolts, wire
mesh and other accessories... necessary to complete
the work....”’
Applying the test of the Gale case, as well as the test set
out in Bodden, supra, no finding that plaintiff was 4
seaman could be allowed to stand on the record of this
case. In Swanson v. Mara Bros., 328 U.S. 1, 5 (1945), the
Le te Elbe La eee 2 .
we, ALOR IREE WEIN WTA LITA ie PAN, RRM OND CEPR RAR AO ANY EUSA LANNE NENT EN
ahaa’, ia “
29
’ " Supreme Court ruled that in order to recover under the
Jones Act the plaintiff must be ‘‘a member of a crew of
a vessel,’? and further, that ‘‘the ship must be in naviga-
tion,’’ that the plaintiff must have a more or less perma-
nent connection with the ship and that his work must be
aboard the vessel primarily to aid in the navigation of the
ship. Applying these standards to the instant case, it is
beyond the stretch of any rational imagination that a
95’x 4’x 1’ raft permanently tied to a pier by lines could
be considered a ship, in or out of navigation, It is equally
clear that plaintiff could not be found to have had a more
or less permanent connection with the raft, even if it
could be found to be a ship, and the above-quoted contract
provisions make it erystal-clear that plaintiff’s duties were
not primarily to aid in the navigation of the ‘‘ship.”’
Accordingly, because of the statutory provisions and
because plaintiff could not be found to be a seaman serving
as a member of a crew of a ship, the motion of defendant
McKie Lighter Co., Inc. for a directed verdict is also
allowed.
The claim-over by Bethlehem Steel against McKie
Lighter is dismissed as moot by reason of the allowance
of Bethlehem’s motion for a directed verdict.
Judgment for the defendants.
(s) Anprew A. CarFREY
Chief Judge
ECPI ere RT LAE Pee Re
30
APPENDIX B
Unrtep Srares District Court
District oF MAssACHUSETTS
Civil Action No. 69-941-C
Donaup E. Powers
v.
BETHLEHEM Steet Corporation
Civil Action No. 69-942-C
Donatp E. Powers
v.
McKie Licuter Co., Inc.
JUDGMENT
May 23, 1972
In accordance with Opinion filed this date allowing de-
fendants’ motions for a directed verdict in both the above-
captioned cases, it is
ORDERED:
Complaints dismissed and judgment for the defend-
ant in each case.
By the Court,
(s) Hope K. Conne.u
Deputy Clerk
(s) Anprew A. CaFFREY
Anprew A. CaFFREY
Chief Judge
31
APPENDIX C
United States Court of Appeals
For the First Circuit
No. 72-1197
DONALD E. POWERS,
PLAINTIFF, APPELLANT,
v.
BETHLEHEM STEEL CORPORATION,
DEFENDANT, APPELLEE,
v.
McKIE LIGHTER CO., INC.,
DEFENDANT, APPELLEE.
No. 72-1198
DONALD E. POWERS,
PLAINTIFF, APPELLANT,
v.
McKIE LIGHTER CO., INC.,
DEFENDANT, APPELLEE.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Before Corrin, Chief Judge,
Aupricw and CaMpBELL, Circuit Judges.
Michael B. Latti, with whom Robert S. Wolfe and Kaplan, Latti
and Flannery were on brief, for appellant.
Leo F. Glynn for appellee, McKie Lighter Co., Inc.
Charles E. Colson, with whom Cargill, Masterman & Cahill was
on brief, for appellee, Bethlehem Steel Corporation.
April 9, 1973
CampBELL, Circuit Judge. Appellant Powers, a pile driver
employed by McKie Lighter Co., suffered a serious eye
Sg ee ae Ee Te Te Eee eee ane eee eee eee ie ame COL See atte a LeU Tee Sear Tee Peer ee Ure) ee
32
injury as he stood on a McKie-owned raft next to Pier 3
of the Bethlehem shipyard in Boston. McKie was under
contract with Bethlehem Steel Corporation, the owner of
the pier, to repair the pilings underneath. Powers, who
received compensation for the injury under the Longshore-
men’s and Harbor Workers’ Compensation Act, 33 U.S.C.
§ 901 et seq., commenced separate actions in the district
court against McKie, claiming damages under the Jones
Act, 46 U.S.C. § 688, and damages and maintenance and
cure under general maritime law; and against Bethlehem,
under diversity jurisdiction, claiming damages for negli-
gence. The jury returned substantial verdicts against both
defendants, jointly and severally. Powers appeals from the
district court’s entry of judgments notwithstanding the
verdicts in favor of both defendants.
Standing under the pier on a raft or ‘‘float’’ owned by
McKie, Powers and other workmen would first clean the
piles by chipping and sandblasting, and then place a form
around them into which conerete would be poured. The
raft was about twenty-five feet long and five feet wide.
Without deck or railing, it was made of 12 by 12 timbers,
bonded together. There were rings for lines at its four
corners. The men would descend by ladder to the raft,
which when not in use lay tied to the pier, lower to the
raft sandblasting equipment, water pumps, and forms to be
placed around the pilings, and move the raft under the
pier to the piles by poling or pulling on lines attached to
the pier. They would tie the raft to a larger raft on
opposite sides of a row of piles, and span the rafts with
planks, so that they could move between and work around
the piles. Lines containing water, air, steam and electricity
for cleaning, sandblasting and lighting were led from the
pier by the men on the raft to where they were working.
The pier was thirty to forty feet wide. The raft’s only
movement was from the pier front to the piles underneath
a
33
or from one row of piles to another. Even when so
moving it was normally attached by at least one line to
the pier.’ It had earlier been towed by a workboat to
Pier 3 from Pier 2 and had also been towed through Boston
harbor to other jobs.
The lighting for the work area, supplied by Bethlehem,
consisted of drop lines with a male plug at one end, plugged
into a fuse box, and a socket at the other with a bulb
in it. The line would be slung over the side of the pier,
and taken under the pier by a workman. Some but not all
of the bulbs had reflectors. None had protective covering
around them. The bulbs had popped frequently while the
men worked, sometimes when Bethlehem supervising em-
ployees were present. As late as the week of the accident,
a bulb had popped in their presence. Powers had twice
complained to the Bethlehem job supervisor, recommending
that the bulbs be surrounded with a steel or wire cage,
with a piece of plexiglass enclosure. There is no evidence
of what response Powers received, if any.
The accident happened before daylight, as Powers, stand-
ing on the raft, then attached to the pier, was preparing
to move it about twenty feet to piles under the pier.
The light cable, supplied by a Bethlehem employee to
a McKie employee, lay hanging over the side of the pier,
the bulb about ten to thirteen feet above Powers’ eye level.
The bulb was unprotected. When Powers looked up toward
the light, the bulb popped, sending pieces of glass into
his eye.
? Sometimes, men on the pier would hold a line to guide the raft
under the pier. There was a suggestion in the testimony that at a
point when the raft was moving under the pier the man on the pier
would drop the line to a man on the raft, but it is clear from the
testimony that the raft was unattached to the pier, if at all, for only
& matter of minutes.
? There is some suggestion in testimony that the raft may actually
have commenced its movement under the pier.
_ —_—_—_
sas
34
This case is one more taking us literally to the water’s
edge, having to do with the circumstances under which a
harbor-worker may become entitled to a seaman’s remedies,
See Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971).
Recovery under the Jones Act or under the general mari-
time law for unseaworthiness requires affiliation with a
‘‘vessel’’—either as a erew member or as one injured
aboard doing seaman’s work. Swanson v. Marra Brothers,
Inc., 328 U.S. 1, 4, 7 (1946); Seas Shipping Co., Ine. vy.
Sieracki, 328 U.S. 85, 99 (1946). We believe the raft upon
which Powers was injured was not a vessel.
What is a vessel, like who is a crew member, is ‘‘except
in rare cases’’, a jury question. Offshore Company v. Robi-
son, 266 F.2d 769, 780 (Sth Cir. 1959). Nevertheless, the
broad parameters of definition must be established if the
terms are to have content. If what emerges from faets
and inferences taken most favorably to the plaintiff* can-
not be a vessel, the jury may not make it one. See Thibo-
deaux v. J. Ray McDermott & Co., 276 F.2d 42, 46 (5th
Cir. 1960); Hill v. Diamond, 311 F.2d 789, 792-3 (4th Cir.
1962); Texas Company v. Savoie, 240 F.2d 674, 675 (5th
Cir. 1957) ; rehearing denied, 242 F.2d 667 (5th Cir. 1957);
cert. denied 355 U.S. 840 (1957).
We agree with the 5th Cireuit in Cook v. Belden Con-
crete Products, Inc., F.2d , 41 U.S.L.W. 2406 (5th
Cir. Jan. 12, 1973), that a floating construction platform
secured to land is not a vessel for purposes either of the
Jones Act or general maritime law. The non-vessel in
Cook was a flat-deck barge, 180 by 54 feet, upon which
employees fabricated concrete barges. Equipped with pipes
and pumps for flooding or evacuating interior compart-
3 We have considered the evidence in the light most favorable
appellant, including evidence made as an offer of proof after e
by the court, and give him the benefit of every favorable i
Rainey v. Gay's Express, Inc., 275 F.2d 450, 451 (ist Cir, 1960).
—
35
ments, but without its own propulsion, it was occasionally
moved to different positions alongside the dock to pick up
materials, Would be towed into deeper water to launch
completed barges, and had been towed considerable dis-
tances. While barges were being fabricated, it was fastened
by ropes to the dock. The court said, slip opinion, at 4:
....in the instant ease the floating construction plat-
form Was capable of limited movement and was, in
the normal course of its service, towed from point-to-
point in navigable waters. ...The permanence of fixa-
tion, however, is not the criterion which governs the
maritime status of floating dry docks and similar
structures. As the Supreme Court pointed out in
The Robert W. Parsons [191 U.S. 17, 30 (1903)] the
‘determinative factors upon the question of jurisdic-
tion [are] the purpose for which the craft was con-
structed and the business in w!:'ch it is engaged’’....
Cook, supra, relied on cases emanating from Cope v.
Vallette Dry-Dock Company, 119 U.S. 625, 627 (1887),
that a floating dry-dock is not a vessel. See Atkins v.
Greenville Shipbuilding Corp., 411 F.2d 279, 283 (Sth Cir.
1969), cert. denied 396 U.S. 846 (1969).* In our own case
of DeMartino v. Bethlehem Steel Co., 164 F.2d 177, 179
(Ist Cir. 1947), holding that a floating dock was not a
*Somewhat related is the Supreme Court’s classification of a so-
called wharf boat as a non-vessel. Evansville & Bowling Green Packet
Co. v. Chero Cola Co., 271 U.S. 19 (1926). Secured to the shore,
with quarters for men aboard and shore based power and plumbing
connections, the huge craft was towed each winter to a more sheltered
harbor, and had sometimes been towed considerable distances. The
Statutory “vessel” definition under consideration in that case—“every
description of watercraft or other artificial contrivance used, or capable
of being used, as a means of transportation on water”—was virtually
the same as that in 46 U.S. § 801, arguably applicable to Jones Act
cases. See 7A Moore's Federal Practice § .215[4]. The quoted lan-
guage has never been construed as meaning simply every floating
object capable of bearing weight without sinking. See, ¢.g., Hill v.
Diamond, supra, 311 F.2d at 792-3.
—e —
36
vessel, we cited Berton v. Tietjen & Lang Dry Dock Co.,
219 F. 763 (D. N.J. 1915), in which, at 771, the court said,
... A stage designed to be used in connection with
painting or repairing the side of a vessel would not
become [a vessel] merely because it was capable of
floating on water, though it were used by workmen
in thus painting and repairing, while the same was on
the water, rising and falling with the tide, or because
it could be moved alongside or around such a vessel,
and while being moved was capable of holding such
persons and property....
The purpose and business of the present eraft was not
the transportation of passengers, cargo, or equipment from
.
$ place to place across navigable waters. It was tied to the
: pier or its pilings virtually all of the time. Nearly as long
; as the pier was wide, it was used to provide a stable plat-
: form for men repairing defective piles. While so used,
: it was lashed with the other raft to piles, planks being
; placed from raft to raft, and was indistinguishable from
; a permanent floating dock. See DeMartino vy. Bethlehem,
4 supra. Its brief movement consisted of being hauled, poled
or paddled from the pier to the piles underneath, or from
pile to pile; even when moving it was usually attached to
the pier by one or more lines. Its occasional ‘* voyages”
—when towed by workboat from one pier to another—were
no different from the dragging of a section of floating dock
: from one location to another. See Evansville € Bowling
Green Packet Co. v. Chero Cola Bottling Co., supra, 271
U.S. at 20-21; Cook, supra, slip opinion, at 4-5, n. 9.
Rafts, of course, may be designed or used ‘‘to encounter
perils of navigation’’ (See Evansville v. Chero Cola Co,
supra, at 22); if so they may be vessels. See The Mary,
123 F. 609 (S.D. Ala. 1903); United States v. Marthinson,
58 F. 765 (E.D.S.C. 1893); Seabrook v. Raft of Railroad
ait
37
Cross-Ties, 40 F. 596 (D.S.C. 1889). But we cannot reason-
ably describe the present raft as other than a floating stage.
Even with men and equipment on it, its movement, amount-
ing mostly to a positioning under the pier incidental to its
intended use, was not navigation.
The raft, moreover, was unlike special purpose floating
structures whose function requires exposure to the hazards
of the sea usually at some distance from the shore, such as
barges, dredges, drilling platforms and floating derricks.
See Offshore Company vy. Robison, supra, 266 F.2d at 772
(mobile drilling platform with retractable legs, having a
raked bow, navigation lights, bitts, anchors, bilge pumps,
eranes, and life rafts, located at the time of the accident
three miles offshore); Summerlin v. Massman Const. Co.
et al., 199 F.2d 715, 716 (4th Cir. 1952) (derrick anchored
in a river); Gahagan Const. Corporation v. Armao, 165
F.2d 301, 305 (1st Cir. 1948) (dredge on which crew slept
and ate). Also compare Stafford v. Perini Corporation,
No. 71-1221 (1st Cir. March 20, 1973) (construction barge
anchored two miles offshore, assumed to be vessel). These
navigable craft, like conventional vessels, retain their status
even when berthed for long periods or even when resting
upon or attached to the bottom. See Gianfala v. Texas
Company, 350 U.S. 879 (1955), reversing Texas Company
v. Gianfala, 222 F.2d 382 (Sth Cir. 1955).
It may well be that when a craft not designed or gener-
ally used as a vessel is in actual navigation—such as when,
unattached to land, it is under tow for an appreciable
distance over navigable water—it will temporarily acquire
a vessel’s status. See United States v. Moran Towing &
Transportation Co., 374 F.2d 656 (4th Cir. 1967), Cook,
supra. However, even were the jury on conflicting evidence
to have concluded that Powers’ injury occurred while the
raft was in process of being hauled under the pier, we do
Ba Cr —— .
oy ie Neh ss TORE ASUNEDRURR BE Sn Ea In Ry
WE ON are re. ere se cx
38
not consider such movement to be navigation.® Attached
by a line to the pier, the raft remained a work platform
while being so maneuvered into position, a distance of about
twenty feet. We sustain judgment for MeKie.®
We next consider whether appellant may be allowed to
recover against Bethlehem. We do not agree with him
that Bethlehem’s negligence is to be determined under
general maritime law. See Kermarec v. Com pagnie General,
358 U.S. 625, 628 (1959) ; Carlisle Packing Co. v. Sandanger,
259 U.S. 255, 259 (1922). Maritime law applies only where
the wrong occurring on or over navigable waters ‘*bear[s]
a significant relationship to traditional maritime activity.”
Executive Jet Aviatics, Inc. v. City of Cleveland, 41 US.
L.W. 4085, 4091 (U.S. Dee. 18, 1972). It would be incon-
gruous to hold that the required relationship existed here,
in the face of our conclusion that the raft was not a vessel,
but, being a floating work platform, was, in effect, an exten-
sion of the pier, itself an extension of the land. See Victory
Carriers, Inc. v. Law, supra, 404 U.S. at 206-7. Powers,
a landbased piledriver, employed to repair piles from the
platform, was injured by a bulb hanging over the pier.
5 Besides the short distance from pier to pilings, and the fact the
raft remained attached to the pier, we note that piers and docks
have traditionally been “deemed extensions of land”. Victory Carriers
v. Law, supra, 404 U.S. at 206-7. To term movement thereunder
of this sort “navigation” would seem as strained as to call the raft
a “vessel” or Powers its “crew”.
6 The district court erred in ruling alternatively that § 905 of the
Longshoremen’s and Harbor Workers’ Act, 33 U.S.C. § 901 et seq.
barred Powers’ action against McKie because Powers had collected
compensation and had testified in support of his compensation ciaim.
It was settled, at least before amendment in October, 1972, that
§ 905 did not bar a longshoreman or harbor worker's action against
his employer, who owned the vessel where the injury occurred, despite
the worker’s having collected compensation. Reed v. The Yaka, 373
US. 410 (1963); Jackson v. Lykes Steamship Co., 386 US, 731
(1967); Biggs v. Norfolk Dredging Co., 360 F.2d 360 (4th Cir.
1966). But see Pub, Law 92-576, 82 Stat. 1251, § 18(a) (1972),
amending § 905.
EOE SSRIS RE ARO IE St
ba ENS ESE EI yg NS ER EAE A EMT ROR LR
—
39
We see nothing either in his occupation or in the circum-
stance of the accident to invoke the law of admiralty,
“designed and molded to handle problems of vessels rele-
gated to ply the waterways of the world.’’ Executive Jet
Aviation, Inc. v. City of Cleveland, supra, 41 U.S.L.W.
at 4092.
We thus turn to whether under Massachusetts law the
jury could have found that Bethlehem violated a duty owed
Powers. A Massachusetts landowner owes to the employees
of an independent contractor only the same duty he owes
his own employees, ‘‘and that duty [is] to disclose hidden
defects of which the defendant was aware or of which
in the exercise of reasonable care it should have known.
Except in cases of hidden defects, the employer owes no
duty to alter the conditions where the work is to be done
or to make them safe for the employee.*’ Burr v. Massa-
chusetis Electric Company, 356 Mass. 144, 147, 248 N.E. 2d
492, 495 (1969).7 This rule, now mitigated in virtually all
eases (as in Powers’) by comprehensive workmen's com-
pensation laws, was established in an earlier era when the
cost of industrial accidents was but rarely imposed on an
employer. Whatever its shortcomings, we are bound by it.
The defect in the light bulb was not hidden; Powers had
noticed bulbs popping and had in fact complained about
the danger to Bethlehem employees. That appellant had
not seen the light bulb which exploded is unimportant,
given his familiarity with the bulbs’ propensity to pop and
their lack of shielding.®
7See also Barrett v. Foster Grant Co., 450 F.2d 1146 (1st Cir.
1971); DeMartin v. New York, New Haven & H. R.R. Co., 336 Mass.
261, 143 N.E.2d 542 (1957); Hannon v. Hayes-Bickford Lunch
System, Inc., 336 Mass. 268, 145 N.E. 2d 191 (1957); Gallo v.
Leahy, 297 Mass. 265, 8 N.E. 2d 782 (1937); Faverau v. Gabele,
262 Mass. 118, 159 N.E. 738 (1928).
® Powers’ earlier unheeded requests for shielding indicated that he
knew of the likelihood of danger as well as of the possibility of the
bulbs’ popping. Restatement of Agency 2d, § 521, comment b; § 522.
ghee Ai aad pL dee an RHE Cee AL YMG aR ON AOR he cD Soa NSLS eS I
40
Appellant’s argument that Bethlehem violated a duty to
supply safe equipment must fail also, since recovery would
depend on Powers’ not knowing that the equipment was
defective. Cf. Mulchey v. Methodist Religious Society, 125
Mass. 487, 489 (1878); White v. Newborg, 208 Mass. 279,
981, 94 N.E. 269, 270 (1911). See Restatement of Torts 2d
§ 496A, comment ¢(3), § 496C. We thus affirm the judgment
for Bethlehem against Powers.
We find merit in none of the appellant’s remaining con-
tentions, dealing mostly with the exclusion of evidence at
trial. The verdict in his favor cured any possible prejudice
before the jury. We ourselves have considered and, for
purposes of this decision have accepted in its aspect most
favorable to appellant, the excluded proof relative to the
status of the raft. Other exclusions, such as of certain
evidence relative to his alleged crew status, were harmless
in view of our conclusion that the raft was not a vessel.
Given our disposition of the case, the district court's
unwillingness to allow appellant to amend the complaint
could not have been prejudicial.
Affirmed.
41
APPENDIX D
United States Court of Appeals
For the First Circuit
No. 72-1197.
DONALD E. POWERS,
PLAINTIFF, APPELLANT,
v.
BETHLEHEM STEEL CORPORATION,
DEFENDANT, APPELLEE,
v.
McKIE LIGHTER CO., INC.,
DEFENDANT, APPELLEE.
JUDGMENT
Entered: April 9, 1973
This cause came on to be heard on appeal from the
United States District Court for the District of Massachu-
setts, and was argued by counsel.
Upon consideration whereof, It is now here ordered,
adjudged and decreed as follows: The judgment of the
District Court is affirmed.
By the Court:
(s) Dana H. Gativupe
Clerk.
[ee: Messrs. Latti, Glynn and Colson.]
F
aA
<!
42
; APPENDIX E
7 e
| United States Court of Appeals
; For the First Circuit
:
: No. 72-1198.
4 DONALD E. POWERS,
; PLAINTIFF, APPELLANT,
2 v.
é McKIE LIGHTER CO., INC.,
2 DEFENDANT, APPELLEE.
3
: JUDGMENT
4 Entered: April 9, 1973
A This cause came on to be heard on appeal from the
3 United States District Court for the District of Massachu-
j setts, and was argued by counsel.
Upon consideration whereof, It is now here ordered, |
; adjudged and decreed as follows: The judgment of the
; District Court is affirmed.
s By the Court:
4 (s) Dana H. Gatiup
j Clerk.
[ec: Messrs. Latti, Glynn and Colson.]
43
APPENDIX F
Unitrep States Court or APPEALS
For tHe First Crrcvitr
Case No. 72-1197
Donatp E. Powers
v.
BETHLEHEM STEEL Corp.
v.
McKre Licuter Co., Inc.
GENERAL DOCKET
1972
June 9 Record on appeal in two volumes filed and case
docketed.
14 Appearance of Michael B. Latti, for the appel-
lant filed. Motion filed. Order (Aldrich, Ch.J.)
enlarging the time for filing statement of issues
and designation to October 6, 1972, and enlarg-
ing the time for filing appendix and brief for
appellant to November 1, 1972. Notices mailed.
19 Appearances of Charles E. Colson and Cargill,
Masterman & Cahill for appellee Bethlehem
Steel Corp. filed.
23 Appearance of Leo F. Glynn for appellee McKie
Lighter Co. filed.
Sept. 8 Motion filed. Order (Coffin, Ch.J.) further en-
larging time for filing statement & designation
to 11/3/72 and for filing brief for appellant &
appendix to 11/27/72. Notices mailed.
12 Supplement to record on appeal consisting of
five volumes of transcripts filed.
SREP) 2h ee a EN a ben
diss Bb 2 ORS oe Se ss ta SS Tee LP aso
1972
Oct. 5
17
27
Nov. 14
Dee. 14
Motion filed. Order (Coffin, Ch.J.) granting
leave to appellant to file a consolidated brief and
appendix in this case and in case No. 72-1198.
Notices mailed.
Supplement to record on appeal consisting of
one volume of transcript filed.
Statement and designation filed.
Motion filed. Order (Coffin, Ch.J.) granting leave
to Blanchard Press to withdraw temporarily a
certain exhibit. Notices mailed.
Supplement to record on appeal consisting of
certain documents filed.
Brief for appellant and appendix in one volume
filed.
Brief for appellee Bethlehem Steel Corp. filed.
Brief for appellee McKie Lighter filed.
Reply brief for appellant filed.
Assigned for hearing at the coming January
1973 session.
Heard before Coffin, Aldrich and Campbell, Jd.
Judgment: The judgment of the district court is
affirmed. Opinion by Campbell, J. Notices mailed.
Verified bill of costs filed by appellee Bethlehem
Steel.
Verified bill of costs filed by appellee McKie
Lighter Co.
Petition for rehearing filed.
Memorandum and Order (Coffin, Aldrich &
Campbell, JJ.) denying petition for rehearing.
Notices mailed.
Taxation of costs filed. Mandate issued, copy
filed and original papers returned to the district
court. Notices mailed.
45
APPENDIX G
Unrrep States Covrr or Apprats
For tHe First Cirrevit
Case No. 72-1198
1972
June 9
14
28
Oct. 3
Nov.
Doxautp E. Powers
v’.
McKie Licuter Co., Inc.
GENERAL DOCKET
Record on appeal in one volume filed and case
docketed.
Appearance of Michael B. Latti, for the appel-
lant filed. Motion filed. Order (Aldrich, Ch.J.)
enlarging time for filing the statement and desig-
nation to October 6, 1972, and enlarging the time
for filing appendix and brief for appellant to
November 1, 1972. Notices mailed.
Appearance of Leo F. Glynn for appellee filed.
Motion filed. Order (Coffin, Ch.J.) further en-
larging times for filing statement & designation
to November 3, 1972 and for filing brief for
appellant & appendix to November 27, 1972.
Notices mailed.
Motion filed. Order (Coffin, Ch.J.) granting leave
to appellant to file a consolidated brief and ap-
pendix in this case and in case No, 72-1197.
Notices mailed.
Supplement to record on appeal consisting of
one volume of transcript filed.
Statement and designation filed.
Counter-designation filed.
Supplement to record on appeal consisting of
certain documents filed.
PO ERS SIM, LO EF AMOS Bie FN ay Ee a APY
46
Brief for appellant and appendix in one volume
filed.
Brief for appellee McKie Lighter filed.
Reply brief for appellant filed.
Assigned for hearing at the coming January
1973 session.
Heard before Coffin, Aldrich and Campbell, JJ.
Judgment: The judgment of the district court is
affirmed. Opinion by Campbell, J. Notices mailed.
Verified bill of costs filed by appellee.
Petition for rehearing filed.
Memorandum and Order (Coffin, Aldrich &
Campbell, JJ.) denying petition for rehearing.
Notices mailed.
Taxation of costs filed. Mandate issued, copy
filed and original papers returned to the district
court. Notices mailed.
47
APPENDIX H
Unitrep States Court or AppEaLs
For tue First Circuit
No. 72-1197.
Donatp E. Powers,
PLAINTIFF, APPELLANT,
v.
BetHLEHEM STEEL CorPoRATION,
DEFENDANT, APPELLEE,
v.
McKie Licuter Co., Ixc.,
DEFENDANT, APPELLEE.
No. 72-1198.
Donatp E. Powers,
PLAINTIFF, APPELLANT,
v.
McKie Licuter Co., Ixc.,
DEFENDANT, APPELLEE.
Before Corrix, Chief Judge,
AvpricH and CampBELL, Circuit Judges.
MEMORANDUM AND ORDER
Entered: May 10, 1973
Plaintiff’s petition for rehearing addressed to the case
against Bethlehem merely seeks to reargue what we plainly
understood to be advanced before. Our reliance upon
Executive Jet could scarcely have caused surprise. It was
cited by plaintiff in his supplemental brief, and diseussed
at oral argument. We were, of course, aware that that
case related to an aviation accident; however, its statement
of principles relative to the ‘‘purely mechanical application
a
AW nines) WAS elie el acon il hee eit ST
‘nica: ES
PE BALL ht! Re LO AD AS RO Te wee hae,
j
'
4
:
:
"
3
48
of the locality test’’ does not stop there. See 409 U.S. at
253-261. The cases cited by petitioner, most of them
involving vessels or otherwise showing a maritime relation-
ship, do not establish the rule which petitioner would have
us adopt—namely, that in non-aviation cases locality is
the sole test for determining jurisdiction. The Supreme
Court has not so held (Executive Jet, 409 U.S. at 258)
and any such rule would clearly be inconsistent with the
principles of Executive Jet. Plaintiff’s hypotheticals, bet-
ter described as ‘‘horribles’’, reach distorted results not
dictated by anything said or implied in our opinion.
We adhere to our conclusion that on the facts of this
ease, even though plaintiff harbor worker was standing on
a floating construction platform or raft, making repairs
to and receiving injuries from a land connected pier was
not traditional maritime activity.
The second ground for the petition is that, allegedly, we
erred in stating that none of the bulbs ‘‘had protective
covering around them.’’ This was plaintiff’s own testimony
to the jury—‘‘no protective shield, no protective covering.”
It is true that another witness testified that some bulbs
had a ‘‘squirrel cage.’? Such a cage was manifestly to
prevent outside trauma to the bulb, not to protect against
broken slivers of glass from a spontaneously exploding
bulb. But apart from this, Bethlehem did not place the
particular lights; it was in a poorer position than plaintiff
to know which kind were where. We see nothing which
would cause us to alter our previous analysis.
The petition for rehearing is denied.
Enter:
(s) Levin H. Campser.
By the Court:
(s) Dawa H. Gauire
Clerk.
[ee: Messrs. Latti, Colson and Glynn.]
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.