Brief for the Respondent in Opposition — Powers v. Bethlehem Steel Corp.
Supreme Court brief1973
Ask Donna
What actually matters in this document.
Text
: De 22 197
Court of the United||States.
7 | MICHAEL RODAK, 3
Ocrozzn Tzem, 1973. -
ne DONALD E. POWERS,
Puatntirr, Perrrionze,
v.
BETHLEHEM STEEL CORPORATION,
Dezrenpant, RESPONDENT,
v.
McKIE LIGHTER CO., INC.,
Dzrenvant, RESPONDENT,
AND
DONALD E. POWERS,
Priamtirr, Perrrionszs,
v.
McKIE LIGHTER CO., INC.,
Dezrzexpant, ResPonDENT.
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARL
Lzo F. Gurxx,
Guyyx & Dempsey,
One Boston Place,
Boston, Massachusetts 02108,
Attorney for Defendant, Respondent,
McKie Lighter Co., Inc.
Caries EB. Corson,
Tuomas E. Cancna, Jz., Of Counsel,
Table of Contents.
Statement of the case 1
Questions presented 7
Summary of argument 8
Argument 11
I. No conflict exists with the decision of another
Court of Appeals 11
II. No conflict exists between the decision of the
District Court and the Court of Appeals in the
present case, and any District Court opinion 14
III. No important question of federal law is pre-
sented by the present case 21
IV. The decision does not conflict with any ap-
plicable decision of the United States Supreme
Court 23
V. No ease has been cited in the Petitioner’s
argument which is material to the case at bar 24
VI. No conflict exists concerning the applicable
law between the decisions below and any estab-
lished precedents 33
VII. No ground for the considerations cited by
Rule 19 is presented 42
Conclusion 43
Table of Authorities Cited.
CasEs.
Atlantic Transport Co. v Imbrovek, 234 U.S. 52
(1913) 38
The Bart Tully, 251 F. 856 (6th Cir. 1918) 20
Berton v Tietjen & Lang Dry Dock Co.,
219 F. 763 (N.J. 1915) 19
STH ny AB oe et
Diiaciscenssinsiasis
saan
li TABLE OF AUTHORITIES CITED
Biggs v Norfolk Dredging Company, 360 F2d 360
(4th Cir. 1965) 19, 34
Braniff v Jackson Ave.-Gretna Ferry, Inc.,
280 F2d 523 (5th Cir. 1960) 32
Brinegar v Iron Ore Construction Company,
302 F. Supp. 630 (E.D. Ark. 1969) 32
Charles Barnes Co. v One Dredge Boat, 169 F. 895
(E.D. Ky. 1909) 16
Carumbo v Cape Cod Steamship Company,
123 F2d 991 (1st Cir. 1941) 17
Chesapeake & O. Ry. Co. v Thomason, 6 Cir.,
70 F2d 860 4)
Colby v Todd Packing Co., 77 F. Supp. 956
(Alaska 1948) 29
Cook v Belden Concrete Products, Inc.,
471 F2d 999 (5th Cir. 1973) 14
Cope v. Vallette Dry Dock Co., 119 U.S. 625 26, 27
Detroit, T & I R Co. v Banning, 173 F2d 752 40
Evansville & Bowling Green Packet Co. v Chero
Cola Bottling Co., 271 U.S. 19 (1926) 10 et seq.
Executive Jet Aviation, Inc. v City of Cleveland, |
409 U.S. 249 (1972) 7 et seq.
The General Cass, Fed. Cas. No. 5307, P. 170 |
(E.D. Mich. 1871) 31
Grant Smith-Porter Ship Co. v Rohde, 257 U.S. 469
(1922) 3]
Grimes v Raymond Concrete Pile Co., 356 U.S. 252
(1958) 9, 10, 24, 30
Guilbeau v Falcon Seaboard Drilling Co.,
215 F. Supp. 909 (La. 1963)
Gutierrez v Waterman Steamship Corporation ,
10 L.Ed. 297 2d (1963)
TABLE OF AUTHORITIES CITED ili
Hark v Antilles Air Boats, Inc., 41 U.S.L.W.
2506-07 (V.I. 1973) 22
Hess v United States, 361 U.S. 314 (1960) 39
The Hezekiam Baldwin, 8 Ben. 556, 12 Fed. Cas.
No. 6449 38
Kenny v New York, 108 F2d 958 (2nd Cir.
1940) 12, 14, 26
Knapp, Stout & Co. v McCaffrey, 177 U.S. 638
(1899) 23
Maltby v Steam Derrick Boat, 16 Fed. Cases, 564 29
McGuire v City of New York, 192 F. Supp. 866
(S.D. N.Y. 1961) 36
MeWilliams Dredging Co. v United States,
105 F. Supp. 582 (E.D. La. 1952) 38
Moores v Louisville Underwriters, 14 F. 226
(W.D. Tenn. 1882) 19
Muntz v A Raft of Timber, 15 F. 555 (E.D. La.
1883) 15
Nacirema Operating Co., Inc. v Johnson,
396 U.S. 212 (1969), reh. den. 397 U.S. 929
(1970) 37
New Bedford Dry Dock v Purdy, 258 U.S. 96 (1922) 23
Nogueira v New York, N.H. & H. R.R.,
281 U.S. 128 (1930) 23
Offshore Company v Robinson, 266 F2d 769
(5th Cir. 1959) 29
Peck v U. S. Steel Corp., 315 F. Supp. 905 (Minn.),
aff'd. 446 F2d 891 (8th Cir. 1970) 14
People v Gotshall, 123 Mich. 474, 82 N.W. 274 40
The Pioneer, 30 F. 206 (E.D. N.Y. 1886) 31
Se eee 5 Dt akan ab adl® Y SAMO AE TE MEET REL LEIS AA ORR ARNE NEE LOTS
iv TABLE OF AUTHORITIES CITED
Pleason v Gulfport Shipbuilding Corporation,
221 F2d 621 (5th Cir. 1955)
Raft of Cypress Logs, Fed. Cas. No. 11,527
(W.D. Tenn. 1882)
The Robert W. Parsons, 181 U.S. 17 (1903)
Seabrook v Raft of Railroad Ties, 40 F. 596
(S.C. 1889)
Spiller v Thomas M. Lowe, Jr. & Associates, Inc.,
328 F. Supp. 54 (Ark. 1971)
Spratley v Tidewater Construction Corporation,
238 F. Supp. 650 (E.D. Va. 1965)
Stafford v Perini Corporation, 475 F2d 507
(1st Cir. 1973)
Stanley v Guy Scroggins Construction Co.,
297 F2d 374 (Sth Cir. 1961) 10,
Swanson v Marra, 328 U.S. 1 (1945)
Thibodeaux v J. Ray McDermott & Co.,
276 F2d 42 (5th Cir. 1960)
Trask v Boston & Maine R.R., 219 Mass. 410,
106 N.E. 1022
Tregoning Boat Co. v United States, 15 Cust. Ct. 196,
C. O. 971 (1945)
United States v Bruce Dry Dock Co., 65 F2d 938
(5th Cir. 1933)
United States v Moran Towing & Transportation
Co., 374 F2d 656 (4th Cir. 1967)
United States v One Raft of Timber, 13 F. 796
(S.C. 1882)
Victory Carriers v Law, 404 U.S. 202 (1971)
sb)
30
33
19, 34
20, 34
17
18
40
16
20
13
lf
37
Sto aR
TABLE OF AUTHORITIES CITED
STATUTES.
1U.S.C. $3
19 U.S.C. § 1401(a)
98 U.S.C. § 1291, et seq.
33 U.S.C. § 414, Sect. 19
33 U.S.C. § 903
46 U.S.C. § 391(a)
46 U.S.C. § 740 (62 Stat. 496)
46 U.S.C. § 801
TREATISES.
The Law of Admiralty, Gilmore & Black (1957)
Moore’s Federal Practice, Vol. 7A (2nd Ed. 1972)
paragraph .215(2) et seq.
Wigmore on Evidence, 3rd Ed., Vol .II.
Sec. 459, 460
Ru.gs.
United States Supreme Court Rule 19
24, 25, 30
28
40
11, 42, 43
;
.
=a a la it AY ea ee ada Rae RT Ye a ae eae eR oR AR rll
| Supreme Court of the United States.
|
Octoser Term, 1973.
No. 73-86.
DONALD E. POWERS,
PuaintirF, Petitioner,
v
BETHLEHEM STEEL CORPORATION,
DEFENDANT, RESPONDENT,
v.
McKIE LIGHTER CO., INC.,
DEFENDANT, RESPONDENT,
AND
DONALD E. POWERS,
Puaintir¥, Peririoner,
v
McKIE LIGHTER CO., INC.,
DeFrenDaNt, RESPONDENT.
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI.
Statement of the Case.
On October 6, 1967, shortly before daybreak, four men,
including the plaintiff, all of whom were experienced pile
drivers, were getting ready to start their day’s work at
0.0 5 A PRE EL INIT a0 aie ‘i — ="
2
Pier 3, Bethlehem Steel Shipyard in East Boston, Massa.
chusetts. (R.A. 253) The plaintiff testified at trial that he
classified himself as a pile driver and secured his work
from the Pile Drivers and Dock Builders Union.
‘‘Q The work that you did was classified as a pile
driver, is that correct?
‘‘A I classify myself as a pile driver, yes, sir.
“‘Q You got your work from the pile drivers and
dock builders union?
‘““A Yes, sir.’’ (R.A. 98)
In each of the three counts of his complaint against
McKie Lighter Co., Inc., the plaintiff had alleged:
‘‘On or about October 6, 1967 the plaintiff was ...
a seaman and member of the crew of a lighter.”’
But his testimony given at trial was:
“‘Q Mr. Powers, you were working at Pier 3 o
October 6, 1967, is that correct?
‘A Yes, sir.
“‘Q Is it correct to say that at the Pier 3 job, you
had no lighter?
‘*A No, sir, we did not.
‘“‘Q You had been working at the Pier 3 job from
approximately August through October?
‘“*A Of 1967, yes.’’ (R.A. 92)
Accordingly, the plaintiff testified that there was no
lighter and he negated the allegation in the complaint —
Before the Pier 3 job started in August, 1967, two months
before his injury, he had been working as a pile driver in
Harvard Square. (R.A. 93) Before that, he had worked on
the construction of the Cambridge Courthouse, the Mer-
Pride. Bids CPde Mod Mion
» 23
a
' chants National Bank Building and the Boston City Hospital.
(R.A. 99, 100)
The contract for which the plaintiff was employed de-
scribed the work to be performed in the following terms:
**. . . (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 con-
tact with the new work, the furnishing and installation
of removable steel and concrete forms, the furnishing
and placing of all reinforcing steel and concrete, the
} furnishing and installation of all expansion bolts, wire
mesh and other accessories . . . necessary to complete
the work. . .”’
During his trial testimony, the plaintiff described his
j work as follows:
““Q The work you were doing on the piling was
cleaning the outside of the piling and then you had to
put forms around them, steel forms, you put reinforcing
rods inside the steel?
‘A That is correct.
““Q And poured concrete inside the forms. Is that
correct?
“A Yes, sir.
“‘Q In order to do that, the pouring of the concrete,
you got it by trucks on the top of the pier. It came
j down by hoses and went inside the forms.
“‘A That is correct.’’ (R.A. 95)
Two men would normally stand on top of the pier
handling the hoses and two men would stand on a narrow
float tied under the pier pouring the concrete around the
pilings. The pilings under the pier were in rows. The pier
| ‘
i
4
itself was some 30 to 40 feet wide. (R.A. 95, 96) The space
between each row of pilings under the pier was called a
bay. (R.A. 97)
The work on the piles under the pier was accomplished by
standing on a narrow floating stage or raft tied under the
pier. The one in use at the time of the plaintiff’s injury
was 4 feet wide, some 25 feet long, and composed of four
timbers secured together. (R.A. 30, 304, 305) The plaintiff
testified that it,
‘was 3 1/2 to 4 feet wide. This was on 10 x 10,
12 x 12 timbers bonded together.’’
The co-worker nearest the plaintiff, called by the plaintiff
as a witness, testified at R.A. 305:
‘‘Q Three or four feet wide?
‘“‘A Yes, that is right.’’
The lines from the pier were tied to the raft at all times.
(R.A. 99) The plaintiff testified (R.A. 99) concerning the
lines between the pier and the raft:
‘‘Q It was either tied to the raft or tied to the pier
at all times?
‘*A It was tied to the raft at all times.’’
The floating stage was used as a work surface by the men
under the pier repairing the pilings according to the plair-
tiff’s testimony in deposition, at trial (R.A. 97, 98):
‘“‘T call your attention to your deposition, partic-
ularly the bottom of page 16:
‘Q Were you attempting to move the raft along,
parallel to the face of the pier?’
‘*You answered:
5
,
‘A Well, they were alongside the pier when we
started work. And then the foreman would
designate a bay he wanted to work in and
then we would move them alongside and
, then nose them into the bay.’
“Q ‘Q You mean pull them alongside that way and
then turn them in that way?
‘‘A Pulled it by lines, yes.
“‘Q ‘Q And then these rafts were just work sur-
faces?
‘A Wooden rafts, right.
‘Q But, I mean, they were used as your work
surface so you could work on the piles?’
‘*You answered: ‘Yes’.
, ‘‘That is true, isn’t it?
} ‘“‘A That is right sir.’’
The distance that the raft would be moved to start work
on the piles under the pier would be some 10 to 20 feet.
(R.A. 98) Thus at R.A. 98 the plaintiff testified:
“‘Q And that distance you would move them would
be anywhere from 10, 15, 20 feet?
i ‘‘A It would vary depending upon where the fore-
man would designate an area where you had to work.’’
On the particular morning the distance the raft was to
be moved was described by the plaintiff as 15 or 20 feet.
Thus at R.A. 96 the plaintiff testified:
‘“‘Q What was the distance the raft was going to
move on the morning of October 6?
“‘A It would be pretty hard to say.
“‘Q Would you say about 15, 20 feet?
‘“‘A It could be in that area, yes, sir, on that partic-
ular morning.’’
—
Be ate
Re AN aed ‘
ni, =
J
6
On the morning of October 6, 1967 the pile drivers placed
a pair of lights on the side of the pier with bulbs at several
foot intervals. (R.A. 309, 310) While the plaintiff was
standing on the four-foot wide work float tied to the pier,
the light up on the pier which was nearest him and some
10 to 12 feet over his head, suddenly ‘‘popped’’ and a
particle of the bulb caused his eye injury. (R.A. 114)
There was no evidence that anything struck the bulb, or
concerning any impact from any source, and no witness
knew why the bulb had broken. (R.A. 45, 114, 286, 287, 307,
257, 258) The men were provided with three types of eye
shields: hoods to wear during standblasting, dark eye
shields to wear during welding or burning, and clear glass
eye shields to wear at any time including chipping work.
The decision when to wear the goggles was an individual
one. (R.A. 121, 122) The plaintiff testified he saw no reason
to wear goggles at the time of his injury (R.A. 122), but he
had them with him at that time. (R.A. 122, 154).
“<Q You did have goggles with you when working
over there?
‘““A Yes, sir.
“Q You did not use them when working on the
morning of October 6, 1967?
‘‘A There was complete darkness, no need of goggles
at that particular time.
‘‘Q There was a light on, the light you have been |
talking about. |
‘‘A There was a light on, yes, sir.’’ (R.A. 122)
On December 29, 1969, three months after he had started |
the present suit in which he alleged he was,
‘¢a seaman and member of the crew of a lighter’’,
7
(and in which his testimony at trial confirmed there was no
lighter, R.A. 92) the plaintiff testified under oath on the
witness stand at a formal Compensation Hearing, in the
presence of his counsel, that he was a pile driver.
*Q Did you tell the Compensation Commissioner
you were always classified as a pile driver?
‘““A Yes, sir, I did.
“‘Q You did that on December 29 in order to re-
ceive compensation as a harbor worker.
“A Yes.’’ (R.A. 105)
The plaintiff also received and accepted the benefits of
the Compensation Statute. (R.A. 105) Section 903 of that
Statute (Title 33 U.S.C.) excludes,
‘ta member of the crew of any vessel’’
from its benefits. Section 905 makes it the employee’s ex-
clusive remedy against his employer.
Questions Presented.
1. Whether the District Court and Court of Appeals
correctly ruled that a work float consisting of four one-foot
timbers used as a work surface by a pile driver while pour-
ing concrete around the old piles under a pier to repair
them, being at all times tied to the pier, was not a vessel
and was not used in ‘‘traditional maritime activities, in-
volving navigation or commerce on navigable waters.’’!
2. Whether the District Court and Court of Appeals
correctly ruled that a self-styled ‘‘pile driver’’, a member
of the Pile Drivers Union, whose work was to install steel
forms under a repair yard pier and pour concrete into
those forms by a hose from a delivery truck on the pier,
' Executive Jet Aviation, Inc. v City of Cleveland, 409 U.S. 249,
256 (1972)
ge on
8
while standing on a narrow work float, four feet wide,
always tied to the pier, does not have a nexus with ‘‘tradi-
tional maritime activities, involving navigation or commerce
on navigable waters’’? and was not a member of the crew
of a vessel.
Summary of Argument.
The decision of the Court of Appeals for the First Cir.
cuit is completely in accord with, and expressly follows the
very recent opinion of this Honorable Court in the Execu.
tive Jet Aviation, Inc. v City of Cleveland, 409 U.S. 249,
(1972). That decision was issued several weeks before the
orai argument in the case at bar; it was considered by the
parties and the Court of Appeals on oral argument and
expressly followed by the Court of Appeals in its Opinion.
The standards required for admiralty jurisdiction and other
legal principles applicable to the case at bar were fully
described by this Honorable Court in the Executive Jet
Aviation opinion. The decision of the Court of Appeals
cites and follows that opinion and is not in any respect in
conflict with that opinion. The decision of the Court of
Appeals is also in complete accord with the opinions of
other Courts of Appeal and with other District Courts in-
cluding all cases cited in the Petition.
In the 1972 opinion in Executive Jet Aviation, Inc. v City
of Cleveland, 409 U.S. 249, the Supreme Court noted that
with respect to admiralty jurisdiction a mechanical or locus
standard has been ‘‘actively criticized’’ and recognized as
the more appropriate basis,
‘« traditional maritime activities, involving naviga-
tion or commerce on navigable waters.’’ (At page 256)
2 Executive Jet Aviation, Inc. v City of Cleveland, 409 U.S. 249,
256 (1972)
9
In the case at bar there has been no navigation or com-
merce on navigable waters. The plaintiff by his own testi-
mony and by his own witnesses classified himself as a pile
driver, obtained all his work from the Pile Drivers Union
and before starting on the job for the defendant, McKie,
a few months earlier, had been engaged as a pile driver in
the construction of a bank, a courthouse, and a hospital,
all inside the City of Boston. The work he was performing
at the time of his injury was to repair old piles under a
pier by pouring concrete into steel forms around the old
piles by a hose which was attached to a cement delivery
truck on top of the pier. To perform the repairs of the old
piles he stood on a narrow work float four feet wide, made
of four one-foot timbers secured together, and some 25 feet
long. He testified it was at all times tied to the pier. It was
moved only to reach the pile to be repaired on the partic-
ular day or approximately 10 to 20 feet each morning. It
was entirely localized work under the pier repairing the
piles and in no sense concerned,
‘.,. traditional maritime activities, involving naviga-
tion or commerce on navigable waters.’’ (Page 256,
Executive Jet Aviation, Inc. v City of Cleveland, 409
U.S. 249 (1972).)
Each case cited in the Petition has been analyzed in
detail in the Respondents’ Brief and the absence of any
materiality has been shown from the facts of each case.
For purposes of illustration in this summary, reference is
made to two cases, each of which was cited three times in
the Petition. In Grimes v Raymond Concrete Pile Co., 356
U.S. 252 (1958), cited at pages 10, 14 and 17 of the Peti-
tion, the plaintiff was working 110 miles out in the ocean
and was transferring from a tug, on which he ate and slept,
in a breeches buoy in heavy weather to a so-called Texas
ad Re '
tower when the rough seas threw him against the pilot house
of the tugboat causing his injury. Yet the Petition says
on page 10 that Grimes was a person
10
‘‘nerforming the same work as the plaintiff’’,
and on page 17 the Petition refers to the Grimes case as,
‘“similar evidence.’’
The present plaintiff was a pile driver who stood on a float
four feet wide made of timbers tied together underneath a
pier so that he might pour concrete, from a delivery truck
up on top of the pier, into steel forms around the old piles
while the float was at all times tied to the pier and once a
day moved 10 or 20 feet.
The Petition cites on three occasions the case of Stanley
v Guy Scroggins Construction Co., 297 F2d 374 (5th Cir.
1961), at pages 9, 14 and 17. Stanley was working 40 miles
out in the Gulf of Mexico and was transferring from a tug
to an oil drilling tower in rough weather when the roll of
the vessel in the heavy seas caused his injury while he was
attempting to leave the tug. Yet at page 9, the Petition
contends that the Stanley case is one of
‘similar facts’’,
to that of the present plaintiff who was a self-styled pile
driver pouring concrete into forms around old piles under-
neath a pier on a narrow work float four feet wide which
was always tied to the pier and was merely used to stand
on in order to perform the work of repairing the old piles. |
The decision below additionally parallels the following
language in the case of Evansville & Bowling Green Packe!
Co v Chero Cola Bottling Co., 271 U.S. 19 (1926), in which
the Supreme Court rejected any admiralty jurisdiction or |
status of a vessel for a wharf float saying at page 21:
a
Bat
“aca
'
‘It had no machinery or power for propulsion and
was not subject to government inspection as are vessels
operated on navigable waters... The wharf boat was
used to transfer freight between steamboats and land
and from one steamboat to another... Charges made
for services performed by its use were for storage and
handling and not for transportation. .. It was not
practically capable of being used as a means of trans-
portation... It performed no function that might not
have been performed as well by an appropriate struc-
ture on the land and by a floating stage or platform
permanently attached to the land. It did not encounter
perils of navigation to which craft used for transporta-
tion are exposed.’’
11
A factual analysis of all of the cases cited in the Petition
confirms that the decision of the Court of Appeals in the
case at bar is entirely in accord with all of the cases cited
by the Petitioner and is in accord as well with the recent
and controlling decision of this Honorable Court in the
case of Executive Jet Aviation, Inc. v City of Cleveland,
409 U.S. 249 (1972).
Because none of the considerations required by Rule 19
of the United States Supreme Court are supported by the
Petition in the case at bar, the Respondents respectfully
| submit that the Petition should be denied.
Argument.
| I. No Conruct Exists with THE DECISION OF ANOTHER
Court or APPEALS.
No question exists that the raft being used as a work
float in the openings (called bays) under the pier to repair
the pilings was ‘‘3 1/2 to 4 feet wide’’, composed of
12
‘timbers bonded together’? with ‘‘no deck or surface
around it’’. (R.A. 30)
The witness Ward called by the plaintiff, and who was
the pile driver standing beside the plaintiff, testified as
follows concerning the width of the raft or work float on
which he and the plaintiff were standing:
‘“‘Q The narrow one about three feet wide, is that
right?
“, 70.
‘‘Q Three or four feet wide?
‘“‘A Yes, that is right.
‘“‘Q So there would be no difficulty in getting this
narrow raft in between the pilings into the bay, is that
right?
‘‘A No, there never was much difficulty getting
either one in between the bays.’’ (R.A. 305)
The plaintiff himself described the raft as follows:
‘it was 3.1/2 to 4 feet wide. This was on 12 x 12,
10 x 10 timbers bonded together. There was no deck
or surface around it. . .’’ (R.A. 30, 304, 305)
No question exists that it was ‘‘tied to the pier at all
times’’ and that it moved ‘10, 15 or 20 feet’’ depending
upon the particular pilings being repaired.
The cases cited by the Petitioner at pages 8 and 9 of the
Petition are clearly consistent with the decisions of the
District Court and Court of Appeals in the case at bar.
Kenny v New York, 108 F2d 958 (2nd Cir. 1940), con-
cerned a ‘deck scow’? named ‘*The Columbiad’’. It was
large enough to have been the subject of a bare boat
charter. Further details concerning the deck scow are found
in the District Court opinion at 28 F. Supp. 175. The
District Court notes that it was moored by anchors in the
Paes. debian
13
tideway and sustained the damage during a storm because
she had been improperly anchored. It was large enough to
have accommodated several large fireworks display pieces,
having in mind the required spacing between such pieces.
At page 959 the Circuit Court of Appeals noted it was
‘capable of navigation at all times’’.
United States v Moran Towing & Transportation Co.,
374 F2d 656 (4th Cir. 1967) concerns a 9400-ton floating
drydock which was 360 feet long and 100 feet wide. It was
being towed to sea for intentional sinking in the ocean
depth when it foundered and sank, blocking the channel. The
sole issue before the Court was the applicability of the so-
called Wreck Statute under which the United States Corps
of Army Engineers were seeking to recover some $163,000
as the cost of removal of the sunken wreck as a menace to
navigation in the channel. The Court noted that the explicit
language of the Wreck Statute (33 U.S.C. § 414, Sect. 19)
applied to any,
‘‘sunken vessel, boat, watercraft, raft or other
similar obstruction.’’
The significant characteristics therefore were the effect of
the sunken object to serve as an underwater obstruction in
its sunken condition. It is plainly without materiality to
the issues in the case at hand. It may also be noted from
the standpoint of statutory construction that Congress saw
fit to include the word ‘‘raft’’ as a later word in a sequence
which earlier had included the word ‘‘vessel’’. By normal
rules of statutory construction the text of that Statute
would indicate an intention by Congress to differentiate
between a vessel and a raft. The Petitioner, however, pur-
ports to cite the case as authority for the opposite conclu-
sion, stating it on page 8 as a case,
‘‘where rafts were held to be vessels’’.
— : a A aT “8 a
ma OLE = LEI LITO rs — — a |
~ ;
14
There was no raft in the case, but only a sunken wreck of a
former drydock. Neither the deck scow in the Kenny case
nor the 9400-ton sunken drydock in the Moran case are
material to the case at bar or to the purpose for which they
are cited by the Petitioner.
Peck v U. S. Steel Corp., 315 F. Supp. 905 (Minn), —
affirmed 446 F2d 891 (8th Cir. 1970), concerned a large
derrick barge, named the S2, which was large enough and |
powerful enough to have lifted a tugboat entirely out of
the water. The suit concerned injury to the tug when it
was being lifted out of the water by the derrick barge. To |
cite that case as an illustration of a case ‘‘where rafts were
held to be vessels’’ is plainly unsound.
Nor is the case of Cook v Belden Concrete Products, Inc.,
472 F2d 999 (5th Cir. 1973), an illustration of a case where |
a ‘‘raft-like object was not a vessel.’’ The Cook case con-
cerned a former barge transformed into a functioning dry-
dock used for the launching of other newly constructed
barges. It relates to a specialized line of cases which have
treated the subject of floating drydocks. There is no
reference anywhere in the opinion to any ‘‘raft-like object”,
nor is there any dry dock in the case at bar.
II. No Cowruict Exists BETWEEN THE DeEcISION OF THE
District Court aNp THE CovurT oF APPEALS IN THE
Present Case, anp Any District Court Option.
Nor is there any merit in the suggestion in the Petition
concerning a conflict or indeed confusion at the District
Court level. None of the cases cited is material to th
present case.
United States v One Raft of Timber, 13 F. 796 (SC.
1882), concerned a raft of lumber for moving a quantity
of lumber to market. It was large enough to have been |
navigated by sail and when anchored without lights in the
)
>
15
navigating channel caused a self-evident hazard to naviga-
tion. The issue before the Court was the applicability of a
Statute which required navigating lights on coal boats,
trading boats, rafts or other water craft. The case does not
present any holding that a raft is a vessel since the Statute
expressly refers to rafts as part of its sequence. In the
particular instance the raft was of such size that it was
actually being navigated and presented a navigational
hazard to other vessels in the channel when unlighted.
In Muntz v A Raft of Timber, 15 F. 555 (E.D. La. 1883),
the raft was used as a means of transporting an amount of
lumber down the Mississippi River and was of such size
that when it got away during a storm, it took two large
and one small tugboats to manage it. It has no materiality
! to the pouring of concrete into a form around a piling
under a pier from a hose leading from a concrete delivery
truck while standing on a narrow work float always tied
to the pier. It is of particular interest that the Court in the
Muntz case made the following comment at page 557:
‘“‘The decision in this case need not be taken as
holding that a raft is a vehicle of navigation or can
commit a maritime tort or as being subject to any
other obligations or responsibilities than a bale of
cotton would be subject to under the same circum-
stances.’’
In Seabrook v Raft of Railroad Ties, 40 F. 596 (S.C.
1889), the raft of lumber was 150 feet square and it caused
collision damage to a large steam dredge while traveling
down the Stone River. The 150-foot raft had first traveled
down the Edisto River and then other navigable rivers and
then finally to the Stone River where the collision occurred.
It was characterized by the Court as a *‘voyage of many
days duration’’. Further, that
16
‘‘it was manned with a pilot who was in command, a
crew of four men and a cook’’.
The Court also stated at page 598 that,
‘‘Necessarily it was constructed to withstand the
buffeting of the waves and wind .. .”’
Charles Barnes Co. v One Dredge Boat, 169 F. 895 (E.D.
Ky. 1909), concerned the mortgage of a
‘‘pump boat, its machinery, sails, furniture and
apparel’’.
It was described by the libellant as having
‘a secow bow, a scow stern, a deck fore and a deck
aft, and a cockpit in the center covered by a cargo
bow’’.
The Court noted it was
‘‘eapable of being towed to any place in the Ohio
River where its services might be needed’’.
Accordingly, it functioned as a vessel in activity as well as
in its characterization in the mortgage.
In the case of Tregoning Boat Co. v United States, 1s
Cust. Ct. 196, C. O. 971 (1945), a case in the Court of
Customs, concerned the classification for custom duties of —
a lifeboat fitted with sails, a rudder, food, water and signal-
ling equipment. It was designed to accommodate 12 persons
and save them during a storm at sea. No reasonable relation
to the present work stage tied under the pier can be made.
There is no factual and no legal relationship between any
of the foregoing cases and the case at hand. Not only is it
clear that the plaintiff’s work was that of a pile driver
pouring concrete around steel forms under a pier, while
17
standing on a work float +’ x 1’ x 25’ used only to stand on
while it was always tied to the pier, but his work was
clearly not that of a seaman as defined in the case of
Carumbo v Cape Cod Steamship Company, 123 F2d 991
(1st Cir. 1941). That definition was quoted and followed by
the Supreme Court in Swanson v Marra, 328 U.S. 1, 5 (1945)
and was cited in the Opinion of the District Court in the
present case. (R.A. 371) The Carumbo decision at page 995
reads as follows:
“‘The requirements that the ship be in navigation;
that there be more or less permanent connection with
the ship; and that the worker be aboard primarily to
aid in navigation appears to us to be the essential and
decisive elements of the definition of a ‘member of a
crew’.”’
All three of the requirements must be met. Since the
plaintiff was working on a floating stage under a pier which
was always tied by lines to the pier he fails the first of the
three requirements, Le.,
“that the ship be in navigation’’.
The Supreme Court used as its comparable phrase,
“‘encounter perils of navigation to which craft used
for transportation are exposed’’,
which appears at page 21 in Evansville € Bowling Green
Packet Co. v Chero Cola Bottling Co., 271 U.S. 19 (1926).
Secondly, it is clear that he had no
“‘more or less permanent connection with the ship’’,
since his only relationship to the staging was to stand on it
while he was repairing the piles. (R.A. 97, 98)
FS NO HAG
pC ERATE LE POE IES PIT OF WS EE » GR OR SO I aD =
The third requirement, that the seaman be aboard
primarily to aid in navigation, is plainly deficient since the
plaintiff primarily and indeed exclusively was working on
the repair of pilings under the pier.
The phrase,
‘*primarily to aid in navigation”’,
has been construed to include the specialized mission of the
vessel as a vessel. Thus, although an oiler or wiper in the
engine room would not be directly aiding in navigation,
he would be plainly a member of the crew since he is aiding
in transporting the vessel over the sea. Similarly on a
passenger vessel where entertainment of the passengers was
part of the mission of the voyage an orchestra player wou'd
be included as a member of the crew for such a voyage. But
if the only function of a floating stage is to be essentially
at rest under a pier, no one can be regarded as on board
‘‘primarily’’ to aid in its navigation since no navigation is
intended or performed. The primary and only performance
is that of cleaning and repairing piles driven into the
ground under a pier only 40 feet wide while standing on a
stage float permanently tied to that pier.
Evansville & Bowling Green Packet Co. v Chero
Cola Bottling Co., 271 U.S. 19 (1926)
Thibodeaux v J. Ray McDermott €& Co., (5th Cir.
1960) 276 F2d 42.
Nor does any relationship or any conflict exist between
the following District Court cases cited by the Petition at
page 8 and the case at bar:
Raft of Cypress Logs, Fed. Cas. No. 11,527 (W.D. Tenn.
1882), concerned the navigation of a large commercial raft
of cypress logs on a voyage of several hundred miles from
New Madrid, Missouri to Memphis, Tennessee to reach the
Si
#
&
& we
-
potter nee
lumber markets. The case concerned the wages of the sail-
ing crew during that lengthy voyage and is plainly a non-
material situation to the present case.
Moores v Louisville Underwriters, 14 F. 226 (W.D. Tenn.
1882), concerned the interpretation of a cargo insurance
policy applied to a lumber raft towed astern of a Mississippi
steamboat for purposes of transporting the lumber to the
lumber market. It was large enough to have a barge towed
astern of it. It is patently extraneous to the present case
both in its factual circumstances and its legal issues.
Berton v Tietjen & Lang Dry Dock Co., 219 F. 763 (N.J.
1915), concerned a floating dry dock and its characteriza-
tion at the bottom of page 8 of the Petition as a ‘‘raft-like
object’? is wholly unsound. The case follows a long line of
specialized cases relating to floating dry docks which held
them not to be vessels. There is no suggestion anywhere
that a floating dry dock was in any manner concerned in the
present case.
The references at the top of page 9 of the Petition to
19
‘‘other appellate decisions . . . under similar facts’’
is not supported by the cases which follow since none of
them has facts which are in any respect similar to the case
at bar.
In Stafford v Perini Corporation, 475 F2d 507 (1st Cir.
1973), the plaintiff was injured while working on the deck
of a large ocean going scow two miles at sea in the waters
of Narragansett Bay.
In Biggs v Norfolk Dredging Company, 360 F2d 360
(4th Cir. 1965), the plaintiff was characterized by the Court
in the following language at page 362:
‘*Biggs, who held a Coast Guard certificate as a sea-
man, had on occasion handled the lines and assisted in
maneuvering the barges.’’
Ce ale ih HE RSE EEK TOR 2 LIE CE TEE PIT
Moreover, at the time of his injury, Biggs was standing on
a derrick barge and had just stepped onto the derrick barge
from a pontoon barge. There were several other barges
there which the plaintiff also maneuvered. There is no sug-
gestion anywhere in the present record that the present
plaintiff had any certificates as a seaman, nor was there
either any derrick barge, nor was there any barge of any
kind in use at the Pier 3 job where he was employed at the
time of his injury.
In Stanley v Guy Scroggins Construction Co., 297 F2d
375 (Sth Cir. 1961), cited by the Petitioner at page 14 of
the Petition, the plaintiff was some 40 miles out in the Gulf
of Mexico and was swinging from a tug to board a drilling
tower. The plaintiff ate, slept and bathed on a tugboat
which serviced the tower and worked on the tower itself.
The maritime quality of his work is evidenced by the fact
that the roughness of the sea was the immediate cause of
his injury. At page 376 the Court states:
‘‘Just as Stanley was about to swing, a large wave
lifted the boat up. Stanley was thrown off balance. He
swung out, clutching the rope, and banged into a steel
ladder on the platform.’’
The case is clearly no material or reasonable precedent
for a pile driver repairing fixed piles underneath a 40-foot
pier, on a narrow float staging tied at all times to or under
that pier.
In United States v Bruce Dry Dock Co., 65 F2d 938 (5th
Cir. 1933) and The Bart Tully, 251 F. 856 (6th Cir. 1918),
the Courts were confronted with the procedural problems
which have since been cured by the enactment first of the
Federal Tort Claims Act, 28 U.S.C. § 1291, et seq., and
second by the Extension of Admiralty Jurisdiction Statute,
62 Stat. 496, 46 U.S.C. § 740. In each case a collision had
+6 wal
‘
occurred between a vessel and a land unit under circum-
stances which would have afforded admiralty jurisdiction
to the vessel but not to the owner of the dry dock in one
instance, or to the wharf in the other. Since both cases
would lie within the statutory extension of admiralty juris-
diction, the cases are without current authoritative applica-
tion except to point to the reasonableness of the Statutes
which have now been enacted to meet the exigencies sug-
gested by the cases cited.
None of the cases cited by the Petitioner as grounds for
consideration for review on certiorari is material to the
case at bar, nor do they present any conflict with the case
at bar. They do not reasonably support the granting of
certiorari by this Honorable Court.
21
III. No Important Question oF F'eperaL Law 1s PresENTED
BY THE PRESENT Case.
With so recent and searching a review by the Supreme
Court concerning the standards of admiralty jurisdiction as
Executive Jet Aviation, Inc. v City of Cleveland, 409 U.S.
249 (1972), it is especially clear that no further review in
that identical field warrants the exercise of this Court's
discretion in granting certiorari. A significant summary of
the law applicable to the case at bar with respect to mari-
time jurisdiction appears at page 261 of that decision in the
following text :
‘In sum, there has existed over the years a judicial,
legislative, and scholarly recognition that, in deter-
mining whether there is admiralty jurisdiction over a
particular tort or class of torts, reliance on the rela-
tionship of the wrong to traditional maritime activity
is often more sensible and more consonant with the
purposes of maritime law than is a purely mechanical
application of the locality test.’’
dah Bos
RAIA BLE ME LEPIELELE ELLIS WES ETE EEL AMIS AEA : os sa Migainen Dias SMcr se ¥ sales wh
ots
22
This opinion was expressly followed by the Court of
Appeals in the case at bar. Whether the local nature of the
plaintiff’s work pouring concrete around fixed piles under a
pier from a delivery truck overhead is the controlling
standard, or whether the essentially stationary narrow work
float, always tied to or under the pier as a working surface
to perform that fixed local work, is the standard, there is
a complete absence of any :
‘‘maritime nexus—some relationship between the tort
and traditional maritime activities, involving naviga-
tion or commerce on navigable waters.’’ Page 256,
Executive Jet Aviation v City of Cleveland, 409 US.
249.
Here, the plaintiff was working on or under a pier and
using a small, crude work float merely to stand on to per-
form his work as a pile driver. It is a contrived absurdity
for the Petition to refer (as it does at page 5 thereof) to
‘‘navigating’’ or ‘‘transport’’.
The ‘‘transport’’ and ‘‘navigating’’ was a distance of 10 or
20 feet while always tied to the pier and the positioning
was convenience in performing the work of pouring con-
crete around the old pilings underneath the pier. The
propriety of the decision by the Court of Appeals especially
guided by the scholarly and thorough direction in the cur-
rent opinion of this Court in Executive Jet Aviation, In.
v City of Cleveland, 409 U.S. 249, wholly refutes any ground
for this Court’s discretion in granting certiorari in the
present case.
In Hark v Antilles Air Boats, Inc., 41 U.S.L.W. 2506-07
(V.I. 1973), an injury occurred at a considerable distance
off shore in a seaplane which was, as the Court pointed out,
used as a mobile vessel. After the plane had moved at high
speed over the water for takeoff and had barely become air-
borne, the damage occurred. There is plainly no analogy
or materiality between the present case and the operation
of seaplanes at high speed, either before take off or after
take off, for a several hundred mile run between two islands
in the Caribbean in the Virgin Islands group.
23
IV. Tue Decision poes Not Conruict with Any APPLICABLE
Decision OF THE UNITED States SuprREME Court.
The Petitioner cites at pages 9 and 10 of the Petition the
following three cases as illustrations of a ruling ‘‘that a
raft similar to the one at bar may be a vessel’’. An ex-
amination of the facts of the cases, however, does not sup-
port this contention.
In Knapp, Stout & Co. v McCaffrey, 177 U.S. 638 (1899),
the Supreme Court ruled that a Bill in Equity in the State
Court of Illinois was a proper remedy for enforcing a
possessory lien against a raft of lumber for towage services
from Stillwater, Minnesota to St. Louis, Missouri provided
to other rafts of lumber. The Court noted that it was not
an action in rem against the raft as a res and therefore
not intended to be an admiralty action. The non-admiralty
jurisdiction of the Illinois Court was sustained.
New Bedford Dry Dock v Purdy, 258 U.S. 96 (1922),
concerned a 200-foot long car float which had ‘‘steering
apparatus and a steam plant of the propeller type for pro-
pulsion’’. It was plainly incorrect for the Petitioner at
page 9 to refer to the case as ‘‘a raft similar to the one at
bar’’.
The third case, Nogueira v New York, N.H. & H.R.R., 281
U.S. 128 (1930), concerned another car float, this time
described as being of 500 tons’ dimension Not only was its
size sufficient for transferring heavy railroad cars across
wide areas such as New York harbor, but its freeboard and
Sr a
2 eS. te hae
- Re Wek te: f Ppa
COR ee 8
decking were also designed for similar maritime commercial |
transportation. It plainly has no application to the case at |
bar and it is completely unsound to refer to it as ‘* a raft
similar to the one at bar’’.
Nor is it correct to refer to the plaintiff in the case of !
Grimes v Raymond Concrete Pile Co., 356 U.S. 252 (1958), |
as
24
‘‘performing the same work as the plaintiff per. |
formed herein’’.
The plaintiff Grimes was 110 miles at sea, being transferred |
in a breeches buoy from a rolling tugboat in heavy weather |
to a sea based so-called Texas tower when the rolling of
the sea caused him to be thrown against part of the struc-
ture. It is completely unsound to characterize circumstances
of such an injury with the present plaintiff pouring con-
crete into steel forms underneath the pier from a hose
attached to a truck on the surface of the pier while stand-
ing on a work float some four feet wide, which was moved
15 or 20 feet each day in accordance with the location of
the particular piles being repaired under the pier.
None of the citations presented by the Petition is material
to the case at bar and no proper ground for the granting
of certiorari has been presented by the Petitioner there-
from.
V. No Case HAS BEEN CITED IN THE PetITIONER’s ARGUMEST
WHICH 18 MATERIAL TO THE CASE aT Bar.
The Petition makes initial reference to the definition used
to describe a vessel by Messrs. Gilmore & Black in their
text, The Law of Admiralty, (1957) at page 30 reading:
«| | floating structures capable of transporting
something over water.’’
18 AD RRIRRAEBOE Pe) o6
The authors applied footnote No. 105 on page 30 to that
quoted definition citing first the case of Pleason v Gulf-
port Shipbuilding Corporation, 221 F2d 621 (5th Cir. 1955).
That case is also cited by the Petitioner.
The vessel in the Pleason case to which the above phrase
was applied was called the ‘‘Carol Ann’’. It was 183 feet
long with a 32-foot beam and a 20-foot depth. It was built
in 1943 as a salvage vessel for the United States Navy.
It was of wood and steel with 1,500 gross tons burden. It
had earlier made voyages to Honduras and had crossed the
Gulf of Mexico. In the case at bar, a work float was always
tied to the pier and merely positioned for the day’s work
by lines which were always tied to the 40-foot wide pier.
The pilings were being cleaned and then re-strengthened
by placing an additional thickness of cement around the
steel reinforcement. The sole purpose was to provide a
work stage for workmen repairing the pilings under the
pier. Thus, at page 91 of the transcript when the plaintiff
was asked to testify in confirmation of his earlier deposi-
tion, the record states:
25
**Q ‘Q You men pull them alongside that way and
then turn them in that way?’
‘‘A Pulled it by lines, yes.
‘“‘Q ‘Q And then these rafts were just work sur-
faces?
‘A Wooden rafts, right.
‘Q But, I mean, they were used as your work
surfaces so you could work on the piles?’
‘You answered: ‘Yes.’ That is true, isn’t it?
‘‘A That is right, sir.’’ (R.A. 97, 98)
Footnote No. 105 at page 30 in The Law of Admiralty,
after citing the Pleason case, then cites two additional cases
to illustrate what is not a vessel, and one additional case
to illustrate what is a vessel. The latter case, illustrating
what is a vessel, is Kenny v The City of New York (CA 9
1940) 108 F2d 958. The vessel in that case was a deck scow
under bare boat charter at the rate of some $300 a month
and named the ‘‘Columbiad’’. Its dimensions are not givey
but it was used for a public fireworks display and one may |
reasonably infer a length in excess of 200 feet, having in
mind the necessity for open spacing between large fireworks
display pieces so that each can be lighted successively,
The two cases cited by Gilmore & Black to illustrate what
is not a vessel provide strong confirmation of the ruling by |
the District Court and Court of Appeals in the present case.
The cases are Cope v Vallette Dry Dock Co., 119 US. 623,
and Evansville d Bowling Green Packet Co. v Chero Cola
Bottling Co., 271 U.S. 19 (1926). In the Bowling Green
Packet case, the United States Supreme Court denied the
status of a vessel to a barge 223 feet long, 48 feet wide with
a 6-foot depth. It had earlier made trips up and down the
Mississippi River. At the time of the incident concerned in
the litigation it was tied to a pier as a ‘‘wharf boat’’ and
moved only short distances each day to accommodate itself
to the currents in the river. At page 21, the Supreme Court
cited a number of circumstances negating the status of a
vessel stating:
‘‘Tt had no machinery or power for propulsion and -
was not subject to government inspection as are vessel
operated on navigable waters... The wharf boat wa:
used to transfer freight between steamboats and land
and from one steamboat to another... Charges made
for services performed by its use were for storage and
handling and not for transportation ... It was no!
practically capable of being used as a means of trans-
portation... It performed no function that might not
have been performed as well by an appropriate strue-
ture on the land and by a floating stage or platform
permanently attached to the land. It did not encounter
perils of navigation to which craft used for transporta-
tion are exposed.’’
The reference by the Supreme Court to ‘‘a floating stage
or platform permanently attached to the land’’ coincides
perfectly with the work platform tied to the pier in the
present case. The plaintiff himself described the line from
the pier as,
‘It was tied to the raft at all times.’’ (R.A. 99)
If the work boat in the Bowling Green Packet case was
not ‘‘practically capable of being used as a means of trans-
portation’’ although it was 243 feet long, 48 feet wide and
6 feet deep, then far more impractical would be any means
of transportation from these lashed floating timbers held
together temporarily by rope. They were clearly suitable
for the purpose for which they were being used, namely, as
a floating stage for pile drivers working under a 40-foot
pier to which it was at all times secured as was the wharf
boat.
The second case cited by Gilmore & Black in footnote
105 is Cope v Vallette Dry Dock Co., 119 U.S. 625 (1887).
In that case the Court ruled that a floating dry dock was
not a vessel and gave its reasons in the following detail
at page 627:
‘They describe the dry dock as a structure contrived
for the purpose of taking ships out of the water, in
order to repair them, and for no other purpose. They
state that it consisted of a large oblong box with a
flat bottom and perpendicular sides; that in the year
1866 it had been put in position by being permanently
Are {
eV a ee
NS ree
moored by means of large chains to the right, or
Algiers, bank of the Mississippi River, and was sparred
off from the bank by means of spars, to keep it afloat.
When it was desired to dock a steamboat or other
vessel, it was sunk by letting in water until the vessel
to be docked could be floated into it. It was then raised
> by pumping the water out, leaving the docked vessel
in a position to be inspected and repaired. It was
furnished with engines, but they could only be used for
pumping, and the dry dock had no means of propul-
sion, either by wind, steam, or otherwise. It was not
designed for navigation, and could not be practically
used therefor.’’
Whatever the source of the definition, whether the
Statutes of the United States as in 1 U.S.C. § 3, 19 U.S.C.
§ 1401(a), 46 U.S.C. § 801, or in Volume 7A of Professor
Moore’s treatise on Federal Practice, (2nd Ed. 1972) para-
graph .215(2) et seq, the connotation of transportation by
water in terms of commerce and navigation is inherent
throughout. They are also consistent with the comment of
the Supreme Court at page 256 in the case of Executive Jet
Aviation, Inc. v City of Cleveland, 409 U.S. 249 (1972)
reading :
‘¢Other Courts, however, have held in such situations
that a maritime locality is not sufficient to bring the
tort within Federal admiralty jurisdiction, but that
there must also be a maritime nexus—some relation-
ship between the tort and traditional maritime activ-
ities, involving navigation or commerce on navigable
waters.”’
In addition to citing the cases already considered, the
Petitioner at page 11 also cites the following cases whose
Pare ——E «
f
oo,
2 re Sea we
is make it clear that they are without any materiality to
ease at bar.
a Offshore Company v Robinson, 266 F2d 769 (5th Cir.
9), the plaintiff was a regular member of the drilling
w serving on a barge 200 feet long, 104 feet wide, and
feet deep used as a mobile drilling platform in the Gulf
Mexico. At page 772 the Court stated:
“It has no engines and is moved by tugs from one
well located in the Gulf to another. It has living
quarters for the crew and a galley in a two-story house
on top of the deck. Six life rafts are carried, each
capable of holding 10 men. Regular abandon ship drills
were held aboard Offshore No. 55. Its life-saving gear
was approved by the Coast Guard.’’
he case is entirely different from that of the present
tiff whose work as a pile driver was under a pier on a
k float as a platform to pour concrete into steel forms
n a hose leading from a truck up on the pier.
n Colby v Todd Packing Co., 77 F. Supp. 956 (Alaska
3), the Court pointed out that salvage could properly
against either a vessel or its cargo or any object at sea
1 value. It quoted at page 958, from an earlier case of
tby v Steam Derrick Boat, 16 Fed. Cases, 564, which
ed in part:
“It has long been held that property, whether it has
been an actual instrument or subject of commerce or
not, may be the subject of salvage.’’
1 short, there are many instances where bales of wool
ther items of cargo have been the subject of salvage.
re is no holding whatever in the case that the fish trap
ribs of logs were in any sense a vessel. In accord with
——_——_ LEN AL EO LPL oe Hin ia BI gee
SPARE EEO Gn Beles
that view is the comment in Messrs. Gilmore & Black’s text,
The Law of Admiralty, at the end of footnote 105 on page
30 concerning the salvable qualities of an airplane where
the authors point out that salvage is not dependent upon
the status as a vessel, by saying:
‘‘In any case a decision that an airplane may be the
subject of salvage need not imply that it is a ‘vessel’.”
In Spiller vy Thomas M. Lowe, Jr. & Associates, Inc., 328
F. Supp. 54 (Ark. 1971), the vessel was one of a fleet of
six 16-foot boats being used by a mapping and survey party
to travel a 206-mile segment of the Red River, that is, from
mile 230 to mile 436 of that river. At page 57, the Court
comments as follows: |
‘‘The manufacturer’s rating for the boat in question
was as follows: This boat is built to accommodate |
under normal conditions an outboard motor of not more
than 35 OBC certified horsepower and five persons at
150 pounds per person or a properly located maximum
weight of 1,080 pounds for persons, motor and gear.”
In Guilbeau v Falcon Seaboard Drilling Co., 215 F. Supp.
909 (La. 1963), the vessel was 260 feet long and 52 feet
wide fitted with sleeping quarters and a galley for the
crew. It was moved from various places in inland waters
by tugboat and at the time of the injury had been towed to
a location in a navigable river.
None of the foregoing cases is material or comparable
to the case at bar, of a work platform four feet wide, which
was always tied to a pier and used for standing to pour
concrete into forms around fixed pilings under a pier. The
Petition next cites at page 12 two cases which effectively
illustrate the caliber of transportation contemplated by the
+ “iN
ARB OVER SA? . ore a at ANT
31
definition. Thus in The General Cass, Fed. Cas. No. 5307,
Pp. 170 (E.D. Mich. 1871), the Court considered a lumber
scow used for carrying loads of lumber across the shoals
in the Saginaw River over which the larger vessels were
unable to pass safely. In describing the commerce in which
the lumber scow was engaged, the Court stated at page 170:
‘‘The lumber of the Saginaw valley, as an article of
commerce, passing down and out of the Saginaw river,
on its way to the lumber marts of other states and
countries, constitutes one of the greatest interests of
its kind in the world, and in its transportation employs
vessels of all sizes, forms and capacities, and all kinds
of propelling power, from the insignificant scow, like
the one here in question, to the largest sized vessels and
steamers that float the lakes. The business and employ-
ment of each, irrespective of the accidents of size, form,
capacity or propelling power, appertains equally to
trade and commerce, and all therefore equally subject
to the jurisdiction of this court.’’
The static function of the present plaintiff standing on a
four foot work float, always tied to or under the pier, in
order to repair the pilings under the pier, is completely
opposite to the commerce described in the foregoing case.
The work float was kept on the outside of the. pier after
hours and moved into the bays under it to work on the
piles, a distance of some 10 to 20 feet, and yet the Peti-
tioner at page 12 characterizes this action as ‘‘repeatedly
used to transport men and equipment over navigable
waters’’.
In The Pioneer, 30 F. 206 (E.D. N.Y. 1886), a dredge,
large enough to carry a steam-operated shovel and bucket
for digging navigable channels, was concerned. It is in no
sense a precedent for a three and one-half to four foot work
Ri ihiin stein iin cts lh oii eit
float which was always tied to or under the pier in order
that pile drivers might pour concrete into forms around
the piles underneath the pier and which they moved every
morning some 10 to 20 feet to start their work.
Although the Petitioner purports to suggest that the
vessel in Brinegar v Iron Ore Construction Company, 302
F. Supp. 630 (E.D. Ark. 1969), was a makeshift pontoon
oil carrier, the facts in the case indicate that the vessel was
capable of carrying a thousand gallons of fuel and it also
had sufficient power to tow a large dredge, and also to tow
several barges on the Arkansas River. Further, because of
her ability to transport a thousand gallons, she was subject
to the provisions of Title 46, U.S.C. § 391(a), which required
that she be in command of a licensed master, and her
manning requirements required the approval and inspection
of the United States Coast Guard. The case is completely
without materiality to the present instance of a four-foot
work float tied underneath the pier in order that pile drivers
could stand on it to pour concrete around the piles under
the pier.
Finally, the Petitioner refers to the case of Braniff +
Jackson Ave.-Gretna Ferry, Inc., 280 F2d 523, (5th Cir.
1960). A printing error in the Petition refers to ‘‘Gretna
Terry, Inc.”’ instead of the correct name, ‘‘Gretna Ferry,
Inc.’’. As that key word ‘‘Ferry’’ indicates, the case con-
cerns a large ferry boat traveling down the Mississippi
6 tan. ef SAR SAT ER TE EE SS PEE NT as NL = rae ens Se ene ae
—
River, and while so traveling a work tender was put over —
the side, attached to the ferry and traveling with it, in order
to make some mechanical repairs while underway. The
tender capsized while being handled by the crewmembers
of the ferry. The case has no relation to the facts of th —
present case in which the plaintiff was performing :
stationary land-based task of pouring concrete around pile:
under a pier while standing on a four-foot work float whieh
was always tied to the pier, and which moved some 10 to
PEER rye NRE
FDR TREE ED abt
33
20 feet solely for the purpose of positioning it beside the
particular pile to be worked on. In sum, none of the cases
cited in the Petition in Section 1 of its Argument is mate-
rial to the case at bar, and the decisions of the Court of
Appeals and of the District Court are in no sense in con-
flict with any decision either of the United States Supreme
Court, or of any Court of Appeals, or of any District
Court.
VI. No Conruict Exists ConcerniInG THE APPLICABLE LAW
BETWEEN THE Decisions BeLow anp Any ESTABLISHED
PRECEDENTS.
(a) The contention in the Petition that the work float
was not an extension of the land is without materiality. It
is material rather that the float was always tied to the pier,
that from its narrow width and simple construction of four
lashed timbers, it was completely unsuitable to navigation
or ocean transportation, and suitable only for its actual use
for standing while doing the pile driving work around the
old piles under the pier. In each of the cases cited by the
Petitioner at pages 13 and 14, the maritime activities were
plain from the distance at sea at which the activities were
occurring and by the nature of the activities. Thus in the
case of Spratley v Tidewater Construction Corporation.
238 F. Supp. 650 (E.D. Va. 1965), the plaintiff was
regularly employed on a barge which was traversing the
open waters of Chesapeake Bay across a distance of some
20 miles. The vessel on which he was injured was described
by the Court at page 650 as,
‘“‘A barge of approximately 50 by 128 feet on which
was mounted a derrick or crane.
A cogent indication of the maritime quality of the plain-
tiff's duties is found in the fact that at the time of his in-
88.10 EL IE. PEELE DET its PDE Pa OE CRM ONS, = ee ees FE et
juries the waters in which the vessel was then opcrating
were so rough that the circumstances of his injury were
described as follows on page 651:
‘‘ Just as Spratley began to step down the roughness
of the sea caused the barge and its crane to jerk the
scaffold suddenly into the air whereupon Spratley lost
his balance and fell .. .’’
The plaintiff plainly encountered,
‘‘perils of navigation to which crafts used for trans-
portation are exposed’’.
Evansville & Bowling Green Packet Co. v Chero |
Cola Bottling Co., 271 U.S. 19 (1926), 21.
In Biggs v Norfolk Dredging Company, 360 F 2d 360,
(4h Cir. 1965), the plaintiff not only
‘held a Coast Guard certificate as a seaman’’,
but there were
‘‘several barges ranged along the shipyard’s dock”,
together with a larger
‘‘derrick barge’’,
which the plaintiff was on board performing his work in-
cluding the maneuvering of the various barges.
In the two remaining cases cited at page 14, the plaintif
in Stanley v Guy Scroggins Construction Co., 297 F2d 3i
(5th Cir. 1961), was working 40 miles out in the Gulf of
Mexico and his injuries were caused ‘‘when a large wave
threw him against an offshore oil drilling platform.”’
The plaintiff in Stafford v Perini Corporatoin, 475 Fi
507 (1st Cir. 1973) was on the deck of a large ocean goilg |
:
‘
;
3
35
scow working when it was some two miles from shore in
the waters of Narragansett Bay.
In Grimes v Raymond Concrete Pile Co., 356 U.S. 252
(1958), the plaintiff was 110 miles at sea attempting to
transfer in a breeches buoy in rough weather from a roll-
ing tugboat to a so-called Texas tower when the rough
seas caused his injury.
The maritime activities of all of these plaintiffs in the
cited cases are plainly apparent, but the activities of the
plaintiff in the case at bar were those of a pile driver work-
ing under a pier pouring concrete around old pilings while
he stood on a work float which served merely as a plat-
form to perform that pile driving work. It was at all times
tied to the pier, and was some four feet wide. There would
plainly be no impact upon the uniformity of maritime law
by the allocation of such a localized function to the local
law of the land. It would be completely in accord with the
views of the Supreme Court stated in the Evansville ¢&
Bowling Green Packet Co. v Chero Cola Bottling Co., 271
U.S. 10 (1926) at page 22:
“It was not practically capable of being used as a
means of transportation... It performed no function
that might not have been performed as well by an ap-
propriate structure on the land or platform perma-
nently attached to the land. It did not encounter perils
of navigation to which craft used for transportation
are exposed.’’
(b) The contention on page 15 of the Petition that ad-
miralty jurisdiction in non-aviation cases ‘‘depends solely
on the situs of the injury’’ is not well founded, and is plain-
ly in conflict with the current views of the Supreme Court
in Executive Jet Aviation, Inc. v City of Cleveland, 409
U.S. 249 (1972) at page 261, reading as follows:
ee ee . FE NS ana YS
ee i A
ee GE RRILSI A ASSIS OL ITE LOO MEETET At a ae wwe ite
ES ks
36
‘‘In sum, there has existed over the years a judicial,
legislative, and scholarly recognition that, in deter.
mining whether there is admiralty jurisdiction over a
particular tort or class of torts, reliance on the rela.
tionship of the wrong to traditional maritime activity
is often more sensible and more consonant with the
purposes of maritime law than is a purely mechanical
application of the locality test.’’
The significant phrase, ‘‘traditional maritime activities”,
was defined more fully earlier in the decision at pages 255
and 256 where the Court refers to,
‘¢... traditional maritime activities involving naviga-
tion or commerce on navigable waters.’’
and
‘¢. . . traditional forms of maritime commerce and
navigation. ’’
At page 256, footnote 6, the Supreme Court refers to the
case of McGuire v City of New York, 192 F. Supp. 866,
(S.D. N.Y. 1961). That Opinion of the District Court con.
tains a scholarly review of the authorities which in tum
also support the language of the United States Supreme
Court which we have quoted. At page 871 of the McGuire
case the Court therein states:
‘«The touchstone has been whether the action, tort for
example, was not merely one of local concern but was
in fact a thing having an intimate relation with nav-
gation and interstate and foreign commerce.”’
Further, on page 871, the McGuire case also contains the
following comment:
37
‘‘That the locality test was and continues to be a rule
of exclusion or limitation is recognized by the Supreme
Court.”’
The phrase, ‘‘rule of exclusion or limitation’’, indicates in
effect that without the locality test, no jurisdiction exists,
but with it no jurisdiction exists unless there is also,
‘‘.,, traditional maritime activities, involving naviga-
tion or commerce on navigable waters.’’ Executive
Jet Aviation, Inc. v City of Cleveland, 409 U.S. 249
(1972) at page 256.
Thus, in Victory Carriers v Law, 404 U.S. 202 (1971),
the land-based injury was clearly non-maritime and was
excluded from maritime jurisdiction. In contrast, Gutier-
rez v Waterman Steamship Corporation, 10 L. Ed. 297 2d
(1963), a land-based injury was included because it was
caused by a maritime activity, namely the condition of the
cargo carried to Ponce, Puerto Rico on the SS Hastings,
then being discharged.
Victory Carriers v Law, 404 U.S. 202 (1971)
Gutierrez v Waterman Steamshin Corporation,
10 L.Ed. 2d 297
In Grant Smith-Porter Ship Co. v Rohde, 257 U.S. 469
(1922), an uncompleted newly-constructed vessel was ruled
to be therefore still a land-based activity and the tradition-
al rule that a new vessel while still under construction is
a non-maritime activity was followed.
The case of Nacirema Operating Co., Inc. v Johnson, 396
US. 212 (1969), reh. denied 397 U.S. 929 (1970), concerned
a land-based injury and the ruling of the Court was equally
consistent but turned more specifically on the language of
the Federal Compensation Statute which was interpreted
to exclude land-based activities.
Beer Aeeitwc akan.
pe,
38
In Atlantic Transport Co. v Imbrovek, 234 U.S. 52 (1913),
The Supreme Court alluded te the maritime activity re.
quirement and noted that it was in any event clearly satis.
fied since the plaintiff was working on a large packet steam.
ship stowing its cargo for the international run between
Hamburg, Germany and New York. The Petitioner at
page 15 strangely cites the Imbrovek case for the conten.
tion that ‘‘the presence of a vessel is not required’’, al-
though the packet steamer Pretoria, on which the plaintiff
was stowing the cargo, was engaged in the Hamburg.
America steamship run. The Petition on the same page
15 cites the cases of McWilliams Dredging Co. v United
States, 105 F. Supp. 582 (E.D. La. 1952), and The Hezeki-
am Baldwin, 8 Ben. 556, 12 Fed. Cas. No. 6449, for the con-
tention that no vessel is required. Yet in the McWilliams
case the discharge line of a hydraulic dredge which ex-
tended completely across the harbor channel was struck by
a departing ocean cargo vessel, and the scow in The Heze-
kiam Baldwin was large enough to carry grain-loading
equipment throughout the harbor to cargo ships to load and
unload their grain cargoes. The dredge and discharge line
in the McWilliams case which so blocked the channel that
the departing steamer struck it in mid-channel were clearly
related to the traditional maritime activity of navigation
in the same channel. The scow in The Hezekiam Baldwin
was itself a vessel which moved about the harbor to the
various places where it might be required for the purpose
of transferring grain from one vessel to another. It not
only carried grain cargoes across the harbor,
‘‘from one vessel to another’’,
but was itself,
‘‘subject to the same vicissitudes and perils of the
seas to which all vessels are exposed’’. (page 15)
NPA AMT A CRIA MG LARA ATR SOD LEIA BS Oa RETA Bob SS NLT ETOD SLE IIE ae
39
The Robert W. Parsons, 181 U.S. 17 (1903), concerned a
large canal boat which carried cargo between Lake Erie and
New York Harbor, and then travelled across the Harbor or
the Lake to its destination.
Each of these cases readily meet the jurisdictional stand-
ards currently set forth in Executive Jet Aviation v City
of Cleveland, 409 U.S. 249 (1972), at page 256, of
‘*,.. traditional maritime activities involving naviga-
tion or commerce on navigable waters’’.
The total absence of these requirements in the case at bar
in which a self-styled pile driver was pouring concrete in-
to forms under a pier while standing on a float, four feet
wide, always tied to the pier is plain, and the rulings of the
District Court and the Court of Appeals were proper.
(c) After citing a number of cases previously cited in
the Petition, the Petitioner at page 18 cites the case of
Hess v United States, 361 U.S. 314 (1960). In that case,
the plaintiff was working on board a tug and barge in the
Columbia River when the tug and barge struck a pier,
causing the tug and barge to founder and capsize in the
turbulent waters from the spillway of the dam. The flotilla
was operating in a navigable river and was clearly engaged
ina maritime activity. Indeed, the Court of Appeals Opin-
ion, 259 F'2d 285 (9th Cir. 1958), in its comment at footnote
4, at page 289, states:
‘‘But here it cannot be doubted that the activities in
which the decedent was engaged had a direct relation
to navigation and commerce.’’
The decisions in the Courts below are therefore wholly
in accord with all applicable precedents and preserve the
uniformity reflected in those precedents,
40.
Petitioner also seeks to rely upon the testimony of so-
called experts to which reference is made at page 17 of the
Petition. The testimony of the proposed expert, Willard
Appley, was not material to the issues and was properly
excluded by the Trial Court. In describing his experience
with vessels, Mr. Appley referred to the operation of a
tugboat, and towage of deck scows, lighters and barges,
In his cross-examination under voir dire (R.A. 332) he
admitted that the barges were from 175 to 225 feet by about
40 feet beam. There was no lighter, scow, tug, or barge in
use at any time during the performance of the job at Pier 3
from the commencement of that job in August, 1967, until
the date of the plaintiff’s injury in October, 1967. The
proffered testimony by Willard Appley was properly ex-
cluded by the Court and the Court reasonably exercised
its sound discretion thereby.
‘*Tt is a well established rule of evidence that circum-
stances under which other comparable conduct occurs
should be substantially similar. Wigmore on Evi-
dence, 3rd Ed., Vol. IT, Sec. 459, 460; Chesapeake & 0.
Ry. Co. v. Thomason, 6 Cir., 70 F.2d 860; People v.
Gotshall, 123 Mich. 474, 479, 82 N.W. 274; Trask v.
Boston & Maine R.R., 219 Mass. 410, 415, 106 N.E.
1022.’’
Detroit, T € I R Co. v Banning, 173 F2d 752,
756
The other purported expert, Ward, was a co-worker of
the plaintiff who was standing near him. He did not pur-
port to contradict the plaintiff’s own testimony that the
raft was some three and one-half to four feet wide, and his
testimony to that effect (R.A. 304, 305) is quoted herein
at page 4. Nor did he purport to contradict the plaintiff's
_
41
own testimony that the raft was tied to the pier at all times
and was merely used under the pier to repair the piles.
Any reference in the petition to movement of the raft,
‘‘over navigable waters’’,
necessarily is prescribed by the specific testimony that the
movement would be some 10, 15 or 20 feet depending upon
the location of the piles to be worked on that morning as
laid out by the foreman of the job. Plainly, these specifics
are consistent with the local quality of the work being per-
formed, and are inconsistent with,
‘*... traditional maritime activites, involving naviga-
tion and commerce.’’
Executive Jet Aviation, Inc. v City of Cleveland,
409 U.S. 249, page 256
It is of some interest that the section of the Petition com-
mencing on page 13 and ending on page 20 is the verbatim
text of the Petitioner’s earlier Motion for Rehearing
already filed and already ruled on by the Court of Appeals.
The two ‘‘hypothetical’’ situations on page 19 have already
been evaluated by the Court of Appeals as reaching,
“distorted results not dictated by anything said or
implied in our opinion.’’
The assumptions contained in each hypothetical are com-
pletely unrelated to the actual facts of the case. In the
first, if the seaman were a crewmember of a vessel arriving
at a harbor, that status would be obviously a basis for his
action and there is nothing in the Opinion of April 8, 1973
which would contravene it. The second hypothetical is so
abstruse as to be unclear in its presentation. Moreover,
there are numerous assumptions which are not only un-
ee
Bein Sah easels ares ee 5
42
supported by, but in conflict with, the facts presented by the
present plaintiff. There is nothing in either hypothetica
which is material to or affected by the Opinion of the Cour
of Appeals of April 9, 1973.
VII. No Grounp ror tHe ConsmperaTions CITED sy Ruy
19 is PREsENTED.
The issues in the present case have been thoroughly con
sidered in a complete Opinion of the District Court, and in
two further adjudications by the Court of Appeals for the
First Cireuit in the initial Appeal and in the Motion for
Rehearing. But, in addition the plaintiff also has testified
in a formal Hearing before the Bureau of Employee’s Con-
pensation, as a result of which he secured an adjudication
by the Deputy Commissioner that he was within the cov-
erage of the Longshoremen’s and Harbor Workers’ Act.
By virtue of the express terms of that Statute he could not
be within its terms and at the same time qualify as a sea-
man and member of the crew of a vessel. Although there
are cases where a plaintiff has proceeded sequentially, first
in the Compensation Forum, and next in the Judicial For.
um, there is no case in which the plaintiff has testified to
opposite effect in both of these fora in parallel. The pres-
ent plaintiff not only filed his Complaint in this action al-
leging that he was,
‘‘a seaman and member of the crew of a lighter,”
(there being no such lighter), but three months after he
had filed this suit he testified under oath before the Con-
pensation Commissioner that he was a pile driver and in tk
presence of his counsel sought and secured the benefits of
a Statute whose terms were preemptive of his purporte
status of aseaman. There have in all, therefore, been som
86 lg
four adjudications which have preceded the present Peti-
tion. The first being adjudication before the Federal Com-
pensation Commissioner, the second being that of the Dis-
trict Court, the third and fourth being that of the Court of
Appeals on the formal Appeal and the Motion for Rehear-
ing. These considerations point additionally to the un-
reasonableness of the present Petition, and the appropri-
ateness of its denial.
Conclusion.
The Petition fails to cite a single decision by any Court
at any level which is in any degree in conflict. The Petition
does not present any basis for meeting the considerations
governing the review on certiorari provided by Rule 19
of the Supreme Court. The Respondent, McKie Lighter
Co., Inc., respectfully submits that the Petition should
properly be denied. The Respondent, Bethlehem Steel
Corporation, respectfully submits that the Petition should
be denied.
LEO F. GLYNN,
GLYNN & DEMPSEY,
One Boston Place,
Boston, Massachusetts 02108,
Attorney for
McKie Lighter Co., Inc.
CHARLES E. COLSON,
THOMAS E. CARGILL, JR., Of Counsel,
CARGILL, MASTERMAN & CAHILL,
225 Franklin Street,
Attorneys for Bethlehem,
Steel Corporation.
SSNS ST ORS SS Ee SNP Gee
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.