# Brief for the Respondent in Opposition — Powers v. Bethlehem Steel Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0590%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition - **Published:** January 1, 1973 - **Citation:** 414 U.S. 856 ## 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). “ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0590%3A2. Public record. Not legal advice.