Opposition Brief — Cook v. Belden Concrete Products, Inc.

oa O..0 8 @

HiCiINS COLT &. ve

Fr

[L&D

4

al

©vPREME COURT, URL Y

.

JUL 2 1973

IN THE MICHAEL RODAK, JR.,CLERK |

b a

Supreme Court of the United States

OCTOBER TERM, 1972

©. 6554

ROBERT D. COOK,

Plaintiff-Appellant,

versus

BELDEN CONCRETE PRODUCTS, INC.,

DIVISION OF ROCKWIN CORPORATION,

Defendant-Appellee.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Of Counsel

ADAMS AND REESE

THOMAS J. WYLLIE

HAROLD A. THOMAS

4500 One Shell Square

New Orleans, Louisiana 70139

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE ............----55.- “a Sa

QUESTIONS PRESENTED ..............-----+-5:- 3

REASONS FOR DENYING THE PETITION........ 3

ARGUMENT

SR eee en chee uatani seen ce pees = 3

Re te ara Sys ny Apa kane kaee eae 9

RAG eye nrr e ne ye ere ear ee 12

ed Dt ORR RERE ny eae eee OE Es SMES IED ane err 14

aie cc seaecrceenseeoknaee eae kom 16

I os cy dota eae caskh aves ev eke essence 17

TABLE OF CASES

Atkins vs. Greenville Shipbuilding Corporation,

411 F.2d 279 (5th Cir. 1969) .... 3, 8, 9, 10, 12, 13, 15

Avondale Marine Ways, Inc. vs. Henderson, 346

U.S. 366, 74 S.Ct. 100, 98 L.Ed. 77 (1953).......... 4

Bernardo vs. Bethlehem Steel Co., 200 F.Supp. 534

(S.D. N.Y. 1961), aff'd. 314 F.2d 604 (2nd Cir.

eee eee te mea clean bine kad Mena es 15

Berton vs. Tietjen & Lang Dry Dock Co., 219 R.

a eee eae eae 8

Chahoc vs. Hunt Shipyards, 431 F.2d 576 (5th

Oe a PE rn aia cig ot 8, 12, 15

Continental Casualty Company vs. Lawson, 2

F.Supp. 459 (S.D. Fla. 1932), rvsd. on quan-

tum, 64 F.2d 802, (5th Cir. 1963).................. 7

ii

TABLE OF CASES (Continued)

Cope vs. Vallette Dry Dock Co., 119 U.S. 625, 30

L.Ed. 501, 7 S.Ct. 336 (1887) ...................

Keller vs. Dravo Corporation, 441 F.2d 1239 (5th

De ESOL. coer ire ete oe 4, 8, 9,

Maryland Casualty Company vs. Lawson, 101 F.2d

te ree

Powers v. Bethlehem Steel Corp., F.2d

(1st Cir., 1973), Nos. 72-1197 and 72-1198. ....

The Robert W. Parsons, 191 U.S. 17, 24 S.Ct. 8, 48

MG A UN oe oi os cdo OS teeta

Travelers Insurance Company vs. Shea, 352 F.2d

er Ce ED 5 25 loko vt Sd Ss

United States vs. Moran Towing & Transporta-

tion Co., 374 F.2d 656 (4th Cir. 1967).........

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

No. 6554

ROBERT D. COOK,

Plaintiff-Appeliant,

versus

BELDEN CONCRETE PRODUCTS, INC.,

DIVISION OF ROCKWIN CORPORATION,

Defendant-Appellee.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

May It Please The Court:

STATEMENT OF THE CASE

Petitioner in his statement of the case essentially

covered the relevant facts in the present case. How-

ever, in his efforts to change a matter of law into a

question of fact, a certain amount of confusion was

interjected which may have the effect of misleading

this Court. Therefore, a short statement will be pre-

sented in order to clarify the scene.

Belden Concrete Products, Inc. is a corporation en-

gaged in the manufacture of all types of concrete prod-

ucts. It maintains a yard, part of which fronts on a

slip off the Industrial Canal in New Orleans, Louisiana.

This slip is an essential part of Belden’s operation in

the construction and launching of concrete barges.

The concrete barges are constructed by assembling

prefabricated parts, which have been formed on land,

on a construction platform, which floats in a slip off

the Industrial Canal. The Fifth Circuit stated that,

“The construction platform where the injury

occurred consisted of a flat deck barge ap-

proximately 180 by 54 feet upon which Belden

employees fabricated concrete barges. The

platform had no motive power and could be

moved only by the use of tugboats or land-

based cranes. It was equipped with pipes and

pumps for flooding or evacuating its interior

compartments thus permitting its decks to be

submerged to launch completed barges. Dur-

ing the fabrication of barges the platform

would occasionally be moved to different posi-

tions alongside the defendant’s dock to pick up

materials. Upon completion of construction of

a set of barges, the platform would be towed a

shorter distance into deeper water for launch-

ing.

At the time of his injury, Cook was employed

as a carpenter erecting forms preparatory to

pouring concrete for a second deck on a half-

completed barge. The construction platform

was secured to appellee’s dock by ropes — the

normal method of mooring the platform during

the construction process.”

3

QUESTIONS PRESENTED

Do the lower Courts err in granting summary judg-

ment to respondent holding that as a matter of law

the construction platform was not a vessel for mari-

time jurisdictional purposes?

REASONS FOR DENYING THE PETITION

1) The Courts below were correct in granting re-

spondent’s Motion for Summary Judgment because

there was no genuine issue of material fact.

2) The Courts below correctly followed the control-

ling rule of law promulgated by Atkins and its progeny.

3) The Fifth Circuit and the United States Supreme

Court have consistently held that drydocks are not ves-

sels. |

4) There has been no conflict created between these

Circuits by the Fifth Circuit Court of Appeal, and in

fact, the present case has already been cited with favor

by the First Circuit Court of Appeal.

ARGUMENT

I.

The force of petitioner’s argument on the first issue

is directed to whether a question of material fact ex-

ists. The first thrust is directed at distinguishing the

Atkins case on the ground that Atkins involved a “true

drydock” in the “traditional sense.” Secondly, peti-

tioner argues that because the drydock in Atkins and

4

the drvdock sub judice are different, an issue of fact

is presented. Thirdly, petitioner attempts to muddy

the waters by claiming that the construction platform

was in some way engaged in navigation. Finally, pe-

titioner attempts to distinguish the Keller case on the

ground that in Keller the drydock was moored

to Dravo’s dock by cables and chains, and in the pres-

ent case, the construction platform or drydock was

moored by ropes.

Throughout the development of jurisprudence, no en-

compassing definition of a “drydock” has ever been

presented. Probably the closest definition of a drydock

was presented in the case of Avondale Marine Ways,

Inc. vs. Henderson, 346 U.S. 366, 74 S.Ct. 100, 98 L.Ed.

77 (1953). In a concurring opinion, Justice Douglas

stated:

“There are three kinds of drvdocks. (1) a float-

ing drydock, as its name makes clear, floats on

the water, the vessel resting on the bottom of

the drvdock after the water has been removed.

(2) a graving drydock is dug into the land. The

vessel floats but rests on land once the water

has been pumped out. (3) finally there is the

marine railway, on which the vessel is drawn

away from the water, instead of the water be-

ing drawn away from the vessel. A ship is no

more and no less on land when it rests on a

graving drydock than when it rests on a ma-

rine railway. The three types of drydocks are

not different in kind; functionally they are the

same. And I see no basis for concluding that

ao

Congress treated one differently from the oth-

ers for the purpose of this act.” 98 L.Ed. at 79.

It is easily discernible from this opinion that the func-

tion of the three tvpes of drydock is the same. Basical-

ly, it is to provide a dry area for working on a vessel,

and then returning it to the water. The drvdock in ques-

tion does fit this description. The only difference be-

tween the drydock in the definition and the present

drydock is that the definition presupposes a drydock

for the repair of vessels wherein the drydock must

be submerged to receive the ship. In the present case,

the vessel is constructed on the drydock, and after

completion. the drydock is submerged to release the

vessel into the slip.

Other Courts have also commented on the definition

or purpose of drydocks. In the case of Travelers In-

surance Company vs. Shea, 352 F.2d 344, 5th Cir.,

(1967), the Fifth Circuit had the opportunity to distin-

guish between floating barges which had been removed

from navigation and a drydock. The Court stated at

page 349:

“A drydock functionally as well as nautically

is different from a floating barge. A drvdock

lifts or shifts the ship. If it is to be a drydock,

it submerges or fills with water.”

From the undisputed facts in the present case, the only

way the newly constructed barge could be removed

from the construction platform would be to submerge

6

the platform. This, of course, is in accordance with

the definition formulated by this Court.

Other cases which have dealt with the problem are

Cope vs. Vallette Dry Dock Co., 119 U.S. 625, 30 L.Ed.

501, 7 S.Ct. 336, and Maryland Casualty Company vs.

Lawson, 101 F.2d 732, 5th Cir., (1939). In Cope, the

Supreme Court, in speaking of a drydock, stated, “The

fact that it floats on the water does not make it a ship

or a vessel.” In the Maryland case, this Court had

the following to say about a drydock:

“A floating drydock receives a vessel when the

dock is submerged, after which the water-tight

compartment of the dock are pumped out and

the buoyancy of the dock raises the vessel.”

In both cases, the functional aspect of the drydock is

clear. It provides a dry area on which to work, and

it is capable of being submerged for the entry and

removal of vessels. In the present case, the fact that

vessels were constructed on the dock rather than float-

ed on the dock is of no consequence.

In its opinion, the Fifth Circuit quoted this Court

as having ruled,

“As the Supreme Court pointed out in The Rob-

ert W. Parsons the ‘determinative factors up-

on the question of jurisdiction [are] the pur-

pose for which the craft was constructed and

the business in which it is engaged’. 191 U.S.

17, 24 S.Ct. 8, 48 L.Ed. 73 (1903).” Cook vs.

Belden Concrete Products, Inc., slip opinion

p. 4.

The final case offered on the subject is Continental

Casualty Company vs. Lawson, 2 F.Supp. 459 (S.D.

Fla. 1932), rvsd. on quantum, 64 F.2d 802, 5th Cir.,

(1933). The lower Court was confronted with the situa-

tion involving a carpenter who was repairing a vessel

under a maritime contract. The question before the

Court was to determine whether a vessel which had

been lifted from the water by a cradle onto a dock

was on a drydock. The Court noted that with modern

technology, new methods would probably be devised

using old principles. Speaking of a drydock, the Court

stated:

“Whatever may have been the definition of a

drydock in the past, the definition must be en-

larged to include modern facilities for repair-

ing boats out of the water, as the meaning of

the term, used in its common, ordinary sense,

means a dry place to work in.”

The fact that the construction platform or drydock in

question was used solely for the construction of new

vessels, rather than repair, does not in any way make

the platform less of a drydock.

Nor can the construction platform be considered

to have been in navigation. After examining the ma-

terial facts, the Fifth Circuit had the following to offer:

“However, capability to sustain such move-

ment has been held insufficient to establish

8

that such craft are constructed for the purpose

of navigation. The Robert W. Parsons, supra;

Berton vs. Tietjen & Land Dry Dock Co., 219

F. 763, 774-5 (D.N.J. 1915).

Although the floating construction platform

was not designed for the purposes of naviga-

tion, the structure might be classified as a ves-

sel subject to liabilities arising from an al-

legedly unseaworthy condition, if at the time

of appellant’s injury it had actually been en-

gaged in navigation. However, from the plead-

ings and depositions it is clear that at the time

of the mishap the craft was secured to the ap-

pellee’s dock and engaged in its primary func-

tion as a stationary construction platform. Un-

der this circumstance, we find that the status

of the craft, governed by the proposition that,

‘as a matter of law, a floating drydock is not a

vessel when it is moored and in use as a dry-

dock.’ Keller vs. Dravo Corp., supra, 441 F.2d

at 1239; Chahoc vs. Hunt Shipyard, supra; At-

kins vs. Greenville Shipbuilding Corp., supra.”

Slip Opinion p. 6.

It is undisputed that the sole purpose of the drydock

was the construction and launching of concrete barges.

The fact that the platform was towed to Avondale Ship-

yard for major repairs in 1969 does not have anything

to do with its function. Indeed, it had no bearing in

the Keller case. Likewise, the fact that the drydock

was moored by ropes instead of chains does not in

any way make it less of a drydock. Regarding this

argument, the Fifth Circuit commented as follows:

“Appellant urges that we distinguish case sub

judice from Keller on the basis that here the

mooring was by ropes and there it was by

chain and cable. This is a distinction without

legal difference.”

The material facts remain undisputed. At the time of

the accident, the drydock was in use as a construction

platform and was moored to Belden’s dock.

It becomes evident that there is no genuine issue

as to any material fact in the present case. The law

is quite clear that a submersible construction platform

used in the construction and launching of concrete

barges fits within the meaning of “drydock”. The fact

that the object is not a “true drydock” in the “tradi-

tional sense” does not in any way make it less of a

drydock. The construction platform serves the same

functional purpose of a “true drydock” and fits within

the traditional and modern definition.

II.

The Fifth Circuit has for some time held that dry-

docks are not vessels. If there is no vessel, there can

be no warranty of seaworthiness, nor can there be any

member of a crew more or less permanently connected

to a vessel.

Petitioner, in his brief, states that the lower Courts

erred in failing to distinguish the present case from

Atkins. What petitioner is really trying to do is to am-

putate the legs of three cases on all fours. An examina-

10

tion of Atkins and its progeny clearly shows that the

present case falls within the rule of the law established

by those cases.

' In Atkins vs. Greenville Shipbuilding Corp., 411 F.2d

279 (5th Cir., 1969), the Fifth Circuit held that as a

matter of law a drydock is not a vessel. The Atkins

case involved the following relevant facts.

1. The floating drydock was not a vessel.

2. Atkins was injured on a drydock.

3. The drydock was capable of being sub-

merged.

4. After being submerged the dock was lifted

by pumping air into the compartments.

5. The dock was connected to land by cables.

6. The dock was floating.

When applied to the present case, common sense indi-

cates that these facts are again all present.

1. The construction platform was floating.

2. It was connected to land by ropes.

3. After being submerged, its compartments

were filled with air in order that the dry-

dock could be refloated.

4. The construction platform was capable of

being submerged and was in fact sub-

merged.

5. Cook was injured on the drydock.

6. Therefore, the floating drydock was not a

vessel.

11

The analogy between the two cases is quite clear. The

fact that some of the compartments of the construction

platform were at one time used as barges by a dif-

ferent owner does not render the modified structure,

which is a de facto drydock, a vessel. The undisputed

material facts show that at all times pertinent, the

construction platform was moored and in use as a dry-

dock.

If a case could possibly be more on point than Atkins,

it would be Keller vs. Dravo Corporation, 441 F.2d 1239

(5th Cir., 1971). In Keller, defendant’s affidavit stated

that the drydock was not designed for nor used in navi-

gation. Plaintiff’s affidavit stated that the drydock was

equipped with navigational aids and was moved about,

much like the assertions in the present case. However,

the Fifth Circuit stated that as to any material fact,

there was no dispute. First, that at the time of the

mishap the dock was engaged in its primary function

as a drydock, and secondly, at the time of the injury,

it was moored to defendant’s dock.

In the present case, as in the Keller case, there is

no dispute as to the facts that at the time of the injury,

the present drydock was in use as a construction plat-

form, and it was moored to Belden’s dock. Since the

drydock in question occupied the status of a drydock,

the granting of a summary judgment by the lower

Courts, as in Keller, was proper.

Petitioner makes much of the fact that the drydock

in question moved along Belden’s dock and was floated

out into the slip to be sunk. The movement of the con-

*

AIR GD 4

12

struction platform has nothing to do with transporta-

tion of materials, but actually could be likened to an

assembly line where certain parts were added to the

new construction at different stages. Regarding the

movement in the slip. it was necessary in order to

be positioned in a depth of water in which the drydock

could be sunk.

From an examination of the record, it is clear that

the sole purpose of the construction platform in ques-

tion was the construction of new concrete barges. Any

movement of the platform was not for the purpose of

navigation, but simply to allow the platform to take

on materials to be used in new construction, and to

submerge in order that the new construction could be

floated into the slip.

Il.

The thrust of petitioner’s third argument is that if

special purpose barges, such as drilling rigs which are

towed into the Gulf to accomplish their mission, are

vessels, it follows that drydocks should be vessels. Al-

though this argument has been presented before, the

Fifth Circuit stated that it was not disposed to reverse

Atkins. Chahoc vs. Hunt Shipyard, 431 F.2d 576 (5th

Cir., 1970).

At this time, it may be beneficial to examine the

approach taken by the lower Court in Atkins. The plain-

tiff was injured when ascending a ladder from the dry-

dock to the barge which was being repaired. The plain-

tiff attempted to bring an action based upon unsea-

13

worthiness, but was met with the defenses that he was

not doing the traditional work of a seaman, and that

the drydock was not a vessel. The District Court grant-

ed the motion on the first ground; the Fifth Circuit

affirmed on the latter.

The Court held that the proper method of reasoning

is to examine the structure in question as to its nature,

purpose and character in order to determine whether

it was a vessel. If the answer was affirmative, then

the Court would look to the duties of the individual.

In Atkins, the appellant contended the drydock was

a special purpose vessel; the Fifth Circuit held that

it was not.

In the present case, petitioner, Cook, was injured

when descending a ladder leading from the new con-

struction to the platform or the drydock. There is no

question that at the time of his injury, the drydock

was being used for new ship construction. Likewise,

it was also moored to Belden’s dock.

There is also uncontroverted evidence in the record

that the construction platform was used solely for the

construction of new concrete barges. The fact that the

platform was moved along the dock as a matter of

convenience does not change the nature of the struc-

ture. The platform was also floated into the slip. How-

ever, this movement was done to achieve the ultimate

purpose of the platform — to submerge in order to

allow the newly constructed vessel to be floated off.

The platform would then be pumped out, and begin

anew in the construction of new barges.

14

In the traditional sense, this construction platform

could be considered nothing more than a drydock. As

a matter of fact, it did not serve every purpose of

a drydock, but was used solely in new ship construc-

tion, rather than construction and repair. Certainly no

authority need be cited for the proposition that new

ship construction is not a maritime activity.

Floatation and movement are not enough to consti-

tute a structure a vessel. In Keller, an attempt was

made to show that the drydock was frequently moved

about and even had navigational aids. However, the

material facts considered by the lower Courts were

that although if used for a different purpose, the dry-

dock may become a vessel, while it was moored and

in use as a drydock, it was not a vessel. There are

no facts nor reasons why the same rule should not

be applied in the present case.

Petitioner also makes an analogy regarding a raft

being built upon an oceangoing vessel. Suffice it to

say that providing space for the building of a raft would

not be the sole purpose of the vessel. Likewise, it is

not possible that petitioner would have this Court be-

lieve that the vessel would be submerged in order to

discharge the raft into the water.

IV.

Finally, petitioner has attempted to demonstrate to

this Honorable Court that there is a conflict between

the Circuit Courts of Appeals. An analysis of the cases

cited by petitioner will clearly show that this point

has been raised before, and considered to have no mer-

it.

15

The two cases cited by petitioner are Bernardo vs.

Bethlehem Steel Co., 200 F.Supp. 534 (S.D. N.Y. 1961),

affd. 314 F.2d 604 (2nd Cir., 1963), and United States

vs. Moran Towing & Transportation Co., 374 F.2d 656

(4th Cir., 1967). In Atkins, supra, the Fifth Circuit in

speaking of the Bernardo decision clearly stated, “...

in Bernardo the Court was not called upon to make

the determination we make here. Supra 314 F.2d at

608.” 411 F.2d at 283. Likewise, the Fifth Circuit dis-

tinguished United States vs. Moran Towing & Trans-

portation Co., supra, in the Chahoc case, when

the question was raised. 431 F.2d at 576 fn 2.

Furthermore, the Court’s attention is directed to the

case of Powers vs. Bethlehem Steel Corp., F.2d

, (Ist Cir., 1973), Nos. 72-1197 and 72-1198, decided

April 9, 1973. (Appendix A). The case involved an in-

dividual who was injured on a raft underneath a wharf.

The raft, like the drydock, had no motive power al-

though it was afloat. All materials and power were

supplied to the raft from shore. The raft was instru-

mental in operations directed at repairing pilings un-

derneath the wharf.

The First Circuit cited with approval the case which

is presently before this Court. The Court reasoned that

in such instances, the structures were in no way used

for the purpose of transportation of passengers, cargo,

or equipment from place to place across navigable wa-

ters. To classify either structure as a vessel would

certainly be going beyond the intent of the Jones Act

and defeating the purpose of the Longshoremen and

Harbor Worker’s Compensation Act.

OLE DENT LRAI ———

Hee Ngee Pe 8s Me NA AT EE MEPS

16

CONCLUSION

Tt is an inescapable conclusion that at the time of

Mr. Cook’s accident, he was aboard a construction

platform engaged in the construction of a new vessel.

This platform was in use as a drydock and was moored

to respondent’s dock. Under these circumstances, this

Court and the Fifth Circuit has repeatedly held that

the structure in question is not a vessel. It must also

be noted that the Congress of the United States has

declared that such people as petitioner would have an

exclusive remedy under the Longshoremen and Har-

bor Worker’s Compensation Act. It is respectfully sub-

mitted that the judgments of the lower Courts be sus-

tained and that the Petition for Writs of Certiorari

should be denied.

Respectfully submitted,

ADAMYAND REE

N®RY B. ALSOBROOK, JR.

Attorneys for Respondent

4500 One Shell Square

New Orleans, Louisiana 70139

Telephone: 581-3234

Of Counsel:

ADAMS AND REESE

HAROLD A. THOMAS

THOMAS J. WYLLIE

17

CERTIFICATE

I, the undersigned member of the Bar of this Honor-

able Court, do hereby certify that copies of the above

and foregoing Brief in Opposition to the Petition for

Certiorari have been served upon appellant, Robert

D. Cook, by depositing the same, postage prepaid, in

the United States mail, addressed to Mr. Carl J. Bar-

bier, Badeaux, Discon & Cumberland, Suite 409, 234

Loyola Building, New Orleans, Louisiana.

New Orleans, Louisiana, ile day of June, 1973.

Lett!

la

APPENDIX “A”

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 72-1197

DONALD E. POWERS,

Plaintiff, Appellani,

versus

BETHLEHEM STEEL CORPORATION,

Defendant, Appellee,

versus

McKIE LIGHTER CoO., INC.,

Defendant, Appellec.

No. 72-1198

DONALD E. POWERS,

Plaintiff, Appellant,

versus

McKIE LIGHTER CoO., INC.,

Defendant, Appellee.

Appeals from the United States District Court for the

District of Massachusetts

Before COFFIN, Chief Judge,

ALDRICH and CAMPBELL, Circuit Judges.

2a

Michael B. Latti, with whom Robert S. Wolfe and

Kaplan, Latti and Flannery were on brief, for appel-

lant.

Leo F, Glynn for appellee, McKie Lighter Co., Inc.

Charles E. Colson, with whom Cargill, Masterman

& Cahill was on brief, for appellee, Bethlehem Steel

Corporation.

April 9, 1973

CAMPBELL, Circuit Judge. Appellant Powers, a

pile driver employed by McKie Lighter Co., suffered

a serious eye injury as he stood on a McKie-owned

raft next to Pier 3 of the Bethlehem shipyard in Boston.

McKie was under contract with Bethlehem Steel Cor-

poration, the owner of the pier, to repair the pilings

underneath. Powers, who received compensation for

the injury under the Longshoremen’s and Harbor

Workers’ Compensation Act, 33 U.S.C. § 901 et seq.,

commenced separate actions in the district court a-

gainst McKie, claiming damages under the Jones Act,

46 U.S.C. § 688, and damages and maintenance and

cure under general maritime law; and against Beth-

lehem, under diversity jurisdiction, claiming damages

for negligence. The jury returned substantial verdicts

against both defendants, jointly and severally. Powers

appeals from the district court’s entry of judgments

notwithstanding the verdicts in favor of both defend-

ants.

Standing under the pier on a raft or “float” owned

by McKie, Powers and other workmen would first

clean the piles by chipping and sandblasting, and then

3a

place a form around them into which concrete would

be poured. The raft was about twenty-five feet long

and five feet wide. Without deck or railing, it was made

of 12 by 12 timbers, bonded together. There were rings

for lines at its four corners. The men would descend

by ladder to the raft, which when not in use lay tied

to the pier, lower to the raft sandblasting equipment,

water pumps, and forms to be placed around the pil-

ings, and move the raft under the pier to the piles

by poling or pulling on lines attached to the pier. They

would tie the raft to a larger raft on opposite sides

of a row of piles, and span the rafts with planks, so

that they could move between and work around the

piles. Lines containing water, air, steam and electrici-

ty for cleaning, sandblasting and lighting were led

from the pier by the men on the raft to where they

were working.

The pier was thirty to forty feet wide. The raft’s

only movement was from the pier front to the piles

underneath or from one row of piles to another. Even

when so moving it was normally attached by at least

one line to the pier.’ It had earlier been towed by a

workboat to Pier 3 from Pier 2 and had also been towed

through Boston harbor to other jobs.

1Sometimes, men on the pier would hold a line to guide the raft

under the pier. There was a suggestion in the testimony that

at a point when the raft was moving under the pier the man

on the pier would drop the line to a man on the raft, but it

is clear from the testimony that ihe raft was unattached to

the pier, if at all, for only a matter of minutes.

da

The lighting for the work area, supplied hy Pcthle-

hem, consisted of drop lines with a male plug at one

end, plugged into a fuse box. and a socket at the other

with a bulb in it. The line would be slung over the

side of the pier, and taken under the pier by a work-

man. Some but not all of the bulbs had reflectors. None

had protective covering around them. The bulbs had

popped frequently while the men worked. sometimes

when Bethlehem supervising emplovees were present.

As late as the week of the accident. a bulb had popped

in their presence. Powers had twice complained to the

Bethlehem job supervisor, recommending that the

bulbs be surrounded with a steel or wire cage, with

a piece of plexiglass enclosure. There is no evidence

of what response Powers received, if any.

The accident happened before daylight, as Powers,

standing on the raft, then attached to the pier, was

preparing to move it about twenty feet to piles under

the pier.2_ The light cable, supplied by a Bethlehem

emplovee to a McKie employee, lay hanging over the

side of the pier, the bulb about ten to thirteen feet

above Powers’ eve level. The bulb was unprotected.

When Powers looked up toward the light, the bulb

popped, sending pieces of glass into his eye.

This case is one more taking us literally to the wa-

ter’s edge, having to do with the circumstances under

which a harbor-worker may become entitled to a sea-

man’s remedies. See Victory Carriers, Inc. v. Law,

2There is some suggestion in testimony that the raft may actually

have commenced its movement under the pier.

;

ne TN ee

5a

404 U.S. 202 (1971). Recovery under the Jones Act or

under the general maritime law for unseaworthiness

requires affiliation with a “vessel” — either as a crew

member or as one injured aboard doing seaman’s

work. Swanson v. Marra Brothers, Inc., 328 U.S. 1,

4, 7 (1946); Seas Shipping Co., Inc. v. Sieracki, 328

U.S. 85, 99 (1946). We believe the raft upon which

Powers was injured was not a vessel.

What is a vessel, like who is a crew member, is

“except in rare cases”, a jury question. Offshore Com-

pany v. Robison, 266 F.2d 769, 780 (5th Cir. 1959). Nev-

ertheless, the broad parameters of definition must be

established if the terms are to have content. If what

emerges from facts and inferences taken most favor-

ably to the plaintiff? cannot be a vessel, the jury may

not make it one. See Thibodeaux v. J. Ray McDermott

& Co., 276 F.2d 42, 46 (5th Cir. 1960); Hill v. Diamond,

311 F.2d 789, 792-3 (4th Cir. 1962); Texas Company v.

Savoie, 240 F.2d 674, 675 (5th Cir. 1957); rehearing de-

nied, 242 F.2d 667 (5th Cir. 1957); cert. denied 355 U.S.

840 (1957).

We agree with the 5th Circuit in Cook v. Belden Con-

crete Products, Inc., F.2d , 41 US.L.W. 2406

(5th Cir. Jan. 12, 1973), that a floating construction

platform secured to land is not a vessel for purposes

either of the Jones Act or general maritime law. The

non-vessel in Cook was a flat-deck barge, 180 by 54

feet, upon which employees fabricated concrete barg-

3We have considered the evidence in the light most favorable to

appellant, including evidence made as an offer of proof after

exclusion by the court and give him the benefit of every

favorable inference. Rainey v. Gay’s Express, Inc., 275 F.2d

450, 451 (1st Cir. 1960).

6a

es. Equipped with pipes and pumps for flooding

or evacuating interior compartments, but without its

own propulsion, it was occasionally moved to different

positions alongside the dock to pick up materials,

would be towed into deeper water to launch completed

barges, and had been towed considerable distances.

While barges were being fabricated, it was fastened

by ropes to the dock. The court said, slip opinion, at

4:

... in the instant case the floating construc-

tion platform was capable of limited move-

ment and was, in the normal course of its serv-

ice, towed from point-to-point in navigable wa-

ters. ... The permanence of fixation, however,

is not the criterion which governs the mari-

time status of floating dry docks and similar

structures. As the Supreme Court pointed out

in The Robert W. Parsons [191 U.S. 17,

30 (1903)] the “determinative factors upon the

question of jurisdiction [are] the purpose for

which the craft was constructed and the busi-

ness in which it is engaged” ....

Cook, supra, relied on cases emanating from Cope v.

Vallette Dry-Dock Company, 119 U.S. 625, 627 (1887),

that a floating dry-dock is not a vessel. See Atkins v.

Greenville Shipbuilding Corp., 411 F.2d 279. 283 (5th

Cir. 1969), cert. denied 396 U.S. 846 (1969).4 In our own

4Somewhat related is the Supreme Court’s classification of a so-

called wharf boat as a non-vessel. Evansville & Bowling Green

Packet Co. v. Chero Cola Co., 271 U.S. 19 (1926). Secured to

the shore, with quarters for men aboard and shore based

power and plumbing connections, the huge craft was towed

wee a

7a

case of DeMartino v. Bethlehem Steel Co., 164 F.2d

177, 179 (1st Cir. 1947), holding that a floating dock

was not a vessel, we cited Berton v. Tietjcen & Lang

Dry Dock Co., 219 F. 763 (D. N.J. 1915), in which, at

771, the court said,

... A stage designed to be used in connection

with painting or repairing the side of a vessel

would not become [a vessel] merely because

it was capable of floating on water, though it

were used by workmen in thus painting and re-

pairing, while the same was on the water, ris-

ing and falling with the tide, or because it could

be moved alongside or around such a vessel,

and while being moved was capable of holding

such persons and property. ...

The purpose and business of the present craft was

not the transportation of passengers, cargo, or equip-

ment from place to place across navigable waters. It

was tied to the pier or its pilings virtually all of the

time. Nearly as long as the pier was wide, it was used

to provide a stable platform for men repairing defec-

tive piles. While so used, it was lashed with the other

each winter to a more sheltered harbor, and had sometimes

been towed considerable distances. The statutory “vessel”

definition under consideration in that case — “every descrip-

tion of watercraft or other artificial contrivance used, or ca-

pable of being used, as a means of transportation on water” —

was virtually the same as that in 46 U.S. § 801, arguably ap-

plicable to Jones Act cases. See 7A Moore’s Federal Practice

© .215 [4]. The quoted language has never been construed as

meaning simply every floating object capable of bearing

weight without sinking. See, e.g., Hill v. Diamond, supra, 311

F.2d at 792-3.

225 RS ese

=

8a

faft to piles, planks being placed from raft to raft,

and was indisiinguishable from a permanent floating

dock. See DeMartino vy. Bethlehem, supra. Its brief

movement consisted of being hauled, poled or paddled

from the pier to the piles underneath, or from pile to

pile; even when moving it was usually attached to the

pier by one or more lines. Its occasional “voyages”

— when towed by workboat from one pier to another

— were no different from the dragging of a section

of floating dock from one location to another. See

Evansville & Bowling Green Packet Ce. v. Chero Cola

Bottling Co., supra, 271 U.S. at 20-21; Cook, supra, slip

opinion, at 4-5, n. 5.

Rafts, of course, may be designed or used “to en-

counter perils of navigation.” (See Evansville v. Chero

Cola Co., supra, at 22); if so they may be vessels. See

The Mary, 123 F. 609 (S.D. Ala. 1903): United States

v. Marthinson, 58 F. 765 (E.D.S.C. 1893); Seabrook vy.

Raft of Railroad Cross-Ties, 40 F. 596 (D.S.C. 1889).

But we cannot reasonably describe the present raft

as other than a floating stage. Even with men and

equipment on it, its movement, amounting mostly to

a positioning under the pier incidental to its intended

use, was not navigation.

The raft, moreover, was unlike special purpose float-

ing structures whose function requires exposure to the

hazards of the sea usually at some distance from the

shore, such as barges, dredges, drilling platforms and

floating derricks. See Offshore Company v. Robison,

supra. 266 F.2d at 772 (mobile drilling platform with

retractable legs, having a raked bow, navigation

2 YR CRRA:

AOLMY

9a

lights. bitts, anchors, bilge pumps, cranes, and life

rafts, located at the time cf the accident three miles

offshore); Summerlin v. Massman Const. Co. et al.,

199 F.2d 715, 716 (4th Cir. 1952) (derrick anchored in

a river); Gahagan Const. Corporation v. Armao, 165

F.2d 301, 305 (1st Cir. 1948) (dredge on which crew

slept and ate). Also compare Stafford v. Perini Cor-

poration, No. 71-1221 (1st Cir. March 20, 1973) (con-

struction barge anchored two miles offshore, assumed

to be vessel). These navigable craft, like conventional!

vessels, retain their status even when berthed for long

periods or even when resting upon or attached to the

bottom. See Gianfala v. Texas Company, 350 U.S. 879

(1955), reversing Texas Company v. Gianfala, 222 F.2d

382 (5th Cir. 1955).

It may well be that when a craft not designed or

generally used as a vessel is in actual navigation —

such as when, unattached to land, it is under tow for

an appreciable distance over navigable water — it will

temporarily acquire a vessel’s status. See United

States v. Moran Towing & Transportation Co., 374 F.2d

656 (4th Cir. 1967), Cook, supra. However, even were

the jury on conflicting evidence to have concluded that

Powers’ injury occurred while the raft was in process

of being hauled under the pier, we do not consider

such movement to be navigation.> Attached by a line

to the pier, the raft remained a work platform while

SBesides the short distance from pier to pilings, and the fact the

raft remained attached to the pier, we note that piers and

docks have traditionally been “deemed extensions of land”.

Victory Carriers v. Law, supra, 404 U.S. at 206-7. To term

movement thereunder of this sort “navigation” would seem

as strained as to call the raft a “vessel” or Powers its “crew.”

10a

being so maneuvered into position, a distance of about

twenty feet. We sustain judgment for hicKie.®

We next consider whether appellant may be allowed

to recover against Bethlehem. We do not agree with

him that Bethlehem’s negligence is to be determined

under general maritime law. See Kermarec v.

Compagnie General, 358 U.S. 625, 628 (1959); Carlisle

Packing Co. v. Sandanger, 259 U.S. 255, 259 (1922). Mar-

itime law applies only where the wrong occuring on

or over navigable waters “bear[s] a significant rela-

tionship to traditional maritime activity.” Executive

Jet Aviation, Inc. v. City of Cleveland, 41 U.S.L.W.

4085, 4091 (U.S. Dec. 18, 1972). It would be incongruous

to hold that the required relationship existed here, in

the face of our conclusion that the raft was not a vessel,

but, being a floating work platform, was, in effect,

an extension of the pier, itself an extension of the land.

See Victory Carriers, Inc. v. Law, supra, 404 U.S. at

206-7. Powers, a landbased piledriver, employed to re-

pair piles from the platform, was injured by a bulb

hanging over the pier. We see nothing either in his

occupation or in the circumstance of the accident to

6The district court erred in ruling alternatively that § 905 of the

Longshoremen’s and Harbor Workers’ Act, 33 U.S.C. £901

et seq., barred Powers’ action against McKie because Powers

had collected compensation and had testified in support of his

compensation claim. It was settled, at least before amend-

ment in October, 1972, that § 905 did not bar a longshoreman

or harbor worker's action against his employer, who owned

the vessel where the injury occurred, despite the worker's

having collected compensation. Reed v. The Yaka, 373 US.

410 (1963): Jackson v. Lykes Steamship Co., 386 U.S. 731

(1967); Biggs v. Norfolk Dredging Co., 360 F.2d 360 (4th Cir.

1966). But see Pub. Law 92-576, 82 Stat. 1251, § 18(a) (1972),

amending § 905.

lla

invoke the law of admiralty, “designed and molded

to handle problems of vessels relegated to ply the wa-

terways of the world.” Executive Jet Aviation, Inc.

v. City of Cleveland, supra, 41 U.S.L.W. at 4092.

We thus turn to whether under Massachusetts law

the jury could have found that Bethlehem violated a

duty owed Powers. A Massachusetts landowner owes

to the employees of an independent contractor only

the same duty he owes his own employees, “and thai

duty [is] to disclose hidden defects of which the de-

fendant was aware or of which in the exercise of rea-

sonable care it should have known. Except in cases

of hidden defects, the employer owes no duty to alter

the conditions where the work is to be done or to make

them safe for the emplovee.” Purr v. Massachusetts

Electric Company, 356 Mass. 144, 147, 248 N.E. 2d 482,

495 (1969).7 This rule, now mitigated in virtually oll

cases (as in Powers’) by comprehensive workmen’s

compensation laws, was established in an earlier era

when the cost of industrial accidents was but rarely

imposed on an employer. Whatever its shortcomings,

we are bound by it. The defect in the light bulb was

not hidden; Powers had noticed bulbs popping and had

in fact complained about the danger to Bethlehem em-

plovees. That appellant had not seen the light bulb

which expleded is unimportant, given his familiarity

7See a'so Barrett v. Foster Grant Co., 450 F.2d 1146 (Ist Cir.

1971): DeMartin v. New York, New Haven & H. R.R. Co., 336

Mass. 261, 143 N.E.2d 542 (1957): Havron v. Hayes-Bickford

Lunch System, Inc., 336 Mass. 268, 145 N.E. 2d (1957); Gallo

v. Leahy, 297 Mass. 265. 8 N.E. 2d 782 (1937); Faverau v. Ga-

belie, 262 Mass. 118, 159 N.E. 738 (1928).

l2a

with the bulbs’ propensity to pop and their lack

of shielding.®

Appellant’s argument that Bethlehem violated a du-

ty to supply safe equipment must fail also, since re-

covery would depend on Powers’ not knowing that the

equipment was defective. Cf. Mulchey v. Methodist Re-

ligious Society, 125 Mass. 487, 489 (1878); White v. New-

borg, 208 Mass. 279, 281, 94 N.E. 269, 270 (1911). See

Restatement of Torts 2d § 493A, comment c(3),

$496C. We thus affim the judgment for Bethlehem

against Powers.

We find merit in none of the appellant’s remaining

contentions, dealing mostly with the exclusion of evi-

dence at trial. The verdict in his favor cured any pos-

sible prejudice before the jury. We ourselves have

considered and, for purposes of this decision have

accepted in its aspect most favorable to appcilart. the

excluded proof relative to the status of the raft. Other

exclusions, such as of certain evidence relative to his

alleged crew status, were harmless in view of our con-

clusion that the raft was not a vessel. Given our dis-

position of the case, the district court’s unwillingness

to allow appellant to armend the complaint could not

have been prejudicial.

Affirmed.

8Powers’ earlier unheeded requests for shielding indicated that he

knew of the likelihood of danger as well as of the possibility

of the bulbs’ popping. Restatement of Agency 2d § 521, com-

ment b; § 522.

E

ePITEL, ong