Opposition Brief — Lucas v. "Brinknes" Schiffahrts Ges. Franz Lange G. m. b. H. & Co.

INDEX.

STATEMENT UNDER RULE 33(b)(2) ............0.0ceeeeees

0 ae Se eee en oe

tg pa RG tg ER Mee ee UTR? IP SUE k GA eee

I. The Refusal to Strike the Respondent Shipowner’s

Defense Based Upon the 1972 Amendment Was an

Interlocutory Order and Therefore Not Appealable

II. Elimination by Congress of the Warranty of Sea-

worthiness Was Clearly Within Its Constitutional

Mandate to Legislate With Regard to Maritime

Law and Admiralty Jurisdiction ................

PINGS kin Fa uly Veh a Soe uo nek eis cs Heys Kewen

Appenoix A—Constitutional and Statutory Provisions Involved

Appenpix B—Order of the Court of Appeals Filed April 30,

WE SAA VRR ORANG AAAS pe eds nas Shae Cikev ek ee eleni:

Appenpix C—Order of the District Court for the Eastern

District of Pennsylvania Filed January 21, 1975 Denying

Motion for Certification of Order of December 30, 1974

AppenDIx D—Order of the District Court for the Eastern

District of Pennsylvania Filed December 30, 1974 .....

AppENDIx E—Opinion of the District Court for the Eastern

District of Pennsylvania Filed December 30, 1974 ....

AppenpiIx F—Order of the District Court for the Eastern

District of Pennsylvania Filed August 5, 1974 ........

PRR ARLE TEA OER TION.

SPAT ET ORR RPI

= . baad

ol

ll

Al

A4

A6

A8

INDEX (Continued).

Page

Appenpix G—Opinion of the District Court for the Eastern

District of Pennsylvania Entered August 5, 1974 (379

F. Supp. 759)

Appenpix H—Report of Pre-Trial Conference and District

Judge Luongo’s Orders

TABLE OF CASES CITED.

Page

Gillespie v. U. S. Steel Corp., 379 U. S. 148 (1964) ......... 6

Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342

of eS ES ere eee errr ete Tee ree 9

La Bourgogne, 210 U.S. G5 (1007) ........rscensescnscee 5

Panama R. R. Co. v. Johnson, 264 U. S. 375 (1924) ........ 7,8

Reed v. S. S. Yaka, 373 U. S. 410 (1003) .................. 8

Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S.

RE SUE Cheeta UGA hb eOuddeWiess te eh bee wane 8

Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946) ......... 8

TABLE OF STATUTES AND AUTHORITIES CITED.

Page

Longshoremen’s and Harbor Workers’ Compensation Act, 33

U.S. C. §§ 901 et seq.:

ee is OR cs hvickw nda haeabedaceansares 3, 4, 10

haem a ch Mwke wha eu pew eke ll

i oC Lich kandkeaket eave vkessobiecksons 3

United States Constitution, Article III, Sec. 2 ............ 3, 7, 10

ye oe AS Oe eran ie eee 2

ee es nk ecwhseba sp uensghacess vsdebes as = 3,5

ee ia oak dae sch shiewk eden bssewn’ 5

er CC PGS st ihaiakaneke anes Ok ke xbeba's 4

ee ES eins big ak sa nidos ce atecndeneanaes 3

ne

IN THE

Supreme Court of the United States

No. 75-75.

ROBERT H. LUCAS,

Petitioner,

v.

“BRINKNES” SCHIFFAHRTS GES.

FRANZ LANGE G.m.B.H. & CO.,

v.

NORTHERN METAL CO.,

Respondents.

BRIEF IN OPPOSITION TO A PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

THIRD CIRCUIT.

a

To the Honorable, The Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Respondent, “Brinknes” Schiffahrts Ges. Franz Lange

G.m.B.H. & Co., respectfully prays that the Writ sought

by petitioner, Docket No. 75-75, to review an Order of

the United States Court of Appeals for the Third Circuit

be Denied.

OPINIONS OF THE COURTS BELOW.

The United States Court of Appeals for the Third

Circuit did not grant any hearing and filed no opinion in

support of its Order of April 30, 1975, which granted

i . . CPUC EM

ane == LP IOI DE LEK SE LIN ET EIN

2 Brief in Opposition to Petition

Respondent's motion to dismiss the appeal. Said Order is

printed, infra (Appendix B, p. A2). The Order of the

United States District Court for the Eastern District of

Pennsylvania, filed January 21, 1975, denying a motion for

certification of its order of December 30, 1974, is unre-

ported. Said Order is printed, infra (Appendix C, p. A4).

The Order of the United States District Court for the

Eastern District of Pennsylvania, filed December 30, 1974,

denying plaintiffs motion to strike defendant's affirmative

defense and denying defendant's motion for certification, is

unreported. Said Order is printed, infra (Appendix D, p.

A6). The Opinion of the United States District Court

for the Eastern District of Pennsylvania, filed December

30, 1974, is unreported. Said Opinion is printed, infra

(Appendix E, p. A8).

The Order of the United States District Court for the

Eastern District of Pennsylvania, filed August 5, 1974,

granting plaintiff's motion to strike defendant’s credit de-

fense is unreported. Said Order is printed, infra (Ap-

pendix F, p. Al9).

The Opinion of the United States District Court for

the Eastern District of Pennsylvania, entered August 5,

1974, is reported at 379 F. Supp. 759 and is printed, infra

(Appendix G, p. A21).

The report of pre-trial conference and District Judge

Luongo’s orders are printed, infra (Appendix H, p. A50).

JURISDICTION.

By its Order entered April 30, 1975, infra, the United

States Court of Appeals for the Third Circuit granted this

respondent's motion to dismiss petitioner’s appeal. The

jurisdiction of this Court is invoked under 28 U. S. C. A.

§ 1254(1).

SAE A IS AEGAN TNAS Gg PREIS TRL COBRA UME SE CL POOMIIERNE ELEAEELEE DL LNB SALA’. POLI D

Brief in Opposition to Petition 3

QUESTIONS PRESENTED.

1. Was not the Trial Court’s order dismissing the

cause of action based upon the warranty of seaworthiness

interlocutory?

2. Congress acted within its authority in enacting a

statute which eliminates a warranty of seaworthiness as a

basis for recovery for personal injuries to, or death of, a

longshoreman injured in the course of his employment.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED.

The statutory provisions involved are 28 U. S. C.

§ 1291 and 33 U. S. C. §905(b). Said provisions are

printed, infra (Appendix A, p. Al).

The Constitutional provision involved is Article III,

Section 2 (Appendix A, p. Al).

STATEMENT UNDER RULE 33(b)(2).

Since the proceeding draws into question the consti-

tutionality of the Act of March 4, 1927, c. 509, § 5, 44 Stat.

1426, as amended October 27, 1972, Pub. L. 92-576,

§ 18(a), 86 Stat. 1263, 33 U. S. C. §905(b), an Act of

Congress affecting the public interest, and neither the

United States nor any agency, officer or employee thereof

is a party, it is noted that 28 U. S. C. § 2403 may be ap-

plicable.

The United States District Court for the Eastern

District of Pennsylvania has, on December 4, 1974, pur-

suant to 28 U. S. C. § 2403, certified to the Attorney Gen-

eral of the United States the fact that the constitutionality

of such Act of Congress has been drawn into question.

4 Brief in Opposition to Petition

STATEMENT OF THE CASE.

This case was brought in District Court for the

Eastern District of Pennsylvania alleging a cause of action

based upon negligence and unseaworthiness. Jurisdiction

is premised on diversity of citizenship. 28 U. S. C. § 1332

(1970).

Plaintiff-petitioner brought suit against defendant-

respondent for injuries sustained while working as a long-

shoreman. Petitioner based his cause upon 1) unsea-

worthiness; and 2) negligence.

Respondent, in a third-party complaint, sought a

credit, indemnity or contribution against third-party de-

fendant stevedoring company. A motion to strike this

complaint was granted and respondent moved the District

Court for certification and reconsideration. These motions

were denied. _

Respondent asserted as an affirmative defense that the

cause of action for unseaworthiness was explicitly barred

by 33 U. S.C. A. §905(b). Petitioner’s motion to strike

that defense was denied by the trial court. Petitioner’s

motion to certify the order denying his motion to strike

that defense was also denied. Petitioner appealed to the

United States Court of Appeals for the Third Circuit, and

respondent moved to dismiss, averring the District Court’s

order was interlocutory. This motion to dismiss was

granted on April 30, 1975.

A pre-trial conference was held on July 29, 1975.

Di.‘ict Judge Luongo ordered all discovery and pre-trial

memoranda to be completed by August 29, 1975. An

October trial date is anticipated.

med Desires :

Brief in Opposition to Petition 5

ARGUMENT.

I. The Refusal to Strike the Respondent Shipowner’s De-

ferse Based Upon the 1972 Amendment Was an

Interlocutory Order and Therefore Not Appealable.

1. The Courts below clearly considered the order of

the District Court denying petitioner's motion to strike

respondent's affirmative defense as not a “final order” as

described in 28 U. S. C. § 1291.

28 U.S. C. § 1291 bestows upon the Court of Appeals

jurisdiction of appeals “from all final decisions of the

District Courts of the United States . . .” (Appendix A,

infra, p. Al). Excluded from appellate review are those

orders which are interlocutory in nature being entered as

an integral part of the cause at trial, not collateral nor

severable. “The rule . . . for determining whether, for

purposes of an appeal, a decree is final, is, in brief, whether

the decree disposes of the entire controversy between the

parties.” LaBourgogne, 210 U. S. 95.

Because of the large number of similar cases in the

Eastern Distriet of Pennsylvania which would be affected,

Chief Judge Joseph S. Lord, III, Judge Alfred L. Luongo

and Judge Daniel H. Huyett, 3rd (not as a statutory three-

Judge Court) convened to pass upon the motions to dis-

miss, motions to certify to the Court of Appeals and motion

to strike a defense filed by petitioner and respondent. It

is respectfully submitted that petitioner himself recognized

the interlocutory nature of the order by moving the Dis-

trict Court to certify it under 28 U. S. C. § 1292(b) so as

to bring it within the scope of appellate review. This the

District Court declined to do, failing to find in its order a

“controlling question of law as to which there is substantial

ground for difference of opinion” 28 U. S. C. § 1292(b)

(see opinion, Appendix E, p. A18).

— “Feet eer

6 Brief in Opposition to Petition

In granting respondent's motion to dismiss the peti-

tioners appeal, the Court of Appeals for the Third Circuit,

Van Dusen, Adams and Garth, Circuit Judges, obviously

agreed with the District Court's opinion, for it summarily

granted respondent's motion to dismiss, without opinion

(See Order, Appendix B).

Thus the history of the case to date clearly shows that

six federal judges have found the order complained of to

be interlocutory and outside the scope of § 1291.

2. The purpose of limiting appeals to “final orders”

is the avoidance of piecemeal litigation and undue delay

in arriving at a determination on the merits.

Petitioner's reliance on the holding of this Court in

Gillespie v. U. S. Steel Corp., 379 U. S. 148 (1964) is mis-

placed. In Gillespie, the District Judge, holding that the

Jones Act supplied the exclusive remedy for recovery in

the death of the seaman, also barred any claim to recovery

on the part of surviving siblings during the life of the

mother. While acknowledging that the Order of the

District Court presented an “obviously marginal case,”

Gillespie, supra, at 154, this Court was impressed with the

lack of finality in the order delaying the rights of the

siblings, and held that such delay outweighed the draw-

backs of piecemeal review. “Moreover, delay of perhaps

a number of years in having the brother’s and sisters’ rights

determined might work a great injustice on them, since

the claims for recovery for their benefit have been effec-

tively cut off so far as the District Judge’s ruling stands.”

Ibid. at 153. In the instant case, respondent respectfully

submits that the order of the District Court denying peti-

tioner's motion to strike respondent's affirmative defense

in no way serves to frustrate or delay final determination

of the rights and liabilities of the parties. Rather, such

order serves to clarify the issues in dispute, and to promote

the orderly progression of the cause. As the District Court

Brief in Opposition to Petition 7

in its Opinion stated: “After the second long delay in the

litigation occasioned by our preparing another memoran-

dum resolving pre-trial motions, we believe the best hope

for ‘materially advancing the ultimate termination of the

litigation’ is to proceed with it in the District Court.” (See

Appendix E at page A18).

In fact, in this case, plaintiff may be materially

hampered by further delay. The District Court has

ordered all pre-trial memoranda to be filed by August 29th,

with a trial date anticipated for October. Should the

cause be heard on the merits, and should plaintiff-peti-

tioner prevail, his arguments to this honorable Court would

be moot. In any event, plaintiff-petitioner does not stand

to be harmed by denial of the Writ at this time. Once the

case has been heard and decided, the usual avenues of

appeal remain open to him.

3. Finally, in Gillespie, this Court sustained the Court

of Appeals’ assumption of jurisdiction in a “marginal case”,

whereas in the instant case the Court of Appeals expressly

rejected an assumption of jurisdiction, finding the Order

not subject to appeal at this stage of the proceedings.

Respondent contends that the judgment of the Court of

Appeals should nct be disturbed.

II. Elimination by Congress of the Warranty of Seaworthi-

ness Was Clearly Within Its Constitutional Mandate

te Legislate With Regard to Maritime Law and Ad-

miralty Jurisdiction.

1. This Court has always recognized a wide latitude

of legislative authority over maritime law. Here and in the

district court, petitioner cites Panama R. R. Co. v. Johnson.

264 U. S. 375, 44 S. Ct. 391 (1924) for the proposition that

Article III, Section 2 of the Constitution prohibits Congress

Peer * Pe Ce Re ee es et a ee I, es

8 Brief in Opposition to Petition

from substantively amending the maritime law and ad-

miralty jurisdiction “by excluding a thing falling clearly

within them, or including a thing falling clearly without.”

Panama, supra, at p. 386.

In its Opinion (Appendix E, p. A8&) of December 30.

1974, denying petitioner's motion to strike respondent's

affirmative defense to the complaint of unseaworthiness.

the District Court rejected the notion that this language

severely circumscribes the power of Congress to legislate

in the field of maritime law. In examining the holding in

Panama in its entirety, the court below discussed the

breadth of Congressional discretion. [t quoted from this

Court's decision in Panama to show that this Court recog-

nized wide congressional discretion in dealing with prob-

lems of maritime law. Some of these problems came in

the wake of a series of decisions by this Court. See Seas

Shipping Co. v. Sieracki, 328 U. §. 85 (1946). Halcyon

Lines v. Haenn Ship Ceiling & Refitting Corp., 3A2 U. S.

282 (1952), Ryan Stevedoring Co. v. Pan-Atlantic S. S.

Corp., 350 U. S. 124 (1956) and Reed wv. S. S. Yaka, 373

U. S. 410 (1963) to name but a few. The District Court

cited Panama as follows:

“After the Constitution went into effect. the sub-

stantive law theretofore enforced was not regarded as

superseded, or as being only the law of the several

states, but as having become the law of the United

States, subject to power in Congress to alter. qualify

or supplement it as experience or changing conditions

might require. When all is considered, therefore,

there is no room to doubt that the power of Congress

extends to the entire subject and permits the exercise

of a wide discretion. (ibid. U. S. at 385-386)”

(See Appendix E, p. Al2).

Brief in Opposition to Petition g

The District Court goes on to say:

“Immediately following this discussion, the Court

does identify two constitutional limits on the legisla-

tive power. The first limit is the one invoked by the

plaintilfs—that there are boundaries to the maritime

law and admiralty jurisdiction which inhere in those

subjects’ ithid. The second limit, and the one the

Court has acted upon, restrains Congress from enact-

ing legislation which undermines the uniformity of

maritime law and thereby contravenes the constitu-

tional policy upon which a federal maritime law is

based Despite the use of the conjunctive

‘maritime law and admiralty jurisdiction’ in the ex-

cerpt on which plaintiffs rely, we conclude that the

language of limitation under discussion placed bound-

aries on congressional power to expand and contract

admiralty jurisdiction, not on its power to arrange and

rearrange substantive maritirne remedies.” (footnote

omitted) (See App. E, pp. Al3 & 14).

With this interpretation by the District Court re-

spondent is in full accord.

2. This Court will not restructure substantive maritime

law by usurping the legislative function of Congress. In

reaching its decision on the constitutional issue raised by

plaintiff-petitioner below, the District Court was guided by

this Court’s holding in Halcyon Lines ¢. Haenn Ship Ceil-

ing & Refitting Corp., 37A2 U.S. 282.72 S$. Ct 277 | 1952

“Finally, we note that the Supreme Court has

explicitly recognized the peculiar appropriateness of

the legislative process to striking the correct balance

of maritime remedies. In Halcyo \ines ¢ Haenn

Brief in Opposition to Petition

Ship Ceiling & Refitting Corp., [citation omitted] the

Court held that since Congress had not approved a

right of contribution between shipowners and shore-

side contractors, the Court could not appropriately do

so. In so holding the Court said:

‘We think that legislative consideration and

action can best bring about a fair accommodation

of the diverse but related interests of these

groups. The legislative process is peculiarly

adapted to determine which of the many possible

solutions to this problem would be most bene-

ficial in the long run. 342 U. S. at 286’” See

App. E, p. Al5).

The Constitution by its grant of power in Article III

Section 2 authorizes the United States to assume jurisdic-

tion of matters maritime. It is clear however that the

authority to modify the substantive terms of the law and

its appropriate remedies rest squarely with the Congress.

The abolition of the warranty of seaworthiness in the

Longshoremen’s and Harbor Workers’ Compensation Act

33 U. S. C. § 905(b) is a valid exercise of that authority.

3. It has long been the practice of this Court to decline

to rule on the constitutionality of a duly-enacted federal

statute or part thereof, absent a compelling need to do so.

This Court has held that a strong presumption in favor of

constitutionality rides with federal legislation. To rule

otherwise would tend to usurp the legislative function

allocated to Congress.

At a future date the Court may decide to review the

merits of the scheme laid out in 33 U. S. C. § 905(b).

However, the facts in this case do not warrant such review

at this time.

Se ML NES EE I ECR SO OME INOS BE he RR

aE

Brief in Opposition to Petition 11

Rather than undertake to rule upon the constitution-

ality of an Act of Congress at this stage of the controversy,

respondent respectfully suggests that this Court should

permit the courts below to examine and rule upon its

divers aspects. With a wealth of testimony developed on

the records below, this Court will then be presented with

a more fully-fleshed portrait of this Act, rather than the

sketch presented it by petitioner at this time.

CONCLUSION.

Respondent submits that the Courts below were cor-

rect in considering the orders appealed to be interlocutory

and not subject to appeal.

Respondent further contends that Congress acted

within its scope of authority in eliminating the warranty

of seaworthiness by the 1972 Amendments to 33 U. S. C.

§§ 901 et seq.

Wherefore, Respondent prays that the Writ be denied

by this Honorable Court.

Respectfully submitted,

THomas E. Byrne, Jr.,

KrusEN EvANs AND ByRNE,

Counsel for Respondent.

>

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wa eee

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APPENDIX A.

CONSTITUTIONAL PROVISIONS AND STATUTES.

U. S. Constitution.

Article III.

Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties made, or

which shall be made, under their Authority;—to all Cases

affecting Ambassadors, other public Ministers and Con-

suls:—to all Cases of admiralty and maritime Jurisdiction;—

to Controversies to which the United States shall be a

Party;—to Controversies between two or more States;—be-

tween a State and Citizens of another State;—between

Citizens of different States;—between Citizens of the same

State claiming Lands under Grants of different States, and

between a State, or the Citizens thereof, and foreign States,

Citizens or Subjects.

28 U.S.C. A.

{ 1291. Final decisions of district courts.

The courts of appeals shall have jurisdiction of ap-

peals from all final decisions of the district courts of the

United States, the United States District Court for the

District of the Canal Zone, the District Court of Guam,

and the District Court of the Virgin Islands, except where

a direct review may be had in the Supreme Court. June

25, 1948, c. 646, 62 Stat. 929; Oct. 31, 1951, c. 655, § 48,

65 Stat. 726; July 7, 1958, Pub. L. 85-508, § 12(e), 72

Stat. 348.

(Al)

A2 Appendix B

APPENDIX B.

UNITED STATES COURT OF APPEALS

For THE Tuirp Circuit

Nos, 75-1223-4

April 18, 1975

ROBERT H. LUCAS,

Appellant in No. 75-1223

v.

“BRINKNES” SCHIFFAHRTS GES. FRANZ LANGE

G.m.b.H. & Co., K.G.

Dv.

NORTHERN METAL COMPANY (3rp Pry. DEFT. )

“BRINKNES” SCHIFFAHRTS Ges. FRANZ LANGE G.m.p.H.

& Co., K.G., DEFENDANT-Tuimp PARTY PLAINTIFF,

Appellant in No. 75-1224

(D. C. Civil No. 73-1120)

Present: Van Dusen, Apams and Gartn, Circuit Judges.

1. Motion by Cross-appellant, “Brinknes” Schiffahrts

Ges. Franz Lange G.m.b.H. & Co., K.G., to dis-

miss appeal of appellant in No. 75-1223, Robert

H. Lucas, or, in the alternative, to extend time for

filing brief and the appendix until 40 days after

the Court has acted on this motion, and further

moves this Court for an Order dismissing all of

the appeals in Nos. 75-1220, 75-1221, 75-1223

Appendix B A3

and 75-1224, and remanding the records to the

District Court for further proceedings leading to

a final judgment to be entered by the District

Court,

2. Answer by appellant in No. 75-1223, Robert H.

Lucas, to motion by Cross-appellant to dismiss

appeal in No. 75-1223,

3. Answer by appellee, Northern Metal Company, to

motion of Cross-appellant to dismiss appeals,

stating supports motion to dismiss appeals in Nos.

75-1220, 75-1221, 75-1223 and 75-1224,

in the above listed for Monday, April 28, 1975.

Respectfully,

/s/ THomas F. Quinn

Clerk

enc.

fm

P.S. On April 15, 1975 the Clerk granted Stipulation of

counsel that the decision in No. 75-1223 will be bind-

ing upon Nos. 75-1220 and 75-1221, D. C. Civil No.

73-2150.

The foregoing Motion is granted and the records are re-

manded to the district court.

By THE COURT,

/s/ Va~ Dusen

Judge

Dated: April 30, 1975

- Ae ee

Appendix C

APPENDIX C.

IN THE

UNITED STATES DISTRICT COURT

Fort THE EAsTern District OF PENNSYLVANIA

Civic Action No. 73-1120

ROBERT H. LUCAS

v.

“BRINKNES” SCHIFFAHRTS GES. FRANZ LANGE

G.m.B.H. & Co., K.G.

v.

NORTHERN METAL COMPANY

Civit Action No. 73-2150

DENNIS A. FARRO

v.

ETERNITY CARRIERS, INC.

v.

NORTHERN METAL COMPANY

-_-s—

Appendix C A5

ORDER.

Now, January 21, 1975, upon consideration of plain-

tiffs motion in Civil Action No. 73-1120 for certification

of the Order of December 30, 1974, under 28 U. S. C.

§ 1292(b) and the motions in Civil Action No. 73-1120

and No. 73-2150 of August 7, 1974, of defendants-third

party plaintiffs for certification under 28 U. S. C. § 1292(b)

of the Order of August 5, 1974, and the motions for re-

consideration in Civil Action No. 73-1120 and No. 73-2150

of defendants-third party plaintiffs for certification under

28 U. S.C. § 1292(b) of the Order of the Court of August

5, 1974, the contentions of the parties and memoranda

filed, Ir Is OnpEREp that:

1. Plaintiff's motion in Civil Action No. 73-1120 for

certification of the Order of December 30, 1974, under 28

U.S.C. § 1292(b) is DentEp;

2. The motions in Civil Action No. 73-1120 and No.

73-2150 of August 7, 1974, of defendants-third party plain-

tiffs for certification under 28 U. S. C. § 1292(b) of the

Order of the Court of August 5, 1974 are DENiED; and

3. The motions for reconsideration in Civil Action No.

73-1120 and No. 73-2150 of defendants-third party plain-

tiffs for certification under 28 U. S. C. § 1292(b) of the

Order of the Court of August 5, 1974, are DENIED.

/s/ JoserH S. Lorp, III

Joseph S. Lord, III

Ch. J.

/s/ ALFRED L. Luonco

Alfred L. Luongo

J.

/s/ Daniev H. Huyetrt, 3rp

Daniel H. Huyett, 3rd

J.

A6 Appendix D

APPENDIX D.

IN THE

UNITED STATES DISTRICT COURT

For THE EASTERN District or PENNSYLVANIA

Civiz Action No. 73-1120

ROBERT H. LUCAS

v.

“BRINKNES” SCHIFFAHRTS GES. FRANZ LANGE

G.m.B.H. & Co. K.G.

v.

NORTHERN METAL CO.

Civit Action No. 73-2150

DENNIS A. FARRO

v.

ETERNITY CARRIERS, INC.

v.

NORTHERN METAL CO.

Appendix D A7

ORDER.

Now, December 30, 1974, Ir Is OnpEReEp:

In Civil Actions Nos. 73-1120 and 73-2150,

(a) the motion of plaintiffs to strike the defend-

ants’ affirmative defense denying liability under the

warranty of seaworthiness is DENteD.

(b) the motion of defendants for certification to

the Third Circuit under 28 U. S. C. §1292(b) is

DENIED.

/s/ Joseru S. Loro, III,

Joseph S. Lord, III,

Ch. J.

/s/ ALFRED L. LuoNco,

Alfred L. Luongo,

3.

/s/ Dante. H. Hvuyetrt, 3rp,

Daniel H. Huyett, 3rd,

Je

A8 Appendix E

APPENDIX E.

IN THE

UNITED STATES DISTRICT COURT

For THE EASTERN District OF PENNSYLVANIA

Civit Action No. 73-1120

ROBERT H. LUCAS

v.

“BRINKNES” SCHIFFAHRTS GES. FRANZ LANGE

G.m.B.H. & Co., K.G.

v.

NORTHERN METAL CO.

Civit Action No. 73-2150

DENNIS A. FARRO

v.

ETERNITY CARRIERS, INC.

v.

NORTHERN METAL CO.

Berore: Josepu S. Lorp, III, Chief Judge

Atrrep L. Luonco, Judge

DanteL H. Huyetrt, 3rp, Judge °

° A panel of three District Court judges was convened by

Chief Judge Lord to consider these cases because of the number

of cases pending in the Eastern District of Pennsylvania which

have issues identical to the issues raised in these cases. This pro-

cedure will provide for uniformity of treatment of the issues in-

volved even though a single district judge is not actually bound by

our ruling in these cases. See Turner v. Transportation Maritima

Mexicana S. A., 44 F. R. D. 412, 414 n. 1 (E. D. Pa. 1968).

DEES SEN IEW

Appendix E A9

OPINION.

Huyertrt, J. December 30, 1974

Before us is a series of motions’ in two admiralty

actions arising out of shipboard injuries to longshoremen.

These motions test the constitutionality of 33 U. S. C.

§ 905(b),* one of the 1972 amendments to the Longshore-

men’s and Harbor Workers’ Compensation Act, 33 U. S. C.

§ 901 et seq. amended (Supp. II 1972).

1. In an earlier memorandum resolving another series of pre-

trial motions filed in these actions, Lucas v. “Brinknes” Schiffahrts

Ges. Franz Lange G. m. B. H. & Co., K. u., 379 F. Supp. 759 (E. D.

Pa. 1974), we held that §905(b) of Title 33, as amended, pre-

cluded any actions for ee or contribution by shipowners

against stevedores arising out of injuries to the stevedores’ em-

ployees. For a discussion of the history of the different rights and

remedies treated in the Longshoremen’s and Harbor Workers’

Compensation Act, 33 U. S. C. § 901 et seq. as amended (Supp. II

1972), see Lucas I at 761-65.

2. 33 U. S. C. §905(b) as amended (Supp. II 1972) reads:

(b) In the event of injury to a person covered under this

chapter caused by the negligence of a vessel, then such person,

or anyone otherwise entitled to recover damages by reason

thereof, may bring an action against such vessel as a third

party in accordance with the provisions of section 933 of this

title and the employer shall not be liable to the vessel for such

damages directly or indirectly and any agreements or war-

ranties to the contrary shall be void. If such person was em-

ployed by the vessel to provide stevedoring services, no such

action shall be permitted if the injury was caused by the negli-

ence of persons engaged in providing stevedoring services to

the vessel. If such person was employed by the vessel to pro-

vide ship building or repair services, no such action hall be

permitted if the injury was caused by the negligence of persons

engaged in providing ship building or repair service to the

vessel. The liability of the vessel under this subsection shall

not be based upon the warranty of seaworthiness or a breach

thereof at the time the injury occurred. The remedy provided

in this subsection shall be exclusive of all other remedies

against the vessel except remedies available under this chapter.

(Emphasis added )

Al0 Appendix E

MOTION TO STRIKE.

By a motion to strike defendant shipowners’ affirma-

tive defense denying liability under the warranty of sea-

worthiness, plaintiffs question the power of Congress to

eliminate through § 905(b) a longshoreman’s right to re-

cover under the warranty of seaworthiness conferred on

him in Seas Shipping Co., Inc. v. Sieracki, 328 U. S. 85

(1946). We deny the motion to strike.

Plaintiffs argue that Congress exceeded its consti-

tutional authority under Article III, section 2,’ when it

eliminated the warranty of seaworthiness as a basis upon

which Jongshoremen can recover.‘ Their argument relies

heavily on the following excerpt from a passage in Panama

Railway Co. v. Johnson, 264 U. S. 375, 386 (1924):

[T]here are boundaries to the maritime law and ad-

miralty jurisdiction which inhere in those subjects and

cannot be altered by legislation, as by excluding a

thing falling clearly within them or including a thing

falling clearly without.

Plaintiffs point out that this language of limitation is

echoed in subsequent Supreme Court cases.° Such limiting

3. Article III, section 2, reads in part:

The judicial Power shall extend . . . to all Cases of admiralty

and maritime Jurisdiction.

4. The Supreme Court first afforded seamen the right to re-

cover under a warranty of seaworthiness in The Osceola, 189 U. S.

158 (1903). To recover under the warranty, however, the seaman

had to establish that the shipcwner had breached a duty of reason-

able care and that his injury did not result from the negligence of

the master or crew. In 1944, the Court transformed the liability

arising from a breach of the warranty of seaworthiness into an ab-

solute, non-delegable liability. Mahnich v. Southern S. S. Co., 321

U. S. 96 (1944). Then, two years later the Court granted long-

shoremen the right to recover under a warranty of seaworthiness.

Seas Shipping Co., Inc. v. Sieracki, 328 U. S. 85 (1946).

5. In Crowell v. Benson, 285 U. S. 22 (1932), the Supreme

Court upheld the constitutionality of the original Longshoremen’s

ODED ELLOS LOL LG IILEE LMGIO EPL OY OO REO, BIL Ls EEE A POLAR pT EDS

Appendix E All

language, plaintiffs contend, precludes Congress from

eliminating this “most substantial and most important”

admiralty remedy, the warranty of seaworthiness.°

Since plaintiffs rely so strongly on Panama Railway

Co. v. Johnson, we start by examining the lengthy passage

5. (Cont'd. )

and Harbor Workers’ Compensation Act of 1927, 33 U. S. C. § 901

et seq. (1970). The Court quoted the following language from

Chief Justice Taney’s opinion in The Genesee Chief, 53 U. S. (12

How.) 443, 459 (1851):

But the extent of the power as well as the mode of proceeding

in which [admiralty] jurisdiction is to be exercised, like the

power and practice in all the other courts of the United States,

are subject to the regulation of Congress, except where that

power is limited by the terms of the Constitution, or by neces-

sary implication from its language.

285 U. S. at 53. In Detroit Trust Co. v. The Thomas Barlum, 293

U. S. 21 (1934), the Court upheld the Ship Mortgage Act, 46

U. S. C. §§ 911-984 (1970) (§ 973 as amended (Supp. I 1971)),

which conferred on federal admiralty courts jurisdiction over

actions to enforce the lien of a “preferred” mortgage on a ship, the

term “preferred” being defined fe the Act. The Court concludes

a paragraph in which it o = the broad power of Congress to

determine maritime law b, = ding

But in amending and revising the maritime law, the Congress

necessarily acts within a sphere restricted by the concept of

the admirality and maritime jurisdiction.

293 U. S. at 44.

6. Plaintiffs seem to suggest that the lineage and antiquity of

the warranty of seaworthiness are so compelling that Congress can-

not, constitutionally exclude it. At the risk of mentioning the

obvious, we note that the ye pwen Court did not feel pesmecee’ to

grant even a limited right of recovery under the warranty of sea-

worthiness until 1903.. The Osceola, 189 U. S. 158 (1903). The

warranty did not apply to longshoremen, the only group to which

it has been denied under § 905(b), until 1946. Seas Shipping Co.,

Inc. v. Sieracki, 328 U. S. 85 (1946). On a grander scale, plaintiffs

suggest that there exists, and existed at the time of the adoption of

the Constitution, a core of substantive maritime law, including the

warranty of seaworthiness, with which Congress cannot tamper.

This notion we reject. We adopt the Supreme Court’s statement in

The Lottawana, 88 U. S. (21 Wall.) 558, 572 (1875), that “it is

hardly necessary to argue that the maritime law is only so far

operative as law in any country as it is adopted by the laws and

usages of that country.”

Al2 Appendix E

from Panama of which the language cited by plaintiffs

comprises a sentence. The passage begins with a long

section in which the Court acknowledges the necessarily

broad discretion of Congress to legislate in the area of

substantive maritime law.? In discussing the nature of

Article III, section 2, the Court states

Although containing no express grant of legislative

power over the substantive law, the provision [Article

III, section 2] was regarded from the beginning as

implicitly investing such power in the United States.

Commentators took this view; Congress acted on it,

and the courts, including this Court, gave effect to it.

Practically therefore the situation is as if that view

were written into the provision. After the Constitu-

tion went into effect, the substantive law theretofore

in force was not regarded as superceded or as being

only the law of the several States, but as having be-

come the law of the United States, . . . subject to

power in Congress to alter, qualify or supplement it

as experience or changing conditions might require.

When all is considered, therefore, there is no room to

doubt that the power of Congress extends to the en-

tire subject and permits of the exercise of a wide

discretion.

7. Although there is no conflict among the Supreme Court

cases on the broad discretion of Congress to enact maritime law,

there is some disagreement as to where in the Constitution this

power is grounded. The Court in The Lottawana, 88 U. S. (21

Wall.) 558, 577 (1875), found the source of congressional power

to be Article I, section 8, cl. 3, the commerce clause. In Panama

Railway Co. v. Johnson, 264 U. §. 382, 387 (1924), and Detroit

Trust Co. v. The Thomas Barlum, 293 U. S. 21, 42 (1934), the

Court found the source to*be Article I, section 8, cl. 18, the neces-

sary and proper clause. Finally, in O'Donnell v. Great Lakes

Dredge & Dock Co., 318 U. S. 36, 39 (1943), the Court identified

both the commerce clause and the necessary and proper clause as

the source of congressional power.

Appendix E Al3

264 U. S. at 386. Immediately following this discussion,

the Court does identify two constitutional limits on the

legislative power. The first limit is the one invoked by

plaintiffs—“that there are boundaries to the maritime law

and admiralty jurisdiction which inhere in those subjects.”

Id. The second limit, and one the Court has acted upon,

restrains Congress from enacting legislation which under-

mines the uniformity of maritime law and thereby contra-

venes the constitutional policy upon which a federal mari-

time law is based.

This second limit on the national Congress, and in

one case on the New York legislature, led the Court to

strike down several legislative schemes in a line of cases

just prior to Panama Railway Co. v. Johnson. In Southern

Pacific Co. v. Jensen, 244 U. S. 205 (1917), Knickerbocker

Ice Co. v. Stewart, 253 U.S. 149 (1920), and Washington

v. Dawson & Co., 264 U. S. 219 (1924), the Court de-

clared unconstitutional under Article III, section 2, an at-

tempt by the New York legislature and two attempts by

the national Congress respectively to apply state work-

men’s compensation schemes to maritime injuries. The

Court struck down these attempts because maritime law is

constitutionally designated federal law and must be uni-

form wherever the Constitution reaches.

Plaintiffs do not suggest in their briefs that § 905(b)

exceeds this second limit. They argue instead that denial

to longshoremen of the warranty of seaworthiness exceeds

the first limit, the one imposed by the inherent nature of

the subject. With this theory we cannot agree. Despite

8. Although the Panama Court uses the phrase “maritime law

and admiralty jurisdiction,” we suspect the Court intended only to

echo the constitutional phrase but inserted the word “law” for a

nicer rhetorical balance. The Constitution refers only to “maritime

and admiralty jurisdiction.” We cannot attribute to the Court's

use of the word “law” the significance which the plaintiffs urge.

Al4 Appendix E

the use of the conjunctive “maritime law and admiralty

jurisdiction” in the excerpt on which plaintiffs rely, we

conclude that the language of limitation under discussion

places boundaries on congressional power to expand and

contract admiralty jurisdiction, not on its power to ar-

range and rearrange substantive maritime remedies.° We

base our conclusion on several considerations. As we have

already suggested, the language from Panama Railway Co.

v. Johnson that plaintiffs cite is but a short excerpt from a

long passage the predominant theme of which is the broad

range of congressional discretion to alter and amend mari-

time law. This pattern, limiting language sounding a

minor theme in a case in which the major theme is the

wide-ranging congressional power to enact maritime law,

is repeated in Crowell v. Benson, 285 U. S. 22 (1932), and

Deroit Trust Co. v. The Thomas Barlum, 293 U. S. 21

(1934), two other cases upon which plaintiffs rely. Fur-

ther, in Panama Railway Co. v. Johnson and Crowell v.

Benson, the Court upheld the federal legislation under

constitutional attack despite thoroughgoing congressional

rearrangement of substantive maritime remedies. In

Panama Railway v. Johnson the Court upheld the consti-

9. We do not imply here that congressional discretion to ex-

and or contract admiralty jurisdiction is narrowly restricted. In a

ine of cases in the first decade of this century, Cleveland Terminal

& Valley R. Co. v. Cleveland S. S$. Co., 203 U. S. 316 (1908); The

Troy, 208 U. S. 321 (1908); and Martin v. West, 222 U. S. 191

(1911), the Supreme Court refused recovery in admiralty when a

ship or its gear caused damage to persons ashore or to shore-based

p . In 1948 Congress passed the Admiralty Extension Act

1948, 46 U. S. C. § 740 (1970), which in effect overruled this line

of cases conferring jurisdiction in admiralty for these kinds of ac-

cidents. Although the Supreme Court has never ruled directly on

the constitutionality of the Act, the Court in Victory Carriers, Inc.

v. Law, 404 U. S. 202, 209-210 (1971), recounts this legal history

with apparent equinimity and reports that “[t]he [Admiralty Ex-

tension Act] survived constitutional attack in the lower federal

courts and was applied without question by this Court in Gutierrez.

. . .” (citations omitted).

ios “3 ee EDL ROA OI EN SF IGE TG ER:

Appendix E Al5

tutionality of the Jones Act, 46 U. S. C. § 688, which con-

ferred on seamen a negligence remedy governed by “all

statutes of the United States conferring or regulating the

right of action for death in the case of railway employees.”

In Crowell v. Benson the Court upheld the original Long-

shoremen’s and Harbor Workers’ Compensation Act of

1927, 33 U. S. C. § 901 et seq., which created a federal

workmen’s compensation scheme for longshoremen. In

fact, except for legislation struck down for undermining

the uniformity of maritime law, plaintiffs cannot cite us a

single case in which a congressional enactment of sub-

stantive maritime law was declared unconstitutional.

Finally, we note that the Supreme Court has explicitly

recognized the peculiar appropriateness of the legislative

process to striking the correct balance of substantive mari-

time remedies. In Halcyon Lines v. Haenn Ship Ceiling

and Refitting Corp., 342 U. S. 282 (1952), the Court held

that since Congress had not approved a right of contribu-

tion between shipowners and shoreside contractors, the

Court could not appropriately do so. In so holding, the

Court said:

We think that legislative consideration and action can

best bring about a fair accommodation of the diverse

but related interests of these groups. The legislative

process is peculiarly adapted to determine which of

the many possible solutions to this problem would be

most beneficial in the long run.

342 U. S. at 286; accord United States v. Atlantic Mutual

Insurance Co., 343 U. S. 236, 242 (1952). Our first opinion

in this matter, Lucas v. “Brinknes” Schiffahrts Ges. Franz

Lange G.m.B.H. & Co., K.G., 379 F. Supp. 759, 767-69 and

appendix /E. D. Pa. 1974), discusses at length the shifting

of weights, as revealed by the legislative history, which

finally struck the balance represented by the 1972 Amend-

Al6 Appendix E

ments to the Longshoremen’s and Harbor Workers’ Com-

pensation Act. After full legislative hearings at which

representatives of all interested groups testified, Congress

adjusted the previous balance of remedies toward the goal

of a more humane and more equitable scheme. As we

found in Lucas I, 379 F. Supp. at 766-67, the 1972 Amend-

ments reveal themselves as a configuration in which the

stevedore is strictly liable to his employee for increased

workmen’s compensation benefits. The stevedore, in turn,

is protected against action by shipowners for indemnity

and contribution when a longshoreman is injured on the

job through a shipowner’s negligence. Finally, and this

completes the configuration, the shipowner is no longer

strictly liable to the longshoreman under the warranty of

seaworthiness; only a simple, common-law negligence

remedy remains available to the longshoreman against the

shipowner. In light of our characterization of the 1972

Amendments, we note the recent case of Burris v. Lavino

Shipping Co., — F. 2d — (3d Cir. Oct. 30, 1974), Civil No.

74-1120, in which the Third Circuit, in dicta,’ character-

ized the Amendments as:

rationaliz[ing] the relative liabilities of shipowners

and stevedores by replacing maritime concepts of

liability with “a new cause of action for negligence in

which a shipowner is not to be held liable as a third

party unless the former's negligence was such as would

render a land-based third party in non-maritime pur-

suits liable under similar circumstances” . . .

(citation omitted ).

10. In Burris the Third Circuit found that the 1972 Amend-

ments did not apply because the accident giving rise to the action

in federal court occurred prior to the effective date of the Amend-

ments. Burris v. Lavino Shipping Co., — F. 2d —, — and note 9

(3d Cir. 1974).

|

|

}

sail SOE LITLE SET NOOO SIE FOE OE LEYTE "

Appendix E Al7

To summarize, then, we hold that in denying to long-

shoremen the right to recover under the warranty of sea-

worthiness in the 1972 Amendments to the Longshoremen’s

and Harbor Workers’ Compensation Act, Congress has ex-

ceeded its power neither under the Constitution nor under

the constitutional interpretation found in Panama Railway

v. Johnson. The caution sounded in Panama is against

extreme congressional tampering with the boundaries of

admiralty jurisdiction, either territorial or subject matter

jurisdiction. We agree that Congress may not, constitu-

tionally, bring under the jurisdiction of a federal admiralty

court a completely land-based accident or transaction.

Conversely, we concede that Congress cannot remove from

admiralty jurisdiction those types of accidents which occur

on navigable water since these are conceptually, tradi-

tionally, and constitutionally admiralty matters. This does

not mean, however, that Congress may not amend or alter

the substantive law of admiralty as long as it does not

interfere with admiralty jurisdiction. Section 905(b) in

no way encroaches upon the jurisdiction of the admiralty

court; it merely defines rules of law to be applied. More

specifically, the amendment provides that liability to a

longshoreman may not be based upon the breach of the

warranty of seaworthiness. It does not disturb the juris-

diction of a district court to entertain a suit by an injured

longshoreman. Article III, section 2, does not reach the

substantive law of admiralty but only the jurisdiction and

the uniform application of its laws. Section 905(b) does

nothing to either.

MorTION FOR CERTIFICATION.

Defendants-Third Party Plaintiffs move that we certify

the constitutional question here decided to the Third

Circuit. Section 1292(b) of Title 28 provides for such a

Al8 Appendix E

procedure but only when “there is substantial ground for

difference of opinion and . . . an immediate appeal may

materially advance the ultimate termination of the liti-

gation.” Since we find § 905(b) clearly constitutional, we

necessarily find no “substantial ground for difference of

opinion.” Further, after this second long delay in the liti-

gation occasioned by our preparing another memorandum

resolving pretrial motions, we believe the best hope for

“materially advanc[ing] the ultimate termination of the

litigation” is to proceed with it in the district court.

ConDITIONAL MOTION FOR RECONSIDERATION.

Defendants-Third Party Plaintiffs move that in the

event we find § 905(b) unconstitutional, we reconsider our

decision in Lucas I. Obviously, we need not reconsider.

/s/ JoserH S. Lorp, III,

Joseph S. Lord, III,

Ch. J.

/s/ AtFRED L. Luonco,

Alfred L. Luongo,

/s/ Daniev H. Huyerr, 3rp,

Daniel H. Huyett, 3rd,

J.

LIL OLLI LNT CIE L L IE A EEA ILI RE ETL EN REI Na IS NM ORE etd

Appendix F Al9

APPENDIX F.

IN THE

UNITED STATES DISTRICT COURT

For THE EAsTerN District OF PENNSYLVANIA

Civit Action No. 73-1120.

ROBERT H. LUCAS

vo.

“BRINKNESS” SCHIFFAHRTS GES. FRANZ LANGE

G.m.b.H & Co. K.G.

v.

NORTHERN METAL CO.

Civit Action No. 73-2150.

DENNIS A. FARRO

v.

ETERNITY CARRIERS, INC.

v.

NORTHERN METAL CO.

A20 Appendix F

ORDER.

This 5th day of August, 1974 it is OnpERED

1. In Civil Action No. 73-1120,

(a) plaintiffs motion to strike defense that de-

fendant is entitled to a 50% credit against any judgment

obtained by plaintiff should defendant prove concurrent

negligence on the part of plaintiff's employer in causing

plaintiff's injuries is GRANTED;

(b) third-party defendant Northern Metal Co.'s

motion to dismiss third-party plaintiff “Brinkness” Schif-

fahrts Ges. Franz Lange G.m.b.H. & Co. K.G.’s second

amended third-party complaint is GRANTED.

2. In Civil Action No. 73-2150, third-party defendant

Northern Metal Co.’s motion to dismiss third-party plaintiff

Eternity Carriers, Inc.’s second amended third-party com-

plaint is GRANTED.

/s/ Joseru S. Loro, III

Joseph S. Lord, III,

Ch. J.

/s/ ALFRED L. LUONGO

Alfred L. Luongo,

/s/ DanieL H. Huyetrt, 3rp

Daniel H. Huyett, 3rd,

J.

e Pe enn bade) 4 LER GLA AE DN LT IE

Appendix G A21

APPENDIX G.

IN THE

‘ UNITED STATES DISTRICT COURT

For THE Eastern District OF PENNSYLVANIA

Civit Action No. 73-1120.

ROBERT H. LUCAS

v.

“BRINKNES” SCHIFFAHRTS GES. FRANZ LANGE

G.m.b.H. & CO., K.G.

v.

NORTHERN METAL CO.

Civit Action No. 73-2150.

DENNIS A. FARRO

v.

ETERNITY CARRIERS, INC.

v.

NORTHERN METAL CO.

Before: Josepn S. Lorn, III, Ch. J.

ALFRED L. Luonco, J.

DaniteEv H. Hvuyetr, 3rp, J.°

° A panel of three District Court judges was convened by

Chief Judge Lord to consider these cases because of the number

of cases pending in the Eastern District of Pennsylvania which

have issues identical to the issues raised in these cases. This proce-

dure will provide for uniformity of treatment of the issues involved

even though a single district judge is not actually bound by our

ruling in these cases. See Turner v. Transportation Maritima

Mexicana S. A., 44 F. R. D. 412, 414 n. 1 (E. D. Pa. 1968).

A22 Appendix G

OPINION.

By Hvuyertrt, J. August 5, 1974

Congress in 1972 gave careful consideration to the

compensation scheme provided by the Longshoremen’s

and Harbor Workers’ Act of 1927, 33 U. S. C. §§ 901 et seq.

(1970). Among the matters extensively treated in the 1972

Amendments to the Act, 33 U. S. C. §§ 901 et seq. as

amended (Supp. II 1972), was the question whether

third-party suits should be allowed by the longshoreman

against the vessel which caused the longshoreman to be

injured. Congress did provide for such suits when the

vessel's negligence caused the injuries. 33 U. S. C.

§ 905(b) (Supp. Il 1972). The cases before us present

the question whether any recovery obtained by the lcng-

shoreman as a result of the vessel’s negligence should

either be diminished or be allowed against the longshore-

man’s employer—the stevedore—when its negligence is a

concurrent cause of the injuries.

In each case a longshoreman seeks to recover damages

against the defendant vessel owner as a result of injuries

caused while working on the vessel.'| The basis for re-

covery is alleged to be that the vessel owner was negligent.

The vessel owners have filed third-party complaints against

the longshoremen’s employers alleging that the third-party

defendant stevedores were negligent in causing injury to

plaintiffs and failed in their contractual duty to perform

their services in a competent and workmanlike manner

causing injury to plaintiffs. In the alternative it is alleged

that if the acts or omissions of the third-party defendants

contributed to plaintiffs’ injuries, the vessel owners are en-

1. Jurisdiction is premised on diversity of citizenship. 28

U. S. o § 1332 (1979).

Appendix G A23

titled to a credit or reduction of 50% of any damages

awarded to plaintiffs.* .

The second amended third-party complaints seek (1)

full or partial indemnity from third-party defendants for

some or all of the damages which may be awarded to the

plaintiffs in the proceedings, as well as all legal fees, costs

and expenses incurred and expended by defendants and

third-party plaintiffs, (2) a credit or reduction of 50% of

any and all damages adjudged and awarded to the plain-

tiffs in these proceedings, (3) contribution from third-

party defendants for a proportionate share of any amount

of damages adjudged and awarded to plaintiffs in these

proceedings, or (4) contribution or indemnity from third-

party defendants to the extent of all medical expenses and

compensation paid or payable pursuant to third-party de-

fendants’ legal liability therefor under the terms and pro-

visions of the Harbor Workers’ Act, said amount to be

applied as a credit or set off against whatever damages

are awarded to plaintiffs in these proceedings.

The third-party defendant stevedores have moved to

dismiss the second amended third-party complaints for

failure to state claims upon which relief can be granted.

And the plaintiff in LUCAS has moved to strike the ves-

sel’s answer setting forth a 50% credit as a defense if the

stevedore’s negligence also caused plaintiff's injuries. We

will grant these motions.

2. The proposition that third-party plaintiffs are entitled to

a credit against any recovery obtained by the plaintiffs is also

raised in the answer to the complaints. In Lucas the plaintiff has

moved to strike this defense.

2

z

Sia SIRS PR AITO NEARED PE OLE EEN LNB NTN TOE EMBO NGI ENON BNE sees

A24 Appendix G

DEVELOPMENT OF THE THIRD-PaRTy Surt*

Longshoremen’s remedies hisicrically have been sub-

ject to the crosswinds sweeping o'er land and sea. Al-

though employed by the land-based stevedore, the long-

shoreman typically performs his services on the vessel

while it is in navigable waters. Atlantic Transport Co. v.

Imbvovek, 234 U. S. 52 (1914), held that admiralty has

jurisdiction over a suit by a longshoreman against his em-

ployer for injuries occurring on the vessel while it is in

navigable waters. With respect to the maritime nature of

the longshoreman’s work the Court stated: “Formerly the

work was done by the ship’s crew; but, owing to the

exigencies of increasing commerce and the demand for

rapidity and special skill, it has become a specialized serv-

ice devolving upon a class ‘as clearly identified with mari-

time affairs as the mariners.” Atlantic Transport Co. v.

Imbrovek, 234 U. S. supra at 62. The theme that work

performed on the vessel afforded longshoremen the benefit

of admiralty remedies has been the source of much of the

conflict Congress sought to resolve in the 1972 Amend-

ments to the Harbor Workers’ Act.

A. Enactment of a Workmen’s Compensation Scheme.

Tension between the two great bodies of law govern-

ing affairs of the sea and of the land began when the Court

in Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917),

asserted that a state compensation scheme providing bene-

fits for a longshoreman injured on navigable waters was

incompatible with the need for uniformity in maritime law.

3. See — Note, Maritime Jurisdiction and Longshore-

men’s Remedies, 1973 Wash. Univ. L. 2. 649; F. Tetreault, Seamen,

Seaworthiness, And The Rights of Harbor Workers, 39 Cornell

(i ' ‘aa (1954); G. Gilmore and C. Black, Admiralty, 248-394

SAREE AMI SI IMS NIN Fi ARO PLE

Appendix G A25

In rapid succession the Court struck down two further at-

tempts by Congress to bring longshoremen within the

ambit of state compensation acts. Knickerbocker Ice Co.

v. Stewart, 253 U. S. 149 (1920), held unconstitutional an

amendment to the “saving to suitors clause”* allowing

application of state compensation laws to injuries occurring

on the vessel. Washington v. Dawson & Co., 264 U. S.

219 (1924), invalidated a statutory amendment similar to

that involved in Stewart.

True to its reasoning in Imbrovek the Court then held

that longshoremen were seamen within the meaning of the

Jones Act, 46 U. S. C. § 688, and could, therefore, recover

under that Act against the stevedore-employer for the

latter’s negligence. International Stevedoring Company

v. Haverty, 272 U. S. 50 (1926). The Jones Act provided

the longshoreman with an attractive negligence remedy

against his employer. The Jones Act plaintiff was not sub-

ject to the assumption of risk or contributory negligence

defenses. This situation was altered, however, when Con-

gress enacted the Harbor Worker’s Act making the long-

shoreman’s remedy under the Act the exclusive method of

relief against the employer.’ See Swanson v. Marra

Brothers, Inc., 328 U.S. 1 (1946) (holding that the Harbor

Workers’ Act provided the exclusive remedy by the long-

shoreman against his employer and that he could not sue

under the Jones Act).

Liability of the employer under the Act likewise was

to be “exclusive and in place of all other liability of such

4. Codified at 28 U. S. C. § 1333 (1970).

5. A twilight zone of coverage by state compensation acts was

allowed in certain circumstances. 33 U. S. C. §903(a) (1970);

Rodes, Workmen's Compensation for Maritime Em oyers: Ob

scurity in the Twilight Zone, 68 Harv. L. Rev. 637 (1955). Section

2(c) of the 1972 Amendments eliminates this twilight zone. 33

U. S. C. §903(a) (1972 Supp. IT).

recat Ree eee ite ena

A26 Appendix G

employer to his employee, his legal representative, hus-

band or wife, parents, defendants, next of kin, and anyone

otherwise entitled to recover damages from such employer

at law or in admiralty on account of such injury or death

“°°.” §5, 44 Stat. 1426, as amended, 33 U. S. C. § 905

(1970). The Act permitted the longshoreman, however,

to bring an action against any third party who may have

caused the injuries. § 33, 44 Stat. 1440, as amended, 33

U. S. C. § 933 (1970). The admiralty remedy of unsea-

worthiness became the predominant relief sought in these

third-party actions.

B. The Doctrine of Unseaworthiness.

Historically, the vessel's duty to provide a seaworthy

ship was available only to the seaman and then only in

limited circumstances. The seaman could not recover for

the operating negligence of the master in giving an order

which caused the seaman injury. The Osceola, 189 U. S.

158 (1903).° Furthermore, “[t]he shipowner’s liability in

American Courts, as in the English, was limited to cases in

which he had failed to use reasonable care to provide

proper appliances, and liability did not attach where

mariners’ injuries resulted from the failure of those aboard

the vessel to make proper use of such appliances.” F.

Tetreault, Seamen, Seaworthiness, and the Right of Harbor

Workers, 39 Cornell L. Q. 381, 392 (1954) (footnote

omitted ).

Later cases, however, have established the doctrine

of seaworthiness of the vessel as an absolute non-delegable

duty without regard to negligence owed to the seaman, the

longshoreman and other harbor workers injured on the

6. The Jones Act, 46 U. S. C. § 688, later provided a remedy

for this kind of negligence.

Appendix G A27

vessel. Mahnich v. Southern S. S. Co., 321 U. S. 96 (1944),

established the warranty of seaworthiness to be absolute.

Harking back to the maritime nature of the longshoremen’s

work articulated in Imbrovek, supra, the Court in Seas

Shipping Co., Inc. v. Sieracki, 328 U. S. 85 (1946), held

that the warranty of seaworthiness was available to the

longshoreman. Pope & Talbot, Inc. v. Hawn, 346 U. S.

406 (1953), extended the warranty of seaworthiness to

other harbor workers injured on the vessel. The warranty

was also available to the harbor worker even though he

was directly employed by the vessel. Reed v. Yaka, 373

U. S. 410 (1963). |

The scope of the liability imposed on the vessel by

the doctrine of seaworthiness was broad. As stated by one

commentator:

“Since Mahnich, courts have found liability under

the warranty of seaworthiness for such conditions as

defects in cargo containers,** improper stowage of

cargo,“ the presence of extraordinary hostile or ag-

gressive seamen,” the requiring of two men to do the

work of four,®* faulty ship’s structure *" and equip-

“33. Gutierrez v. Waterman S. S. Corp., 373 U. S. 206

(1963); Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,

Ltd., 369 U. S. 355 (1962).

“34. Gindville v. American-Hawaiian S. S. Co., 224 F. 2d

746 (3d Cir. 1955); Amador v. A/S J. Ludwig Mowinckels

Rederi, 224 F. 2d 437 (2d Cir.), cert. denied, 350 U. S. 901

(1955); Palazzolo v. Pan-Atlantic S. S. Corp., 211 F. 2d 277

(2d Cir. 1954), affd sub nom. Ryan Stevedoring Co. v. Pan-

Atlantic S. S. Corp., 350 U. S. 124 (1956).

“35. Boudoin v. Lykes Bros. S$. S. Co., 348 U. S. 336

(1955).

“36. Waldron v. Moore-McCormack Lines, Inc., 386

U. S. 724 (1967).

“37. Crumady v. The Joachim Hendrik F isser, 358 U. S.

423 (1959).

— - ee ee

. . memenenntnen mass hehe EROS ge ek a aret * \v

PORE - | SRR eet, BERRA PRR

Appendix G

ment,"* defective equipment brought aboard by the

stevedore,* and incompetent personnel.*°

“38. Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946).

“39. Alaska S. S. Co. v. Petterson, 347 U. S. 396 (1954),

g per curiam 205 F. 2d 478 (9th Cir. 1953). The Nint

ircuit had ‘2ssumed’ that the equipment causing the long-

shoreman’s injury had been brought aboard by the stevedore

contractor, had said that no proof existed that the equipment

was defective, had conceded that the stevedore had control

of the ship at the time of the injury, and then had held that

the a duty is ‘one he cannot delegate.’ 205 F. 2d

at A

“40. Keen v. Overseas Tankship Corp., 194 F. 2d 515

(2d Cir. 1952).”

Maritime Jurisdiction and Longshoremen’s Remedies, 1973

Wash. U. L. Q. 649, 655. In addition, the vessel has been

held liable when the primary cause of the longshoreman’s

injury was brought into play by his fellow workers.

Crumady v. The Joachim Hendrik Fisser, 358 U. S. 423

(1959); Albanese v. Matts, 382 U. S. 283 (1965); Blas-

singill v. Watermann S. S. Corp., 336 F. 2d 367 (9th Cir.

1964).

C. Indemnity Action Between Shipowner and Steve-

dore.

The liability imposed on the vessel by the warranty of

seaworthiness soon washed ashore engulfing the land-based

stevedore in indemnity actions whenever the stevedore’s

actions caused the unseaworthy condition. Ryan Steve-

doring Co., Inc. v. Pan-Atlantic Steamship Co., 350 U. S.

124 (1956), held that an action by the vessel against the

stevedore based on an implied contract to perform his

duties in a workmanlike manner was not barred by the

exclusivity provision of section 5 of the Harbor Workers’

Act. 33 U.S.C. § 905 (1970).

ile

a hve at est

Appendix G A29

In regard to the exclusivity provision the Court rea-

soned that section 5 evidenced a trade-off between the

employer and the employee. The employee obtaind com-

pensation regardless of fault and the employer was free

from any other liability to the employee. “On the other

hand, the Act prescribes no quid pro quo for a shipowner

that is compelled to pay a judgment obtained against it for

the full amount of a longshoreman’s damages.” 350 U. S.

supra at 129 (footnote omitted). Furthermore, “the Act

nowhere expressly excludes or limits a shipowner’s right,

as a third person, to insure itself against such a liability

either by a bond of indemnity, or the contractor’s own

agreement to save the shipowner harmless.” 350 U. S.

supra at 130. The Act, therefore, did not preclude relief

against the stevedore.

The Sieracki-Ryan line of cases thus resulted in the

stevedore often being held liable to his employee far be-

yond his compensation obligations under the Act.

RiGHT TO CONTRIBUTION IN ADMIRALTY *

The Ryan court was precluded by Halcyon Lines v.

Haenn Ship Ceiling & Refitting Corp., 342 U. S. 282

(1952), from holding that the vessel had a right of con-

tribution against the stevedore when the stevedore was also

a cause of the longshoreman’s injury. Halcyon refused to

permit contribution against the stevedore even though

there was a jury determination that the stevedore was 75%

responsible for the longshoreman’s injuries. While raising

doubts about the existence of the right to contribution in

a non-collision admiralty case, the Court based its refusal

to provide for contribution upon the inappropriateness of

7. See generally G. Staring, Contribution and Division of

or in Admiralty and Maritime Cases, 45 Cal. L. Rev. 304

(1957).

ORL LEAT I CPT RIEL ET AL EN LYTIC NIN

A30 Appendix G

the judiciary in fashioning rules of contribution. The

Court felt the matter should be left to Congress.

Recently, in Cooper Stevedoring Co. Inc. v. Kopke, —

U. S. — (1974), the Court resolved any doubt about the

existence of a right to contribution among joint tortfeasors

in a non-collision admiralty action.* The Court stated:

“Indeed, it is fair to say that application of the

rule of division of damages between joint tortfeasors

in admiralty cases has been as broad as its underlying

rationales. The interests of safety dictate that where

two parties ‘are both in fault, they should bear the

damage equally, to make them more careful.’ The

Alabama, supra, 92 U. S. at 697. And a ‘more equal

distribution of justice’ can best be achieved by

ameliorating the common-law rule against contribu-

tion which permits a plaintiff to force one of two

wrongdoers to bear the entire loss, though the other

may have been equally or more to blame. See The

Max Morris, supra, 137 U. S., at 14.”

Cooper Stevedoring Co. v. Kopke, — U. S. — (slip opinion

p. 5).

With respect to the specific issued raised in Halcyon,

the Cooper court agreed with lower federal courts that

Halcyon provided only an immunity for the employer from

tort liability by statute. See In Re Seaboard Shipping

Corp., 449 F. 2d 132 (2d Cir. 1971), cert. denied 406 U. S.

949 (1972); Watz v. Zapata Off-Shore Corp., 431 F. 2d

100 (5th Cir. 1970); Horton & Horton, Inc. v. T. S. J. E.

Dyer, 428 F. 2d 1131 (5t) Cir. 1970), cert. denied, 400

U. S. 993 (1971). Referring to Halcyon the Court stated:

8. Cooper was 1S vaio Amendment case and thus did not

consider the issue befo

re us.

Appendix G A31

“Before this Court, both parties in Halcyon

agreed that ‘limiting an employer's liability for con-

tribution to those uncertain amounts recoverable

under the Harbor Workers’ Act is impractical and

undesirable.’ 342 U. S., at 284. The Court also took

cognizance of the apparent tradeoff in the Act be-

tween the employer's limitation of liability and the

abrogation, in favor of the employee, of common-law

doctrines of contributory negligence and assumption

of risk. Id., at 285-286. Confronted with the pos-

sibility that any workable rule of contribution might

be inconsistent with the balance struck by Congress

in the Harbor Workers’ Act between the interests of

carriers, employers, employees, and their respective

insurers, we refrained from allowing contribution in

the circumstances of that case.”

Cooper Stevedoring Co., Inc. v. Kopke, — U. S. supra at

— (slip opinion pp. 6-7). It is therefore clear that, absent

considerations imposed by statutes such as the Harbor

Workers’ Act, admiralty courts are relatively free’ to fash-

ion appropriate rules of contribution based on fairness to

the parties.

A rule of contribution never applied in an admiralty

case finds support in cases from the District of Columbia

Circuit Court of Appeals. Murray v. United States, 405

F. 2d 1361 (D. C. Cir. 1968), held that the lessor of a

building leased to the United States was entitled to a

pro rata credit on any liability obtained against it by a

government employee if the government’s negligence also

caused the employee to be injured. The government en-

joyed immunity from tort liability to its employees as a

result of the exclusivity provision of the Federal Em-

ployees Compensation Act, 5 U. S. C. § 8116(c) (1970).

sie GC ASE ANOS HESS GE RRNA IED

tli PET FS RS TDS OTT NII SANE ENON HEN TET RT

pe PURO: ST ee ead Me ce :

A32 Appendix G

The Murray court found support for such a credit in cases

involving the effect of a release by the plaintiff of a joint

tortfeasor. See Martello v. Hawley, 112 U. S. App. D. C.

129, 300 F. 2d 721 (D. C. Cir. 1962); McKenna v. Austin,

134 F. 2d 659 (D. C. Cir. 1943). No analysis was made

by the Murray court of the different considerations in-

volved in a statutorily created immunity from those in-

volved in a contractual settlement of liability.

Dawson v. Contractors Transport Corp., 467 F. 2d

727 (D. C. Cir. 1972), affirmed the propriety of the Mur-

ray credit and noted the doctrine’s basis in equity. Sig-

nificantly, the Dawson court dealt with a private District

of Columbia employer who enjoyed the benefit of the ex-

clusivity provision of the Harbor Workers’ Act.°

THE 1972 . .4ENDMENTS TO THE LONGSHOREMEN’S

AND Harsor Workers Act oF 1927.

The 1972 Amendments to the Act dealt with four

considerations: (1) the level of benefits provided, (2) the

extension of the Act’s coverage to additional workers, (3)

the provision for third-party suits against persons other

than the employer, and (4) administrative matters. In-

creasing benefits under the Act was closely tied to a reso-

lution of the issue whether third-party suits resulting in

liability to the stevedore beyond that provided in the

Act should be allowed.

The cause of this increased liability of the stevedore

to his employee was primarily attributed to the expansive

scope given the doctrine of seaworthiness in Mahnich, the

application of the doctrine to persons covered by the

Harbor Workers’ Act in Sieracki with the resultant liability

9. 36 D. C. Code §501 makes applicable to the District of

Columbia the Harbor Workers’ Act.

Appendix G A33

imposed on the stevedore by Ryan. The Committee Re-

ports reflect the concern for this increased liability. The

Senate Report states:

“While everyone has agreed since at least the

mid-1960's that the benefits under this Act should be

raised, there has been some dispute over the years

as to whether such benefits should be raised so long

as this compensation law was not the exclusive

remedy for an injured worker. It has been the feel-

ing of most employers that while they were willing

to guarantee payment to an injured worker regard-

less of fault, they would only do so if the right to

such payment was the exclusive remedy and they

would not be subject to additional law suits because

of that injury.”

S. Rep. No. 92-1125, 92d Cong. 2d Sess., 4-5 (1972). See

also H. R. Rep. No. 92-1441, 92d Cong., 2d Sess., 4-8

(1972).

There can be no doubt that Congress achieved its

purpose of eliminating increased liability to the employer

due to the seaworthiness doctrine. Congress amended the

exclusivity section of the Act by adding subsection 5(b),

33 U. S. C. § 905(b), which provides as follows:

“In the event of injury to a person covered under

this chapter caused by the negligence of a vessel,

then such person, or anyone otherwise entitled to re-

cover damages by reason thereof, may bring an action

against such vessel as a third party in accordance with

the provisions of section 933 of this title and the em-

ployer shall not be liable to the vessel for such dam-

ages directly or indirectly and any agreements or war-

ranties to the contrary shall be void. If such person

was employed by the vessel to provide stevedoring

i

4

— ARN PT ES

— >. EN CE SIE CER

PELL LE RGN, ES TN .

ae % AEN NET poets

A34 Appendix G

services, no such action shall be permitted if the in-

jury was caused by the negligence of persons engaged

in providing stevedoring services to the vessel. If

such person was employed by the vessel to provide

ship building or repair services, no such action shall

be permitted if the injury was caused by the negli-

gence of persons engaged in providing ship building

or repair services to the vessel. The liability of the

vessel under this subsection shall not be based upon

the warranty of seaworthiness or a breach thereof at

the time the injury occurred. The remedy provided

in this subsection shall be exclusive of all other reme-

dies against the vessel except remedies available under

this chapter.’ (Emphasis added. )

The amendment eliminates suits against the vessel based

on the doctrine of seaworthiness by persons covered under

the Act. In addition, agreements to indemnify or hold

harmless the vessel are expressly prohibited. Furthermore,

the Yaka case, allowing suit by the longshoreman when

directly employed by the vessel, is overruled by providing

that the vessel in that circumstance is entitled to the same

exclusive liability as the stevedore is to his employees.

10. Subsection 5(a), 33 U. S. C. § 905(a), provides as follows:

“The liability of an employer prescribed in section 904 of

this title shall be exclusive and in place of all other liability

of such employer to the ee his legal representative,

husband or wi of popece dependents, next of kin, and anyone

otherwise entitled to recover damages from such employer at

law or in admiralty on account of such injury or death, except

that if an employer fails to secure payment of compensation

as required by this chapter, an injured employee, or his legal

representative in case death results from the injury, may elect

to claim compensation under the chapter, or to maintain an

action at law or in admiralty for damages on account of such

injury or death. In such action the defendant may not plead

as a defense that the injury was caused by the negligence of

a fellow servant, or that the employee assumed the risk of his

employment, or that the injury was due to the contributory

aagipenes of the employee.”

Appendix G A35

Essentially Congress rejected the courts’ rationale that

the longshoreman’s tasks were subject to similar conditions

and hazards as those of seamen. The House Report states:

“e * * [T]he Committee has noted that the sea-

worthiness concept was developed by the courts to

protect seamen from the extreme hazards incident to

their employment which frequently requires long sea

voyages and duties of obedience to orders not gen-

erally required of other workers. The rationale which

justifies holding the vessel absolutely liable to seamen

if the vessel is unseaworthy does not apply with equal

force to longshoremen and other non-seamen working

on board a vessel while it is in port.”

H. R. Rep. No. 92-1441, 92d Cong., 2d Sess. 6 (1972).

Congress did, however, provide for suit by the long-

shoreman against the vessel for injuries caused by the

vessel's negligence. The third-party plaintiff vessel owners

argue that upon a showing of concurrent negligence by the

stevedore causing injury to the longshoreman, they are

entitled to a Murray credit or a pro tanto release of iability

to the extent of any payments made by the stevedore to

the longshoreman under the Act. Under the latter theory

liability would be measured not by injury to the longshore-

man but only by the amount of compensation paid by the

stevedore. In addition, they claim a right to recover

counsel fees and expenses upon a showing that the steve-

dore’s negligence was the sole cause of the injuries to the

longshoreman. The amicus curiae brief argues that the

vessel can be liable only if it was the sole cause of the long-

shoreman’s injuries or, in the alternative, the vessel can

only be liable to the proportionate extent it caused the

longshoreman’s injuries. Under the latter theory the long-

: Ca ka EES OIL OLE S Pa NPSL eR eg

ins ; ee PPEGRO LINE RE IN EPI ET ME TT NI IRE WN EN AS BO Se ® 7.

A36 Appendix G

shoreman’s recovery would first be reduced by the long-

shoreman’s own negligence and then by the extent to which

the stevedore’s negligence caused the injuries.

As is evident from these arguments, there are nu-

merous solutions possible in determining how to spread

liability among joint tortfease-s with each solution having

the common denominator, so it is contended, of fairness."

Regardless of what our feelings may be, however, we are

bound in the cases before us by Congress’ policy deter-

mination.

Although Congress’ attention was primarily focused on

eliminating the liability thrust upon the stevedore by the

Mahnich-Siericki-Ryan line of cases, it appears clear to us

that this concern was merely part of a larger effort to in-

sulate the longshoreman’s and harbor worker's employer

from any liability other than that provided by the Act.

Third-party suits were considered disruptive of the com-

pensation scheme provided by the Act, Congress was con-

cerned with the cost involved in allowing third-party suits.

The expense to the stevedore involved in defending these

suits was seen as a drain on the funds available for com-

pensation under the Act.

It was understood by the members of Congress most

directly involved in amending the Act that in allowing for

any third-party suits Congress ran the risk that liability

would eventually be visited on the employer. It was

deemed essential that clear amending language be used to

prevent such an occurrence. The process by which a con-

sensus was reached to allow for a third-party suit against

the vessel for its negligence illustrates Congress’ paramount

concern that the employer's liability under the Act to his

11. It is clear from the Committee Hearings that Congress

was aware of the possibility of such a pro tanto shifting of liability.

See H. R. Hearings, Statement of David — Esq. and com-

ments by John R. Martzell, Esq. at pp. 152-53.

Appendix G A37

employee must be insulated and was intended to be in-

sulated by the emphatic language of amended subsection

5(b), 33 U. S. C. § 905(b).

In addition to the bills introduced in each house of

Congress designed to increase compensation benefits and

for other purposes, H. R. 3505 and §. 525 sought specif-

ically to deal with third-party suits. Both these bills had

the support of the shipowner and stevedore industry. Both

proposed to eliminate completely third-party suits against

the vessel. They would accomplish this result by defining

the vessel as the longshoreman’s employer even though the

longshoreman may not have been directly employed by the

vessel when injured. Labor interests, while desirous of

effecting a raise in compensation benefits, were opposed to

a complete elimination of third-party suits.

Allowance of a suit for negligence was seen as a prac-

tical compromise which would lessen the industry's oppo-

sition to increased benefits and still provide some remedy

against the vessel when it was at fault in causing the long-

shoreman’s injuries. In providing for the third-party suit

against the vessel for its negligence, Congress perceived

that it was eliminating the large number of cases in which

the vessel was held liable without fault pursuant to the

doctrine of seaworthiness. This perception was based on

the assumption that the negligence remedy provided would

be similar to the common law concept based on fault and

not any maritime negligence concept in which the vessel

owed some special duty to provide the longshoreman a

safe place to work. Narrowing the scope of the vessel's

duty with regard to safety to that of a common law fault

duty was designed to eliminate as much as possible the un-

fairness to the vessel caused by the seaworthiness doctrine

while still providing some remedy for the vessel’s actions in

causing the longshoreman to be injured. At the same time.

. EEN RAY SA NTR, SRA ERS

“ . - z SeReGNy: TONS MOR HEAL AACR SO BENE EN MY

Ss TAN TANCE ELTER ND MLAS EMIT UNE

A38 Appendix G

however, Congress expressed its concern that the stevedore

employer would not be held liable for any damages caused

by the vessel owner’s negligence.

This overriding concern to insulate the employer was

clearly presented in both the House and Senate hearings

held on the various bills introduced. The testimony given

by Francis A. Scanlan, Esquire in both houses of Congress

presented most sharply the limits of the compromise solu-

tion allowing for a common law negligence suit against

the vessel with insulation from liability to the employer-

stevedore. Mr. Scanlan testified in favor of the bills elimi-

nating the third-party actions. But in response to sub-

committee members’ questions concerning a common law

negligence suit against the vessel, he indicated approval of

such an approach so long as the liability was based on the

vessel's fault and the stevedore would be insulated from

liability. There appeared to be a consensus among the

subcommittee members to such an approach.

The discussions in the Senate-hearings illustrate Con-

gress’ objective of narrowing the liability of the shipowner

to situations involving fault while insulating the stevedore

from liability. Senator Eagleton, the Chairman of the

Subcommittee on Labor of the Committee on Labor and

Public Welfare, questioned Mr. Scanlan about the nature

of the maritime liability owed by the shipowner. Mr.

Scanlan pointed out that the seaworthiness doctrine im-

posed absolute liability on the vessel and that maritime

negligence also imposed broad duties on the vessel unlike

the relatively narrow duty imposed by common law negli-

gence. Minority counsel, Mr. Mittelman, questioned

whether the elimination of the seaworthiness doctrine

would end the absolute duty imposed on the vessel. Mr.

Scanlan thought such action would eliminate absolute

liability but that the maritime negligence duty would still

Appendix G A39

be broad and might by case law development approach an

absolute duty. It was then suggested by Senator Eagleton

and Mr. Mittelman that the concern over maritime negli-

gence could be alleviated if Congress expressed its inten-

tion that the vessel’s duty would be analogous to a

common law negligence duty and that a provision pro-

hibiting indemnity agreements would insure that the lia-

bility imposed on the vessel by a common law negligence

duty would not be shifted to the stevedore. All agreed

that this result should and could be obtained. See Senate

Hearings, Subcommittee on Labor of the Committee on

Labor and Public Welfare, 92nd Cong., 2d Sess. at 270-74

(1972) (see Appendix to this opinion). A similar dis-

cussion appears in the House Committee Hearings. See

H. R. Hearings, Select Subcommittee on Labor of the

Committee on Education and Labor, 92nd Cong., 2d Sess.

at 117-21 (1972).

More important, however, the language of amended

subsection 5(b) tracks such a consensus understanding.

The subsection explicitly eliminates the seaworthiness

remedy. If Congress had intended only to overrule

Siericki and Ryan and to eliminate the stevedore’s liability

for unseaworthiness, it could have done so simply by elimi-

nating seaworthiness claims against the vessel. But Con-

gress did more. It specifically provided that the employer

could not be held liable to the vessel by means of in-

demnity or hold harmless agreements. These prohibitions

could only relate to attempts by the vessel to shift its negli-

gence liability to the employer, for it is only for negligence

that the vessel can be held liable. F urthermore, it would

be anomalous for a court to provide that the stevedore

must bear all or part of the vessel's liability when, under

the statute, the parties cannot, by agreement, shift the

liability. We think it clear, therefore, that Congress in-

}

7

- SUSaaaae SERIO SAORI URGES I a OEE ON

A40 Appendix G

tended to insulate the employer from any liability, includ-

ing costs and counsel fees, to the vessel for the vessel's

negligence.

We cannot at this time fashion the outlines of the

negligence remedy Congress allowed to be brought against

the vessel. This can only be left to future case develop-

ment. It is clear, however, that Congress decided that the

primary duty to provide a safe place to work is on the

stevedore. The substantial increase in compensation bene-

fits provided by the amendments was thought to be an

incentive to the stevedore to provide a safe place to work.

As stated in the Senate Report:

“It is important to note that adequate workmen's

compensation benefits are not only essential to meet-

ing the needs of the injured employee and his family,

but, by assuring that the employer bears the cost of

unsafe conditions, serve to strengthen the employer's

incentive to provide the fullest measure of on-the-job

safety.

“This consideration is particularly crucial with

respect to high-risk occupations such as those covered

by this Act. Longshoring, for example, has an injury

frequency rate which is weil over four times the

average for manufacturing operations. It is the Com-

mittee’s view that every appropriate means be applied

toward improving the tragic and intolerable condi-

tions which take such a heavy toll upon workers’ lives

and bodies in this industry, and such means clearly

include vigorous enforcement of the Maritime Safety

Amendments of 1958 and the Occupational Safety

and Health Act of 1970, as well as a workmen’s com-

pensation system which maximizes industry's motiva-

tion to bring about such an improvement.”

a ne ETT EMT A EE MI OTE: EIN YS

Appendix G A4l

Senate Report No. 92-1125, 92d Cong., 2d Sess., 2 (1972).

Courts should recognize that this duty falls primarily on

the stevedore and not on the vessel owner. At the same

time, however, Congress was concerned that the vessel

owner not become lax in doing what it should reasonably

be required to do to prevent injuries to the longshoremen.

The common law negligence remedy was thought suffi-

cient to provide the vessel with the necessary incentive.

The argument by the amicus curiae that the shipowner

can be liable only when it is solely negligent would negate

Congress’ intention to prevent shipowner negligence and

is contrary to the terms of the Act. The Act clearly pro-

vides for such a suit regardless of the concurrent negli-

gence by the stevedore. If Congress intended that the

vessel could be liable only when its negligence was the

sole cause of the injuries, the mere insertion of the word

“solely” in the first sentence of subsection 5(b), 33 U. S. C.

§ 905(b), would have accomplished the result.

While leaving to future development the nature of the

negligence action against the vessel, we consider it clear

that with respect to the stevedore the sole liability was that

provided under the Act. Congress sought to eliminate all

actions against the stevedore whether for indemnity or

contribution, whether based on tort or on contract, and

whether for fees and expenses. Allowance of any such

actions, even a pro tanto recovery to the extent of payments

made by the employer under the Act, would create the

circuitous type action Congress considered was too costly

and disruptive of the compensation scheme to be permitted.

This result may leave the shipowner in an unenviable

position. Certainly he is apprehensive about future case

development which may lead to an expansive interpretation

of the negligence action provided under the Act. If that

result obtains, Congress would undoubtedly be called upon

A42 Appendix G

to act. In the meantime, however, our feelings of fairness

to the shipowner cannot override Congress’ intention. With

respect to the negligence action against the vessel, courts

have been thrust back to the situation existing before the

expansive development of the seaworthiness doctrine. That

situation was posed by one commentator as follows:

“The seemingly limitless controversy and com-

plexity that attends personal injury litigation between

harbor workers and shipowners is attributable in part

to a difficulty in resolving the respective scopes of the

shipowner’s obligation in connection with the con-

dition of the vessel to the longshoreman as a ‘business

invitee’, and the obligation of the independent steve-

dore contractor as employer of the longshoreman to

exercise due diligence to furnish his employee a ‘safe

place to work’.”

Tetreault, 39 Cornell L. Q. supra at 409. Courts must now

work to resolve this difficulty.

The various methods proposed by the vessel owners to

shift their tort liability would cause a disruption in the

scheme provided by Congress. To this extent the wisdom

of the Halcyon case endures. It is for Congress to provide

the proper balance. Courts’ sense of fairness can only

prove disruptive of that balance.

DaniEL H. Hvyetrt, 3nrp,

J.

Appendix G A43

APPENDIX TO OPINION.

SENATE HEARINGS, SUBCOMMITTEE ON LABOR AND PUBLIC

WELFARE, 92p Conc., 2p Sess. at 270-74 (1972).

Senator Eacteton. Is there any other field—any em-

ployer-employee law with respect to a third-party situation

where there is absolute liability imposed?

Mr. ScanLan. Not to my knowledge, Mr. Chairman.

Senator EacLeton. In the standard workmen’s com-

pensation situation, say in manufacturing plants that are

assembling things, and the worker gets his hand cut in a

mechanical device——

Mr. Scantan. A wheel or something like that?

Senator EacLETon. A wheel; yes.

And he loses a finger or a hand. He has certain work-

men’s compensation rights that are afforded to him under

State law, and if there was a third-party intervention in

the situation say, in the manufacturing of the device by

the X manufacturing company, he could bring, in essence,

a product liability claim for negligence against that third-

party; is that the standard sort of hornbook law?

Mr. SCANLAN. Yes; that is, Mr. Chairman.

Senator EacGLeton. Your objection is to the absolute

liability?

Mr. ScanLaAN. We are objecting to that, Mr. Chair-

man, because it is absolute liability, and also because the

courts have construed negligence—maritime negligence in

such a way thai it is almost impossible to distinguish the

case that you have given to me, which is a classic case of

common law, negligence, as compared with maritime negli-

gence—the duty to provide a safe place to work, as « form

of negligence.

;

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A44

Appendix G

But it is also a form of absolute liability. And this is

separate and apart from the question of the unseaworthi-

ness of the gear, the appurtenances and equipment. This

is what makes this particular problem so unique and so

novel. And this is the reason why, Mr. Chairman, we feel

that the cases should be eliminated as set forth in the bill,

S. 525. This would then cure the situation of the unsea-

worthiness and the negligence and it would give the long-

shoremen the right to bring in true third-party cases against

any party who is not a party to the employment relationship.

For example, in the case you have just cited, Mr.

Chairman, under our proposal and the proposals set forth

in S. 525, if the longshoremen wanted to sue the manu-

facturer of a piece of equipment, as you have just stated,

a winch, for example, or any part of the equipment on

board the vessel, that manufacturer could be sued the same

as in a typical compensation case. What we feel should be

done is that this particular field of the law should be re-

stored to the regular compensation aspects and these cases

that have distorted the law should be eliminated.

e oO av

I don't have the time now, but the real economic im-

pact on the entire industry, the idea of eliminating these

cases as I have just stated to you, to restore this act to a

true compensation act, and I say to you, Mr. Chairman. in

conclusion, that our committee is convinced that for the

welfare of the entire maritime industry it is necessary to

eliminate these cases.

We agree with the statement that was made by Secre-

tary of Labor Hodgson, which I have referred to on the top

of page 17 of my statement; we feel that if these cases are

eliminated and this act is restored as a true compensation

act, then there definitely should be an improvement in

the benefits. . _ .

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Appendix G A45

4

However, if there isn't to be any elimination of the

third-party liability, and if we are to be exposed to the cost

that we are exposed to now, and then additional costs that

are now evaluated for the proposed benefits, we could not

agree to that because that would really be catastrophic as

far as this industry is concerned.

Mr. MrrrecMan. [minority counsel] ° * * ° Do you

know whether it is a common practice in the Port of Phila-

delphia and other ports for stevedores to include in their

contracts, to include in their contracts with shipowners, a

hold harmless clause under which the stevedore agrees to

hold the shipowner harmless even from the results of the

shipowner's own negligence if it causes an injury to one of

the stevedore’s employees?

Mr. Scan.an. Mr. Mittelman, I think there are some

cases where that has happened, and it all depends on the

contract and the contractual relationship between the par-

ties, the shipowner, and the stevedore.

That's the typical hold harmless agreement.

[ would say that there are some of those. I don’t know

how many. 1 know of one particular case that | had my-

self. They exist in other ports as well. 1 could not tell

you, Mr. Mittelman, what the percentage is overall.

My own opinion is, based on cases that I have

handled, that these are not too common, although they do

exist.

Mr. Mrrre.Man. If we wrote into this a prohibition,

a hold harmless clause to the extent that they hold a ship-

owner harmless for injuries due to the shipowner’s own

negligence, plus a provision which authorized third-party

actions only where there was negligence on the part of the

shipowner as a third party, wouldn't that protect the steve-

dore from the circular liability that he now develops?

satin Sey

A46 Appendix G

Mr. Scanian. Yes; that would give him a good deal

of protection. It wouldn’t be complete protection, because

of the fact that you have stated, that you would retain

the right of the longshoremen to bring a suit against the

shipowner for negligence.

Mr. MirreELMAN. But that’s the shipowner’s negli-

gence. If he was negligent because he prohibited the hold

harmless clause, he would not be able to go back against

the stevedore.

Mr. Scanian. Then you are saying basically that you

would outlaw the indemnity action by the shipowner

against the stevedore, which the Supreme Court came up

with in the Ryan case.

In other words, you would say there could not be any

indemnity between the shipowner and the stevedore. If

there was shipowner’s negligence and only shipowner negli-

gence and it was not part of any unseaworthiness, it was

not part of the duty to provide a safe place to work, then

you would restrict, no question; this would cut down on a

very substantial part of the third-party cases, and wherever

there was shipowner negligence, as you have described it,

and this is something that we have to look into as far as

language is concerned, wherever there was shipowner neg-

ligence, then the shipowner could not bring an action

against the stevedore for indemnity. That would be dif-

ferent from telling the stevedore that he couldn’t enter into

a contract. It would be as a matter of law that there

wouldn't be any indemnity between the shipowner and the

stevedore.

Mr. MitrreLMaN. There is a precedent for this. I

think it is section 236 of the New York State real property

law, which prohibits an owner of a building from getting

a hold harmless because from, say, the maintenance con-

Appendix G A47

tractor under which the maintenance contractor agrees to

indemnify the owner of the building from the results of his

own negligence. There is precedent for this sort of thing.

What I am getting at is a system that permits the third-

party action and then prohibits the shipowner from coming

back against the stevedore.

In the case where the stevedore was negligent, you

wouldn't have any action against the shipowner because the

stevedore’s doctrine would be out.

Mr. Scanutan. Any negligence on the part of the

stevedore there would be covered under the Compensation

Act.

Senator EAGLETON. Do I take it, so I understand his

questions and your answers there, what he is postulating

to you is, what I take it to be as garden variety typical

workmen’s compensation law; to wit, the employer pro-

vides for his immediate employee under workmen's com-

pensation—whether negligence or not. And if there is

third-party negligence, the employee proceeds against the

third-party in a tort action.

Mr. MirreLMAN. That's correct.

Senator EacLeton, That is standard Missouri variety

workmen’s compensation.

What do you think of that insofar as longshoremen’s

work is concerned?

Mr. Scantan. I think I have already told Mr. Mittel-

man that, first of all, we think to merely give the plaintiff

protection, all third-party cases should be eliminated as in

525.

Senator EAGLETON. Do you really want to eliminate

them when the third party is actually negligent? Not made

absolutely liable for any situation but actual negligence on

the part of the third party?

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A48 Appendix G

Mr. ScanLan. We think, Mr. Chairman, that all cases

against the shipowner, only against the shipowner, should

be eliminated; and the reason for that is, it is awfully diffi-

cult to try to limit negligence cases with respect to a ship-

owner where you have the maritime law such as it is.

As far as the other type, the garden type variety——

Senator EaGLeton. Can we not legislate “new mari-

time law” in this situation?

Mr. Scanxan. Yes; I think that’s entirely possible.

Mr. Mittelman’s suggestion certainly deserves consid-

eration. I would like to. . . . see the language that Mr.

Mittelman would suggest on that. It is a matter of very

careful draftsmanship to find the right language so that we

don’t find ourselves back with third-party cases all over

again, not on the basis of unseaworthiness, but on the basis

of maritime negligence, which some court is going to say is

absolute liability, the same as unseaworthiness. That's

the problem, Mr. Chairman, that I am trying to direct my

attention to.

Mr. MitreLMan. The one point that I really was lead-

ing up to is that—you should treat this situation the same

as a construction site where you have a number of different

employees working on different contracts.

The typical situation—an employee of an electrical

subcontractor is injured by a pipe dropped from three

floors above by the employees of a plumbing subcontractor

and then suing the plumbing subcontractor, if he can show

negligence.

By the same token, except in a small minority of States,

he does have the third-party action where he can establish

negligence. I don’t know that the maritime concept of

negligence is very much different from the theory of negli-

gence which is now applied by the courts on a construction

Peers

Appendix G A49

site where you have hazardous activities as well. I don’t

see the problem would be any more formidable in drafting

something to take care of that situation than they would in

the construction industry.

Mr. SCANLAN. I understand your point, Mr. Mittel-

man, and it is something that certainly deserves consid-

eration.

Our view was, because of the peculiarities of maritime

law, it would be better to eliminate all cases against ship-

owners and have the longshoremen given the right to sue

anyone else except the shipowner.

(Emphasis added. )

sat » aa OLE SIERO ENDL NN Bin SE ARIMA HN

A50 Appendix H

APPENDIX H.

Civil Action No. 73-1120

ROBERT H. LUCAS

v.

“BRINKNESS” SCHIFFAHRTS GES.

FRANZ LANGE C. m.b.H. & CO K. G.

REPORT OF PRETRIAL CONFERENCE.

Tuesday, July 29, 1975.

Tria Counset: Pf. Milton W. Borowsky

(Charles F. Love )

Df. E. Alfred Smith

(Milton Borowsky was not available for the conference

due to a recent death in his family. Love was not thor-

oughly conversant with Borowsky’s theories of liability

and it was, therefore, determined that we would proceed

in an informal fashion. )

Plaintiff suffered an injury on January 26, 1973 when

he stepped on some dunnage. His foot went through

and he fell against a roll of steel coil. Plaintiff was in the

hold to discharge a cargo of steel I-beams. There were

steel coils on top of the I-beams. The coils had to be

moved to get to the beams. The cargo had apparently

shifted at sea and the dunnage on which the coil had

been resting had shifted also and some had broken in the

process. Plaintiff's present claim (subject to refinement by

Borowsky ) of negligence on the part of the vessel is im-

proper stowage.

: Appendix H A51

Plaintiff initially lost eleven weeks from work

($3,498) and thereafter lost: 1973, 34 days at $50; 1974,

61 days at $50; 1975, from January 1 to May 9, 27 days.

Plaintiff has been out from May 9, 1975 and presently

expects to return to work August 4, 1975.

Defendant concedes that the cargo had shifted in

heavy seas. The condition was open and notorious and

the job was one which could and should have been easily

done by experienced stevedores.

Parties are to conclude all discovery within 30 days.

Plaintiff's pretrial memorandum to be filed by August

11, 1975. Defendant's pretrial memorandum to be filed

by August 29, 1975.

ALFRED L. LUONGO

j.

ce: To Counsel

Deputy Clerk

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