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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 866

## Text

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

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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.:

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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
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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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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.

;

oneal — SIVA IER SE ELL LD I OBI AB BOLT FI IR ET I

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. . _ .

f

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= cre OLLIE ILE RAPER AY ICG PFN PALE ROP ELE,

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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ryerceo : {a eT et BA te er a ar ee nS ee COPE OIE So ROBE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1261%3A3. Public record. Not legal advice.