Opposition Brief — Short v. Edison Chouest Offshore, Inc.

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No. 93-2034

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

ANTHONY SHORT,

Petitioner,

VS.

EDISON CHOUEST OFFSHORE, INC. ET AL.

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

RESPONDENTS BRIEF IN OPPOSITION

Joseph M. Allen, Jr

JOHNSTONE, ADAMS, BAILEY

GORDON & HARRIS

P.O. Box 1988

Mobile, Alabama 36633

(205) 432-7682

Attorney for Respondents

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TABLE OF CONTENTS _

PAGE(S)

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SUMMARY OF THE ARGUMENT........................ l

SEINE ora 5 gos os hes hk ato ects >

I. The petition fails to present meaningful questions

for review by this Court and makes

no attempt to express its “Questions

Presented for Review” in the terms

and circumstances of the case .................... 5

Il. The petition does not demonstrate that the

“Questions Presented for Review” were

properly raised and disposed of in the

Alabama courts “so as to give this Court

jurisdiction to review the judgment on a

ig gE, Rn re oe ee 8

III. The petition seeks only a factual review ........ 10

IV. The actual ruling of the Alabama courts, as

distinguished from the Petitioner's

misrepresentation of the ruling, is based on

eminently correct principles of law.............. 12

V. The Petitioner misrepresents the nature

IR cece eu ercacsucsay cas eeuncriaiereciecaeen 23

SENN Tho eas ycadcaaecveongs shxakas ii etecedexboes 24

TABLE OF AUTHORITIES

CASES: PAGE(S)

Alrayashi v. Rouge Steel Co.,

702 F. Supp. 1334 (E.D. Mich. 1989) ............. 24

Goodman v. Lukens Steel Co.,

482 US. GG € Rie hactee eee ckins ance ons

Italia Societa v. Oregon Stevedoring Co.,

JIG US. SEG CUR cee eh sk, eee ws 20)

Mahnich v. Southern S.S. Co.,

321 US. OG (3RRN a ee eases 133

Mitchell v. Trawler Racer, Inc.,

362 US. 539 (1960)................ vie reere 20)

Reed v. YAKA,

3743 US. 410 (3s ee ee 13

Schulz v. Pennsylvania R.R.,

350 U.S. 523 (1956)..... PEER CRA Sale re 16,17

Sentilles v. Inter-Caribbean Shipping Corp..

361 US. 107 (1959)........ cre a REE 9.10

Usner v. Luckenback Overseas Corp.,

400 US. GG (CRB ee a ine ae

Waldron v. Moore-McCormack Lines,

SOG UD, FOO Cierra eaneeac serene sei ea cates 3.13

OTHER AUTHORITY

1:3 James W. Moore et al.,

Moore's Federal Practice P810.41

(DE OG. PIED sccxascrcteteetaen ete ok tones 3,11

SUMMARY OF THE ARGUMENT

I.

THE PETITIO:: FAILS TO PRESENT MEANING-

FUL QUESTIONS FOR REVIEW BY THIS COURT

AND MAKES NO ATTEMPT TO EXPRESS ITS

“QUESTIONS PRESENTED FOR REVIEW” IN

THE TERMS AND CIRCUMSTANCES OF THE

CASE.

The petition should be denied for failing to comply

with substantive rules of this Court which relate to the

critical determinations of what questions are presented

for review and whether the Court has jurisdiction to

review the judgment which Petitioner would bring before

it. First, a reading of Petitioner’s questions presented for

review reveals that Petitioner has failed to comply with

the mandate of Supreme Court Rule 14.1(h) to express

questions “in the terms and circumstances of the case”

and in a manner that is “not ... argumentative.”

Petitioner, ignoring that instruction, formulated “ques-

tions” which are merely argumentative statements of

legal truisms unconnected in any fashion to the facts or

ruling in this case. Since the petition fails to inform the

Court of any real question for resolution, the petition is

due to be denied.

THE PETITION DOES NOT DEMONSTRATE

THAT THE “QUESTIONS PRESENTED FOR

REVIEW” WERE PROPERLY RAISED AND

DISPOSED OF IN THE ALABAMA COURTS “SO

AS TO GIVE THIS COURT JURISDICTION TO

REVIEW THE JUDGMENT ON A WRIT OF

CERTIORARI.”

Petitioner has also failed to establish that his

“questions” were raised in the lower courts. That failure

violates Supreme Court Rule 14.1(h) which demands

that the petition establish when and how the questions of

which Petitioner seeks review were raised in the courts

below and how those lower courts passed on them.

Petitioner’s failure to establish not only when and how,

but indeed whether his “questions” were raised below

prevents this Court from determining whether it has

“jurisdiction to review the judgment on a writ of certiorari.”

Therefore, the petition is due to be denied.

Il.

THE PETITION SEEKS ONLY A FACTUAL

REVIEW.

An additional reason for the denial of this petition is

that the issue actuaily presented for resolution is factual,

not legal. Supreme Court Rule 10 establishes that the

discretionary writ of certiorari is reserved for those cases

which would present “important” legal questions of

“federal” law. And, this Court has made clear that it is a

court of law, distinguishing itself from “a court for

correction of errors in fact finding.” Goodman v. Lukens

Steel Co., 482 U.S. 656, 665 (1987). Notwithstanding, it is

precisely an issue of fact which this Court would be called

upon to resolve if this petition were granted. In an

unarguable conclusion of law, the trial court below

concluded:

For [Petitioner] to prevail on his claim for unsea-

worthiness, [Petitioner] must establish that [Re-

spondents’|] vessels or appliances were in some

manner defective, i.e., not reasonably fit for their

intended use.

Appendix A to Petitioner’s brief, pp. 29, 30. The trial court

then found that the Petitioner had failed to produce

sufficient evidence to create a jury question on that

material element, i.e., the existence of a defect. Being

unable to assail the legal conclusion regarding defect, the

Petitioner would have this Court evaluate the trial

court’s finding regarding his evidence. This Court,

however, “{should] not grant certiorari to review a

decision that turns solely upon an analysis of facts, or to

determine whether the evidence supports a judgment of

a [trial] court.” 13 James W. Moore et al., Moore's Federal

Practice § 810.41 (2d ed. 1993). Thus, this petition should

be denied.

IV.

THE ACTUAL RULING OF THE ALABAMA

COURTS, AS DISTINGUISHED FROM THE

PETITIONER’S MISREPRESENTATION OF THE

RULING, IS BASED ON EMINENTLY CORRECT

PRINCIPLES OF LAW.

The petition is also due to be denied for the reason

that the actual ruling which this Petitioner would bring

before this Court is based on eminently correct principles

of law. In fact, a comparison of the petition and the

actual ruling of the Alabama courts (which appears in

Appendix A to Petitioner's brief) reveals that the Petitioner

does not attack the actual ruling. The Petitioner, for

instance, complains that the Alabama courts required

him to “identify the single substance which triggered” his

alleged illness. (Petitioner's brief, p. 11 (emphasis in

original) ). In truth, however, the Alabama courts came to

the unarguable conclusion that a vessel cannot be

deemed unseaworthy “if the vessel is not in some manner

defective.” This Court’s decision in Waldron v. Moore-

McCormack Lines, 386 U.S. 724 (1967) was cited in

support of that holding. Thus, the true holding of the

Alabama courts was that the concept of defect is

inherent in the doctrine of unseaworthiness. Again, it is

the courts’ finding regarding the insufficiency of Peti-

tioner’s evidence which Petitioner would have this Court

evaluate. And, contrary to Petitioner's assertions, the

trial court’s actual finding was that Petitioner’s claim

failed for the reason that he was unable to identify any

defect aboard any of Respondents vessels as the causative

agent of his illness. That is, the trial court found that

Petitioner could not identify so much as one substance as

a defect aboard the vessels.

In addition, it is crucial for this Court to note that the

Alabama courts did not require a showing of notice of a

defect in the context of Petitioner’s claim for unsea-

worthiness. In fact, the notion of notice in the lower

courts’ ruling applied solely to the negligence claim. This

is made clear by express terms in the courts’ decision.

Respondents also point this Court to the fact that the

petition is based on an affidavit of Petitioner's treating

physician which was executed after the trial court ruled

and entered judgment.

Respondents also note that the trial court’s ruling was

supported by the alternative basis that Petitioner's

illness was caused by his abnormal immune system and

not by any defect aboard Respondents’ vessels. That is to

say, due to his abnormal immune system, the Petitioner

suffered an idiosyncratic reaction to a substance (he

knows not what) that he chanced to encounter (he

knows not where or when). The trial court found:

If the [Petitioner] does in fact suffer from occupa-

tional asthma, then his condition was caused by an

abnormal, i.e., allergic response of the [Petitioner’s |

body which occurred as a result of exposure (at

times unknown) to an allergen (which is also

unknown).

See Appendix A to Petitioner's brief, pp. 27, 28.

\.

THE PETITIONER MISREPRESENTS THE

NATURE OF HIS CLAIMS.

Petitioner's Jones Act and unseaworthiness claims

are not analogous to a workers’ Compensation action. It

is the provision of maintenance and cure, not damages

under the Jones Act or the doctrine of unseaworthiness,

which provides a seaman a workers’ Compensation

remedy. Thus, the Petitioner's discussion of workers

compensation Constitutes a misrepresentation of the

governing legal standard. The petition is therefore due to

be denied.

ARGUMENT

a

THE PETITION FAILS TO PRESENT MEAN-

INGFUL QUESTIONS FOR REVIEW BY THIS

COURT AND MAKES NO ATTEMPT TO EXPRESS

ITS “QUESTIONS PRESENTED FOR REVIEW" IN

THE TERMS AND CIRCUMSTANCES OF THE

CASE.

According to the first of Petitioner’s “questions

presented for review,” he seeks a writ of certiorari in

order that this Court might resolve whether a claimant

under the Jones Act, 46 U.S.C. § 688 (1982), is entitled to

have his case decided under established maritime law

principles rather than erroneous legal principles “unique”

to the courts of Alabama. The second “question presented

for review” is equally profound. It merely asks whether

uniformity of the law is an appropriate goal for courts

deciding maritime injury cases. Clearly such “questions”

fail to comply with Rule 14.1(a) of this Court’s rules

which requires that questions presented for review be

“expressed in the terms and circumstances of the case”

and that they “not be argumentative.” The obvious

purpose of this Rule is to apprise this Court immediately

(indeed, “on the first page following the cover”) of the

precise legal questions the petition is raising and the

factual contexts in which they arise. The Respondents

submit that the petition utterly fails to so apprise the

Court and for that reason should be denied.

The two “questions” presented neither define a legal

issue which this Court (or any court) might review nor

are they stated in “the terms and circumstances of the

case.” In the first question - whether “a Jones Act seaman

[is] entitled to have his maritime personal injury action

adjudicated pursuant to Federal Jones Act and General

Maritime Law principles” - one can only speculate as to

the issue the Court is asked to decide. Does Petitioner

actually present a question for resolution? If so, what is it

and in what context did it arise in this suit?

There can be no doubt that a seaman, or any other

plaintiff for that matter, is entitled to have his or her case

decided in accordance with established legal principles.

The answer to the Petitioner’s first question, therefore, is

in the affirmative. But having said “yes” to this question,

what have we said? We have said nothing actually

because we have done nothing more than agree with a

truism.

The question is also argumentative because, in its

convoluted style, it says only that the Alabama Supreme

Court applied “unique law” (presumably he means

erroneous law) in deciding the case before it. But to say

nothing more than that the Alabama court should not

have applied “unique law” says nothing and does not

enlighten this Court on the issues presented for decision.

The second question, which posits uniformity of the

admiralty law as a laudable objective, is similarly deficient.

it does not present a legal question nor does it demon-

strate how this question (whatever it is) arises from the

facts of this case. Rather it merely argues that the

decision of the Alabama Supreme Court, presumably

because it applied “unique law,” militated against the

jurisprudential goal of “uniformity.”

We submit therefore that the Petitioner has failed “to

present with accuracy, brevity, and clearness whatever is

essential to a ready and adequate understanding of the

points requiring consideration” and that this failure

clearly constitutes “sufficient reason for denying the

petition.” Rule 14.5.

Section (h) of Rule 14.1 illustrates the merit of

Respondents’ argument. That Rule requires the Petitioner

to demonstrate that he in fact raised in the state courts

below the “federal questions” on which review is sought.

One may, therefore, legitimately ask whether, by urging

on the Alabama Supreme Court the principle of “uni-

formity,” or by cautioning it against the application of

“unique law,” the Petitioner actually raised questions of

federal law now reviewable by this Court or merely

recited unarguable jurisprudential platitudes.

The “questions” in Petitioner’s brief do not apprise this

Court of any question of federal law for its review nor do

they inform Respondents of any issue we must address in

opposing this petition. The “questions” do not present

what is “essential to a ready and adequate understanding

of the points requiring consideration.” Rule 14.5. Thus

there are no real questions presented for review and the

petition, on this ground alone, should be denied.

If.

THE PETITION DOES NOT DEMONSTRATE

THAT THE “QUESTIONS PRESENTED FOR

REVIEW” WERE PROPERLY RAISED AND

DISPOSED OF IN THE ALABAMA COURTS “SO

AS TO GIVE THIS COURT JURISDICTION TO

REVIEW THE JUDGMENT ON A WRIT OF

CERTIORARI.”

This petition does not attempt to demonstrate to this

Court that it has the requisite appellate jurisdiction and,

therefore, should be denied for this reason as well.

Supreme Court Rule 14.1(h) mandates that the Peti-

tioner’s Statement of the Case “specify the stage in the

proceedings, both in the court of first instance and in the

appellate courts, at which the federal questions sought to

be reviewed were raised.” In addition, the Petitioner must

identify “the method or manner of raising [the federal

questions sought to be reviewed] and the way in which

they were passed upon by [the state courts].” The

Petitioner is finally directed to provide “such pertinent

quotation of specific portions of the record or summary

thereof, with specific reference to the places in the record

where the matter appears.” Demonstrable compliance

with Rule 14.1(h) is essential to the granting of a petition

because its purpose is to enable this Court to determine

whether or not a petitioner has, in the state trial and

appellate courts, preserved for appeal the supposed

federal questions upon which review is sought.

This Petitioner has ignored altogether the require-

ments of Rule 14.1(h) thereby making it impossible for

this Court to determine whether it has jurisdiction to

review the judgment which Petitioner seeks to bring

before it. Even careful (and repeated) readings of

Petitioner’s Statement of the Case fail to reveal at what

stage or even whether his questions presented for review

were raised at trial or on appeal in the Alabama courts.

This is not surprising given the fact that Petitioner has

not presented any meaningful questions for review. As to

Petitioner's first “question,” nowhere in the Statement of

the Case does he document that he argued to either court

that a “Jones Act seaman |is] entitled to have his

maritime personal injury action adjudicated pursuant to

Federal Jones Act and General Maritime Law principles”

rather than by some other law. The same can be said for

Petitioner’s second “question” which involves the notion

of uniformity. And because the Petitioner does not (and

cannot ) demonstrate that these questions were raised, it

follows that he does not (and cannot) specify whether or

how the Alabama courts passed upon either of these

“questions.” As noted above, the Petitioner’s “questions”

are merely declarations which no court, including those

sitting in Alabama, would dispute.

Perhaps the questions of which Petitioner actually

seeks review are not those nominally set out as sucn.

Perhaps an actual federal question which this Court

might review might be buried elsewhere in the petition.

(Such speculation is necessary only because the Petitioner

failed to formulate his questions presented for review in

accordance with the rules of this Court.) We note for

instance that the Petitioner claims in his Conclusion that

“Sentilles v. Inter-Caribbean Shipping Co. [sic.], [361 U.S.

107 (1959)], provides the precedent for this petition.”

Thus, one might speculate, after sifting through the

petition, that Petitioner’s real grievance is a conflict he

perceives between the ruling of the Alabama courts and

this Court’s opinion in Sentilles. However, even if this

speculation is accurate, the Petitioner has still failed to

apprise this Court of whether, when and how Sentilles

was raised below and ‘{ so, how the Alabama courts

passed on it. Moreover, the Petitioner’s statement that

Sentilles is the “precedent” for his petition is no substitute

for a clear and concise statement of the questions

presented for review. No prior decision may be trans-

formed into a question for review by its mere citation.

The petition does not show to this Court that it has

appellate jurisdiction to review the judgment of the

Alabama courts and for that reason is due to be denied.!

IIT.

THE PETITION SEEKS ONLY A FACTUAL

REVIEW.

This petition is also due to be denied for the reason

that it presents this Court with no legal question

“important,” “federal” or otherwise - for resolution. Rather,

the Petitioner, unable to dispute the actual and unas-

sailable legal conclusions of the Alabama courts, asks the

United States Supreme Court to review a factual finding.

Such atask does not warrant the attention of this Court.

lAs noted, under Rule 14.5, Petitioner's failure to comply with Rules 14.1(a)

and 14.i(h) constitutes sufficient grounds for denial of the petition. In

addition, the Petitioner has ignored Rule 14.1(f) which required him to set

out verbatim the statutes and constitutional provisions involved in the case.

The Petitioner did not set out any statute or constitutional provision, e.g.,

the Jones Act. While perhaps not dispositive, as are Petitioner's violations of

the rules regarding the questions presented for review and jurisdiction, the

Petitioner's violation of Rule 14.1(f) illustrates his disregard of what this

Court requires of one seeking to obtain its discretionary attention.

10

Supreme Court Rule 10 makes clear that the

discretionary writ of certiorari is reserved for those cases

which would present this Court with “important” legal

questions of “federal” law. And, as a leading commentator

instructs, “[a]n issue of fact is not ‘important’ for purposes

of Rule 10.” 13 James W. Moore et al., Moore’s Federal

Practice P810.41 (2d ed. 1993). Goodman v. Lukens Steel

Co. illustrates the validity of that instruction. 482 U.S. 656

(1987). In Goodman, this Court identified itself as a

“court of law ... rather than a court for correction of

errors in fact finding.” 482 U.S. at 665. It is precisely an

issue of fact, though, which this Court would be addressing

if this petition were granted. A brief review of what

transpired below makes this clear. The trial court con-

cluded that the Petitioner, to recover on the doctrine of

unseaworthiness, was required to demonstrate a defect

aboard one or more of Respondents’ vessels. This con-

clusion of law is unarguable. The trial court, based on

hundreds of pages of deposition testimony and various

affidavits, then found that the Petitioner failed to produce

sufficient evidence to create a jury question on that

material element, i.e., the existence of a defect. While the

evidence is discussed in succeeding sections of this brief,

it is important at this point to understand that it is the

lower court’s findings regarding the Petitioner’s evidence

which Petitioner wants this Court to evaluate, not the

court’s legal conclusion as to the substance of the

applicable maritime law.

This “Court [should] not grant certiorari to review a

decision that turns solely upon an analysis of facts, or to

determine whether the evidence supports a judgment of

a (trial] court.” 13 James W. Moore et al., Moore’s Federal

Practice, supra. Nonetheless, the decision which Peti-

tioner desires to bring before this Court is just such a

decision. Since the petition seeks only a factual review

and does not present a legal question for resoiution, the

1]

petition is due to be denied.

IV.

THE ACTUAL RULING OF THE ALABAMA

COURTS, AS DISTINGUISHED FROM THE

PETITIONER’S MISREPRESENTATION OF THE

RULING, IS BASED ON EMINENTLY CORRECT

PRINCIPLES OF LAW.

Respondents submit that the Alabama Circuit and

Supreme Courts followed eminently correct principles of

law in disposing of this case. Indeed, the Petitioner

nowhere attacks the real holdings of the trial court and

the Alabama Supreme Court. Rather his attack focuses

on phantom legal conclusions which neither of the courts

below ever made. It will, therefore, be helpful to examine

the holdings the Petitioner claims the Alabama courts

made and compare them with the courts’ actual holdings.

Petitioner, who claims to suffer from an allergic form

of asthma, contends in his Statement of the Case that the

Alabama courts held that a seaman could have no cause

of action against his employer for supposedly contracting

occupational asthma, “unless that seaman could identify

the single substance which triggered his occupational

asthma.” (Petitioner’s brief, p. 11 (emphasis in original) ).

Again in his Argument, Petitioner make the same incorrect

statement:

[T]he Alabama Supreme Court required that

Anthony Short show which of the myriad of

chemicals to which he was exposed was the cause or

trigger of his asthma.

Id. at 15 (emphasis in original). Similar misstatements

are found on pages 16 and 19 of his brief. All are wrong.

12

They are gross misrepresentations of the holding of the

Alabama Supreme Court.

In truth the court below held that a vessel cannot be

deemed unseaworthy “if the vessel is not in some manner

defective,” citing Waldron v. Moore-McCormack Lines,

386 U.S. 724 (1967). (See Appendix A to Petitioner’s brief,

p. 29). This is acorrect statement of law and significantly

one which Petitioner nowhere contests. As this Court

said in Waldron, “|a|s regards equipment, the classic case

of unseaworthiness arises when the vessel is either

insufficiently or defectively equipped.” Waldron, 386 U.S.

at 726 (emphasis added ).

This Court has explained the concept of unsea-

worthiness also in the following terms:

Trawler Racer involved the defective condition of

a physical part of the ship itself. But our cases have

held that the scope of unseaworthiness is by no

means so limited. A vessel’s condition of unsea-

worthiness might arise from any number of circum-

stances. Her gear might be defective, her appur-

tenances in disrepair, her crew unfit.

Usner v. Luckenback Overseas Corp., 400 U.S. 494, 499

(1971) (emphasis added) (citations omitted). In other

words, the vessel's gear, appurtenances or crew might be

defective but it must be shown that something about the

ship is defective. See also, Reed v. YAKA, 373 U.S. 410, 411

(1963) (“The judge held that the defective pallet supplied

by Pan-Atlantic rendered Waterman's Yaka unseaworthy.”

(emphasis added) ); Mahnich v. Southern S.S. Co., 321

U.S. 96, 103 (1944) (The staging from which the plaintiff

fell was unseaworthy “because of the defective rope with

which it was rigged.” (emphasis added )).

13

Thus there was nothing “unique” about the Alabama

Supreme Court’s holding that inherent in the doctrine of

unseaworthiness is the concept of a defect. For a vessel to

be unseaworthy it must, in some manner, be defective. It

may be that she is defective in her gear, her appur-

tenances or her crew, but she must be defective, and a

plaintiff who seeks recovery on the doctrine of unsea-

worthiness must demonstrate some defect. The court

nowhere held that a plaintiff was required to “identify the

single substance which triggered his occupational asthma”

(Petitioner’s brief, p. 11 (emphasis in original) ), and to so

contend is false. Rather the Alabama Supreme Court

(and the Circuit Court of Mobile County) held that, “[f]or

plaintiff to prevail on his claim for unseaworthiness,

plaintiff must establish that defendants’ vessels or

appliances were in some manner defective.” (R.523).

The trial court held, on the basis of the depositions

and affidavits before it, that the weight of Petitioner's

evidence was insufficient to establish a genuine issue as

to any material fact with respect to the existence of a

defect or defective condition aboard the Respondents’

boats and the Alabama Supreme Court correctly affirmed

this determination. This finding was correct because the

Petitioner’s physician, Dr. Lorino, when he was deposed,

had not a clue as to the cause of the Petitioner’s

condition.

Q. Okay. Now, can you identify the agency {which

caused the Petitioner’s occupational asthma]?

A. No.

R. 441, 442. The same doctor candidly admitted in his

deposition that he did not know any of the substances to

which the Petitioner might have been exposed.

14

Q. ... Can you, Dr. Lorino, identify in any of these

published lists of known occupational allergens

any of the things which Mr. Shert was exposed to?

Unless some of the spray paints contained

isocyanates, no, I can’t because | don't know ofany

specific substances or names that he was exposed

to.

R. 461 (emphasis added). Indeed, the doctor is utterly

unaware of the cause of the Petitioner’s problems as the

following colloquy at his deposition demonstrates:

Q.

Well, as 1 understand it, he said he went down into

the tank, so it could be whatever had been carried

in the tanks?

Right.

Or it could be spray paint which was, spray

painting which was going on --

In the tanks.

-- in the tanks or on the boat; am I right so far?

It could have been. It could have been any of those

things.

Or you say it could have been chemicals which

were used to clean the inside of the tanks?

That’s correct.

. Allright, sir. And I assume it could have been most

anything else that happened to have been aboard

the boat at that particular time?

15

I mean what I'm getting at is that we are just in

our normal environment are subjected to all sorts

of fumes and I don’t mean fumes in the sense that,

you know, something that you necessarily detect.

But as we're sitting here in this room which looks

clean to me, we're inhaling all sorts of things, aren't

we?

A. Yes.

Q. Okay. So it could be any of those things?

A. Yes, it could be. That’s certainly true.

R. 443, 444. When confronted with such testimony the

court properly ruled that no genuine issue of fact existed

as to the existence of a defect aboard the Respondents’

vessels. No plaintiff creates an issue of fact when his

treating pulmonologist admits that his respiratory

ailment could have been caused by the fumes he encoun-

tered in his normal environment. The trial court and the

Alabama Supreme Court were thus correct.

It is critical that the trial court’s determination as to

the insufficiency of Petitioner’s evidence related to the

material element of the existence of a defect, not to

causation. Therefore, the slight or “featherweight” burden

of proof is not applicable. Rather, as to the element of

defect, the Petitioner was properly held to the typical

higher burden of proof. Petitioner’s argument that “some

proof” or “any evidence” should have sufficed is thus

without merit. (Petitioner's brief, p. 14).

Further, and also for the reason that the trial court’s

ruling was based on the absence of proof of a defect,

Petitioner's reliance on Schulz v. Pennsylvania R.R., 350

U.S. 523 (1956) is misplaced. Schulz involved the death

16

of a tug fireman. The evidence was that the deceased was

working on icy decks of unlit tugs on the winter night of

his death and that his “half-robed body [was discovered |

with a flashlight gripped in his hand.” 350 U.S. at 526. The

lower court in Schulz assumed a breach of duty, but

concluded that the plantiff had failed to establish

proximate cause. Unremarkably, this Court reversed.

Moreover, the question presented in Schulz was one of

proximate causation, not of the existence of a defect to

which a higher burden of proof applies. Schulz is therefore

inapposite to the Alabama courts’ finding that the

Petitioner failed to produce sufficient evidence to create

a genuine issue of fact on the material element of defect.

It is significant that, contrary to Petitioner's assertions

noted above, the Alabama Supreme Court did not base its

decision on the Petitioner’s failure to identify the specific

substance causing his allergic asthma. Rather it based its

ruling on the fact that Petitioner was “unable to identify

any substance aboard any of defendants’ vessels as the

causative agent of his allergic asthma.” (Appendix A to

Petitioner’s brief, p. 30 (emphasis added) ). The court did

not hold that the Petitioner was required to identify just

one specific substance as the cause of his ailment. Rather

it found against the Petitioner because he could not

name so much as one chemical as the possible cause of

his ailment or demonstrate when he encountered it or on

what boat or under what circumstances. The Alabama

Supreme Court was correct in so finding, and the petition

for certiorari must be denied.

The Petitioner also misrepresents that the Alabama

courts required him to establish notice on part of the

Repondents to prevail on the unseaworthiness claim.

(See, generally, Petitioner’s brief, pp. 17, 18). This is

demonstrably false. The notion of notice in the lower

court's ruling, by express and unmistakable terms, applied

17

solely to Petitioner's negligence claim, not to his claim on

the warranty of seaworthiness. The ruling of the Alabama

courts is as follows:

[O]n his claim for negligence .. . if [Petitioner]

cannot identify any substance aboard any of

[Respondents’| vessels as the cause of his alleged

injury, he cannot prove that [Respondents] knew or

should have known of the presence of any substance

aboard their boats which was supposedly harmful to

the [Petitioner].

Appendix A to Petitioner's brief, pp. 30, 31 (emphasis

added ). This passage clearly illustrates that the Alabama

courts correctly attached the concept of notice to

Petitioner’s claim of negligence and not to his claim for

unseaworthiness. Only in this appropriate context, and

nowhere else, is the concept of notice incorporated. The

very text of the lower courts’ ruling prevents Petitioner

from legitimately contending otherwise.

It must be noted here that the opinions of Dr. Lorino,

on which Petitioner almost solely relies in his petition,

were opinions expressed by him in an affidavit dated

June 17, 1993, one day after the trial court granted

Respondents’ motion for summary judgment. The sum-

mary judgment was granted June 16, 1993. (Petitioner’s

brief, p. 33). Respondents submit that it is, at best, grossly

improper for the Petitioner to place his reliance on an

affidavit which was not before the trial court when

judgment was entered especially without disclosing such

fact to this Court. It is also improper, we submit,

particularly under such circumstances, to refer to the

“testimony” of Dr. Lorino supposedly entitling Petitioner

to a grant of certiorari without revealing that this

“testimony” is contained in his tardy affidavit, and not his

deposition.

18

But let us ignore for the moment the fact that

Petitioner filed this affidavit after the trial court's ruling,

and let us also ignore the fact that the Alabama courts

were, for this reason, entitled to disregard the affidavit

altogether. Examining the affidavit itself, we find that it

creates no issue fact whatsoever.

Looked at in its entirety, the thrust of the affidavit is

essentially that the various “dusts, mists and fumes” (R.

280) to which Petitioner was exposed caused his occu-

pational asthma. This might be sufficient if this were

merely a workers’ compensation suit. (See Section V

below ). But it is not a mere compensation suit. Rather it is

one for damages and one in which, for a plaintiff to

prevail, he must show not merely that his condition was

employment related but, rather, that his condition

resulted from some defect or defective condition aboard

one of the boats on which he worked. This was the thrust

of the trial court's ruling. It was premised on Petitioner's

inability to show that any defective condition aboard one

of the Chouest boats was responsible for his condition.

The affidavit, for instance, says that Mr. Short’s

allergic condition “resulted from his exposure” to various

“dusts, mists and fumes.” (R. 280). Dr. Lorino states that

“|sjeveral of the chemicals” used on various Chouest

boats “are allergens known to cause occupational asthma.”

(RK. 280-282). The affidavit is replete with similar state-

ments. But these statements miss the point. A fair

analysis of the trial court's findings shows that its ruling

was based not on the Petitioner's inability to show that

some chemical, dust or mist caused his condition (all

substances in nature are chemicals) but that some

defective condition aboard a Chouest boat caused his

allergic illness.

The trial court held in an unassailable proposition of

19

law that:

For plaintiff to prevail on his claim for unsea

worthiness, plaintiff must establish that defendants’

vessels or appliances were in some manner defective,

i.e., not reasonably fit for their intended use.

Appendix A to Petitioner's brief, pp. 4, 5. Petitioner now,

as before, seeks to obfuscate the issues in this case and

convince this Court that, in order to prevail, he need only

show that sometime, somewhere, a chemical he inhaled

caused an allergic (idiosyncratic) reaction on his part.

This might work if this were indeed a workers’ compen

sation action as the Petitioner has represented to this

Court. But Petitioner's action is not governed by workers:

compensation principles; it is governed by the principles

of the maritime law and under these principles the

Petitioner failed to raise any issues of material fact to be

presented to a jury.

To be sure, the affidavit (which appears to have been

prepared by Petitioner's counsel for Dr. Lorino’s signature

after the Circuit Court ruled and entered judgment )

stated that many of the chemicals used in the offshore

industry “are not harmless chemicals.” (R. 283 ). But being

“not harmless” does not equate to “defective.” It does not

raise an issue as to a material fact because a shipowner is

not “obligated to furnish an accident-free ship.” He is not

required to furnish a hazard-free or “harmless” ship.

Rather, he is required to furnish only a vessel “reasonably

fit” for its intended use. Italia Societa v. Oregon Steve-

doring Co., 376 U.S. 315, 317 (1964) (quoting Mitchell v.

Trawler Racer, Inc., 362 U.S. 539, 550 (1960)). He is not

required to furnish a boat altogether free of “not harmless

substances.” The Petitioner here seeks to argue that

merely because the Plaintiff might have contracted his

allergic condition from a “chemical” he chanced to

20

encounter aboard a Chouest boat, he is ipso facto

entitled to recover. Such might be the law governing

workers’ compensation claims but it is not the law

governing maritime actions for damages under the Jones

Act for negligence or the general maritime law for

unseaworthiness.

The Court will also note that the trial court’s decision

was supported by an alternative basis which was adopted

by the Alabama Supreme Court. On the basis of undis-

puted evidence, and assuming arguendo that Petitioner

suffered from the asthmatic condition alleged, the trial

court held that because the Petitioner had an abnormal

immune system, and because his response to the

chemicals to which he might have been exposed was

idiosyncratic in nature, the actual cause of his problems

was his abnormal immune system, not the substances to

which he might have been exposed. (See Appendix A to

Petitioner's brief, pp. 26-28, 31, 32.) Both lower courts

made that finding in unequivocal language:

If the plaintiff does in fact suffer from occupational

asthma, then his condition was caused by an

abnormal, i.e., allergic response of the plaintiff's body

which occurred as a result of exposure (at times

unknown) to an allergen (which is also unknown).

See Appendix A to Petitioner’s brief, pp. 27, 28. The

holding is a factual one dealing with causation, not a legal

one improperly importing products liability law into

admiralty.

Yet nowhere does Petitioner attempt to come to grips

with the fact that the condition for which he seeks

damages is an allergic reaction to an unidentified substance

-- not an illness caused by some defective condition

aboard Respondents’ boats. Thus, even if we assume that

21

Petitioner contracted asthma as a result of inhaling a

“chemical” while at work, he still cannot recover because,

as demonstrated by the uncontradicted testimony of

both Petitioner’s physician, Dr. Lorino, and Respondents’

consultant, Dr. Richard deShazo, the actual cause of the

Petitioner's disorder is an abnormality of his own immune

system, not a defective or hazardous condition aboard a

boat on which he worked.

Dr. Lorino himself admitted that occupational asthma

is “an allergic form of asthma which is triggered by an

abnormal immune response in the patient.” (R. 437, 438 ,

The cause of the Petitioner’s problems, by Dr. Lorino’s

admission, is thus the Petitioner’s own defective immune

system, not a defective condition aboard a boat.

Occupational asthma is an extremely rare condition.

The trial court found, based on the testimony of Dr.

Lorino and the affidavit of Dr. deShazo, that occupational

asthma “is found in only an exceedingly siaall percentage

of the population.” (R. 522). The court went on to find

that “it is uncontested that occupational asthma is a

disease which affects, at most, only one-quarter of one

percent of the population.” (R. 522).

It follows that if the reaction experienced by the

Petitioner is one which would be experienced by less than

one-quarter of one percent of the population, then the

condition which triggers it cannot be characterized as a

defect -- which, as previously demonstrated, is an absolute

necessity for a finding that a vessel or its equipment is

unseaworthy.

Respondents submit, therefore, that the trial court

and the Alabama Supreme Court scrupulously followed

established maritime law principles in deciding this case

and correctly resisted the “unique law” which Petitioner

22

sought to force on it from the beginning. It correctly held

that under the law of admiralty, the Petitioner must

sliow the existence of some defect aboard one or more of

the boats on which he worked and that this defect (not

some abnormality of his immune system) caused the

ailment for which he now seeks to recover. And it

correctly held that he had failed to meet these burdens

placed on him by the “Federal Jones Act and General

Maritime Law.”

The ruling of the Alabama courts is based upon sound

and settled principles of maritime law. The petition is due

to be denied.

THE PETITIONER MISREPRESENTS THE

NATURE OF HIS CLAIMS.

The Petitioner blatantly misrepresents the nature of

his claims, thereby incorporating into his petition an

improper standard of liability. For this additional reason,

the petition should be denied.

The Petitioner misrepresents to this Court that his

claims based on the Jones Act and on the general

maritime warranty of seaworthiness are “his seaman’s

workers [sic] compensation remedy.” (Petitioner's brief,

p. 17). Petitioner made the same misrepresentation to

the Alabama Supreme Court:

This is an action by a seaman seeking a seaman’s

workers [sic] compensation remedy, i.e. an action

based upon unseaworthiness and the Jones Act...

Petitioner’s Application for Rehearing to the Alabama

Supreme Court, p. 3. As Petitioner must be well aware,

23

this statement is false. Neither the Jones Act nor the

general maritime warranty of seaworthiness are ana-

logous to workers’ compensation. As the court in Alrayashi

v. Rouge Steel Co. explained, it is the provision of

maintenance and cure, not damages under the Jones Act

or the seaworthiness warranty, which amounts to a

seaman’s workers’ compensation remedy:

An action for maintenance and cure is general

maritime law’s equivalent of workmen’s compen-

sation... Maintenance and cure is a claim inde-

pendent of aclaim under the Jones Act or a claim of

unseaworthiness.

702 F. Supp. 1334, 1338 (E.D. Mich. 1989).

The foregoing is noted to make clear that the elements

of the Petitioner’s actual causes of action required him to

prove fault under the Jones Act and the existence of a

defect under the unseaworthiness claim. The Petitioner's

allusions to workers’ compensation are wholly immaterial

and constitute a misrepresentation of the legal standard

which governed his action. The petition is therefore due

to be denied.

CONCLUSION

This petition fails to present any legal question for

resolution. Further, the petition fails to establish that the

nominal questions presented for review were properly

raised and disposed of below and, for that reason, fails to

show to this Court that it has jurisdiction to review the

judgment on a writ of certiorari. Finally the petition

would have this Court evaluate a factual finding. This is

clear from the fact that the ruling of the Alabama courts

is based on eminently correct principles of maritime law.

24

onmal

For these reasons, the Respondents request that the

petition be denied.

Respectfully submitted,

/$ t vt M (ae.

Joseph M. Allen, Jr

Attorney for Respondents

P.O. Box 1988

Mobile, Alabama 366333

(205) 432 7682