Petition for Writ of Certiorari — Evans v. United Arab Shipping Co. S. A. G.

A €) Bupreme Court, ae

: OD «: | FITTED

DEC 211993 |

IN THE

SUPREME COURT OF THE UNITED

October Term. 1993

WILLIAM W. EVANS.

Petitioner.

U.

LINITED ARAB SHIPPING COMPANY

S.A.G.; M/V AL WATTYAH, her

engines, boilers, etc., in rem.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

‘Edward V. Cattell, Jr.

Jeffrey S. Moller

CLARK, LADNER, FORTENBAUGH

& YOUNG

Woodland Falls Corporate Park

200 Lake Drive East, Suite 300

Cherry Hill, NJ 08022

(609) 779-0900

Attorneys for Petitioner

“Counsel of Record

PACKARD PRESS / LEGAL DIVISION, 1617 JFK BOULEVARD, PHILA, PA 19103 (215) 563-9000

v7

yr iA

QUESTIONS PRESENTED FOR REVIEW

1. Did the Court of Appeals err in its reversal of the

district court, which found that the petitioner, a state-

licensed vessel pilot, had the requisite “employment

related connection” to the vessel being piloted to be

entitled to the protection of the Jones Act, 46 U.S.C. app.

§ 688(a)?

2. What is the nature and scope of the “employment

related connection to a vessel in navigation” that is

required in order to invoke the Jones Act?

3. If maritime workers on U.S. navigable waters are

to be placed into one of only two categories, i.e., Jones

Act seamen or longshore/harbor workers, into which

category shouid the pilot, the “quintessential seaman”,

be placed?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...... i

TABLE OF AUTHORITIES .................... iv

THE OPINIONS BELOW...................... 1

PP HM 065 000000845 eco dente y 4

STATUTES INVOLVED .........cccccccccccese 2

STATEMENT OF THE CASE.................. ys

REASONS FOR GRANTING THE WRIT........ 3

1. The personal injury remedies of a vital cat-

egory of seaman, the vessel pilot, have been

left in a state of confusion by the split among

CR COIS 566-555-045 ee 3

2. The case squarely presents the critical issue

vis a vis Jones Act entitlement left unde-

cided in this Court’s jurisprudence, to wit,

the requisite nature and scope of the

“employment-related connection” between

the worker and the vessel................ 10

CRIP PR aA) 6009 65 osenkeeeeel ee ee 19

APPENDIX:

Opinion of the United States Court of Appeals for

the Third Circuit, dated August 13, 1993..... A-1

Findings of Fact and Conclusions of Law of the

United States District Court for the District of

New Jersey, dated July 30, 1991............ A-30

Judgment of the Court of Appeals, dated August 13,

ROMs i whee ko sev detainee A-51

Order of the Court of Appeals denying rehearing,

dated September 22, 1993 ................. A-53

Jones Act, 46 U.S.C. app. § | nee fa A-55

li

ee

TABLE OF CONTENTS — (Continued)

Page

Longshore and Harbor Workers’ Compensation Act,

ee bes We Pe Pe, DOS ceccccceccsvees A-55

Delaware Code Ann., tit. 23, § 121 (1987)....... A-61

lil

TABLE OF AUTHORITIES

Cases: Page

Bach v. Trident Steamship Co., 920 F.2d 322,

vacated, 499 U.S. ___, 111 S. Ct. 2253, af-

firmed, 947 F.2d 1290 (Sth Cir. 1991), cert.

denied, 504 USS. mee Sade Gg CY. 1606

(ROME 5060 095 Cbd eubuaese ec ee 7, 8, 11, 12

The CHINA, 74 U.S. (7 Wall.) 53 (1868)......... 7

Clark v. Solomon Navigation Ltd., 631 F. Supp.

BOIS CBTP ICY. WDB). ooo ococccivcescns,. 9

Cooley v. Board of Wardens, 53 U.S. (12 How.) 299

(NE NS whine heh oes dd sso mis cuceuee A. 4

Cosmopolitan Shipping Co. v. McAllister, 337 U.S.

WO SU oa Sed cave seecuece. cae 6, 13, 16, 17

Evans v. United Arab Shipping Company S.A.G.

and M/V Al Wattyah, 767 F. Supp. 1284

(D.N.J. 1991), related opinion, 790 F. Supp.

516 (D.N.J. 1992), rev'd, 4 F.3d 207 (3d Cir.

WOON Se bck di ecene bee vedas te et ee ek a

Griffith v. Wheeling-Pittsburgh Steel Co., 521 F.2d

31 (3d Cir. 1975), cert. denied, 423 U.S. 1054

OE ewer ueNner ears stan ieee eo 12

Guidry v. South Louisiana Contractors, Inc., 614

F.2d 447 (Sth Cir. BERR aE Nie a eae EI ea 8

Harwood v. Partredereit A.F. 15.5.81, 944 F.2d

1187 (4th Cir. 1991), cert. denied, ___ U.S.

» 112 S. Ct. 1265 (1992)......0000. 8,9

Haskins v. Point Towing Co., 421 F.2d 532 (3d Cir.

1970), cert. denied, 400 U.S. 834 to ee 14

Homer Ramsdell Transportation Co. v. La Com-

pagnie Generale T; ransatlantique, 182 U.S. 406

(RN th tn oedin ka keoSiknb acess ee 6, 7

iv

ee

TABLE OF AUTHORITIES — (Continued)

Cases: Page

International Stevedoring Company v. Haverty,

rae Bs Be fy: ee ee ree roe eee 18

Longshoreman’s Act (Opinion #22), 1928 AMC 263

(U.S. Employee Comp. Comm’n 1927) ....... 6, 9

Mach v. Pennsylvania Railroad Co., 317 F.2d 761

Ce ee ES eevee Sooke ee eee 12

Mahramas v. American Export Isbrandtsen Lines,

Inc., 475 F.2d 165 (2d Cir. 1973) ......... iu a?

McDermott International, Inc. v. Wilander, 498

Sie. re CRE Ds ooo eeeennss bees eeatern 5, 7, 10

Ex Parte McNeil, 80 U.S. (13 Wall.) 624 (1871)... 4

Ringering v. Compania Maritima De-La-Mancha,

670 F. Supp. 301 (D. Or. 1987), affd mem., 848

eee ae | pry 9

Seas Shipping Co. v. Sieracki, 328 U.S. 85

RN ce teeveeeeeseenae cme peda 9,17, 18

South Chicago Coal & Dock Co. v. Bassett, 309 U.S.

Fo SR ear ee Pp meaner rare REN PL? 9

Weiss v. Central Railroad Co., 235 F.2d 309 (2d Cir.

cn) na ar at Pam me ny mon th 5

Statutes:

Delaware Code, Ann. tit. 23, § 121 (1987)........ 6

Oe Whee 6 US is h0 0k see eee 2

Longshore and Harbor Workers’ Compensation Act

Fe Whee ee ee OP Oo oie cad eueaeusee 5, 8, 9

Jones Act, 46 U.S.C. App. § 688(a)........... passim

Miscelianeous:

Grant Gilmore and Charles Black, The Law of

Admiralty, § 6-21(a), (2d ed. 1975). 14, 15, 16, 17

Vv

No.____

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

WILLIAM W. EVANS,

Petitioner,

v.

UNITED ARAB SHIPPING COMPANY

S.A.G.; M/V AL WATTYAH, her

engines, boilers, etc., in rem,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

THE OPINIONS BELOW

The opinion of a panel of the U.S. Court of Appeals

for the Third Circuit in Evans v. United Arab Shipping

Company S.A.G. and M/V Al Wattyah is reported at 4

F.3d 207 (3d Cir. 1993) and appears in the Appendix

beginning at A-1. The dissenting opinion of Judge

Nygaard begins at A-23. The Findings of Fact and

Conclusions of Law issued by Judge Stanley S. Brotman

1

2

of the U.S. District Court for the District of New Jersey

on July 30, 1991, are reported at 767 F.Supp. 1284

(D.N.J. 1991) and appear in the Appendix beginning at

A-30.!

JURISDICTION

The decision and judgment of the U.S. Court of

Appeals for the Third Circuit was rendered on August

13, 1993. The court of appeals denied petitioner’s appli-

cation for rehearing by its Order entered September 22,

1993. (A-53). The jurisdiction of the Supreme Court to

review the judgment of the court of appeals is conferred

upon the Court by 28 U.S.C. § 1254.

STATUTES INVOLVED

46 U.S.C. app. § 688(a)

33 U.S.C. $§ 902, 905

Delaware Code Ann. tit. 23, § 121 (1987)

STATEMENT OF THE CASE

Petitioner William W. Evans, a vessel pilot licensed

by the State of Delaware and the U.S. Coast Guard,

brought this action in the United States District Court

for the District of New Jersey pursuant to the general

maritime law and the Jones Act, 46 U.S.C. app.

§ 688(a). The jurisdiction of the district court was

founded on 28 U.S.C. § 1333 and the Foreign Sovereign

Immunities Act, 28 U.S.C. § 1330. Petitioner sought

recovery for personal injuries sustained as a result of the

negligence of the defendant, United Arab Shipping

Company, as well as of the unseaworthiness of defen-

dant’s vessel. The district court held that petitioner was

covered by the Jones Act, concluding that a river pilot

was a “seaman” and that the petitioner had a sufficient

1. Arelated opinion of the district court, not ruled upon by the

court of appeals and not a subject of this petition, is reported at 790

F. Supp. 516 (D.N.J. 1992).

3

employment-related connection to the subject vessel at

the time of his injury. (A-43).2

The district court found as a fact that the negligence

of the defendant proximately caused an aggravation of

petitioner’s preexisting neurological condition. (A-48).

However, its finding was specifically premised upon the

lightened burden of proof as to causation to which Jones

Act plaintiffs are entitled. Pilot Evans appealed the

district court’s assignment of the burden of proof on the

aggravation issue and United Arab Shipping Company

cross-appealed the district court’s determination that

petitioner was entitled to the protections of the Jones

Act.

The U.S. Court of Appeals for the Third Circuit

reversed the district court’s finding that Pilot Evans was

entitled to the protection of the Jones Act, which had the

effect of avoiding the review of the district court’s

burden of proof assignment. (A-3). Circuit Judge Nyga-

ard dissented. (A-23).

The court of appeals’ opinion and judgment were

entered on August 13, 1993. William Evans submitted a

petition for rehearing, which was denied by the court of

appeals on September 22, 1993. (A-53).

This Petition for a Writ of Certiorari followed.

REASONS FOR GRANTING THE WRIT

1. The personal injury remedies of a vital cate-

gory of seaman, the vessel pilot, have been left

in a state of confusion by the split among the

circuits.

The petitioner in this case was a state-licensed pilot,

serving the ports on the waters of the Delaware Bay and

2. However, the district court concluded that it was petition-

er’s burden to prove the extent to which his shipboard accident had

aggravated a preexisting neurological condition and ultimately

refused to award damages for aggravation of this condition. The

issue of the assignment of the burden of proof to the plaintiff was

appealed to, but not decided by, the court of appeals. (A-3, 29).

4

River and its tributaries. He was specialiy trained and

licensed under the laws of the State of Delaware to guide

large commercial vessels between the Atlantic Ocean

and their destinations. Many of these vessels were

fully-laden tank ships which call at the refineries in the

Delaware Valley region.

There are more than 1,000 state-licensed pilots in

the United States. There are also a significant number of

federally-licensed pilots who work exclusively aboard

U.S. flag vessels in coastwise commerce. Each of these

individuals is specially qualified to navigate a vessel

during the most hazardous portion of its journey, while

in the confined and congested waters of our ports, bays

and rivers. The pilot’s job is strictly one of navigation, so

in that sense, he or she is the quintessential seaman. As

Justice Curtis wrote in Cooley v. Board of Wardens, 53

U.S. (12 How.) 299 (1852):

Now, a pilot, so far as respects the navigation of the

vessel in that part of the voyage which is his pilotage

ground, is the temporary master charged with the

safety of the vessel and cargo, and of the lives of

those on board, and intrusted with the command of

the crew. He is not only one of the persons engaged

in navigation, but he occupies the most important

and responsible place among those thus engaged.

53 U.S. at 316.

In Ex Farte McNeil, Justice Swayne wrote that

pilots were:

as much a part of the commercial marine as the hull

of the ship and the helm by which it is guided . . .

Pilots are a meritorious class, and the service in

which they are engaged is one of great importance

to the public. It is frequently full of hardship, and

sometimes of peril; night and day, in winter and

summer, in tempest and calm, they must be present

at their proper places and ready to perform the

duties of their vocation.

80 U.S. (13 Wall.) 624, 625 (1871).

|

5

The question presented in this appeal is whether or

not this vital class of mariner is entitled to the remedies

provided by the Jones Act, 46 U.S.C. app. § 688(a), as

against the owner/operator of the vessel which has

employed him. In attempting to fashion an answer to

this question, the lower courts, including the Courts of

Appeals for the Third, Fourth, Fifth and N‘nth Circuits,

have left the law in a confused state. It is important that

this Court seize the current opportunity to set out a

uniform rule defining the personal injury rights and

remedies to which the members of this critical class of

mariner are entitled. As will be explained below (Reason

#2), this case also offers a perfect opportunity to provide

guidance and, perhaps, to definitively answer what may

be the last remaining general question regarding Jones

Act entitlement: the exact nature and scope of the

requisite worker/vessel connection.

The courts which have to date been asked to define

the pilot’s personal injury remedies have steered variant

analytical courses. Moreover, in several important re-

spects, these courts have reached different destinations.

In the case at bar, for example, the district court relied

upon this Court’s decision iin McDermott International,

Inc. v. Wilander, 498 U.S. 337 (1991), in finding that,

given the essential role played by the pilot in the safe

navigation of a vessel and his receipt of remuneration for

his services, the petitioner was a “seaman” with a

sufficient “employment-related connection” to the de-

fendant’s vessel to be entitled to Jones Act remedies.3

3. It was significant to the district court that, according to the

McDermott decision, a maritime worker who has been excluded

from receiving benefits under the Longshore and Harbor Workers’

Compensation Act (33 U.S.C. §§ 901-905 er seq.) (“LHWCA”) as

being a “master or member of the crew of a vessel” was, by

definition, entitled to Jones Act seaman’s Status, (A-41), citing

McDermott, 498 U.S. at 349. And, as the district court pointed out,

an early but vital decision of the federal Employee’s Compensation

Commission had determined that pilots were, indeed. excluded

6

The Third Circuit Court of Appeals took a different

analytical tack in the course of reversing that decision.

The Third Circuit acknowledged that under its prece-

dents a person who “performs the core function of a

seaman aboard a vessel in navigation”, might not need a

permanent connection to the vessel. (A-13 n.7). How-

ever, the panel majority* paradoxically held that:

“[b]ecause we conclude a compulsory river pilot

such as Evans is not an employee of the vessel he

pilots, he would be unable to recover under the Jones

Act even if he is a seaman.”

(A-13) (emphasis added).

Despite the fact that Pilot Evans was hired by the vessel

owner, was paid for his navigation services, and was

injured in the course of his employment while debarking

from the ship, the Third Circuit overturned the district

court’s finding of a sufficient “employment-related con-

nection”. (A-15). Contrary to the specific pronounce-

ment of this Court, the Third Circuit demanded a strict

“employer/employee” relationship as defined by com-

mon law rules of vicarious liability. (A-15). 5 The Third

Circuit noted that under Delaware law the defendant

was obliged to receive a pilot citing Del. Code Ann. tit.

23, § 1211. (A-16). The court then cited the decision in

Homer Ramsdell Transportation Co. v. La Compagnie

from LHWCA benefits because they were “masters or members of

a crew”, (A-42), citing Longshoremen’s Act, Opinion #22, 1928

AMC 263 (U.S. Employee Comp. Comm’n 1927).

4. Circuit Judge Richard L. Nygaard wrote a dissenting

opinion. (A-23).

5. This was in direct contravention of the decision in Cosmo-

politan Shipping Co. v. McAllister, 337 U.S. 783 (1949), which held

that “Congress intended that the purposes of [FELA and the Jones

Act] should not be restricted by common-law concepts of control so

as to bar from welfare legislation as independent contractors

persons who were as a matter of economic reality part of the

processes and dependent upon the businesses to which they

rendered service.” 337 U.S. at 790.

>

Generale Transatlantique, 182 U.S. 406 (1901), which

had held that a shipowner was not liable in personam for

the negligence of a compulsory pilot because of a lack of

discretion in selection of the individual. Applying the

Homer Ramsdeil reasoning, the Third Circuit decided

that, although a compulsory pilot may well be a

“seaman”, injuries occurring to him while aboard ship

do not occur “in the course of his employ”, in a Jones Act

sense.°®

The Fifth Circuit Court of Appeals has approached

the identical issue in an altogether different fashion.

Refusing to make an exception due to the nature of the

pilot’s shipboard work, and without raising any issue

pertaining to employer/employee control, the Fifth Cir-

cuit in Bach v. Trident Steamship Co., 920 F.2d 322 (Sth

Cir.), vacated and remanded, 499 Ricinus. GO Oe Ge

2253, aff'd, 947 F.2d 1290 (5th Cir. 1991), cert. denied,

504 U.S.__, 112 S.Ct. 1996 (1992), held that a pilot

does not qualify as a Jones Act seaman because he is not

permanently attached to a vessel or a particular fleet of

vessels. Bach, 920 F.2d at 326. However, as the late

Judge John Brown pointed out in dissent, the permanent

attachment prong of the Fifth Circuit’s Jones Act enti-

tlement test arose to cope with suits brought by persons

employed in the offshore oil industry whose job descrip-

tions were not comparable to those of the personnel

engaged aboard traditional vessels. Bach, 920 F.2d at

333 (Brown, J., dissenting). Thus, the Bach case yields

6. Of course ‘he approach taken by the Third Circuit over-

looks the import of this Court’s decision in The CHINA, 74 U.S. (7

Wall.) 53 (1868), entirely. In that case it was held that the ship in

rem is vicariously liable for the acts of its compulsory pilot. The state

Statute at issue and the amount of actual control exercisable by the

master over the pilot was in all relevant respects identical to those

factors present in Homer Ramsdell, but the Court focused upon the

relationship of the pilot to the ship. Of course, Jones Act rights

depend, according to the McDermott case, only upon the existence

of a “connection to a vessel in navigation.” 499 U.S. at 355.

Emphasis added.

8

the anomalous result that the most important navigator

aboard the vessel is not given the same personal injury

remedies as the lowest-rated deck hand or dishwasher.

This result is based upon the rather unsatisfying “per-

manency or substantial work” test which apparently

requires some minimum term of employment.

The personal injury remedies left available to a pilot

in the Fifth Circuit are not altogether clear. The plaintiff

in Bach had, for example, asserted a claim in terms of

the general maritime law warranty of seaworthiness,

which claim cannot be asserted by workers covered by

the Longshore and Harbor Workers’ Compensation Act,

33 U.S.C. § 905. (A-60). The Fifth Circuit recognizes

that maritime workers on the navigable waters of the

United States ought to be covered by either the LHWCA

or the Jones Act. See Guidry v. South Louisiana Con-

tractors, Inc., 614 F.2d 447, 452 n.2 (Sth Cir. 1980)

(“seaman” and “member of crew” are interchangeable

terms). However, the Bach court was plainly perplexed

by the situation presented by the compulsory pilot: “The

LHWCA covers those ‘engaged in maritime employ-

ment’. 33 U.S.C. §§ 902(3), 903. The record does not

clearly show that Bach was the employee of anyone. It is,

therefore, unclear whether the LHWCA covered him.”

920 F.2d at 327 n.5.

Undaunted by the fact that state-licensed pilots

have no employers other than those who own or operate

the ships upon which they work, the Fourth Circuit has

specifically held that pilots are “maritime workers” cov-

ered by the LHWCA. This conclusion led to the deter-

mination that pilots are barred by the LHWCA from

asserting an action for unseaworthiness against the

shipowner. Harwood v. Partredereit A.F. 15.5.81, 944

F.2d 1187 (4th Cir. 1991), cert. denied, __. U.S. __,

112 S. Ct. 1265 (1992). Employing a very broad con-

struction of the LHWCA and the amplifying Supreme

Court precedent, the Fourth Circuit held that because

he was injured upon navigable waters, the pilot, irre-

spective of the nature of his job duties, must have been

|

9

intended by Congress to be limited to compensation

benefits under the LHWCA. 944 F. 2d at 1190-91. As

pointed out by the dissenting judge, the Harwood deci-

sion directly contradicts the determination made by the

Employee’s Compensation Commission in 1927 (see

n.3, supra) that pilots are not covered by the LHWCA,

which decision is to be given pre-eminent authoritative

weight per South Chicago Coal & Dock Co. v. Bassett,

309 U.S. 251 (1939). 944 F.2d at 1194 (Ervin, C.J.,

dissenting.) At bottom, the Harwood decision fails to

properly recognize that pilots are quintessential seamen.

Most importantly, because pilots have no other employ-

ers but the owner/operator of the vessel being piloted,

the LHWCA compensation scheme provides absolutely

no benefit for them.

This last point was made by the court in Clark v.

Solomon Navigation Ltd., 631 F. Supp. 1275, 1283

(S.D.N.Y. 1986). The Clark court arrived at yet another

conclusion as to the causes of action available to the

pilot. Chief Judge Motley held that the Jones Act was not

applicable, the pilot not being “permanently” attached to

any particular vessel, but that the pilot was undeniably

engaged in seaman-like work. Asserting that the doc-

trine of Seas Shipping Co. v. Sieracki, 328 U.S. 85

(1946), had retained its vitality vis-a-vis those persons

not falling within the ambit of the LHWCA, the Clark

court concluded that river pilots are entitled to the

warranty of seaworthiness.

Finally, in Ringering v. Compania Maritima De-La-

Mancha, 670 F. Supp. 301 (D. Or. 1987), aff'd mem.,

848 F.2d 1243 (9th Cir. 1988), the Ninth Circuit Court

of Appeals affirmed a district court decision which had

squarely held that river pilots were entitled to the

protection of both the Jones Act and the warranty of

seaworthiness.

In summary, the jurisprudence with respect to the

personal injury remedies owing to a pilot is in total

chaos. In the Ninth Circuit, pilots enjoy the protection of

the Jones Act and the warranty of seaworthiness; in the

10

Fourth Circuit, they are entitled to neither, but are

harbor workers without benefits. In the Second Circuit,

pilots do not receive Jones Act protection but they are

entitled to the warranty of seaworthiness. In the Fifth

Circuit a pilot is not a “seaman”, is therefore not entitled

to recover under the Jones Act, may or may not be a

harbor worker and may or may not have a warranty of

seaworthiness. In the Third Circuit a pilot is not entitled

to the Jones Act whether he/she qualifies as a “seaman”

or not. Depending upon the forum selected, a pilot could

be a Jones Act seaman, a self-employed LHWCA em-

ployee, or a “Sieracki seaman.”

Although the sheer numbers of pilots in the United

States is not great, the importance of this class of

mariner to the country’s water-borne commerce and of

this issue to this class of seaman cannot be .‘verstated.

The time and judicial resources expended bt ?’is Court

toward establishing a uniform rule to cover piicts will be

well spent.

2. This case squarely presents the critical issue

vis-a-vis Jones Act entitlement left undecided

in this Court’s jurisprudence, to wit, the req-

uisite nature and scope of the “employment-

related connection” between the worker and a

vessel.

In McDermott International, Inc. v. Wilander, su-

pra, it was recognized that this Court's prior decisional

law pertaining to Jones Act entitlement had “led the

lower courts to a ‘myriad of standards and lack of

uniformity in administering the elements of seaman

Status’ ”, creating a legal labyrinth in which the lower

courts were lost. 498 U.S. at 355. In McDermott, the

specific holding was that the plaintiff need not have

been directly engaged in the navigation of a vessel in

order to qualify as a Jones Act seaman. This made it

clear that so long as a claimant had an “employment-

related connection to a vessel in navigation”, he or she

was entitled to the Jones Act remedy. The McDermott

11

decision recognized some residual ambiguity, however.

“The key to seaman status”, wrote Justice O’Connor on

behalf of the unanimous Court, “is employment-related

connection to a vessel in navigation. We are not called

upon here to define this connection in all details, but we

hold that a necessary element of the connection is that a

seaman perform the work of a vessel.” 498 U.S. at 355

(emphasis added).

The case now before the Court, that of a state-

licensed pilot’s suit against the owner/operator of a

vessel engaging his services, cries out for a uniform

definition of the “details” of the employment-related

connection. The circuit courts are in disagreement as to

the nature and length of the employment relationship

required for Jones Act “seaman” status.

The petitioner in this case came aboard the vessel

for the sole purpose of navigating it in exchange for pay,

and had no employer other than the defendant vessel

owner. Based upon those facts, the district court found

that the requisite “employment-related connection to a

vessel” existed. In its decision in Bach, the Fifth Circuit

required a showing that the claimant had a “permanent

attachment to or substantial work on a vessel or identi-

fiable fleet of vessels.” 920 F.2d at 324. The Bach court

refused to make an exception to that test for the worker,

such as a pilot, whose work is entirely navigation-

oriented. 920 F.2d at 326. However, other courts have

held that so long as the claimant was employed aboard a

vessel in navigation in furtherance of that vessel’s pur-

pose, the length of time of his service is irrelevant. See,

e.g., Weiss v. Central Railroad Co., 235 F.2d 309 (2d Cir.

1956).

The late Judge John R. Brown, former Chief Judge

of the Fifth Circuit Court of Appeals, wrote a provocative

dissent to the decision of the panel in Bach v. Trident

Steamship Co. He pointed out that the “more or less

permanent connection” element of the Jones Act test

had crept into the Fifth Circuit’s jurisprudence in re-

sponse to the problems inherent in classification of the

12

numerous types of job descriptions found in the offshore

oil industry. 920 F.2d at 333, (Brown, C. J., dissenting).

Judge Brown argued in his Bach dissent that the pilot, as

the quintessential seaman, was a critical member of the

ship’s complement, irrespective of the length of time of

his employ or the manner in which he was paid.”

Although many circuits have incorporated the

“more or less permanent attachment” test, others have

not. Prior to the instant case, the Third Circuit Court of

Appeals had placed a foot in each camp. In its decisions

in Griffith v. Wheeling-Pittsburgh Steel Co., 521 F.2d 31

(3d Cir. 1975), cert. denied, 423 U.S. 1054 (1976), and

Mach v. Pennsylvania Railroad Co., 317 F.2d 761 (3d

Cir. 1963), the Third Circuit essentially defines a sliding

scale depending upon the nature of the claimant’s work.

In Mach v. Pennsylvania Railroad Co., the plaintiff's

job was to go aboard coal barges stationed at his employ-

er’s pier ard, utilizing winches and mooring lines, move

the barge; along the pier for discharge. The owners of

the barges upon which he worked were not identified in

the case, but it was clear that the claimant had no

definite or permanent connection with any barge or

group of barges. The Mach court held, nevertheless,

7. Judge Brown actually wrote two dissenting opinions in

Bach. In response to a Petition for Writ of Certiorari, the Fifth

Circuit was directed to reconsider Bach in light of the then-recent

McDermott decision. 499 U.S. ___, 1991 AMC 2701 (June 3, 1991).

Unlike the panel’s majority, Judge Brown saw that McDermott

contained a great deal of language in support of a pilot’s Jones Act

status. Bach v. Trident Steamship Co., 947 F.2d 1290 (Sth Cir.

1991), cert. denied, 504 U.S.___, 112 S.Ct. 1996 (1992) (Brown,

C.J., dissenting).

8. In Mach, the plaintiff was deemed to have a Jones Act

remedy against his employer, Pennsylvania Railroad Co., which was

the owner of a waterfront terminal. Critical to this determination

was the fact that the plaintiff worked aboard vessels docked at the

terminal, but it is curious that the court paid absolutely no attention

to whether or not plaintiffs employer owned or controlled these

vessels.

13

that the claimant was entitled tc sue under the Jones

Act, stating that:

The duration of service for and upon a vessel may

determine whether shipboard work which is not

normally performed by a ship’s company makes the

worker a crewman, but lack of long continued

attachment to the vessel cannot, as a matter of law,

serve to deny seaman’s status under the Jones Act to

an employee who is injured while assigned to and

performing normal crew service.

317 F.2d at 763-64.

In so holding, the court cited the Second Circuit’s

decision in Weiss v. Central Railroad, 235 F.2d 309 (2d

Cir. 1956), in which that court had stated that it knew of

no instance in which a worker whose job it was to

actually steer and navigate a vessel had been denied

Jones Act protection merely because the duration of his

service was short.

In Griffith v. Wheeling-Pittsburgh Co., supra, how-

ever, the Third Circuit distinguished Mach in a case

where the plaintiff, a member of the steel company’s

labor pool, had been temporarily assigned docktender

duties which required him to go aboard barges from time

to time. The plaintiff in Griffith was never engaged in

vessel maneuvering and spent as much or more time

working at jobs within the mill as he did alongside the

dock.

In the case at bar, the Third Circuit seemed to

recognize that its prior decisions had placed it inside a

jurisprudential box of sorts. The court realized that a

Strict application of Mach might have required a finding

of Jones Act entitlement, but the court avoided the

application of Mach by examining in some detail the

nature of the relationship between a pilot and an em-

ploying vessel owner. (A-15). In spite of this Court’s

admonition in Cosmopolitan Shipping Co. v. McAllister

that “Congress intended that the purposes of [the Jones

Act] should not be restricted by common-law concepts of

14

control so as to bar from welfare legislation as indepen-

dent contractors persons who were as a matter of

economic reality part of the processes and dependent

upon the businesses to which they rendered service”,

337 U.S. at 790, the Third Circuit applied the general

rules of agency or vicarious liability to the Evans case.

(A-15).

Without entering a full discussion of the merits at

this juncture, it can be said that although the pilot's

relationship to the vessel is somewhat unique, the case

at bar presents an important opportunity to define the

nature of the requisite “employment-related connec-

tion”. Is it appropriate, for example, to utilize a common

law master/servant test when the issue is the breadth of

beneficent legislation as opposed to the limits of vicari-

ous liability to third persons? Of what import is the

duration of the connection? Captain Evans was aboard

the defendant’s vessel for nearly eight hours; it is quite

common for shipowners to hire “night mates”, tempo-

rary officers who are hired out of the local union hall, to

stand in-port watches. Why would the pilot, who is

arguably more important to the vessel and has less

control over his working conditions, be deserving of less

protection? Should not the nature of the claimant's

shipboard work have a bearing on the question, as the

Third Circuit cases suggest?

Given the tack taken by the Third Circuit in the

instant case, a number of important questions are

brought to the fore pertaining to the identification of the

appropriate Jones Act defendant. The presumption

among the circuits is that a Jones Act claimant can sue

only his “employer” and that he can have only one such

“employer’.? The eminent admiralty law scholars, Pro-

9. See, e.g., Haskins v. Point Towing Co., 421 F.2d 532, 536

(3d Cir.), cert. denied, 400 U.S. 834 (1970), in which the Third

Circuit dismissed an action filed by an illiterate tugboat captain who

had made a mistake in selecting between two related corporations.

15

fessors Grant Gilmore and Charles L. Black, Jr., have

directly challenged these presumptions. In discussing

the identity of the appropriate Jones Act defendant,

Gilmore and Black begin as follows:

In the normal situation the Jones Act defendant is a)

the plaintiffs employer, and b) the operator of the

ship on which the plaintiff was injured. Suppose,

however, that the employer has no control over the

operation of the ship (the Jones Act being restricted

to injuries caused by operating negligence.) Can the

operator be sued under the Jones Act although he is

not the plaintiffs employer? Alternatively, can the

employer be sued under the Jones Act although he

does not operate the ship? And, if the non-operating

employer can be sued under the Jones Act, is he

liable only for his own negligence or is he liable for

the operator’s negligence as well? The Jones Act

case law does not clearly answer any of these

questions.

Grant Gilmore and Charles L. Black, Jr., The Law of

Admiralty § 6-21(a) at 335 (2d ed. 1975).

Gilmore and Black go on to discuss the Second

Circuit’s decision in Mahramas v. American Export

Isbrandtsen Lines, Inc., 475 F.2d 165 (2d Cir. 1973),

which had grappled with the proposed questions in

concluding that a hairdresser, who worked in a ship-

board shop operated by her employer, a concessionaire,

could not sue the shipowner under the Jones Act.

Gilmore and Black then comment:

There are a great many maritime workers who

qualify as “seamen” and who suffer work-related

injuries on vessels operated by persons who may not

be, technically, their employers. The issues warrant

further analysis — in particular, the basic holding in

Mahramas that Jones Act actions can be brought

only against an “employer” and that the plaintiff can

have only one employer at « time.

16

According to Judge Anderson’s Mahramas opinion,

“there has never been any question that the Jones

Act applies only between employees and their em-

ployers.” That proposition has, indeed, been re-

peated hundreds, if not thousands, of times in

judicial opinions and in the academic literature. On

the other hand, nothing about the Jones Act is either

true or false until the Supreme Court has held it to

be so. Cosmopolitan Shipping Co. v. McAllister is

regularly cited as having so held.

Gilmore and Black, supra, at 336-37.

Cosmopolitan Shipping arose in a wartime context

in which ships had been commandeered by the United

States government and crewmen had signed papers

indicating that the government was to be their “em-

ployer”. Mr. McAllister apparently desired a jury trial

and, therefore, brought his case instead against the

ship’s former owner, Cosmopolitan. Cosmopolitan re-

tained, as “general agent”, a considerable amount of

administrative responsibility with regard to the ship’s

operation. In deciding the case, Justice Reed first noted

that the U.S. Government was the plaintiffs technical

employer, but nonetheless pursued a lengthy discussion

of the responsibilities of Cosmopolitan vis-a-vis ship-

board operating conditions. According to Gilmore and

Black:

What McAllister comes down to is that Cosmopoli-

tan could not be sued under the Jones Act because

a) it was not McAllister’s employer and b) it was not

the operator of the ship. McAllister (which was a 5-4

decision) tells us nothing about what the Supreme

Court majority might have held if it had concluded

that Cosmopolitan, although not the employer, was

the operator. Thus, Justice Reed’s remarks about

the employment relationship rank as dictum and his

lengthy demonstration of the fact that Cosmopolitan

did not operate the ship (but merely “managed a

certain shoreside business”) suggests that even the

17

McAllister majority regarded the question as open

and unsettled. And if McAllister did not hold that the

Jones Act defendant must be the plaintiffs one and

only employer (which it did not), then no other

Supreme Court case comes even close to establish-

ing that proposition.

The Jones Act was designed to remove the bar

created by the fourth proposition in The OSCEOLA

[citation omitted] and to allow seamen to recover

damages for work-related injuries caused by ship-

board negligence. On policy grounds, there seems to

be no good reason for limiting the recovery to actions

against “employers”; this is particularly true in light

of the fact that the action for unseaworthiness,

which has become the identical twin of the Jones

Act action, is not so limited. The longstanding

assumption that the only possible Jones Act defen-

dant is the plaintiff's one and only employer should

be reconsidered. As Judge Oakes’ Mahramas dissent

Suggests, there are two ways of going about this

reconsideration. One is to conclude that in

Mahramas-type situations, the plaintiff has two em-

ployers: at least for purposes of the Jones Act, there

is no reason why a seaman cannot serve two mas-

ters. The other is to conclude that Jones Act liability

rests essentially on control of the ship’s operation

and not on the employment relationship — an

approach which the McAllister case certainly leaves

open.

Gilmore and Black, supra, at 338-39 (emphasis added;

footnotes omitted).

It is time for this Court to address the issues posed

by Professors Gilmore and Black in 1975 and presented

now in this case.

Aside from the academic authorities, this Court has

itself held that a shipowner’s liabilities to one who acts as

a seaman aboard his vessel arise irrespective of the

18

existence of any contractual-type employment relation-

ship. In Seas Shipping Co. v. Sieracki, 328 U.S. 85

(1946), a shipowner was held to be liable to a longshore-

man under the doctrine of unseaworthiness. It was there

held, endorsing the analytical approach taken in J/nter-

national Stevedoring Company v. Haverty, 272 U.S. 50

(1926), that it is not an employer/employee relationship

which gives rise to the shipowner’s duties, but the

contro! which the shipowner has over the shipboard

working environment. The court was discussing the

warranty of seaworthiness in Sieracki, but the rationale

used to reject the arguments of the shipowner was born

in the Haverty case, which had allowed Jones Act

protection to a longshoreman working aboard ship. A

strong argument can be made that the precedential

effects of Sieracki and Haverty survive to this day,

notwithstanding the 1972 amendments to the Long-

shore and Harbor Workers’ Compensation Act, for those

workers who, like Captain Evans, fall outside the scope

of the LHWCA.

There has never been any contest of the fact that

United Arab, the defendant below, controlled the ship-

board conditions to which the petitioner was subjected.

Captain Evans was not merely a visitor or business

invitee aboard the vessel. He had a definite and impor-

tant employment-related connection to defendant’s ves-

sel. He was a seaman, and as such was entitled to the

protection of the Jones Act. He was undoubtedly injured

“in the course of his employment aboard the vessel” and

is deserving of a recovery against the ship’s operator

whether or not a common law master/servant relation-

ship existed between them. This Court should issue the

requested Writ in order to decide these issues.

19

CONCLUSION

Left unreviewed, the decision of the United States

Court of Appeals for the Third Circuit leaves continuing

confusion in the maritime law on the status of pilots.

The various circuit courts have held pilots to be harbor

workers, to be maritime workers who are neither Jones

Act seamen nor harbor workers, to be maritime workers

entitled to the protection of the warranty of seaworthi-

ness, or not so entitled, depending on the court. There is

neither certainty nor consistency about the nature or the

scope of the requisite employment related connection for

Jones Act status. The purpose for which the Jones Act

was passed, the protection of American seafarers, upon

whom the mercantile commerce and the defense of the

nation depends, will continue to be frustrated. The Writ

of Certiorari should be granted and the decision of the

Court of Appeals for the Third Circuit reviewed to effect

a resolution of this unsatisfactory situation.

Respectfully submitted,

EDWARD V. CATTELL, JR.

JEFFREY S. MOLLER

CLARK, LADNER, FORTENBAUGH & YOUNG

Woodland Falls Corporate Park

200 Lake Drive East, Suite 300

Cherry Hill, N.J. 08002

(609) 779-0900

Attorneys for Petitioner