Petition for Writ of Certiorari — Harwood v. Partredereit af. 15.5.81

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° a Supreme Court, U.S,

§1-1110|

+ ee

JAN 6 1992

RECORD NO.

OFFICE Ue ise cu |

IN THE

Supreme Court of the Anited States

October Term 1991

WALLACE S. HARWOOD, JR..,

Petitioner,

PARTREDEREIT af. 15.5.81,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Peter W. Rowe

STACKHOUSE, ROWE & SMITH

1600 First Virginia Bank Tower

555 Main Street

Norfolk, Virginia 23514

(804) 623-3555

Counsel for Petitioner

Appellate Printing Services * 523 East Main Street » Richmond, VA 23219 * (800) 642-7788

QUESTION PRESENTED

IS A HARBOR PILOT, TEMPORARILY EMPLOYED

IN THE NAVIGATION OF A VESSEL, ENTITLED

TO THE WARRANTY OF SEAWORTHINESS?

TABLE OF CONTENTS

QUESTION PRESENTED ..

TABLE OF CONTENTS .. .

TABLE OF AUTHORITIES.

PETITION FOR WRIT...

OPINIONS BELOW ... .

JURISDICTION .....

STATUTES INVOLVED...

STATEMENT OF THE CASE .

REASONS FOR GRANTING THE WRIT

II.

III.

THE FOURTH CIRCUIT DECISION IN THIS

CASE DENYING A HARBOR PILOT THE

WARRANTY OF SEAWORTHINESS DEPRIVES A

SUBSTANTIAL BODY OF MARITIME WORKERS

OF A VITAL REMEDY

DENYING THE

REVERSES STATUTORY

TO i906! «5s 4 6 os

DENYING THE

WARRANTY

SEAWORTHINESS TO A

WARRANTY

HARBOR PILOT

INTERPRETATION

AND LEGISLATIVE HISTORY DATING BACK

SEAWORTHINESS TO A HARBOR PILOT

CONTRADICTS THE MAJORITY OF FEDERAL

COURTS WHICH HAVE ADDRESSED THE

ISSUE AND IS INCONSISTENT WITH THE

DECISIONS OF THIS COURT

GCOMCLUGION «. «© © =e ee ee © @ © © 8 25

APPENDIX . 7 ” . . * . _ . . s . . ° . 27

TABLE OF AUTHORITIES

STATUTES

33 USC Section 901 et seq. ("The

Longshoremen’s and Harbor Worker’s

Act") 7 + . . 7 . . . . . 6-9, 11-19, 22-25

46 USC Section 688 ("The Jones Act") . 4-9,

11-13, 18-20, 22-25

CASES

Anderson v. Pacific Coast S.S.Co.,

aan Wee 2? Cepek) & e & ee ee et we tlhCUD

Aparicio v. Swan Lake, 643 F.2d

Saue (30m Cari UWeat A i96i} ..« « « « 42

Bach v. Trident Steamship Co., Inc.,

708 F. Supp. 772 (E.D.La. 1988),

aff’d on other grounds, 920 F.2d 322

(5th Cir. 1991), vacated, 111 S.Ct.

gac0 (heea) sc we ee ee ee et le te «CUD

Bach v. Trident Steamship Co., Inc.,

920 F.2d 322 (5th Cir. 1991), vacated,

111 S.Ct. 2253 (1991) on rehearing

Svea Ue Beeeee 4 6 0 ste ee « By ES, Fi

Clark v. Solomon Navigation, Ltd.,

632i F. Supp. iZ75 (6.0.N.¥. 1966) . .. 20

Coloma v. Director, OWCP,

897 F.2d 394 (9th Cir. 1990) ... 17, 20

Cooley v. Board of Wardens,

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

Drake v. Raymark Industries, Inc.,

772 F.2d 1007, 1013 (lst Cir. 1985)

Evans v. United Arab Shipping Co.,

60 U.S.L.W. 2118 (D.C.N.J., Cir.

No. 89-5246 (SSB) 7/30/91) .... 20,

Harwood v. Partredereit AF 15.5.81l,

944 F.2d 1187 (4th Cir. 1991) .. 1, 17,

Herb’s Welding, Inc. v. Gray,

470 U.S. 414, 423-24 (1985) .... .-

Kermarec v. Compagnie

Generale Transatlantique, 358 U.S.

6245 (1959) . « « « « +s + * *

Marroguin v. American Trading

Transportation Co., Inc.,

711 F. Supp. 1165 (E.D.N.Y. 1988)

McDermott International, Inc. v. Wilander,

111 S.Ct. G07 (3991) « « « s =» «© + s+ Quan

Mitchell v. Trawler Racer,

362 U.S. 539, 550 (1960)

Norton v. Warner Co., 321 U.S.

565 (1946) .« « s «6 ws 6 © »& Ehy 235

Pope & Talbot, Inc. v. Hawn,

346 U.S. 406 (1953)

Ringering v. Cia Maritima De-La-Mancha,

670 F. Supp. 301 (D.Ore. 1987), aff’d,

848 F.2d 1243 (9th Cir. 1988) ;

Seas Shipping Co., Inc. v. Sieracki,

328 U.S. 85 (1946) . . ° . . © 7-9, 16,

Senko v. LaCrosse Dredging Corp.,

352 i - 370 (1957) e . e - = o e* e . -

South Chicago Coal & Dock Co. v. Bassett,

309 i * 251 (1940) . . a . . . _ * kis

Southwest Marine, Inc. v. Gizoni,

No. 90-584 (12/4/91) .- 2©« © e# # @ 21-23,

Stephenson v. McLean Contracting Co.,

863 F.2d 340, 341-2 (4th Cir. 1988),

cert. denied, 109 S.Ct. 2110 (1989) ..

Swanson v. Marra Bros., Inc., 328 U.S.

he 7 (1946) . . s o 7. o o . o 7 o .* . 8,

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

Whittington v. Sewer Const. Co.,

541 F.2d 427, 433-4, 436 (4th Cir. 1976)

PETITION FOR WRIT OF CERTIORARI TO

THE U.S. FOURTH CIRCUIT COURT OF APPEALS

The Petitioner, Wallace S. Harwood, Jr.,

respectfully prays that a Writ of Certiorari

issue to review the Order of the United States

Court of Appeals for the Fourth Circuit

entered in this proceeding on September 5,

1991, reversing and remanding this case to the

District Court, and the Order of October 8,

1991, denying a Petition for Rehearing.

OPINIONS BELOW

The opinion of the U.S. District Court

for the Eastern District of Virginia, Norfolk

Division, is reported as 1990 WL 14192 (E.D.

VA), 1990 A.M.C. 1384 (E.D.Va. 1990).

The opinion of the U.S. Fourth Circuit

Court of Appeals is reported as Harwood v.

Partredereit AF 15.5.81, 944 F.2d 1187 (4th

Cir. 1991) and is printed in the Appendix.

The Order of the U.S. Fourth Circuit

Court of Appeals denying rehearing as of

October 8, 1991 is printed in the Appendix.

GROUNDS UPON WHICH JURISDICTION

OF THIS COURT IS INVOKED

On September 5, 1991, the United States

Court of Appeals for the Fourth Circuit

entered its opinion and judgment reversing a

judgment of the United States District Court

for the Eastern District of Virginia, Norfolk

Division. A timely filed Petition for

Rehearing was denied by the Fourth Circuit by

order entered October 8, 1991. Jurisdiction

is conferred by 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

33 USC Sec. 902 (3) (G)

When used in this chapter the term

"employee" means any person engaged in

maritime employment, including any

longshoreman or other person engaged in

longshoring operations, and any harbor-

worker including a ship- repairman,

shipbuilder, and ship-breaker, but such

term does not include -- ...(G) a master

or member of a crew of any vessel;...

33 USC Sec. 905 (a)

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

employee...

33 USC Sec. 905 (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

warranties to the contrary shall _ be

void...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.

46 USC Sec. 688

Any seaman who shall suffer personal

injury in the course of his employment

may, at his election, maintain an action

for damages at law, with the right of

trial by jury, and in such action all

statutes of the United States modifying

or extending the common-law right or

remedy in cases of personal injury to

railway employees shall apply; ...

STATEMENT OF THE CASE

Petitioner Wallace Harwood is a Virginia

State Pilot and member of a class of maritime

workers whose roots descend deep into ancient

maritime history and law. On December 16,

1987, he fell into the sea while boarding a

vessel to assist in navigating it into Hampton

Roads harbor. The ship’s ladder broke while he

was ascending it. The fall caused a permanent,

disabling injury, and forced his’ early

retirement.

Harwood sued the ship under two theories:

first, that he was a Jones Act Seaman; and

second, that under general maritime law he was

entitled to both the exercise of reasonable

care by the shipowner and the warranty of

seaworthiness.

The Jones Act claim was dismissed by the

District Court on Motion for Summary Judgment

prior to trial. The Fourth Circuit test for

Jones Act seaman status requires a more or

less permanent connection with the vessel,

which the Pilot admittedly did not have. A

parallel Motion on the warranty of

seaworthiness was denied. A Motion for a

Directed Verdict by the Ship during trial on

the issues of unseaworthiness and negligence

was denied. Motions by both parties for

Directed Verdicts at the conclusion of all the

evidence were denied.

The case was submitted to the jury on the

issue of contributory negligence of the Pilot,

and on the issues of unseaworthiness and

negligence of the Ship. In a general verdict

for the Pilot, the jury found no contributory

negligence and awarded $700,000.00 in damages.

The Ship’s motions following the verdict were

denied and judgment was entered on the

verdict.

The Ship appealed to the United States

Court of Appeals for the Fourth Circuit, which

reversed and remanded. A majority of the Court

held that the Pilot was a "maritime worker"

under the Longshoremen’s and Harbor Worker’s

Act ("LHWCA"), and was not a "master or member

of a crew of a vessel" under that Act solely

because he could not meet the Fourth Circuit

Jones Act test as a “seaman". Therefor the

Court concluded he was not entitled to the

warranty of seaworthiness and the case was

remanded for a new trial on negligence alone.

Chief Judge Ervin, in dissent, opined

-that—the pilot was not covered by LHWCA as he

was not a “maritime worker" but met the

definition of a "master or member of a crew of

a vessel", which he argued was not the same as

that for a Jones Act "seaman". Judge Ervin

recognized that there is a substantial body of

maritime workers who fall under neither LHWCA

nor the Jones Act. He concluded that under

Seas Shipping Co. v. Sieracki the pilot, as

such a worker, was entitled to the warranty of

seaworthiness.

Harwood sought a Rehearing and

consideration in banc. On October 8, 1991,

the United States Court of Appeals for the

Fourth Circuit denied the Pilot’s petition for

rehearing with suggestion for rehearing in

banc, 2-l.

REASONS FOR GRANTING THE WRIT

I. THE FOURTH CIRCUIT DECISION IN THIS

CASE DENYING A HARBOR PILOT THE

WARRANTY OF SEAWORTHINESS DEPRIVES A

SUBSTANTIAL BODY OF MARITIME WORKERS

OF A VITAL REMEDY.

The Court of Appeals held that the Jones

Act and LHWCA “constitute the entire universe

of coverage for maritime workers performing

navigational duties." However, while Jones Act

status and coverage under LHWCA are "mutually

exclusive" (Swanson v. Marra Bros., Inc., 328

U.S. 1, 7 (1946)), that is a worker must be

one or the other not both, it is faulty logic

to deduce from this that every maritime worker

must inevitably be one or the other.

The duty of seaworthiness, imposed as far

back as 1903 in The Osceola, 189 U.S. 158

(1903), places the duty on a vessel owner "to

furnish a vessel and appurtenances reasonably

fit for their intended use." Mitchell v.

Trawler Racer, 362 U.S. 539, 550 (1960).

Liability for seaworthiness arises from doing

a seaman’s work and incurring a seaman’s

hazards. Seas Shipping Co., Inc. v. Sieracki,

328 U.S. 85, 95 (1946).

The need for extension of the

humanitarian doctrine of the warranty of

seaworthiness to those who do the work of

traditional seamen, but who are not covered by

the Jones Act or LHWCA, was expressed by this

Court in Sieracki, Pope & Talbot, Inc. v.

Hawn, 346 U.S. 406 (1953), and Kermarec v.

Compagnie Generale Transatilantique, 358 U.S.

6245 (1959).

The harbor pilot is an expert with

localized knowledge, who comes aboard a vessel

temporarily to assure successful navigation

through "the local shoals, eddies, sandbars,

influence of localized tides, wind, current

and the ever-growing industrial installations

emerging from the commerical developments of

the area." See Brown, Circuit Judge,

dissenting in Bach v. Trident Steamship Co.,

Inc., 920 F.2d 322, 329 (Sth Cir. 1991).

The specialized role of pilots has often

been cited by this Court. Cooley v. Board of

Wardens, 53 U.S. (12 How) 299 (1852) holds

constitutional federal legistlation permitting

state compulsory pilotage as the regulation cf

navigation, recognizing the pilot as "the

temporary master charged with the safety of

the vessel and cargo, and of the lives on

board, and intrusted with the command of the

crew." The pilot has a lien in rem not only

for pilotage services, but for services

tendered but refused. Anderson v. Pacific

Coast S$.S.Co., 225 U.S. 187 (1912). The

China, 74 U.S. (7 Wall) 53 (1868) holds the

vessel liable in rem for the negligence of a

compulsory pilot.

In addition to approximately twelve

hundred state pilots like Harwood in the

United States, who are strictly concerned with

navigation, there are docking pilots, night

mates, shore engineers, shore gangway watches,

line handlers, and other workers who perform

traditional work of seamen. None have a

permanent or even semi-permanent connection to

the vessel. They are occasional and shore-

based employees. South Chicago Coal & Dock

Co. v. Bassett, 309 U.S. 251 (1940) and Norton

Vv. Warner CO.» gas U.S. 565 (1944),

demonstrate that there may be workers aboard a

ship naturally and primarily to aid in

navigation who, while not Jones Act seaman,

nevertheless are "members of the crew" and are

not covered by LHWCA.

The Fourth Circuit itself has recognized

that the passage of the Jones Act and the

LHWCA did not eliminate the general maritime

law of the United States for workers not

covered by either act. In Stephenson v.

McLean Contracting Co., 863 F.2d 340, 341-2

(4th Cir. 1988), cert. denied, 109 S.Ct. 2110

(1989) and Whittington v. Sewer Const. Co.,

541 F.2d 427, 433-4, 436 (4th Cir. 1976), it

held the warranty of seaworthiness ran to

those "doing the work of a seaman", though the

worker was not permanently attached to the

vessel and therefor could not qualify as a

seaman under the Jones Act. A harbor pilot

certainly fits this description.

Other cases hold that the 1972 amendments

to LHWCA did not affect workers not covered by

the Act. Drake v. Raymark Industries, Inc.,

772 F.2d 1007, 1013 (lst Cir. 1985); Aparicio

v. Swan Lake, 643 F.2d 1109 (5th Cir. Unit A

1981).

The failure of Congress to define

“seaman” in the Jones Act, and "master or

member of a crew" in LHWCA leaves a major area

of uncertainty in the law, an uncertainty

which seriously affects the rights of this

multitude of workers.

The Fourth Circuit’s decision leaves

harbor pilots together with other essential

workers engaged in seamen’s work and exposed

to seamen’s hazards, with the monumental

burden of proving negligence whenever they

seek remedies for injuries at the hands of the

ship.

Yet in order to carry out their duties

they must board a ship they do not know and

work with equipment they have had no chance to

examine. Their safety is at the mercy of the

shipowner. If the shipowner is compelled to

furnish a seaworthy vessel to crewmen

permanently attached to the vessel, these

temporary "seamen" must be owed the same duty.

These many maritime workers who are

unprotected by Jones Act or LHWCA remedies,

but who perform a seaman’s work and incur a

seaman’s hazards on the job, are entitled to

the longstanding general maritime warranty of

seaworthiness. The decision in this case,

however, one of first impression in the

Circuit courts, and which is now the leading

case on the subject, leaves this body of

workers without this vital remedy. This is a

situation which must be corrected, and their

rights must be clearly and correctly defined.

II. DENYING THE WARRANTY OF

SEAWORTHINESS TO A HARBOR PILOT

REVERSES STATUTORY INTERPRETATION

AND LEGISLATIVE HISTORY DATING BACK

TO 1927.

Section 902(3)(G) of LHWCA exempts from

coverage “masters or members of a crew of any

vessel." In 1927, just after the adoption of

the LHWCA, the United States Employees’

Compensation Commission, charger] with

implementing the Act, was presented with this

issue: "The question submitted...is whether or

not injuries to pilots boarding vessels at sea

or in port come within the compensation

benefits of the LHWCA. The pilots referred to

are those taken aboard a vessel for the

purpose of conducting such a vessel into or

out of a port." (1928 A.M.C. 263). The

Commission issued an official opinion that a

temporary pilot is included within the term

"master or member of a crew" and as such, is

not covered by the Act. (33 U.S.C. Section

902(3)(G); 1928 A.M.C. 263). This opinion has

never been amended or rescinded.

When Congress amended the Act in 1972, it

was aware of the 1927 opinion classifying

pilots as "a master or member of a crew." Yet

the legislative history gives no indication of

any intention to remove pilots from this

classification.

The LHWCA was intended to cover

longshoremen, ship repairmen, and_ those

typically employed to load, unload, refit, and

repair ships. Norton v. Warner Co., 321 U.S.

565 at 569.570 (1944). The 1972 amendments

extended the Act shoreward and included the

term "maritime employment" in defining the

workers it covered. The stated purpose of the

amendment was to:

extend coverage to

longshoremen, harbor workers,

and others who were injured

while on piers, docks, and

other areas customarily used to

load and unload ships or to

repair or build ships, rather

than while actually afloat.

470 U.S. at 419-20; H. R. Rep. No. 92-1441,

92d Cong., 2d Sess., reprinted in 1972 U.S.

Code Cong. & Admin. News 4698, 4708; S. Rep.

No. 92-1125, 92d Cong., 2d Sess., at 13

(1972).

It is also undeniably true that Congress,

with the same amendments, abrogated Sieracki

recovery for unseaworthiness for all maritime

employees covered by the Act.

The House Report states that:

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.,

reprinted in 1972 U.S. Code Cong. & Admin.

News 4698, 4703.

Nowhere in the legislative history,

however, does the Committee state that the

purpose of the 1972 amendments was to overrule

Siezxacki entirely, or to deny the warranty of

seaworthiness to those not covered by the Act.

Yet the Fourth Circuit so held in this case.

Taken together, the full text of Section

902(3) and the exclusion in Subsection (G) for

crewmen performing navigational duties,

Clearly show that "maritime employment” is “an

occupational test that focuses on langshoring

and ship maintenance operations, and not on

activities associated with navigation."

Harwood v. Partredereit AF. 15.5.81 944 F.2d

1187 (1991), (dissenting opinion). See Coloma

v. Director, OWCP, 897 F.2d 394 (9th Cir.

1990), citing Herb’s Welding, Inc. v. Gray,

470 U.S. 414, 423-24 (1985).

Examined as a whole, the language of

LHWCA, its legislative history, and _ the

Commission interpretation of it show that

maritime employees whose duties are to aid in

the navigation of the vessel are not among the

class of workers which Congress intended to be

covered by the LHWCA.

Therefore maritime workers who are

neither Jones Act seamen, nor covered by the

LHWCA, but who do the traditional work of

seamen, must be afforded the general maritime

warranty of seaworthiness - a warranty and

remedy which has been available to protect

"seamen" from the hazards of their jobs for

over one hundred years.

In denying Petitioner this remedy the

Fourth Circuit Court of Appeals has either

misread or disregarded statutory history and

interpretation which have been relied upon in

the maritime industry since 1927.

III. DENYING THE WARRANTY OF

SEAWORTHINESS TO A HARBOR PILOT

CONTRADICTS THE MAJORITY OF FEDERAL

COURTS WHICH HAVE ADDRESSED THE

ISSUE AND IS INCONSISTENT WITH THE

DECISIONS OF THIS COURT.

Three Federal courts have addressed the

specific question of whether the LHWCA covers

harbor pilots, or whether they are excluded as

a master or member of the crew. Only one has

held a river pilot not to be a “master or

member of a crew." Bach v. Trident Steamship

Co., Inc., 708 F. Supp. 772, 775 (E.D.La.

1988), aff’d on other grounds, 920 F.2d 322

(Sth Cir. 1991), vacated, 111 S.Ct. 2253

(1991). The Fifth Circuit in Bach did not

directly address the issue presented here, but

held a pilot was not a Jones Act seaman, and

there was no showing of unseaworthiness.

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

Supp. 1275 (S.D.N.Y. 1986) (cited with

approval in Marroquin_v. American Trading

Transportation Co., Inc., 711 F. Supp. 1165

(E.D.N.Y. 1988) and Coloma v. Director, OWCP,

897 F.2d 394 (9th Cir. 1990)), and Ringering

v. Cia Maritima De-La-Mancha, 670 F. Supp. 301

(D.Ore. 1987), aff’d, 848 F.2d 1243 (9th Cir.

1988) hold that pilots are “members of a

crew.”

One lower federal court has taken this

Court’s decision in McDermott International,

Inc. v. Wilander, 111 S.Ct. 807 (1991) as a

holding that the multiple "tests" for Jones

Act seaman status developed among the circuits

have now been totally eliminated and has ruled

that pursuant to Wilander a state Pilot is a

Jones Act seaman when he is in the service of

the vessel. Evans v. United Arab Shipping Co.,

60 U.S.L.W. 2118 (D.C.N.J., Cir. No. 89-5246

(SSB) 7/30/91). That this interpretation is

correct may at least be suggested by this

Court’s action in Bach, 111 S.Ct. 2253 (1991),

when it vacated a Writ and remanded the case

to the Fifth Circuit for reconsideration in

light of Wilander, 111 S.Ct. 807 (1991)

although the Fifth Circuit has not seen

Wilander in that light.’

For the substantial group of workers

affected by this Fourth Circuit decision,

Southwest Marine, Inc. v. Gizoni, No. 90-584

(12/4/91) in this Court, decided December 4,

1unpersuaded on remand that Wilander affected its

decision that a pilot is not a Jones Act seaman, the

Fifth Circuit has reinstated its previous judgment,

again over a dissent, and Bach is once again Certiorari

bound. 1991 WL 236863 (5th Cir., Dec. 2, 1991). Although

it seems unlikely, in light of Gizoni, it is at least

arguable that this Court intended in Wilander to narrow

the focus as to Jones Act status to simply the worker’s

function on the vessel, regardless of such factors as

“more or less permanent connection”, see Evans. If that

was the intent, then this case was decided in the

District Court in the right way for the wrong reasons.

Requiring a retrial would be judicial waste and an undue

burden on the parties, and the Fourth Circuit’s decision

should be reversed per curiam on the basis of Wilander

with directions to reinstate the jury verdict.

1991, may only add to the confusion, but once

again Gizoni had a more or less permanent

connection to the vessel in question and

therefore could qualify for Jones Act status,

unlike the type of workers addressed in this

case.

This Court has never held that "seaman"

as used in the Jones Act and "master or member

of a crew" as used in the LHWCA are equivalent

terms, such that only those who fully qualify

for Jones Act status can be “members of the

crew" under the LHWCA. See Swanson v. Mara

Bros. Inc., 328 U.S. 1 (1946); Senko v.

LaCrosse Dredging Corp., 352 U.S. 370 (1957).

In Wilander this Court reiterated that

"member of a crew" excludes Jones Act seamen

from LHWCA coverage, and that "seaman" does

not include land-based workers such as are

covered by the LHWCA. 111 S.Ct. 813-814. In

Gizoni this Court held that simply because a

maritime worker’s occupation is enumerated in

LHWCA, he is not ipso facto precluded from

being a Jones Act seaman.

Nothing in either opinion, however,

prevents the logical conclusion that transient

workers such as Pilots, who are land-based but

whose sole duties are in aid of navigation,

and who are forced to serve under working

conditions dictated and solely controlled by

the vessel, are "masters or members of the

crew" under LHWCA even if they do not fully

qualify as Jones Act seamen.

In Gizoni and Wilander this Court said

that "master or member of a crew" as a phrase

in LHWCA is a "refinement" of the term

"seaman" in the Jones Act. Wilander, 11ll

S.Ct. 807, 813 (1991); Gizoni, [1] S.

Ce (1991). These same cases

recognize, first an expanded scope _ for

"seaman" under the Jones Act to those not

necessarily engaged in the navigational

function of the vessel, and second that one

may be within the category of maritime

employment encompassed by LHWCA but still be a

“Master or member of a crew of a vessel."

Indeed, the Court has recognized in

Wilander that the term "seaman" under the

general maritime law, as well as under the

Jones Act, is a broad term which encompasses

"all persons employed on board ships and

vessels during the voyage to assist in their

navigation and preservation, or to promote the

purposes of the voyage". 111 S. Ct. at 812.

"Master or member of a crew" should be given

the same reading.

It is hard to conceive of a shore-based

temporary worker more fully meeting the

appellation "master or member of a crew" than

a harbor pilot, who is engaged solely in

navigation. Certainly such a person fits the

_—

broadened scope of "seaman" encompassed by

Wilander and Gizoni.

As discussed, both this Court and the

Fourth Circuit have recognized in principal

the existence of a third class of workers who

are neither LHWCA nor Jones Act. The Fourth

Circuit’s decision in this case, a clear

aberration, is in conflict in principle with

Bassett and Norton v. Warner. It is in

conflict in principle with Wilander and

Gizoni. It is in conflict in principle with

its own previous decisions. Harwood should

not be allowed to stand as the leading case on

this subject. It must be corrected.

CONCLUSION

Because the decision of the U.S. Fourth

Circuit Court of Appeals in this case fails to

recognize the essential nature of a pilot’s

work and abrogates substantial rights of a

large class of maritime workers; because it

conflicts in principle with existing case law,

and is counter to statutory history and

interpretation long relied upon, it is

respectfully submitted that this Petition for

a Writ of Certiorari should be granted.

Respectfully submitted,

PETER W. ROWE

STACKHOUSE, ROWE & SMITH

555 Main St., Suite 1600

P. O. Box 3640

Norfolk, VA 23514-2640

(804) 623-3555

Counsel for Petitioner

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

October 8, 1991

No. 90-2351

WALLACE S. HARWOOD, JR.,

Plaintiff - Appellee,

Vv.

PARTREDERZIT AF 15.5.81,

Defendant ~- Appellant.

No. 90-2359

WALLACE S. HARWOOD, JR.,

Plaintiff - Appellant,

Vv.

PARTREDEREIT AF 15.5.81,

Defendant - Appellee.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Wa ttace S. Harwoop, Jr.,

Plaintiff-Appllee,

v. 4 No. 90-2351

ParTREDEREIT AF 15.5.81,

Defendagt-Appellant.

WaLiace S. HArwoopn, Jr.,

Plaintiff-Appellant,

v. 4 No. 90-2359

PARTREDERFIT AF 15.5.81,

Defendant-Appellee.

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

John A. MacKenzie, Senior District Judge.

(CA-89-638-N )

Argued: December 3, 1990

Decided: September 5, 1991

Betore ERVIN, Chief Judge, CHAPMAN, Senior Circuit Judge,

and NORTON, United States District Judge for the District of

South Carolina, sitting by designation.

Reversed and remanded by published opinion. Senior Judge Chapman

wrote the majority opinion, in which Judge Norton joined. Chiet

Judge Ervin wrote a dissenting opinion.

2 HarRWwoop V. PARTREDEREIT AF 15.5.81

COUNSEL

ARGUED: John E. Holloway, Richard T. Robol, HUNTON & WIL-

LIAMS, Norfolk, Virginia, for Appellant. Peter W. Rowe, STACK-

HOUSE. ROWE & SMITH, Norfclk, Virginia, for Appellee. ON

BRIEF: Philip N. Davey, HUNTON & WILLIAMS, Norfolk, Vir-

ginia, for Appellant.

OPINION

CHAPMAN, Senior Circuit Judge:

Plaintiff Wallace Harwood ("the pilot’ or "Harwood"), a harbor

pilot, was injured while attempting to board the defendant's ship,

M/V CAPTAIN MOST. Harwood brought suit in federal court alleg-

ing causes of action under the Jones Act and general mariume law.

The district court entered summary judgment for defendant on the

Jones Act claim, and, after being instructed on negligence and unsea-

worthiness, the jury returned a verdict for the plainuff in the amount

of $700,000.00. Defendant appeals claiming that Harwood was cov-

ered by the Longshore and Harbor Workers’ Act and it was preju-

dicial error to instruct the jury that he was owed the warranty of sea-

worthiness by the defendant.

At the time of the accident, Harwood was licensed as a pilot by the

Commonwealth of Virginia for the waters from Cape Henry to New-

port News and on the Elizabeth River. He was a member and part

owner of the Virginia Pilot Association but functioned as an indepen-

dent contractor. Pilotage in Virginia 1s governed by state statute. See

Va. Code Ann. §§ 54.1-900 et. seq. (1988). These statutes require that

4 vessel owner accept the first Virginia pilot to offer his services or

face a criminal penalty. Va. Code Ann. § 54.1-927 (1988).

On December 17, 1987, the M/V CAPTAIN MOST, a Danish flag

vessel homeported in Svendborg, Denmark, called at Hampton Roads,

Virginia in the early moming hours. Plaintiff was the first pilot to

offer his services to pilot the ship into Hampton Roads. While

attempting to board the vessel, the pilot ladder broke and Harwood

Harwoop v. PARTREDEREIT AF 15.5.81 3

fell into the ocean. During the fall or while being pulled into the pilot

launch, Harwood injured his shoulder severely enough to prevent him

thereafter from working effectively as a pilot.

Harwood sued in the U. S. District Court for the Eastern District

of Virginia alleging couses of action under the Jones Act and general

maritime law. The district court granted defendant’s motion for sum-

mary judgment on the Jones Act claim but denied defendant's sum-

mary judgment motion on the unseaworthiness claim. The case was

tried on allegations of negligence and unseaworthiness. At the conclu-

sion of the plaintiff's case, defendant moved for a directed verdict,

arguing that as a matter of law, Harwood was not entitled to the war-

ranty of seaworthiness and that the evidence was insufficient to sup-

port a finding of negligence. The district court denied the motion. At

conclusion of defendant’s case, both parties moved for a directed ver-

dict. The motions were denied and the case went to the jury. Over the

defendant’s objection, the court instructed the jury on Harwood’s

unseaworthiness claim as follows: ~~

The claim of negligence and the claim of unseaworthiness

in this case are separate claims, and you must consider them

separately, in accordance with these instructions.

The plaintiff would be entitled to the warranty of seaworthi-

ness. Under the maritime law the shipowner or operator

owes to the plainuff a nonuelegable duty to keep and main-

tain the ship and all decks [in a seaworthy condition] ....

Liability for an unseaworthy condition does not in any way

depend upon negligence or blame or fault. That is to say, the

owner or operator of a ship is liable for injuries and conse-

quent damage proximately caused by an unseaworthy condi-

tion existing at any time, even though the owner or operator

may have exercised due care under the circumstances and

may have had no notice or knowledge of the unseaworthy

condition which proximately caused the injury or damage.

The jury retumed a verdict for Harwood in the amount. of

$700,000.00, and defendant timely appealed to this court.

4 Harwoop v. ParTREeDEREIT AF 15.5.8]

This appeal presents two issues: (1) whether the district court erred

in instructing the jury that plaintiff, a compulsory pilot, was owed the

warranty of seawotthiness;' and (2) whether this seaworthiness

instruction constituted prejudicial error. After considering the record

and the applicable law, we conclude that it was prejudicial error to

instruct the jury on the seaworthiness claim. We, therefore, reverse

the judgment of the district court and remand this case for proceed-

ings consistent with this opinion.

I. Warranty of Seaworthiness

The Longshore and Harbor Workers’ Compensation Act

("LHWCA" or "the Act") applies to "any person engaged in mariume

employment" but does not apply to, among others, ''a master or a

member of a crew of any vessel." 33 U.S.C. § 902(3) (1988). Workers

covered by the LHWCA are not entitled to a warranty of seaworthi-

ness. 33 U.S.C. § 905(b) (1988).

A. "Maritime Empioyment"

Prior to 1972, coverage by the LHWCA was governed by a single

situs requirement. Director, Office of Worker's Compensation Pro-

grams v. Perini N. River Associates, 459 U.S. 297, 298-301 (1983).

This requirement extended LHWCA coverage only to those workers

whose "disability or death result{ed) from an injury occurming upon

the navigable waters of the United States (including any dry dock)

—__ " LHWCA of 1927, ch. 509, § 3(a), 44 Stat. 1426. The Supreme

Court determined that a worker who, in the course of his duty, was

required to go on navigable waters and who suffered an injury while

‘Harwood suggests that he is entitled to the gencral maritime law warranty

of seaworthiness regardless of the statutory analysis set out below. He relies

on Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), for this proposition.

His reliance is misplaced because Congress specifically overruled Sieracki

with the 1972 amendments to the LHWCA. See Edmonds v. Compagnie

Generale Transatlantique, 443 U.S. 256, 262 (1979) (the 1972 amendments

intended to "overrule" Sieracki); 1972 U.S. Code Cong. & Ad. News 4702.

Furthermore, this court has repeatedly ruled that the 1972 amendments

"abolished" the Sieracki form of action. See e.g., United States Lines, Inc.

v. United States, 593 F.2d 570 (4th Cir. 1979).

———————————

Harwoob V. PARTREDEREIT AF 15.5.81 5

in that historically maritime locality, was covered by the pre-1972

LHWCA. Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962). Thus,

coverage under the 1927 Act required no inquiry into "what [the

employee] was doing (or supposed to be doing) at the time of his

injury." Perini, 459 U.S. at 311.

Under the 1972 amendments to the LHWCA, this relatively simple

situs test was modified. The 1972 amendments required that, to be

entitled to benefits, a disabled employee must (a) be disabled as the

result of '‘an injury occurring upon the navigable waters of the United

States," 33 U.S.C. § 903(a), the "situs" test, and (b) be engaged in

"maritime employment" at the time of the injury, 33 U.S.C. § 902(3),

the "status" test. Following enactment of the 1972 amendments, the

Supreme Court decided that the amendments replaced the single situs

requirement with a two-part situs and status standard. P.C. Pfeiffer

Co. v. Ford, 444 U.S. 69 (1979); Northeast Marine Terminal Com-

pany, Inc. v. Caputo, 432 U.S. 249, 264-65 (1977). Now both the sta-

tus requirement, as defined by section 902(3), based on the nature of

the job, and the situs requirement, as defined by section 903(a), based

on location, must be satisfied for the LHWCA to apply. /d.

It is undisputed that Harwood was injured on the "navigable

waters" of the United States, so at the tme of his injury, he was

engaged in employment that was compensable under the pre-1972

LHWCA. See Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962).

However, Harwood contends that as a pilot he was not engaged in

"maritime employment" as required by the 1972 amendments to

LHWCA. Harwood argues that while "maritime employmeni''

includes loading and unloading vessels, ship repair, or similar work,

it does not include pilotage. The Supreme Court in Perini considered

this argument and rejected it. 459 U.S. at 315. In Perini, the plaintitt

was injured while employed as a construction worker aboard a barge

upon the actual navigable waters of the United States. The Court held

that the construction worker was covered by the LHWCA even

though his employment was not "maritime" in nature, because it was

sufficient that he was injured on the navigable waters of the United

States in the course of his employment. /d. at 324. The Court

observed that, pnor to the 1972 amendments, the LHWCA covered

only workers who were injured on the navigable waters of the United

States and that the amendments expanded coverage to include work-

6 Harwood Vv. PARTREDEREIT AF 15.5.81

ers injured while ashore if the worker was engaged in "maritime

employment." Thus, the plaintiff in Perini qualified for pre-1972 cov-

erage under the LHWCA. Since the amendments were enacted to

expand the coverage of the LHWCA to sbore side workers, and not

to narrow its coverage, the Court ruled thai the plaintiff was covered

by the LHWCA regardless of the nature of his employment because

he was injured on the navigable waters of the United States. /d. at

323-24.

The Supreme Court reaffirmed this approach to LHWCA coverage

in Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985). Gray was a

welder and was injured while employed on a stationary drilling plat-

form within Louisiana's territorial waters. The Court, finding that the

drilling platform was an island, analvzed the limits of LHWCA cover-

aye under the test for landward coverage, and concluded that since the

welder’s work was "far removed from traditional LHWCA activities,”

470 U.S. at 425, and therefore no. mantime in nature, the welder

failed the status requirement for landward coverage. 470 U.S. at 424-

26. The Court qualified this holding as follows:

This view of ''maritime employment" does not preclude ben-

efits for those whose injury would have been covered before

1972 because it occurred "on navigable waters.'' Director,

OWCP v. Perini North River Associates, 459 U.S. 297

(1983).

[We point out that [Perini] was carefully limited to cover-

ave of an employee “injured while performing his job upon

actual navigable waters." 459 U.S. at 299.

Herb's Welding, 470 US. at 424, n.10.

We hold that seaward coverage under the LHWCA does not

depend on the nature of the worker's duties. The 1972 amendments

to LHWCA do not affect the pre-1972 meaning of "maritime employ-

ment" as to workers injured on navigable waters of the United States,

because one injured on navigable waters in the course of his employ-

HARWOOD V. PARTREDEREIT AF 15.5.81 7

ment satisfies both the pre- and post-1972 LHWCA meaning of 'mar-

itime employment." When the injury occurs on navigable waters, it

satisfies both the "situs" and the "status" test. Therefore, Harwood,

who was injured on the navigable waters of the United States, was

engaged in "maritime employment."

B. ‘Master or Member of a Crew"

The pilot also contends that he was a "master or member of a crew"

and therefore specifically excluded from LHWCA coverage by 33

U.S.C. § 902(3)(G). The test to be applied in ascertaining whether a

person is "a member of a crew" for purposes of LHWCA is the same

as applied in determining whether a person is a "seaman" for purposes

of Jones Act junsdiction. Applying such test, we find that the pilot in

this case is not a "master or member of a crew" and is therefore cov-

ered by the LHWCA.

As the Fifth Circuit noted in Hardaway Contracting Company v.

O’ Keeffe, 414 F.2d 657 (Sth Cir. 1968), [flor a time there seemed to

be the possibility that the Supreme Court recognized that the term

‘members of a crew of a vessel, as used in the [LHWCA] might be

a more restricted term than the word ‘seaman’ as used in the Jones

Act." Id. at 659. However, based upon the Supreme Court's decisions

in Swanson v. Marra Bros., Inc., 328 U.S. 1 (1946), and Senko v. La

Crosse Dredging Corp., 352 U.S. 370 (1957), it has become clear that

"seaman," as used in the Jones Act, and "member of a crew," as used

in the LHWCA, are equivalent terms. See Pizzitolo v. Electro-Coal

Transfer Corp., 812 F.2d 977, 982-83 (Sth Cir. 1987), cert. denied,

484 U.S. 1059 (1988); Bertrand v. Int'l Mooring & Marine Inc., 700

F.2d 240, 243-44 (Sth Cir. 1983), cert. denied, 464 U.S. 1069 (1984),

McDermont Inc. v. Boudreaux, 679 F.2d 452, 457-58 (Sth Cir. 1982);

Travelers Ins. Co. v. Belair, 412 F.2d 297, 302 (Ist Cir. 1969);

Hardaway Contracting Co. v. O'Keeffe, 414 F.2d 657, 659-60 (Sth

Cir. 1968).

In considering plaintiff's Jones Act claim, the district court cor-

rectly applied the test for "seaman" or "member of a crew" status

articulated by this court in Stephenson v. McLean Contracting Co.,

863 F.2d 340, 341 (4th Cir. 1988), cer?. denied, _ U.S. _, 109 S. Ct.

2110 (1989):

Ne) HaRWoOob V, PARTREDEREIT AF 15.5.81

[A worker] must be a member of a crew of a vessel .. . to

be a "seaman" under the coverage of the Jones Act. .

(There are] three requirements for a worker to be considered

"a member of a crew": 1) the worker must be more or less

permanently attached to a vessel or fleet; 2) the worker must

be one whose duties serve naturally and primarily as an aid

to navigation in the broadest sense; and 3) the vessel must

be in navigation.

Stephenson, 863 F.2d at 341. The district court correctly determined

that Harwood failed the first prong of this test, because he was not

"more or less permanently attached" to the M/V CAPTAIN MOST,

and the distnct court correctly entered summary judgment for defen-

dant on the Jones Act claim. The district court should have applied

the same reasoning to plaintiffs seaworthiness claim. Just as the pilot

is not a "seaman" for purposes of the Jones Act, he is not a "member

of a crew" under the LHWCA.’ Therefore, the pilot cannot avail him-

self of secuon 902(3)(6)'s "master or member of a crew" exclusion

from coverage under the LHWCA. Furthermore, since section 905(b),

33 U.S.C. § 905(b), provides that workers covered by the LHWCA

are not entitled to the warranty of seaworthiness, the district court

erred in instructing the jury on plaintiff's seaworthiness claim.

Il. Effect of Lmproper Jury Instruction

We must determine whether the district court's seaworthiness

instruction constituted prejudicial error. The pilot contends that the

*Since this case was argued, the Supreme Court has had occasion to con-

sider the definition of "master or member of a crew" under the LHWCA. In

McDermott Int'l, Inc. v. Wilander, _ U.S. _, 59 U.S.L.W. 4091 (U.S. Feb.

19, 1991), the Court stated that "master or member of a crew" should be

defined "solely in terms of the employee's connection to a vessel in naviga-

ion." /d. at 4096. Thus, the Court reinforced the importance of the first

prong of the Stephenson definition while expressly "jettison{ing} the aid in

navigation language" included in Stephenson's second prong. /d. Our hold-

ing in this Case is consistent with the Court's opinion in McDermott. Since

Harwood was not "more or less permanently attached" to the M/V CAP-

TAIN MOST, he cannot satisfy the definition of "master or member of a

crew" under the LHWCA.

Harwoop Vv. PaRTREDEREIT AF 15.5.81 9

instruction was harmless error, but we disagree. The district court

instructed the jury on two independent theories of liability (negli-

gence and unseaworthiness) and the jury returned a general verdict in

favor of the plaintiff for $700,000.00. Since the defendant may be lia-

ble only under a negligence theory, we must closely examine the pos-

sible impact of the district court’s improper seaworthiness instruction

with its no-fault standard of liability. We have held that when a party

is prejudiced by an improper instruction, this court should reverse and

remand the case for a new trial even when there may be enough evi-

dence to support the jury’s verdict on other grounds. Hodges v. Evisea

Maritime Co., 801 F.2d 678, 687 (4th Cir. 1986), cert. denied, 480

U.S. 933 (1987). When a jury is instructed on two theories of liability,

one which is proper and the other which is not, the court must remand

the case for a new trial unless it is ‘reasonably certain’ that the jury’s

verdict was not influenced by the erroneously-submitted . . . theor[y]."

Woods v. Sammisa Co., 873 F.2d 842, 853-54 (Sth Cir. 1989), cert.

denied, _ U.S. _, 110 S. Ct. 853 (1990); see also Kicklighter v. Nails

by Jannee, Inc., 616 F.2d 734, 742 (Sth Cir. 1980). Here, the jury

returned a general verdict against the defendant. We do not have the

benefit of answers to interrogatones accompanying the verdict and

cannot determine on which theory the jury reached its decision. There

is a significant msk that the jury, having been improperly instructed

on the seaworthiness claim, relied upon this erroneous instruction in

arriving at its verdict. Therefore, we find that the district court’s sea-

worthiness instruction constitutes prejudicial error.

Il.

For the foregoing reasons, we find that the district court committed

prejudicial error in instructing the jury on plaintiff's seaworthiness

claim. Accordingly, we reverse the judgment of the district court and

remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED

ERVIN, Chief Judge, dissenting:

The majority is clearly correct in its statement that workers who are

covered by the Longshore and Harbor Workers’ Compensation Act

(Act, or LHWCA) are not entitled to the warranty of seaworthiness.

10 Harwoop Vv. PARTREDEREIT AF 15.5.8]

33 U.S.C.A. §905(b) (1986). However, because I conclude that

Appellant Harwood, as a harbor pilot, is not covered by the Act, I

must part company with the majority as to all of its subsequent asser-

tions with regard to the relation between harbor pilots and the Act. I

find that the district court’s determination that harbor pilots such as

Harwood retain access to the warranty of seaworthiness is supported

by precedent and completely in accord with the intent Congress

expressed in amending the Act.

The 1927 Act was designed to provide uniform federal coverage

for land-based harbor workers such 1s longshoremen and ship repair-

ers who were injured while working on vessels upon the navigable

waters of the United States and were ineligible to recover state work-

ers’ compensation benefits.’ The Act did not extend benefits to sea-

men or vessel crew members, who were enutled to a separate remedy

under the Jones Act, 46 U.S.C. § 688. In effect, the 1927 Act

amended the Jones Act to make Jones Act benefits available only to

maritime workers who were not covered by the 1927 Act. Workers

whom the 1927 Act covered also retained access to a general man-

tume cause of action for personal injury against shipowners, not their

employers, under the warranty of seaworthiness.’

Congress amended the Act in 1972 to extend coverage to workers

whose injumes occurred not only on the navigable waters of the

United States but also on adjacent land-based work locations. 33

U.S.C.A. § 903(a) (1986). The amended Act reworded the definition

of "employee" to emphasize job function, expressly providing cover-

age for workers engaged in occupations such as longshoring, ship-

building, and ship repairing, and retained the 1927 Act’s exclusion

from coverage of ''a master or member of a crew of any vessel." 33

U.S.C.A. § 902(3) (1986). In exchange for the increased amounts of

compensation the amended Act provided, Congress withdrew the cov-

ered workers’ access to any other remedy against the vessel, including

‘Act of March 4, 1927, Ch. 509, 44 Stat. 1424 (codified as amended at 33

U.S.C. 8§ 901-950).

See discussion, infra.

Harwoob V. PARTREDEREIT AF 15.5.81 11

the warranty of seaworthiness. 33 U.S.C.A. § 905(b) (1986); H. R.

Rep. No. 92-1441, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code

Cong. & Admin. News 4698, 4703.

Neither the pre-1972 nor the amended Act specifically includes

harbor pilots among the covered employees or defines "master or

member of a crew." Soon after the 1927 Act was enacted, however,

the United States Employees’ Compensation Commission, the body

in charge of implementing the Act, issued an opinion explicitly stat-

ing that a temporary pilot of a vessel is included within the term

"master or member of a crew" as used in Section 902, and thus is not

among the persons protected by the Act. Longshoremen’'s Act, Opin-

ion No. 22, 1928 A.M.C. 263 (November 26, 1927). Congress is pre-

sumed to have been aware of this official interpretation when it

amended the Act in 1972. Moreover, this ruling is congruent with the

Supreme Court’s definition of "crew" for purposes of the Act. In

South Chicago Coal & Dock Co. v. Bassett, 309-U.S. 251 (1939), the

Court held that the Act was intended to cover harbor workers such as

laborers and longshoremen, as distinguished trom those employees

who are "naturally and primanily on board to aid in [the ship's] navi-

gation."’ 309 U.S. at 259-60; accord Whittington v. Sewer Constr. Co..

541 F.2d 427, 434 (4th Cir. 1976). It is undisputed that the harbor

pilot’s duty while on board ship is to navigate the ship into port.

Of the three federal courts which have addressed the question

whether the Act covers harbor pilots, only one holds that a nver pilot

is not a ''master or member of a crew." See Bach v. Trident Steamship

Co., Inc., 708 F. Supp. 772, 775 (E.D. La. 1988), affd on other

grounds, 920 F.2d 322 (Sth Cir. 1991), vacated, _ U.S. _, 111 S. Ct

2253 (1991).° The remaining decisions reflect the official opinion that

pilots are members of a crew." Clark v. Solomon Navigation, Ltd.,

°No reported decision to date has cited Bach for this proposition. The

appeals court, in affirming the district court's finding that the harbor pilot

Bach failed to meet the causation requirements necessary to prevail on his

negligence claum, observed that the record did not clearly reveal whether

Bach was covered by the Act. 920 F.2d at 327. The Supreme Court granted

certiorart and on June 3, 1991 vacated the judgment, remanding it to the

Fifth Circuit for further consideration in light of McDermott International,

Inc. v. Wilander, 111 S. Ct. 807 (1991) (discussed infra).

12 Harwoop V. PARTREDEREIT AF 15.5.81

631 F. Supp. 1275 (S.D.N.Y. 1986);* Ringering v. Cia Maritima De-

La-Mancha, 670 F. Supp. 301 (D. Ore. 1987). Common sense verifies

this conclusion. In order to carry out his duties, the harbor pilot must

board a ship he does not know and work with equipment he has not

had a chance to examine. If the shipowner has a duty to provide a sea-

worthy vessel and equipment to the members of the crew, who have

been excluded from the Act so that they may retain the benefit of that

warranty as well as other general maritime remedies, surely the har-

bor pilot performing navigational duties aboard the ship with that

same equipment is owed the same duty.

The majority presents as a matter of settled law the proposition that

the test for determining whether an individual is a "member of the

crew" for purposes of the Act is the same as the test applied tn ascer-

taining whether the individual is a "seaman" under the Jones Act, in

other words, that a maritime worker’s status under the Act is defined

solely by whether or not he qualifies as a Jones Act seaman.® Yet in

only one Circuit, the Fifth, have the federal courts explicitly so held.®

“Clark has been cited with approval in Marroquin v. American Trading

Transportation Co., Inc., 711 F. Supp. 1165 (E.D.N.Y. 198%) and Coloma

v. Director, OWCP, 897 F.2d 394 (9th Cir. 1990).

*The Jones Act test as it is applied in this Circuit requires fulfillment of

the following criteria: (!) the seaman must be more or less permanently

attached to a vessel or fleet; (2) the seaman must be one whose duties serve

naturally and primarily as an aid to navigation in the broadest sense; and

(3) the vessel must be in navigation. Stephenson v. McLean Contracting Co..,

863 F.2d 340, 341 (4th Cir. 1989); Whittington v. Sewer Constr. Co., 451

F.2d 427, 436 (4th Cir. 1976). Harbor pilots can rarely mect this test because

they are usually not "more or less permanently attached" to the ships on

which they work. In the case at hand, the district court niled that Harwood

did not qualify as a Jones Act seaman for exactly that reason. Harwood v.

Partredereit af. 15.5.81, CA-89-638-N, slip op. at 2-3 (E.D. Va. 1990).

*Appellate decisions outside the Fifth Circuit which state that Jones Act

seaman status and "member of a crew" status under the Act are equivalent

have involved plaintiffs who were longshoremen or ship construction per-

sonnel. Thus these courts were not faced with the issue of a worker such as

a harbor pilot who by the nature of his work is not covered by the Act and

can virtually never achieve Jones Act status. See, e.g., Duncanson-Harrelson

Co. v. Director, OWCP, 686 F.2d 1336 (9th Cir.), vacated on other grounds,

462 U.S. 1101 (1982) (plaintiff was a pile driver); Travelers Ins. Co. v.

Belair, 412 F.2d 297, 302 (1st Cir. 1969) (plaintiff was a carpenter).

Harwoop V. PARTREDEREIT AF 15.5.81 13

See, e.g., Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d 977, 982-

83 (Sth Cir. 1987), cert. denied, 484 U.S. 1059 (1988); Hardaway

Contracting Co. v. O’ Keeffe, 414 F.2d 657, 659-60 (Sth Cir. 1968).

Despite this aberrant line of cases, there is nothing in the statute or

the legislative history to support the contention that, in order to qual-

ify for status as a "master or member of the crew" under the Act, a

maritime worker must meet the Jones Act test. It is true that Jones Act

status and coverage under the Act are mutually exclusive: an

employee covered under the Act cannot also be covered under the

Jones Act, and if an employee meets the Jones Act criteria he will

automatically be excluded from Act coverage because he will also be

a ''master or member of the crew." It does not follow logically from

this, however, that the sole criterion for establishing "master or mem-

ber of the crew" status is the Jones Act test, or that the Jones Act and

the Act constitute the entire universe of coverage for maritime work-

ers performing navigational duties. The law in this Circuit recognizes

that passage of the Jones Act and LHWCA did not eliminate the gen-

eral maritime law of the United States for seamen who are not cov-

ered by either act. See Stephenson v. McLean Contracting Co., 863

F.2d 340 (4th Cir. 1989), and Whittington, supra, 541 F.2d at 436 (in

both cases, plaintiffs were construcuon workers who claimed only

Jones Act status; court acknowledged that warranty of seaworthiness

existed but was not applicable where plaintiffs could not qualify for

admiralty jurisdiction).

Contrary to the majority’s assertion, the Supreme Court has never

held that "seaman" as used in the Jones Act and "member of a crew”

as used in the Act are equivalent terms, in the sense that only those

who qualify for Jones Act seaman status can be "members of the

crew" under the Act. The cases cited in support, Swanson v. Marra

Bros., Inc., 328 U.S. 1 (1946), and Senko v. LaCrosse Dredging

Corp., 352 U.S. 370 (1957), do not reveal such a holding even upon

the most imaginative of readings. Swanson speaks only to

longshoremen, holding that a longshoreman injured on the dock was

not covered either by the 1927 Act or by the Jones Act and must

resort to state compensation laws. The Court stated no more than that

the Jones Act and the Act are mutually exclusive. 328 U.S. at 7.

Senko states that Jones Act coverage extends to "members of a crew,"

but does not hold that the Jones Act is their exclusive remedy. Senko

14 HaRwoop v. PARTREDEREIT AF 15.5.8]

merely indicates that such workers, pre-1972, were entitled to recover

under the Jones Act. 352 U.S. at 373.

The Supreme Court's most recent opinion addressing seaman status

for Jones Act purposes goes no further toward stating the rule the

majority favors than did Swanson and Senko. McDermort Interna-

nional, Inc. v. Wilander, _ U.S. _, 111 S. Ct. 807 (1991). In

McDermon, the narrow issue the Court faced was whether a paint

foreman injured on an oil drilling platform in the Persian Gulf while

assigned to a "paint boat" carrying his painting equipment qualified

as a Jones Act seaman. The Court unanimously affirmed the Fifth Cir-

cuit’s finding that the plaintiff qualified under the Fifth Circuit's test

for Jones Act seaman status, which did not require that a worker must

aid in the navigation of a vessel in order to be a Jones Act seaman.

In the process of illustrating that the intervention of the Act did not

change the Fifth Circuit’s rule, the Court repeated that the term

“member of the crew" excludes Jones Act seamen from Act coverage,

and further stated that "seamen" do not include land-based workers

such as are covered by the Act. 111 S. Ct. 813-14. The Court’s "land-

based" and ''sea-based" language is used solely in the context of dis-

tinguishing LHWCA workers from Jones Act seamen.

In fact, the Court recognized that the term "seaman," under general

maritime law as well as under the Jones Act, is a broad term encom-

passing all who are in service of the vessel. The Court reiterated that

the long-established definition of a mariner, or seaman, includes “all

persons employed on board ships and vessels during the voyage to

assist in their navigation and preservation, or to promote the pur-

poses of the voyage." 111 S. Ct. at 812 (citing E. Benedict, The Amer-

ican Admiralty § 278, at 158 (1850) (emphasis added)). Nothing in

the Court’s opinion prevents the conclusion that harbor pilots, who

are land-based but perform navigational duties and serve under work-

ing conditions dictated solely by a vessel, may be "members of the

crew" even if they do not qualify as Jones Act seamen.

Nor does a harbor pilot qualify for coverage under the Act by vir-

tue of engaging in "maritime employment." When the full text of Sec-

tion 902(3) is read together with the exclusion in Subsection (G) for

crewmen performing navigational duties, it is apparent that the "mari-

time employment" requirement is an occupational test that focusses

HaARWOOD V. PARTREDEREIT AF 15.5.81 15

on longshoring and ship maintenance operations, and not on activities

associated with navigation. See Coloma v. Director, OWCP, 897 F.2d

394 (9th Cir. 1990), citing Herb’s Welding, Inc. v. Gray, 470 U.S.

414, 423-24 (1985) (while "maritime employment" is not limited to

the occupations specifically mentioned in Section 902(3), "neither can

it be read to eliminate any requirement of a connection with the load-

ing or construction of ships.").

In Herb’s Welding, the Supreme Court rejected the Fifth Circuit

test which defined ''maritume employment" as employment having a

significant relationship to traditional mantime activity. /d. at 423,

414. The Court emphasized that Congress's most important concern

in enacting the 1972 amendments was

... the desire to extend coverage to longshoremen, harbor-

workers, and others who were injured while on piers, docks,

and other areas customarily used to load and unload ships

or to repair or build ships, rather than while actually afloat.

470 U.S. at 419-20, H.R. Rep. No. 92-1441, 92d Cong., 2d Sess.,

reprinted in 1972 U.S. Code Cong. & Admin. News 4698, 4708, S.

Rep. No. 92-1125, 92d Congy., 2d Sess., at 13 (1972). Accord

Director, OWCP v. Perint North River Associates, 459 U.S. 297, 316-

17 (1983).” See also Clark v. Solomon, supra (cited by the Ninth Cir-

’The majority cites Perini in support of its theory that the Supreme Court

considered and rejected the argument that "maritime employment" does not

include pilotage. What the Court actually considered and rejected, however,

was the assumption, made by the Second Circuit, that "maritime employ-

ment" must necessarily involve a significant relationship to navigation or to

commerce on navigable waters. Nowhere in Perini did the Court mention

pilotage, or link any navigation-related activity to the "marituume employ-

ment" category.

Perint holds that the Act does not require the employee to show that his

employment possesses "a significant relauonship to navigation or to com-

merce" in order to obtain coverage, where the employce is injured while

working upon the actuai navigable waters in the course of his employment

and would have been covered under the pre-1972 Act. At the time of injury,

the worker in Perini was on the deck of a cargo barge directing the unload-

ing of sewage pipes that were to be uscd in constructing the foundation of

16 HarRwoopb Vv. PARTREDEREIT AF 15.5.8 1

cuit in Coloma, supra, 897 F.2d at 399, for having correctly applied

the Herb’s Welding test in its analysis of harbor pilot coverage under

the Act).

The statutory language, legislative history, and interpreting case

law combine to indicate that maritime employees who are engaged in

navigation, and not as longshoremen or construction workers, are not

among the group of workers Congress intended to reach in extending

the Act’s coverage. In particular, harbor pilots such as Harwood,

whose sole work is navigation, have no cause of action under the Act

and must find their remedies elsewhere.

Il.

The general maritime law warranty of seaworthiness covers mari-

time workers who, like Harwood, have no remedy for employment-

related injury under either the Act or the Jones Act. The duty of sea-

worthiness, which was imposed as early as 1903 with The Osceola,

189 U.S. 158, obligates a vessel owner "'to furnish a vessel and appur-

tenances reasonably fit for their intended use." Mitchell v. Trawler

Racer, 362 U.S. 539, 550 (1960). Seamen crew members are the ben-

eficiaries of the warranty of seaworthiness and may recover for inju-

ries sustained because of the unseaworthy condition of their vessel.

The duty imposes a standard of strict liability, completely divorced

from concepts of negligence. /d., 362 U.S. at 440.

a sewage treatment plant. The Second Circuit held that the worker was not

involved in "maritime employment" because the sewage treatment facility

was not ultimately to be used in navigation or in commerce upon navigable

waters. The Supreme Court reversed, holding that a marine construction

worker who was covered under the pre- 1972 Act will not lose coverage after

1972 just because he was injured while working on a task that did not

involve navigation or commerce. 459 U.S. at 323-24.

Perini reinforces what the legislative history of the amended Act and Sec-

tion 902(3) makes clear: "maritime employment" involves traditional long-

shoring and construction activities. Even if Perini held as the majority

claims, the holding would be questionable in the light of the later Herb’'s

Welding. .

HARWOOD V. PARTREDEREIT AF 15.5.81 17

The warranty of seaworthiness is separate and independent of stat-

utory and other general maritime remedies, such as maintenance and

cure. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498 (1971).

The scope of the class of persons to whom the warranty of seaworthi-

ness is owed was greatly expanded in Seas Shipping Co. v. Sieracki,

328 U.S. 85 (1946). Sieracki extended the warranty to longshoremen

who were not directly employed by the ship on which the injury

occurred. In subsequent rulings, the Supreme Court reaffirmed the

Sieracki principle that the warranty of seaworthiness should extend to

that group of workers who needed the doctrine’s protection because

they were subjected to the same dangers as those seamen crew mem-

bers directly employed by the vessel. Pope & Talbot, Inc. v. Hawn,

346 U.S. 406, 413 (1953); Kermarac v. Compagnie Generale

Transatlantique, 358 U.S. 625 (1959).

The majority claims that Congress overruled Sieracki by means ot

the 1972 amendments to the Act, so that the Sieracki cause of action

for warranty of seaworthiness no longer exists. On the contrary, the

legislative history and case law cited by the majority affirm that, for

workers such as Harwood who are excluded from the coverage of the

Act, Sieracki remains very much alive.

It is undeniable that, in the processing of amending the Act, Con-

gress abolished the Sieracki acuon tor unseaworthiness for all man-

time employees who come within the coverage of the Act. The House

Report states:

Persons to whom compensation is payable under the Act

retain the right to recover damages for negligence aguinst

the vessel, but under these amendments they cannot bring a

damage action under the judicially-enacted doctnne of

unseaworthiness.

*Sieracki held that the availability of the unseaworthiness remedy did not

depend on the existence of a contractual relationship between the plainuft

and shipowner. The duty stemmed rather from the fact that the shipowner

had agreed to the plaintiff's performance of service on his ship. Sieracki,

supra, 328 U.S. at 96. The Court's opinion was based on the fact that the

seaworthiness remedy historically was derived from "the hazards which

maritume service places upon men who pertorm it, rather than any consen-

sual basis of responsibility." /d. at 94.

18 HaRwoop Vv. PARTREDEREIT AF 15.5.8 1

H.R. Rep. No. 92-1441, 92d Cong., 2d Sess., reprinted in 1972

U.S. Code Cong. & Admin. News 4698, 4703 (emphasis added). The

Committee went on to say that

[t]he rationale which justifies holding the vessel absolutely

liable to seamen if the vessel is unseaworthy does not apply

with equal force to /ongshoremen and other non-seamen

working on board a vessel while it is in port.

Id. (emphasis added). The Committee’s purpose was to eliminate

the end-run around the Act’s limit on employer liability that was

occurring as a result of the combination of Sieracki and Ryan Steve-

doring Co. v. Pan Atlantic $.S. Corp., 350 U.S. 124 (1956). Ryan sub-

jected the employer of a longshoreman injured aboard a ship to

liability for damages incurred by the ship when the worker sued the

ship under Sieracki, by allowing the ship to recover those damages

from the employer. 1972 U.S. Code Cong. & Admin. News at 4702.

Employers were thus, contrary to the intention of the 1927 Act,

exposed to no-fault liability. By making the Sieracki action unavail-

able to the longshoremen and other non-seamen covered by the Act,

Congress restored the effectiveness of the Act's limitation of

employer liability to a negligence standard.

Nowhere in the legislative history does the Committee state that its

intention was to overrule Sieracki absolutely, or to deny the warranty

of seaworthiness to any but employees covered by the Act. Despite

the majority's assertion, neither has this court held that Congress

overruled Sieracki for employees not covered by the Act. In fact, in

Whittington, supra, we acknowledged that Sieracki still provides the

warranty of seaworthiness. 541 F.2d at 433. See also Stephenson,

supra, 863 F.2d at 340. Our decision in United States Lines, Inc. v.

United States, 593 F.2d 570 (4th Cir. 1979) says nothing more than

that the 1972 Amendments overruled Sieracki—with respect to

employees covered by the Act. 593 F.2d at 572;° accord Drake v. Ray-

*In United States Lines we did not have to consider Sieracki because the

plaintiff was covered under the Federal Employees’ Compensation Act. The

1972 Amendments’ only effect in this case was to cut off the indemnity

action between the shipowner and the employer United States Government.

United States Lines, supra, 593 F.2d at 572. Until the present appeal, we

have not directly confronted the issue of whether seamen not covered under

the Act or the Jones Act retain their Sieracki cause of action.

Harwoob Vv. PARTREDEREIT AF 15.5.81 19

mark Industries, Inc., 772 F.2d 1007, 1013 (ist Cur. 1985), cert.

denied sub nom. Raymark Industries v. Bath Iron Works Corp., 476

U.S. 1126 (1986); Aparicio v. Swan Lake, 643 F.2d 1109 (Sth Cir.

Unit A 1981) (holding that 1972 Amendments had no effect on per-

sons not covered by the Act).

The fact that Harwood is a compulsory pilot does not interfere with

his coverage under Sieracki. Sieracki holds that the contractual (/.e.,

consensual) relationship between the worker and the master is not the

basis of the liability for seaworthiness. 328 U.S. at 96. The liability

arises, not as an incident merely of the seaman’s contract, but of per-

torming the ship's service—doiny a seaman’s work and incurnng a

seaman’s hazards—with the owner's consent or by his arrangement

Id. at 95, 99.

Moreover, under Virginia's statutory scheme, the ship's master

actually does have the power to consent to the service rendered by a

particular pilot. Va. Code Ann. §§ 54.1-900 - 54.1-927 (Rep. vol.

1988 & Supp. 1990). Licensed Virginia pilots testified at trial that the

master retains command of the vessel and may reject a particular

pilot. The Virginia statutory system may in effect compel the use of

a pilot licensed by the Commonwealth, but ultimately the master must

consent to the manner in which the particular pilot conducts his ser-

vices.

In amending the 1927 Act, Congress can hardly have intended to

depnve harbor pilots, who pertorm not longshoreman work but tradi-

tional seaman’s duties, and who in ‘most cases are not eligible for

Jones Act protection, of their only remaining maritime remedy. The

majonty, by reading the amended Act and its legislative history far

more broadly than the text itself supports, appears determined to

accomplish this exclusion in spite of Congress's failure to do so.

Because the distnct court's instrucuon to the jury on strict liability

under the warranty of seaworthiness represented a correct statement

ot the law, and because the jury's finding that the shipowner was lia-

ble under that standurd was supported by evidence trom which a rea-

sonable jury could have drawn this conclusion, the jury's verdict

should be upheld and the district court’s actions affirmed.

| aia

On Petition for Rehearing with Suggestion

for Rehearing in Banc

Appellee/cross-appellant filed a petition

for rehearing with suggestion for rehearing in

banc.

Judge Ervin voted to grant panel

rehearing. Judge Chapman and Judge Norton

voted to deny.

No member of the Court requested a poll

on suggestion for rehearing in banc.

The Court denies the petition for

rehearing with suggestion for rehearing in

banc.

Entered at the direction of Judge

Chapman, with the concurrence of Judge Ervin

and Judge Norton.

For the Court,

Clerk

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