Opposition Brief — Boyd v. Ford Motor Co.

9Lsdeep8 |

In The

Supreme Court of the United States

October Term, 1991

¢

JAMES BOYD AND ELIZABETH BOYD,

Petitioners,

FORD MOTOR COMPANY; ROUGE STEEL COMPANY;

THE MOTOR VESSEL M.S. HENRY FORD, II

Respondents

a * Se

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

a

Gary L. Haypen

Counsel of Record

Ford Motor Company

1500 Parklane Towers West

Three Parklane Boulevard

Dearborn, Michigan 48126

(313) 322-6746

COCKLE LAW BRIEF PRINTING CO., (800) 225-4964

OR CALL COLLECT (402) 3

42-283

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QUESTIONS PRESENTED

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VVnetner this Court ellminatead é equlre ent

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for a vessel to be “in navigation nes Act and

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unseawortniness actions

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2. Whether the trial court erred in ruling that

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Respondents were entitled to summary judgment whe

the undisputed facts showed that the vessel in question

was In winter layup and not in navigatl when I¢

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PARTIES TO THE PROCEEDING

AND RULE 29.1 STATEMENT

Ford Motor Company s non-wholly owned subsid

laries are listed in Appendix A. Rouge Steel Company’s

list of parent companies and non-whoily owned subsid

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Plaintiffs’ Jones Act and unseaworthiness claims arising

from the first three incidents were barred by the applica

ble statutes of limitations. With respect to the 1987 inci

dent, the District Court held that Defendants were

entitled to judgment as a matter of law because no rea

sonable jury could find from the undisputed facts that the

vessel was “in navigation” when Plaintiff was injured

and, therefore, no reasonable jury could find that Plaintiff

was a Seaman ror purposes or the jones Act

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rlaintiffs appealed tne final jwwagment to tne >

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SUMMARY OF ARGUMENT

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ARGUMENT

THIS COURT DID NOT ELIMINATE THE “IN

NAVIGATION” REQUIREMENT IN WILANDER

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Ones Act interpretations Of “Seaman and with Conegere

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Q INCtTION DetT(ween ianad-Dased V\ rAETS ( VveTead DY Tine

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MiVVCA) and Sea ised workers verea Dy the ni

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sea in the service of a ship [and] face those particular

perils to which the protection of maritime law, statutory

as well as decisional, is directed.” Id.

This Court recently reaffirmed the “in navigation”

requirement. In Southwest Marine, Inc. v. Gizoni, 502 U.S.

__, 112 S. Ct. 486 (1991), this Court resolved a conflict

between decisions from the Fifth and Ninth Circuits con-

cerning the exclusive remedy provision of the LHWCA.

In Gizoni, the District Court had granted the defendant's

motion for summary judgment, holding that the floating

platform on which he was employed was not a “vessel in

navigation”, that the plaintiff did not “aid in navigation”,

and that the plaintiff was a harbor worker and thus was

precluded by the exclusive remedy provisions of the

LHWCA from bringing an action under the Jones Act. 112

S. Ct. at 494. The Ninth Circuit reversed the determina-

tions that Gizoni was not a seaman as a matter of law and

that he was limited to remedies under the LHWCA. This

Court affirmed the Ninth Circuit’s decision, basing its

decision in part on the determination that “questions of

fact existed regarding whether the floating platforms

were vessels ‘in navigation’ ”, and reasserting the

requirement stated in Wilander that “only ‘employment-

related connection to a vessel in navigation’ is required”

for seaman status under the Jones Act. 112 S. Ct. at 494, n.

6.

Plaintiff also argues that the Court must have

intended to eliminate the “in navigation” requirement in

Wilander because the Court “adopted” the Fifth Circuit's

test for seaman status from Offshore Co. v. Robison, 266

F.2d 769 (5th Cir. 1959). This argument is erroneous in

several respects. First, as noted above, the express lan-

guage of the Wilander opinion demonstrates that the “in

navigation” requirement is viable and healthy. Second, if

Robison eliminated the “in navigation” test, it did so

contrary to Supreme Court precedent. Desper v. Starved

Rock Ferry Co., 342 U.S. 187, 191 (1952); Butler v. Whiteman,

356 U.S. 271 (1958). As discussed below, however, deci-

sions from the Fifth Circuit after Robison show that the

Circuit did not abandon the “in navigation” requirement.

Third, this Court applied the “in navigation” require-

ment in other cases decided after Robison. West v. United

States, 361 U.S. 118 (1959); Roper v. United States, 368 U.S.

20, 23-24 (1961) (“Since we are unwilling to upset the trial

court’s factual determination that the S.S. Harry Lane was

not a vessel in navigation, it follows that there was no

warranty of the ship’s seaworthiness. (Citations omitted)

This limitation is analogous to that applied in libels

under the Jones Act, where it has long been held that

recovery is precluded if the ship is not a vessel ‘in navi-

gation.’ ”)

Il. THE COURT OF APPEALS DECISION IN THIS

CASE IS NOT IN CONFLICT WITH THE FIFTH

CIRCUIT’S TEST FOR SEAMAN STATUS.

Petitioners argue that the “in navigation” require-

ment applied by the Sixth Circuit in this case conflicts

with the Fifth Circuit test announced in Robison. Subse-

quent Fifth Circuit decisions show, however, that the “in

navigation” requirement was not abandoned in Robison.

In Reynolds v. Ingalls Shipbuilding Div., Litton Systems, Inc.,

788 F.2d 264 (5th Cir.), cert. denied 479 U.S. 885 (1986), the

Court applied the Robison test and held that

[I]t is clear in the present case that Reynolds

cannot satisfy the first prong of the Robison test

since the Ticonderoga was not a “vessel in navi-

gation.” Without a vessel in navigation, how-

ever, there can be no Jones Act coverage.

788 F.2d at 267. Thus, implicit in the Robison requirement

that the injured workman be assigned permanently to a

vessel or perform a substantial part of his work on the

vessel is the requirement that the vessel in question be

“in navigation”.

Even if the Fifth Circuit intended to eliminate the “in

navigation” requirement, its ruling would have conflicted

with past and future Supreme Court authority, its own

past and future decisions, and apparently with decisions

of every other Circuit that addressed the question. Car-

umbo v. Cape Cod S.S. Co., 123 F.2d 991, 995 (1st Cir. 1941)

(cited with approval in Robison) (“[O]ne who does any

sort of work aboard a ship in navigation is a ‘seaman’

within the meaning of the Jones Act.”); Hawn v. American

S.S. Co., 107 F.2d 999, 1000 (2d Cir. 1939); Griffith v.

Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 36-37 (3d Cir.

1975), cert. denied 423 U.S. 1054 (1976); McCown v. Humble

Oil & Refining Co., 405 F.2d 596, 597-98 (4th Cir.), cert.

denied 395 U.S. 934 (1969); Williams v. Avondale Shipyards,

Inc., 452 F.2d 955, 958 (Sth Cir. 1971); Reynolds, 788 F.2d at

267; McKie v. Diamond Marine Co., 204 F.2d 132 (5th Cir.

1953); Wilkes v. Mississippi River Sand & Gravel Co., 202

F.2d 383, 388 (6th Cir.) cert. denied 346 U.S. 817 (1953) (also

cited with approval in Robison); Tuder v. Material Service

Corp., 177 F. Supp. 71 (D.C. Ill. 1959); Bullis v. Twentieth

Century — Fox Film Corp., 474 F.2d 392, 393 (9th Cir. 1973);

Caruso v. Sterling Yacht & Shipbuilders, Inc., 828 F.2d 14, 15

(11th Cir. 1987).

III. WHEN ALL MATERIAL FACTS ARE UNDIS-

PUTED, THE QUESTION OF WHETHER A VES-

SEL IN WINTER LAYUP IS “IN NAVIGATION” IS

PROPERLY RESOLVED BY THE COURT AS A

MATTER OF LAW.

The courts below expressly followed a decision of

this Court in ruling that the MS Henry Ford II was not “in

navigation”, and that summary judgment was _ proper.

The District Court and Circuit Court rulings are not in

conflict with any decision from any other circuit court.

In Desper v. Starved Rock Ferry Co., 342 U.S. 187 (1952),

this Court held that a worker performing repair work on

a vessel was not a “seaman” because the vessel was laid

up for the winter. 342 U.S. at 191. The facts in Desper,

which the Court described as “unique”, are closely analo-

gous to the facts in this case.

Desper was employed during the sailing season as an

operator of a sightseeing boat. He was terminated at the

end of the 1947 sailing season and was re-employed in

March 1948 to prepare the boats for navigation. He was to

resume his sailing duties when the boats were back in the

water. Desper was on a moored barge at the time he was

fatally injured. 342 U.S. at 188-89. The Court held that

It is our conclusion that while engaged in such

seasonal repair work Desper was not a “sea-

man” within the purview of the Jones Act. The

distinct nature of the work is emphasized by the

fact that there was no vessel engaged in naviga-

tion at the time of the decedent’s death. All had

been “laid up for the winter.”

342 U.S. at 191.

This Court ha3 also stated that the test for determin-

ing whether a ship is in navigation is the “status of the

ship.” Roper v. United States, 368 U.S. 20, 22-23 (1961);

West v. United States, 361 U.S. 118, 122 (1959). Thus, the

legal determination of whether a vessel is in navigation

derives from the determination of the ship’s status. The

status of a ship is a question of fact. Roper, 368 U.S. at 22;

Butler v. Whiteman, 356 U.S. 271 (1958).

The determination of whether the vessel is in winter

layup is purely factual; the question of whether the vessel

is “in navigation” implies the application of a standard of

law. See Baumgartner v. United States, 322 U.S. 665, 671

(1944). Thus, the question of whether a vessel is “in

navigation”, like the related question of whether a claim-

ant is a “seaman”, may properly be characterized as a

mixed question of law and fact. See Wilander, 111 S. Ct. at

818. The determination of whether a vessel is “in naviga-

tion” for purposes of Jones Act and unseaworthiness

actions “crosses the line between application of those

ordinary principles of logic and common experience

which are ordinarily entrusted to the finder of fact into

the realm of a legal rule upon which the reviewing court

must exercise independent judgment.” Bose Corp. v. Con-

sumers Union of United States, Inc., 466 U.S. 485, 517, n. 17

(1984).

Answering this question necessarily implicates the

policies and purposes underlying maritime law, and it

requires a determination by the court of whether applica-

tion of the law to a particular set of facts effects those

policies and achieves those purposes. Since employees

working on vessels in winter layup are not subjected to

“those particular perils to which the protection of mar-

itime law, statutory as well as decisional, is directed”, 111

S. Ct. at 817, the rule of law announced in Desper and

applied in this case certainly effects those policy objec-

tives. Thus, when the evidentiary facts are undisputed, as

in this case, and these facts establish that the status of the

ship was that it was in winter layup at the time the

claimant was injured, the court must conclude that the

vessel is not in navigation as a matter of law and enter

judgment for the defendant. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 250-251 (1986).

The Court’s rule that a vessel in winter layup is not

“in navigation” is not unique. Various Circuit Courts

have ruled that vessels with comparable statuses are like-

wise not “in navigation” as a matter of law. See, e.g.

Reynolds, 788 F.2d at 267 (ship undergoing sea trials not

“in navigation” for purposes of the Jones Act); Caruso,

828 F.2d at 16 (vessel launched and afloat but not yet

tested and licensed held as a matter of law not to be “in

navigation”); Delome v. Union Barge Line Co., 444 F.2d 225,

232 (Sth Cir.), cert. denied 404 U.S. 995 (1971) (ship with-

drawn from navigation and undergoing major repairs not

“in navigation.”); Wixom v. Boland Marine & Mfg. Co., 614

F.2d 956 (5th Cir. 1980).

The two decisions of the Sixth Circuit, holding that

the question of whether a vessel in winter layup is “in

navigation” should be decided by the fact-finder, are

10

simply wrong.? In both Noack v. American Steamship Co.,

491 F.2d 937 (6th Cir. 1974) and Sweeney v. American

Steamship Co., 491 F.2d 1085 (6th Cir. 1974), the Sixth

Circuit relied on this Court’s brief per curiam opinion in

Butler v. Whiteman, 356 U.S. 271 (1958), in which the Court

held that the petitioner’s evidence, which was not

explained, presented an evidentiary basis for jury find-

ings as to whether or not the vessel in question was “in

navigation”.

The vessel in Butler was not in winter layup, how-

ever, but apparently had been withdrawn from naviga-

tion “for some months” and was undergoing repairs

“presumably in anticipation of a return to service.” 356

U.S. at 272 (Harlan, J., dissenting). The state of the evi-

dentiary record in the case is unclear from the opinion,

but apparently the evidence presented was sufficient to

permit a reasonable fact-finder to conclude that the vessel

was “in navigation”. By contrast, from the evidence in

Noack, Sweeney, and this case, no reasonable fact-finder

applying the law of Desper to the facts could conclude

-

that the vessel in question was “in navigation.”

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2 Intracircuit conflicts are not generally a sufficient basis

for granting a writ of certiorari. Davis v. United States, 417 U.S.

333, 340 (1974). Such conflicts are customarily resolved either

by en banc rehearing or by later panels deferring to the deci-

sions of earlier panels. See R. Srern, E. Gressman, S. SHariro,

SupREME Courr Practice 205 (6th ed. 1986).

1]

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CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully Submitted,

Gary L. HayDEN

Office of the General Counsel

Ford Motor Company

Three Parklane Boulevard

1500 Parklane Towers West

Dearborn, Michigan 48126

Counsel for Respondents

App. 1

APPENDIX A

RULE 29.1 LIST OF SUBSIDIARY COMPANIES

Ford Motor Company has no parent corporation. The

following is a list ef domestic and foreign companies in

which Ford Motor Company owns a Significant (not nec-

essarily controlling) interest, but which are not wholly-

owned by Ford:

Autolatina America, Inc.

Dearborn Capital Corporation

Dobco Life Insurance Company

Ford Holdings

Shoppers Mart, Inc.

The Hertz Corporation

Argentina

Autolatina Argentina S.A. de Ahorro Para Fines

Determinados

Invercred Compania Financiera S.A.

Transax Socieded Anonima, Comercial, Industrial y

Financiera

Volkswagen Inversiones S.A.

Volkswagen Sociedad Anonima de Ahorro Para Fines

Determinados

Australia

Australian Road Credit Limited

Foral Service Proprietary Limited

Ford Motor Company of Australia Limited

Ford Sales Company of Australia Limited

Belgium

Ford Credit N.V.

Ford Motor Company (Belgium) N.Y.

Bermuda

Financial Reassurance Company, Ltd

App. 2

Brazil

Apolo Administradora de Bens S/C Ltda.

Autolatina Brasil S.A.

Autolatina Distribuidora de Titulos e Valores

Mobiliaros Ltda

Autolatina Financiadora S.A. - Credito,

Financiamento e Inves

Autolatina Leasing S/A - Arrandamento Mercantil

Autolatina Previdencia Privada

Autolatina S.A.

Consorcio Nacional Ford Ltda.

Consorcio Nacional Volkswagen Ltda.

Ford Brasil S.A.

Ford Distribudora de Productos de Petroleo Ltda.

Fundacao Autolatina

Inter-Locadora S/A

Sociedade Paulista de Aparelhos Domesticos

“SPAD” Ltda.

Volkswagen Factoring Fomento Comercial S/A

Canada

Ford Motor Company of Canada, Limited

Denmark

Ford Credit A/S

Ford Motor Company A/S

England

A C Cars Limited

Aston Martin (RDP) Limited

Aston Martin Finance Limited

Aston Martin Lagonda Design Limited

Aston Martin Lagonda Limited

Aston Martin Lagonda U.S.A., Inc.

Aston Martin Sales Limited

Lagonda Properties Limited

Finland

Oy FORD Ab

Oy Ford Credit Rahoitus

App. 3

Holland

Ford Nederland B.V.

Japan

Japan Climate Systems Corporation *CCD*

Mexico

Altec Electronica Chihuunua, S.A. de C.V. *ED*

Netherlands

Ford Credit B.V.

Stuurgroep Holland B.V.

Norway

Ford Motor Norge A\S.

Singapore

Ford Motor Company Private Limited

Spain

Ford Credit S.A.

Sweden

Ford Credit AB

Ford Motor Company Aktiebolag

Ford Vagnskadegaranti AB

Switzerland

Ford Credit S.A.

Ford Motor Company (Switzerland) S.A.

Taiwan

Ford Taiwan Services, Limited

Venezuela

Ford Motor Credit S.A.

App. 4

APPENDIX B

Worthington Industries, Chase Manhattan Capital

Corporation and Ford Motor Company hold significant

equity interests in Rouge Steel. Rouge Steel owns a signif-

icant (not necessarily controlling) interest in the follow-

ing domestic companies:

Double Eagle Steel Coating Company

Eveleth Taconite Company