Opposition Brief — Bach v. Trident Steamship Co.

No. 91-1481

® Rupreme Court, US |

FILED |

eRe? 1992

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

April 27, 1992

OFFICE OF THE Cie |

HELEN EHRET BACH, EUGENE G. BACH, III and

JANET B. LASHLEY,

- Petitioners

TRIDENT STEAMSHIP COMPANY, INC.,

KAISER ALUMINUM AND CHEMICAL CORPORATION,

Re sponde nts

EN

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF RESPONDENTS, TRIDENT STEAMSHIP

COMPANY, INC. AND KAISER ALUMINUM AND

CHEMICAL CORPORATION, IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

——————

ROBERT H. MURPHY

Counsel of Record

KENNETH J. SERVAY

THOMAS D. FORBES

CHAFFE, MCCALL, PHILLIPS,

TOLER & SARPY

2300 Energy Centre

1100 Poydras Street

New Orleans, LA 70163-2300

(504) 585-7000

Attorneys for Respondents,

Trident Steamship Company,

Inc. and Kaiser Aluminum

and Chemical Corporation

WILSON - EPES PRINTING Co., INc.

- 7JE9-O096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

Respondents, Trident Steamship Company and Kaiser

Aluminum and Chemical Corporation, disagree with the

statement of the question presented by Petitioners. The

questions presented for consideration are:

i

bo

Whether the United States Court of Appeals for

the Fifth Circuit, on remand from this Court, cor-

rectly determined, in accordance with McDermott

International, Inc. v. Wilander, U.S. ——, 111

S.Ct. 807, 112 L.Ed.2d 866 (1991), that petition-

ers’ decedent, a land-based, independent contractor

who served as a river port pilot, was not a “sea-

man” entitled to state a claim under the Jones Act,

46 U.S.C. app. § 688?

Whether the seaman’s status question raised by

petitioners is inappropriate for review in this case

in light of the uncontradicted evidence demonstrat-

ing the absence of causation between respondents’

asserted conduct and pilot Bach’s death, whether or

not Bach was a seaman?

(i)

————————

ii

LIST OF INTERESTED PERSONS

AND RULE 29.1 LIST

The parties to the proceeding below were petitioners/

plaintiffs, Helen Ehret Bach, Eugene G. Bach, III, Janet

Bach Lashley, and respondents/defendants, Trident

Steamship Company, Inc. and Kaiser Aluminum and

Chemical Corporation. Although petitioners named the

vessel, the M/V JAYMAT TRIDENT, in rem, as a de-

fendant and a respondent, petitioners never seized the

vessel. Thus, the vessel was not a party in the courts

below and is not a party before this Court.

Pursuant to this Court’s Rule 29.1, respondent, Trident

Steamship Company, Ine., certifies that it is owned by

Standard Shipping, Inc. and various individual owners.

Trident has no subsidiaries that are not wholly owned.

Pursuant to Rule 29.1, respondent, Kaiser Aluminum

and Chemical Corporation, certifies that it is owned by

KLU Holdings, Inc. and Brown Brothers, Harriman &

Co. Its subsidiaries that are not wholly owned are as

follows: Anglesey Aluminum Limited, Bauxita Da Ama-

zonia Limitada, Delta Holdings, Ine., Hopewell Interna-

tional Insurance. Ltd., Kaiser Jamaica Bauxite Company,

Oakland City Center Hotel Company, Inc., Queensland

Alumina Finance N.V., Queensland Alumina Holdings

N.V., Queensland Alumina Limited, Queensland Alumina

Security Corporation, Second Queensland Alumina Secu-

rity Corporation, Tortuga Casualty Company, United

Insurance Company, and Volta Aluminum Company,

Limited.

TABLE OF CONTENTS

QUESTIONS PRESENTED .............

LIST OF PARTIES AND RULE 29.1 LIST

EI MEE OEE BOUD nnn nonsicxenssnnsnnnas<tconensrecectnnssasenes

STATEMENT OF THE CASE

A. The Practice of Pilotage Under Louisiana Law

B. The Underlying Facts .. kph Lie aot

C. The Medical Evidence ........................... ce a Sone US

D. The Proceedings foe ae A FO oe

REASONS FOR DENYING THE WRIT |

I. THE DECISION OF THE FIFTH CIRCUIT

IS CONSISTENT WITH THIS COURT'S

WILANDER DECISION

RESPONDENTS’ ENTITLEMENT TO SUM-

MARY JUDGMENT ON CAUSATION AND

BURDEN OF PROOF GROUNDS RENDERS

THIS CASE INAPPROPRIATE FOR RE-

VIEW

CONCLUSION

Page

19

ee

iv

TABLE OF AUTHORITIES

CASES Page

American Ship Building Co. v. National Labor Re-

lations Board, 380 U.S. 300 (1965) .....-..-------------- 16

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986) ........----.------0--a----0-nseesensensnenseeeennsnrnasessoenarennoens 20

Bach v. Trident Steamship Co., Inc., 111 S.Ct. 2253

¢ ) ) ee 8

Bach v. Trident Steamship Co., Inc. [Bach I], 920

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

111 S.Ct. 2253 (1991) .......---.---.-.--.-------.-----0----00-22- passim

Bach v. Trident Steamship Co., Inc. [Bach II], 947

F.2d 1290 (5th Cir. 1991) -........-.--------------------------- passim

Bisso v. Inland Waterways Corp., 349 U.S. 85

PEE <cisvotnnts CNet een ae pune 14

Blum v. Stenson, 465 U.S. 886 (1984) .........-.----------- 15

Bureau of Alcohol, Tobacco and Firearms v. Fed-

eral Labor Relations Authority, 464 U.S. 89

(19GB) ...u......ceeeecnnneenennancacnseoscennnaneesennnseracsnnsanences 16

Camp v. The Marcellus, 4 Fed.Cas. 1141 (No.

2,347) (D. Mass. 1860), aff'd, 66 U.S. 414

(1862) (E.D.Pa. 1845) ..........-.------------e eee 16

Celotex Corporation v. Catrett, 477 U.S. 317

(1986) .........-..-....-ceneeneeseeceneeeceeeesnnecnsensensssesceseesnensens 14, 20

The China, 74 U.S. 53 (1869) ..... eS ee 14, 16

Cooley v. Board of Wardens, 53 U.S (2 How.)

D299 (1852) .....-....---------cceccceesceeeeceecceeceneeenenansseenescees 14

Diebold v. Moore McCormack Bulk Transport

Lines, 805 F.2d 55 (2nd Cir. 1986) -..............------. 19

Evans v. United Arab Shipping Co., 767 F. Supp.

1284 (D.N.J. 1991) .......----------------ee-eeeeeeee tet 9,18

Griffith v. Wheeling Pittsburgh Steel Corp., 521

F.2d 31 (3d Cir. 1975), cert. denied, 423 USS.

1054 (1976) .......... 12

Hurst v. Pilings & Structures, Ine. 896 F.2d 504

(11th Cir. 1990) ..............- 12

Johnson v. John F. Beasley Construction Co. 742

F.2d 1054 (7th Cir. 1984), cert. denied, 469 U. S.

BIN GID caniecnxdenesencnenrncenmsca—nennechectie 9,10, 12

Klarman v. Santini, 503 F.2d 29 (2d Cir. 1974),

cert. denied sub nom. Connecticut v. Klarman,

419 U.S. 1110 (1976) .......-.---..-----.-0000s---c0eensensns-e0-e 12

_

a ea

Vv

TABLE OF AUTHORITIES—Continued

Page

Litherland v. Petrolane Offshore Const. Services,

046 F.2d 129 (5th Cir. 1977) acess 20

The Lud Keefer, 51 Fed. 44 (3d Cir. 1892)... 15

The Mary Elizabeth, 24 Fed. 397 (C.C.S.D. Ala.

NUD satencicthaeiacncatatnaaalaaanek ahsise oe eke 15

Matter of Hechinger, 890 F.2d 202 (9th Cir. 1989),

cert. denied sub nom. Caskie v. Hechinger, 111

A WD CRE cc 20

McDermott International, Inc. v. W lander, ——

U.S. ——, 111 S.Ct. 807, 112 L.Ed.2d 866

ERED aarisatcusuer ees ee ee passim

Matsushita Electric Industrial Co. Ltd. v. Zenith

Radio Corp., 475 U.S. 574 (1986)... 20

National Labor Relations Board v. Brown, 380

U.S. 278 ee >) ; S aaieuae Rail enaeR ects see pesaniolaeoe 16

Offshore Co. . Robison, 266 F.2d 769 (5th Cir.

1959) meee dbaniinstnsinaie! Wig SOE

Pacific Mail Steamship Co. v. Joliffe, 69 U. S. 450

SD es biteiccn tia ee eee NE Ira ne! 14

Petersen v. Che sapoake & Ohio Ry. Co., 784 F.2d

rf eo | ae | nn 12

Slatton v. Martin K. Eby Construction Co., Inc.,

506 F.2d 505 (8th Cir. 1974), cert. de nied, 421

Ft OB GUID pore erect ee 12

Southwest Marine, Inc. v. Gizoni, ——~ U.S. ——.,

112 S.Ct. 486, 116 L.Ed.2d 405 (1991) passim

Snyder v. Whittaker Corp., 839 F.2d 1085 (5th

Cir. 1988) 19

Stafford v. Perini Corp., 475 F.2d 507 (1st Cir.

1973) ..... ELE SM tN W SNS Ae 12

Stanfield v. Shellmaker, ‘Ine. 869 F.2d 521 (9th

Cir. 1989) _....... Pane nM NE TT Id dont Mee IT 12

United States v. Forbes, 25 Fed.Cas. 1441 (No.

16,129) (2.D.Pa. 1645) .................................. 16

United States v. Lynch, 26 Fed.Cas. 1033 (No.

15,648) (S.D.N.Y. 1843) 0 One Eee 16

United States v. Thompson, 28 Fed.Cas. 102 (No.

16,492) (C.C.D. Mass. 1832) 14

Whittington v. Sewer Construction Co.. Inc., 541

F.2d 427 (4th Cir. 1976) 00 12

EEE

vi

TABLE OF AUTHORITIES—Continued

Page

Wilson v. The Ohio, 30 Fed.Cas. 149 (No. 17,825)

(E.D.Pa. 1884) ........-.------c-----s-c-cs-csceesseerenceseseesennees 15

STATUTES

Jones Act, 46 U.S.C. app. § 688 _..........----------------------- pussim

Longshore and Harbor Workers’ Compensation

Act (LHWCA), 33 U.S.C. § 901 eft seq. -...-..-.------- passim

La. Rev. Stat. 34 2995 ................--..---2---eeeceeeceeceeneeenereees 3

La. Rev. Stat. 34 :996 ............-----.s----cceceseeeeeeeneeeceeeeees 2,3

ee me! eee aaa eae 3

La. Rev. Stat. 34:1002 oo... eeeeeeeeteeeesec ee ees . 8,138

La. Rev. Stat. 34:1002.1 _................----eeeeeeeeeeceeeetee ents: 3,13

La. Rev. Stat. 34 :1009 ..............---.....-se-seeeeeeeeneeseteeeeees 3,13

La. Rev. Stat. 34:1121 -.......................ceeeeeeceeeneeeeeeeeseees 3

La. Rev. Stat. $4:1122 ...................---c.---0--cesnseneneennenes 3

OTHER AUTHORITIES

Longshoremen’s Act, Opinion No. 22 (1927), re-

produced at 1928 FTE cscnendaonnanenentomaee 8,9, 15-18

T.J. Schoembaum, ADMIRALTY AND MARITIME LAW

S$ 1D-5 (1987) ......-------n--cececececeesessnenentneseseerenennenenenes 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-1481

HELEN EHRET BACH, EUGENE G. BACH, III and

JANET B. LASHLEY,

: Petitioners

TRIDENT STEAMSHIP COMPANY, INC.,

KAISER ALUMINUM AND CHEMICAL CORPORATION,

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF RESPONDENTS, TRIDENT STEAMSHIP

COMPANY, INC. AND KAISER ALUMINUM AND

CHEMICAL CORPORATION, IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Respondents, Trident Steamship Company, Inc. and

Kaiser Aluminum and Chemical Corporation, submit that

there is no basis for granting a writ of certiorari in this

case. The United States Court of Appeals for the Fifth

Circuit, as ordered by this Court’s mandate in No. 90-

1578, reconsidered its opinion in light of McDermott In-

ternational, Inc. v. Wilander. US. ——, 111 S.Ct.

807, 112 L.Ed.2d 866 (1991). The Fifth Circuit cor-

rectly determined that its prior decision was consistent

with Wilander and that decedent Bach, a land-based river

port pilot with no employment relationship with. any

vessel owner, could not qualify as a seaman under the

2

Jones Act, 46 U.S.C. app. § 688. Bach v. Trident Steam-

ship Co., Ine. [Bach II|, 947 F.2d 1290 (5th Cir. 1991) ;

Petitioners’ Appendix, A-2.

Even assuming that a river port pilot’s status as a

seaman under the Jones Act presented a reviewable ques-

tion, the undisputed facts render review inappropriate in

this case. Petitioners’ inability to prove their case by a

preponderance of the evidence rendered summary judg-

ment appropriate whether or not decedent was a seaman,

thus negating any legal issue that this case may other-

wise present.

STATEMENT OF THE CASE

While petitioners have accurately set forth a summary

of the proceedings in this case, Petition 3-5, their factual

statement excludes many undisputed, substantive facts

that are important to evaluation of the petition. The

opinions below (see Petitioners’ Appendix, A-11 to A-42,

A-44 to A-59), while referencing most of the relevant

facts, do so throughout the text of several opinions.

Thus, respondents restate the relevant facts as follows:

On December 26, 1986, petitioners’ decedent, Eugene

G. Bach, a Mississippi River port pilot (and not a “bar

pilot” as petitioners erroneously label him), collapsed

and died aboard the M/V JAYMAT TRIDENT shortly

after he arrived on the deck of that vessel. Although

Bach’s death resulted from a serious occlusive coronary

artery disease, commonly known as “hardening of the

arteries,” and could have as easily occurred in his living

room as on the vessel, petitioners filed this lawsuit seek-

ing to hold respondents responsible for his death.

A. The Practice of Pilotage under Louisiana Law

Under Louisiana law, “river port pilots” have the ex-

clusive right to provide pilotage services to most vessels

on the Mississippi River between New Orleans and Pilot-

town (at the mouth of the river). See La. Rev. Stat.

3

34:996.' The fees charged by the river port pilots are

set by regulation. See La. Rev. Stat. 34:997, 1121(A),

1122(A)(1)(a). Masters, owners, and agents of ve.sels

traversing the Mississippi River between New Orleans

and Pilottown are required by law to hire a river port

pilot or face severe civil and criminal penalties for fail-

ing to do so. See La. Rev. Stat. 34:1002, 1002.1, 1009.

Louisiana law authorizes the river port pilots to form

an association. See La. R.S. 34:995. As allowed by

Louisiana law, the river port pilots have formed and

operate out of the Crescent River Port Pilots Association.

The pilots’ association, as was done in this case, assigns

one of its member pilots to a vessel when it receives a

call from a vessel’s master, owner, or agent. A_ pilot

boarding boat then transports the assigned pilot to the

oceangoing vessel, whereupon the pilot boards the vessel

and then assists in navigating it between the aforemen-

tioned points.

Two of the petitioners in this case, Eugene G. Bach,

III, decedent’s son and a2 river port pilot like his father,

and Mrs. Helen Bach, decedent’s wife, testified as to the

nature of pilotage as practiced by the river port pilots.

Their testimony indicates that pilots are independent con-

tractors—not employees of any particular vessel owner—

and are not part of the crew of any vessel. River port

pilots merely sail with a vessel between two points in the

Mississippi River. River port pilots have no regular, con-

tinuous, or permanent connection with any vessel and

leave the vessel before it reaches the Gulf of Mexico. The

IRS Form K-1 forwarded to decedent’s estate by the

pilots’ association indicated that the pilots’ association

acts as a partnership in passing the income it collects

from pilotage fees down to its members. Decedent Bach

was a member of the association through his personal

corporation. Thus, the pilots’ association forwarded the

1 The Louisiana statutes regarding pilotage cited in this opposition

are reproduced in the appendix ‘0 this writ opposition at A-1 to

A-3,

IRS Form K-1 reflecting decedent’s corporation’s share of

the pilotage income to his personal corporation. In turn,

decedent’s personal corporation employed decedent.

B. The Underlying Facts

One of the normal duties of a river pilot is to reach

the deck of the vessel to which he is assigned by climbing

a rope-railed, wooden rung pilot ladder. Once the pilot

reaches the deck via the pilot ladder, his normal duties

include ascending several flights of stairs to reach the

ship’s bridge or wheelhouse. Decedent Bach, 61 years old

at the time of his death, had been performing such duties

for over 30 years.

Early on the morning of December 26, 1986, a pilot

boat transported Bach to the M/V JAYMAT TRIDENT,

an ocean-going vessel headed down the Mississippi River

to the Gulf of Mexico. Bach stepped onto the pilot ladder

from a platform on the top of the pilot boat and climbed

the pilot ladder approximately 21 feet to the ship’s deck.?

He then ascended four flights of stairs from the deck to

the vessel’s bridge. According to the vessel’s deck log,

Bach reached the wheelhouse on the ship’s bridge at 2:30

a.m. and relieved Pilot Taylor, the Baton Rouge to New

Orleans pilot. The record is devoid of any evidence indi-

cating that Bach suffered any injury or had any difficulty

reaching the bridge. F

Two minutes later, at 2:32 a.m. according to the ves-

sel’s log. Bach unexpectedly collapsed and became uncon-

scious while the vessel was in navigation and proceeding

down the Mississippi River. The vessel’s quartermaster

2 The summary judgment evidence indicated that the freeboard of

the M’V JAYMAT TRIDENT, i.e., the distance between the ves

sel’s deck and the surface of the water, was no more than 22.36 feet,

and probably was somewhat less. The pilot boat platform from

which Bach hoarded the vessel was 11 feet, ] inches above the

water line. Thus. Bach’s climb on the pilot ladder was no more than

approximately 21 feet

oO

called the vessel’s captain, who was standing on the port

side bridge wing waiting for Pilot Taylor to descend the

pilot ladder. The captain ran to the wheelhouse, where

he saw Bach lying on the floor. He ran back to the port

wing and yelled for Pilot Taylor to return to the bridge.

Pilot Taylor returned to the bridge and took control of

the vessel, which was in an emergency situation. At the

request of the vessel’s captain, Pilot Taylor called for

emergency medical assistance and brought the vessel to

anchor. Although Pilot Taylor called for medical assis-

tance shortly after his return to the bridge at 2:34 a.m.,

emergency medical personnel did not arrive until some

time after 3:00 a.m. (the deck log lists the time of arrival

as 3:30 a.m.). While the vessel was being maneuvered

to anchor, a crewmember checked Bach and found no

pulse. When paramedics arrived, they checked Bach and

also found no pulse. Bach was placed on a stretcher and

transported to shore.

C. The Medical Evidence

While petitioners seek to hold respondents responsible

for Bach’s death, the uncontradicted medica! evidence, in-

cluding the deposition testimony of petitioners’ own medi-

cal expert, demonstrates that Bach had severe “hardening

of the arteries” and would have died regardless of the

vessel’s actions. iy

Decedent was transferred from the vessel to the Orleans

Parish Coroner’s Office, where an autopsy was performed.

The Coroner classified decedent’s death as “natural,” re-

sulting from “severe stenotic calcific coronary atheroscle-

rosis as well as other conditions.”’

Petitioners’ medica] expert, Dr. John H. Phillips, the

head of cardiology at Tulane University Medical Center,

testified by deposition that decedent had occlusive coro-

nary artery disease, commonly known as “hardening of

the arteries.” Decedent had only “pinpoint lumens” in his

arteries, meaning that his arteries were 90 to 99 percent

6

blocked, Dr. Phillips classified decedent’s condition at the

time of his death as extremely serious. He testified that

had he examined decedent before his death, he would have

instructed him to stop working and to refrain from phys-

ical activity and would have scheduled him for immediate

coronary bypass surgery.

Dr. Phillips explained that Bach’s death resulted when

the restricted blood flow through the clogged arteries

caused “ventricular fibrillation,” that is, “where the elec-

trical activity of the heart, particularly in th ventricles,

is so distorted that there is no effective cardiac contrac-

tion.” As a result, the heart stops pumping. After ven-

tricular fibrillation is present for a few minutes, in some

cases only a few seconds, it can only be reversed, and the

person can only be saved, by electrical shock treatment

using a special medical device known as a defibrillator.

Dr. Phillips testified that in more than 90 percent, and

probably more than 95 percent of the cases where ven-

tricular fibrillation sets in, a defibrillator is needed to save

the party. Dr. Phillips stated that defibrillators are found

primarily in hospitals, in some doctors’ offices, and pos-

sibly in some emergency medical units, and that they are

not likely to be equipment aboard an ocean-going cargo

vessel.®

Dr. Phillips further testified that the more advanced

the condition, the less likely the person’s chances of sur-

vival. even if CPR and electrical defibrillation had been

promptly administered. He opined that the overwhelming

majority of persons with decedent’s condition would not

have survived, even had CPR and electrical defibrillation

been promptly administered. Outside a hospital Coronary

Care Unit. decedent’s chances of survival were extremely

slim.

3 Furthermore, many emergency medical units are not equipped

with defibrillators. The emergency medical unit that responded to

the ship’s call for help was not so equipped.

7

Dr. Phillips also testified that while decedent’s activity

in climbing aboard the vessel may have been a factor in

his death, he could not state that decedent would not have

collapsed and died if he had not engaged in that activity.

Nor could he state that decedent would not have died had

he climbed an accommodation staircase rather than a

pilot’s ladder. Dr. Phillips opined that someone with de-

cedent’s severe heart condition could have suffered a

heart attack while sleeping, sitting, watching television,

or walking; there is no standard precipitating event. He

testified that just as many heart attacks occur at rest as

during exercise, maybe more.

Dr. Phillips assessed Bach’s chances of dying, even if

CPR and electrical defibrillation had been promptly ad-

ministered, at 85 percent or somewhat greater, with his

chances of survival possibly in the 0 to 10 percent range.

D. The Proceedings

The sole question remaining in this case is whether the

courts below correctly dismissed petitioners’ Jones Act

claim on grounds that decedent was not a Jones Act sea-

man. The district court granted the vessel’s summary

judgment motion dismissing petitioners’ Jones Act claim,

finding that decedent had no permanent connection with

the JAYMAT TRIDENT or with any definable fleet of

vessels associated with either Trident or Kaiser. See Peti-

tioners’ Appendix, A-39 through A-41.

On January 10, 1991, the Fifth Circuit entered its

opinion and judgment affirming the district court’s judg-

ment. Bach v. Trident Steamship Co., Inc. | Bach I|, 920

F.2d 322 (5th Cir. 1991); Petitioners’ Appendix, A-11 to

A-35. The Court of Appeals, employing its longstanding

test first enunciated in Offshore Co. v. Robison, 266 F.2d

769 (5th Cir. 1959), found that decedent, a land-based

river pilot, was not a seaman. The court found that while

decedent’s job as a river pilot contributed to the function

or mission of a vessel, decedent had no permanent connec-

8

tion to the vessel or an identifiable fleet of vessels as re-

quired to be a seaman. 920 F.2d at 324-26; Petitioners’

Appendix, A-12 to A-17.

Petitioners then filed their first writ of certiorari with

this Court. In that proceeding, this Court granted a writ

and remanded the case for further consideration in light

of McDermoti. International, Inc. v. Wilander, 111 8.Ct.

807 (1991). Bach v. Trident Steamship Co., Inc., 111

S.Ct. 2253 (1991); Petitioners’ Appendix, A-10. The

Fifth Circuit, as ordered by this Court, thereafter recon-

sidered its decision in light of Wilander and concluded

that that decision did not affect its conclusion that pilot

Bach was not a seaman. Bach v. Trident S.S. Co. [Bach

II\, 947 F.2d 1290, 1291 (5th Cir. 1991); Petitioners’

Appendix, 11.

Petitioners now file this second petition.

REASONS FOR DENYING THE WRIT

I. THE DECISION OF THE FIFTH CIRCUIT IS

CONSISTENT WITH THIS COURT'S WILANDER

DECISION

Petitioners contend that the Fifth Circuit on remand

erroneously applied its Offshore v. Robison test in deter-

mining whether pilot Bach was a seaman. Petitioners

argue that Wilander overruled Robison and that the ap-

propriate question under Wilander is whether the party

claiming seaman status would have been a seaman before

the passage of the Jones Act in 1920. Petition, 7-8.

They assert that the pre-1920 jurisprudence clearly con-

sidered pilots as seamen, and thus, pilots should be con-

sidered seamen under the Jones Act. Petition, 8-13.

Petitioners further argue that pilot Bach must be a

Jones Act seaman, because he cannot be a worker covered

under the Longshore and Harbor Workers Compensation

Act (“LHWCA”’). They contend that a 1927 opinion of

the United States Employees Compensation Commission,

9

i.e., the agency then charged with administering the

LHWCA, had opined that a river pilot is included within

the “master or member of a crew” exclusion to LHWCA

coverage. Referencing this Court’s statement in Wilan-

der that the Jones Act and the LHWCA are mutually

exclusive, petitioners contend that the administrative in-

terpretation holding a pilot within the “master or mem-

ber of a crew” exclusion from LHWCA coverage neces-

sarily renders pilots as “seamen” under the Jones Act.

Petition, 13-15. Petitioners contend that the 1972 Amend-

ments to the LHWCA did not alter the “master or mem-

ber of a crew” exclusion from LHWCA coverage, and

therefore, did not affect his status via the Jones Act and

the LHWCA. Petition, 15-17.

In concluding, petitioners cite to a district court case,

Evans v. United Arab Shipping Co., 767 F.Supp. 1284

(D.N.J. 1991), in which a pilot was held to be a seaman.

Petition, 18.

Initially, petitioners incorrectly assert that Wilander

overruled the Fifth Circuit’s longstanding Robison sea-

man’s status test. In Wilander, a Fifth Circuit case like

the present case, that court of appeals applied its Robison

test in finding that Wilander, an oilfield worker assigned

to a paint boat in the Persian Gulf, was a seaman. Un-

der the Robison test, a person is considered a seaman if:

(1) he or she is permanently attached to or performs a

substantial part of his or her work aboard a single vesse!

or an identifiable fleet of vessels and (2) if the person’s

employment contributes to the function or mission of the

vessel or an identifiable fleet of vessels. Wilander, 111

S.Ct. at 809. The sole issue reviewed by this Court in

Wilander involved the second part of the Robison test.

McDermott, the petitioner in Wilander, argued that a

mere contribution to the function or mission of the ves-

sel did not render the party a seaman. McDermott argued

that the correct seaman’s status test was the stricter test

applied by the Seventh Circuit in Johnson v. John F.

10

Beasley Construction Co., 742 F.2d 1054 (7th Cir. 1984),

cert. denied, 469 U.S. 1211 (1985). Wilander, 111 S.Ct.

at 809-10. Under the Johnson test, seaman’s status de-

pends on whether a party’s employment makes “a sig-

nificant contribution to the maintenance, operation or

welfare of the transportation function of the vessel,’”’ and

not merely the general function or mission of the vessel.

Wilander, 111 S.Ct. at 810, quoting Johnson, 742 F.2d at

1063 (emphasis supplied).

As the Fifth Circuit correctly stated in its decision on

remand, Bach 11, 947 F.2d at 1291; Petitioners’ Appen-

dix, A-2, the specific question addressed in Wilander was

“whether one must aid in the navigation of a vessel in

order to qualify as a ‘seaman’ under the Jones Act.”

Wilander, 111 S.Ct. 809. Wilander did not question the

requirement that seaman’s status requires a permanent,

employment-related connection to a vessel or fleet of ves-

sels. After weighing the conflicting circuit court juris-

prudence regarding this question, this Court agreed with

the Fifth Circuit that seaman’s status does not require

that the person claiming seaman’s status must contribute

to the transportation function of the vessel; he or she

must only have contributed to the overall function or mis-

sion of the vessel. 111 S.Ct. at 817. Thus, this Court did

not, as petitioners assert, overrule the Robison test. In-

sofar as the Court considered the Robison decision, the

Court affirmed that definition of seaman’s status.

Furthermore, while this Court in Wilander looked to

the pre-1920 definition of seaman and the LHWCA ‘“mas-

ter or member of a crew” exclusion in evaluating whether

a person claiming seaman’s status must assist with the

transportation function of the vessel, this Court did not

blindly hold, as petitioners suggest, that all persons cas-

ually labeled by the courts as seamen before 1920 neces-

sarily are seamen under the Jones Act. The Court recog-

nized that the LHWCA altered the definition of a “seaman”’

by defining out of the scope of that term land-based mari-

time workers. Wilander, 111 S.Ct. at 817. The purpose

11

of the LHWCA was to remove land-based maritime

workers from the scope of Jones Act coverage while leav-

ing as seamen sea-based maritime employees. /d., 111

S.Ct. at 813-14. Thus, the phrase, “master or member

of a crew,” as used in the LHWCA exemption from cov-

erage “restates who a ‘seaman’ under the Jones Act is

supposed to be: a sea-based maritime employee.” Id., 111

S.Ct. at 814 (emphasis supplied).

The Court also recognized that an employer /employee

relationship is a necessary prerequisite to Jones Act sea-

man’s status. The plaintiff must owe his or her allegiance

to a vessel at sea—not to a land-based employer. Id., 111

S.Ct. at 813-14, 817. “The key to seaman’s status is

employment-related connection to a vessel in navigation.”

Id., 111 S.Ct. at 817 (emphasis supplied).

Thus, in holding that a seaman (1) must be sea-based

and not land-based, (2) must have an employment-related

connection to a vessel, and (3) must aid in the function

of the vessel, this Court in Wilander identified the same

factors identified by the Fifth Circuit in Robison: a sea-

man must have a permanent attachment to a vessel or

perform substantial work aboard a vessel (or, at the very

least,,aboard an identifiable fleet of vessels). See Robi-

son, 266 F.2d at 779. The Court also recognized that

whether a particular individual is a seaman depends on

the facts of each case, and not on generic classifications.

111 S.Ct. at 818.

Furthermore, in Southwest Marine, Inc. v. Gizoni,

112 S.Ct. 486 (1991), a case understandably ignored by

petitioners, the Court, quoting from Wilander. again

found that “|[t}he key to seaman status is employment-

related connection to a vessel jn navigation.” 112 S.Ct.

at 492. The Court rejected the contention that a person’s

classification determines coverage under the Jones Act

and LHWCA. /d. Each case requires an independent in-

quiry into whether the plaintiff has an “employment-

related connection to a vessel in navigation.” Jd.

12

While the circuits may have disagreed before Wilander

and Gizoni regarding the “aid in the transportation” re-

quirement, they had agreed that seaman’s status is de-

pendent on the plaintiff having an employment-related

connection to a vessel in navigation. Consistent with

Wilander, Gizoni, and the Fifth Circuit Robison test, all

other circuits that have considered the issue have held

that, for a party to be considered a seaman, the party

must have such a connection with a vessel. E.q., Stafford

vy. Perini Corp., 475 F.2d 507, 510-11 (1st Cir. 1973) ;

Klarman v. Santini, 503 F.2d 29, 33 (2d Cir. 1974), cert.

denied sub nom. Connecticut v. Klarman, 419 U.S. 1110

(1975): Griffith v. Wheeling Pittsburgh Steel Corp., 521

F.2d 31, 36 (3d Cir. 1975), cert. denied, 423 U.S. 1054

(1976) ; Whittington v. Sewer Construction Co., Inc., 541

F.2d 427, 434 (4th Cir. 1976) ; Petersen v. Chesapeake &

Ohio Ry. Co., 784 F.2d 732, 737 (6th Cir. 1986); John-

son v. John F. Beasley Construction Co., 742 F.2d 1054,

1062-63 (7th Cir. 1984), cert. denied, 469 U.S. 1211

(1985): Slatton v. Martin K. Eby Construction Co., Inc.,

506 F.2d 505, 510 (8th Cir. 1974), cert. denied, 421 U.S.

931 (1975): Stanfield v. Shellmaker, Inc., 869 F.2d 521,

523 (9th Cir. 1989); Hurst v. Pilings & Structures, Inc.,

896 F.2d 504, 505 (11th Cir. 1990).

There is no basis for granting a writ in this case. In

reconsidering its original decision on remand, the Fifth

Circuit correctly determined that the principles an-

nounced in Wilander required it to reinstate its original

opinion. Bach II, 947 F.2d at 1291. The Fifth Circuit’s

finding that decedent was not a seaman was based on the

uniformly agreed-upon requirement that seaman’s status

requires that the party have a permanent, employment-

related connection to a vessel, or at the very least, with an

‘dentifiable fleet of vessels. As the Fifth Circuit stated,

“Bach’s survivors do not seriously argue that he was at-

tached to or did substantial work on board the M’/V JAY-

MAT TRIDENT. The record clearly reveals that he ful-

EE

13

filled neither requirement.” Bach I, 920 F.2d at 324;

Petitioners’ Appendix, A-13.

The uncontradicted evidence in this case supports the

Fifth Circuit’s conclusion. Decedent, a compulsory pilot,

was not aboard the vessel as a matter of the vessel own-

er’s choice. Having been dispatched by his pilots’ asso-

ciation, he was aboard because Louisiana law requires a

pilot to be aboard and severely penalizes any vessel owner

who fails to use a river port pilot. La. Rev. Stat.

$§ 34:1002, 1002.1, 1009. Decedent was not an employee

of the vessel or its owner or charterer. He was an em-

ployee of his personal corporation. Two of the three peti-

tioners in this case, decedent’s widow, Helen Bach, and

decedent’s son, Eugene G. Bach, III (who, like his father,

is a river pilot), testified in their respective depositions

that decedent had no permanent connection with any ves-

sel. Decedent’s son testified that river port pilots merely

assist a vessel between two points in the Mississippi

River. He further testified that river port pilots have no

regular, continuous, or permanent connection with any

vessel, and that they leave the vessel before it reaches the

Gulf of Mexico. Decedent’s wife agreed that river port

pilots are not members of any vessel’s crew. There is no

evidence in this case that decedent had any employment-

related connection with any vessel owner or that he had

any permanent connection with any identifiable fleet of

vessels owned or controlled by respondents. Decedent

simply engaged in river port pilotage as an independent

contractor on random vessels as assigned by the pilots’

association.‘

‘This Court has recognized the independence of pilots and their

want of allegiance to any employer:

Pilots hold a unique position in the maritime world and have

been regulated extensively both by the States and Federal Gov-

ernment. Some state laws make them public officers, chiefly

responsible to the State, not to any private employer. Under

law and custom they have an independence wholly incompatible

with the general obligations of obedience normally owed by an

14

Thus, petitioners’ own testimony verifies the correct-

ness of the Fifth Cireuit’s decision. Decedent cannot be

a seaman because petitioners’ own testimony conclusively

established that he lacked the permanent, employment-

related connection to a vessel recognized as necessary by

this Court and by every circuit that has addressed the

issue. Because, under the uncontested facts, petitioners

could not meet their burden of proof regarding a mate-

rial element of seaman’s status, the Fifth Circuit cor-

rectly sustained the dismissal of petitioners’ Jones Act

claim. E.g., Celotex Corporation v. Catrett, 477 U.S. 317,

322-23 (1986).

Nor do the authorities cited by petitioners provide any

basis for finding pilot Bach a seaman. Neither United

States v. Thompson, 28 Fed.Cas. 102 (No. 16,492) (C.C.D.

Mass. 1832), Pacific Mail Steamship Co. v. Joliffe, 69

U.S. 450 (1865), The China, 74 U.S. 53 (1869), nor

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

(1852) contains any analysis of the requirements for

seaman’s status, even outside the context of the Jones Act

and the LHWCA.*® The remaining cases cited by peti-

employee to his employer. Their fees are fixed by law and their

charges must not be discriminatory. As a rule no employer, no

person can tell them how to perform their pilotage duties.

Bisso v. Inland Waterways Corp., 349 U.S. 85, 93-94 (1955) (foot-

notes omitted).

5 Cooley questioned the constitutionality of Pennsylvania’s statu-

tory compulsory pilotage scheme for the Port of Philadelphia.

Thompson involved a criminal mutiny charge against a crewmember.

Joliffe questioned the validity of the compulsory pilotage regulations

governing the Port of San Francisco. The China questioned whether

a vessel in rem and a vessel owner in personam were responsible for

the collision damages caused by a pilot’s negligence.

If relevant at all, The China supports respondents’ position. While

the vessel in rem was held to be responsible for the pilot’s negligence,

the ship owner, having not voluntarily chosen the compulsory pilot

as its servant, was held to have no personal responsibility for the

pilot’s negligence. See also T.J. Schoenbaum, ADMIRALTY AND MARI-

TIME LAW § 12-5 at 438-39 (1987).

15

tioners involved “pilots,” who, unlike pilot Bach, had a

long-term employment relationship with a single vessel

and vessel owner. The Lud Keefer, 51 Fed. 44 (3d Cir.

1892) (which involved a pilot hired to assist a vessel on

a voyage from Pittsburgh to Louisville and back); The

Mary Elizabeth, 24 Fed. 397 (C.C.S.D.Ala. 1885) (which

involved pilots hired on a vessel for terms of four and

six months); Wilson v. The Ohio, 30 Fed.Cas. 149 (No.

17,825) (E.D.Pa. 1834) (which involved a suit by the

pilot, the firemen and the deckhands of the named vessel,

which navigated the Delaware River between Philadel-

phia and the State of Delaware). These “pilots,” unlike

Bach, would have met the Wilander-Gizoni requirement

of an “employment-related connection to a vessel in navi-

gation.” Wilander, 111 S.Ct. at 817; Gizoni, 112 S.Ct. at

492. Thus, contrary to petitioners’ assertion, the histori-

cal jurisprudence on which they rely does not support

the proposition that port pilots, like pilot Bach, who are

land-based, independent contractors who board numerous

vessels for a few hours at most, are “seamen.”

Also, the 1927 LHWCA opinion upon which petitioners

rely, Longshoremen’s Act, Opinion No. 22 (1927), repro-

duced at 1928 A.M.C. 263-64, provides no basis for grant-

ing a writ. In that opinion, the United States Employees

Compensation Committee relied on a number of 19th Cen-

tury cases opining that a pilot was within the “master

or member of a crew” exception to LHWCA coverage. Id.

While administrative determinations sometimes are en-

titled to deference, such is not always the case. Statutory

interpretation must begin and end with the plain lan-

guage of the statute unless the statutory language is

unclear. See Blum v. Stenson, 465 U.S. 886, 896 (1984).

Furthermore, administrative interpretations are not en-

titled to deference when a sound judicial analysis finds

a contrary reading of the statute as supported by statu-

tory language, purpose, and history:

[T]he “deference owed to an expert tribunal cannot

be allowed to slip into a judicial inertia which re-

ae

16

sults in the unauthorized assumption by an agency

of major policy decisions properly made by Congress.”

_.. [The courts] must not “rubber stamp... ad-

ministrative decisions that they deem inconsistent

with a statutory mandate or that frustrate the con-

gressional policy underlying a statute.”

Bureau of Alcohol, Tobacco and Firearms v. Federal

Labor Relations Authority, 464 U.S. 89, 97 (1988),

quoting American Ship Building Co. v. National Labor

Relations Board, 380 U.S. 300, 318 (1965), and National

Labor Relations Board v. Brown, 380 U.S. 278, 291-92

(1965).

This Court plainly held in Wilander and Gizoni that an

employment-related relationship is a mandatory prerequi-

site for a person to be a seaman under the Jones Act.

All of the authorities cited in this 1927 administrative

opinion predate both the Jones Act and the LHWCA.

None of these cases purports to address whether a port

pilot has the necessary employment relationship to be

considered a seaman for purposes of personal injury or

death benefit recovery. Two of the cases, The China,

discussed above, and Camp v. The Marcellus, 4 Fed.Cas.

1141 (No. 2.347) (D.Mass. 1860), aff'd, 66 U.S. 414

(1862). discussed the liability of a vessel and its owner

for collision damages. The remaining two cases discussed

in this administrative opinion, United States v. Lynch,

96 Fed.Cas. 1033 (No. 15,648) (S.D.N.Y. 1843), and

United States v. Forbes, 25 Fed.Cas. 1141 (No. 15,129)

(E.D. Pa. 1845), dealt with the pilot’s authority in the

context of jury charges given in criminal cases wherein

seamen were charged with revolt and mutiny for fail-

ure to obey a pilot’s orders.

Thus, the authority cited in this dated, LHWCA ad-

ministrative opinion does not support the conclusion that

river port pilots have the required employment relation-

ship to be considered as Jones Act seamen. Because this

opinion did not consider the mandatory employment re-

quirement of Jones Act seaman’s status, it is plainly

17

inconsistent with the Jones Act and the LHWCA. The

courts are not bound to follow such an unsupported ad-

ministrative interpretation that is in clear derogation of

a statutory requirement.

Perhaps more importantly, this administrative opinion

is not entitled to judicial deference because it directly

conflicts with the Jones Act as interpreted in Wilander

and Gizoni. Wilander and, more particularly, Gizoni

held that whether a particular person is covered by the

Jones Act or the LHWCA depends on the facts and cir-

cumstances peculiar to each individual case; generic

classifications, such as “ship repairman” or “pilot,” are

not conclusive as to whether a person is covered by one

act or the other. Wilander, 111 S.Ct. at 818; Gizoni,

112 S.Ct. at 498. Thus, petitioners’ interpretation of

this administrative opinion—that all persons generically

labeled as “pilots” are automatically seamen—directly

conflicts with the fact-intensive, case-by-case determina-

tion that Wilander and Gizoni require. Under the undis-

puted facts of this case, discussed above, pilot Bach, a

land-based, independent contractor who had no employ-

ment relationship with any vessel, was not a seaman.

Bach boarded vessels owned by many different owners

for only a few hours at a time before he returned ashore.

Under Wilander and Gizont, the LHWCA, not the Jones

Act, covers such land-based maritime workers who owe

no allegiance to any vessel. Wilander, 111 S.Ct. at 813-

14; Gizoni, 112 S.Ct. at 492.

Also, sound policy reasons dictate that this Court make

no class-based exceptions to the fact-intensive seaman’s

status inquiry mandated in Wilander and Gizont. As the

Fifth Circuit correctly noted, several classes of workers

who more clearly face the perils of the open sea than did

decedent have been denied status as seamen, because they

did not meet the seaman’s status requirements. Bach J,

920 F.2d at 325. Workers, such as those who navigate

vessels on the open seas on sea trials, who work aboard

1

OO

fixed structures on the open sea, and who service vessels

at sea owned by various owners, have not been considered

seamen, because they lack the permanent, employment-

related connection to a vessel that seaman’s status re-

quires. Jd. Making a class-based exception to the em-

ployment requirement for all port pilots would not only

ignore the fact-intensive nature of this status determina-

tion required by Wilander and Gizoni with regard to

pilots, but would open the door to similar class-based

exceptions for other classifications of offshore and inland

maritime workers who also lack an employment-related

connection to a vessel. To make the classification-based

exception urged by petitioners is to “muddy the waters”

clarified by Wilander and Gizoni as to the requirements

of seaman’s status.

Finally, petitioners’ reliance on Evans v. United Arab

Shipping Co., 767 F.Supp. 1284 (D.N.J. 1991) provides

no basis for granting a writ. The Evans court held that

a port pilot, like pilot Bach, was a seaman under the

Jones Act. However, in reaching that conclusion, the

district court supported its conclusion with the same un-

meritorious arguments asserted by petitioners in the in-

stant ease. While paying only lip-service to the particu-

lar facts of the case, 767 F.Supp. at 1291, the court relied

heavily on the pre-Jones Act jurisprudence and the 1927

LHWCA administrative opinion generically classifying

pilots as seamen. 767 F.Supp. at 1289-91. The court did

not examine the relationship between Evans and the ves-

sel owner; it merely assumed that since the ship owner

hired Evans through his pilots’ association, an employ-

ment relationship must have existed. 767 F.Supp. at

1291. However, Wilander and Gizoni make clear that

seaman’s status requires more than a contractual rela-

tionship for seaman’s status; it requires that persons seek-

ing seaman’s status have an “employment-related” con-

nection with the vessel. Wilander, 111 S.Ct. at 817;

Gizoni, 112 S.Ct. at 492.

Furthermore, whether or not Evans demonstrated the

necessary “employment-related” connection—and whether

y

19

that decision is right or wrong under the particular facts

of that case—makes no difference to the present case.

In the instant case, the undisputed facts are that pilot

Bach was employed by his own corporation—not the

vessel owner—and that his pilotage corporation was an

independent contractor—not an employee—that supplied

pilotage services to vessels. The Fifth Circuit correctly

concluded that under the particular facts of this case,

Bach was not a seaman.

In Wilander and Gizoni, this Court established the

rules for determining whether a person is a seaman en-

titled to sue under the Jones Act. The decision of the

Fifth Circuit is consistent with the principles announced

in those cases. This case presents no question for review,

and the Court should deny petitioners’ request for a writ

of certiorari.

Il. RESPONDENTS’ ENTITLEMENT TO SUMMARY

JUDGMENT ON CAUSATION AND BURDEN OF

PROOF GROUNDS RENDERS THIS CASE INAP-

PROPRIATE FOR REVIEW

Even if the question asserted—whether a pilot can be

a seaman under the Jones Act—were appropriate for

review, the undisputed facts render this case an inappro-

priate vehicle for considering the question. Respondents

were entitled to summary judgment whether or not de-

cedent was a seaman.

Whether a plaintiff’s claim is under the Jones Act or

the general maritime law, a plaintiff seeking recovery

must prove by a preponderance of the evidence that the

fault of the defendant caused the plaintiff's purported

injury. E.g., Diebold v. Moore McCormack Bulk Trans-

port Lines, 805 F.2d 55, 58 (2d Cir. 1986) (recognizing

that plaintiff must prove the elements of his Jones Act

case by a preponderance of the evidence); Snyder v.

Whittaker Corp., 839 F.2d 1085, 1092 (5th Cir. 1988)

(noting that both under Texas law and the Jones Act.

plaintiff must prove his case by a preponderance of the

20

evidence) ; Litherland v. Petrolane Offshore Const. Serv-

ices, 546 F.2d 129, 182 (5th Cir. 1977) (affirming a jury

instruction requiring plaintiff to prove the elements of

his Jones Act case by a preponderance of the evidence) ;

Matter of Hechinger, 890 F.2d 202, 208 (9th Cir. 1989),

cert. denied sub nom. Caskie v. Hechinger, 111 S.Ct. 136

(1990) (citing Litherland and recognizing that plaintiff’s

burden under the Jones Act is to prove his case by a

preponderance of the evidence).

Summary judgment is appropriate where the uncontra-

dicted evidence demonstrates that plaintiff is unable to

prove his case by a preponderance of the evidence. Celo-

tex, cited above, 477 U.S. at 322-23. The mere existence

of a “metaphysical doubt” as to material facts does not

preclude summary judgment. Matsushita Electric Indus-

trial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). A dispute is not genuine so as to render sum-

mary judgment inappropriate unless the evidence is such

that a reasonable fact finder could return a verdict on

the issue for either party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248-50 (1986).

In this case, petitioners alleged that defendants were

negligent in two respects: (1) in failing to administer

CPR to decedent immediately upon his collapse, and (2)

in allegedly requiring him to climb a pilot ladder for a

distance greater than allowed by applicable regulations.

However, the undisputed evidence, summarized above,

plainly demonstrated that petitioners could not meet their

burden of proof on either claim. Petitioners’ own expert,

Dr. John H. Phillips, the head of cardiology at Tulane

University MediealCenter, testified that the cause of

decedent’s death was his hardening of the arteries—which

were 90 to 99 percent blocked—not any negligence of the

vessel. Dr. Phillips placed decedent’s chances of dying

from his heart condition, even if CPR and electrical de-

fibrillation had been administered immediately, as greater

than 85 percent, with his chances of survival possibly in

ti ( i i‘S;™C;C*S

21

the 0 to 10 percent range. Dr. Phillips further testified

that decedent’s chances of dying were just as likely

whether he was climbing aboard a ship, sleeping, or sit-

ting in his living room while watching television. Thus,

petitioners could not meet their burden of proving by a

preponderance of the evidence that any alleged negligence

caused decedent’s death.

Furthermore, petitioners’ pilot ladder claim totally

lacked merit, because the distance decedent climbed up

the ladder was well within the distance allowed by ap-

plicable maritime regulations. See Bach I, 920 F.2d at

327; Petitioners’ Appendix, A-18 to A-19.

Because respondents were entitled to summary judg-

ment regardless whether pilot Bach was a seaman, this

case iS an inappropriate one to address the seaman’s

status question urged by petitioners.

CONCLUSION

For the reasons discussed above, respondents, Trident

Steamship Company, Ine. and Kaiser Aluminum and

Chemical Corporation, respectfully submit that this Court

should deny petitioners’ petition for a writ of certiorari.

Respectfully submitted,

ROBERT H. MURPHY

Counsel of Record

KENNETH J. SERVAY

THOMAS D. ForBES

CHAFFE, MCCALL, PHILLIPS,

TOLER & SARPY

2300 Energy Centre

1100 Poydras Street

New Orleans, LA 70163-2300

(504) 585-7000

Attorneys for Respondents,

Trident Steamship Company,

Inc. and Kaiser Aluminum

and Chemical Corporation

APPENDIX

la

APPENDIX

R.S. 34:995. Association of river port pilots

The said river port pilots may form themselves into an

association as to them may seem fit, not in conflict with

law, or with the rules and regulations of the river port

pilot commissioners, but nothing herein shall affect any

association presently existing.

R.S. 34:996. Operating territory

A. The river port pilots shall have the exclusive right to

pilot vessels on the Mississippi River between New Or-

leans, Louisiana and Pilottown, Louisiana and within

the Port of New Orleans between Southport and Meraux-

ville; within the Industrial Canal, between the Mississippi

River to and including Lake Pontchartrain; within the

Intracoastal Canal, between the Industrial Canal and the

turning basin at Michoud, inclusive; also for the Missis-

sippi River Gulf Outlet between the Industrial Canal and

Mile 28.3, the Gulf Intracoastal Waterway from the

Louisiana-Mississippi state line to the Mississippi River

Gulf Outlet, including Michoud Slip and Michoud Canal,

Chef Pass, Algiers Cutoff, and the Harvey Canal; the

Venice Jump within six and one-half miles of the Mis-

sissippi River, Bayou Sauvage; and Bayou Liberty.

B. However, nothing herein contained shall prevent an

exchange of river port pilots at what is known as “Quar-

antine Anchorage” or “The Point” or “General Anchor-

age’ between the river port pilots herein named and

pilots engaged in the piloting of vessels above Southport,

nor shall anything herein provided prevent pilots engag-

ing in piloting vessels above Southport from ending or

beginning the pilotage from any wharf or “The Point” or

“General Anchorage” in the Harbor of New Orleans.

R.S. 34:997. Pilotage fees; vessel subject to pilotage

A. The river port pilots shall be entitled to ask for and

to receive a fee for their pilotage services.

2a

B. The fees for pilotage services shall be established in

accordance with R.S. 34:1121, et seq.

C. The river port pilots shall also be entitled to enter into

agreements with the masters, owners, or their agents, of

ships and vessels, not otherwise subject to compulsory

pilotage as provided by these statutes, for special services,

boats, equipment, transportation, and other necessary

fees at such rates and for such sums as may be agreed

between them, but not to exceed those rates established

in accordance with R.S. 34:1121, et seg.

D. All vessels shall employ a river port pilot when navi-

gating the operating territory described in this Subpart

except those vessels exempted by the laws of the United

States or vessels of one hundred gross tons or less.

EK. In case of refusal to take such river port pilot, the

master, owner, agent, or consignee of any vessel required

to employ a river port pilot shall pay the established pilot

fee as if a river port pilot had been employed.

R.S. 34:1002. Violations and penalties

Anyone attempting to exercise the functions herein vested

in the said river port pilots, who has not been commis-

sioned by the governor, shall be fined not less than one

thousand five hundred dollars, nor more than five thou-

sand dollars, or imprisoned not less than thirty days, nor

more than four months, or both, at the discretion of the

court in whose jurisdiction the offense is committed.

R.S. 34:1002.1. Employing pilot without a state commis-

sion; penalties

A. No master, owner, or agent of a vessel required under

this Subpart to take a state commissioned river port pilot

shall perform the duties of a river port pilot nor employ

a person who is not a state commissioned river port pilot.

B. Whoever violates this Section shall be fined not less

than one thousand five hundred dollars nor more than

3a

five thousand dollars, or imprisoned for not more than six

months, or both.

R.S. 34:1009. Employing pilot without a commission; lia-

bility of vessel, master, and owner

A vessel which is required to use a river port pilot pur-

suant to this Subpart and fails to do so when a river port

pilot offers his services, the vessel, its captain, and owners

shall be liable for a civil penalty and shall forfeit to the

state of Louisiana the sum of fifteen thousand dollars,

with privilege on the vessel, to be recovered before any

court of competent jurisdiction. An action for forfeiture

under this Section may be brought by the attorney gen-

eral of the state of Louisiana or by the Board of River

Port Pilot Commissioners. If a judgment is obtained here-

under, the court shall include in its judgment an award

for reasonable attorney fees and costs incurred in connec-

tion with the prosecution of such action.

R.S. 34:1121. Pilotage fee commissions; composition

A. A separate pilotage fee commission shall exist rela-

tive to each pilot association established and operating

under state law. Each pilotage fee commission shall be

nominally designated by the name of the association to

which it relates, followed by ‘Fee Commission”’.

R.S. 34:1122. Fees and charges; adjudication of disputes

A. (1) Each fee commission shall have exclusive au-

thority to fix and establish reasonable and just fees and

rates for:

(a) Pilotage service to ships and vessels.

* * * *