Opposition Brief — Vermilion Corp. v. Green

In The

Supreme Court of the United States

October Term, 1998

On Petition For Writ Of Certiorari

lo The United States Court Of Appeal:

For The Fifth Circuit

7

RESPONDENT'S BRIEF IN OPPOSITION

QUESTION PRESENTED

Did the Court of Appeals for the Fifth Circuit in its

decision to allow Sam Green to pursue his general mar-

itime negligence and unseaworthiness claim against Ver-

milion, his employer, despite the exclusivity provision of

the Louisiana Workers’ Compensation Act err, and, in

doing so, create a split in the circuits of sufficient impor-

tance to warrant this court’s review on a writ of cer-

tiorari?

PARTIES AND LIST PURSUANT TO RULE 29.1

The parties as stated in Pet. Cert. 1

lil

TABLE OF CONTENTS

Question Presented

Parties and List Pursuant to Rule 29.1

lable of Authorities

Opinions Below

Jurisdiction

Statement of the Case |

Reasons for Denying the Writ

Conclusion

TABLE OF AUTHORITIES

Page

Cases

Brockington v. Certified Electric, Inc., 903 F.2d 1523

th fe Se errr rrr er rr rer si wae

Brown v. ITT Rayonier Inc., 497 F.2d 234 (5th Cir.

Se Seer ere per rrr ria Grrr) Pre 3

Chase v. Loutsianu Riverboat Gaming Partnership,

La.App. 2 Cir. 2/25/98 (La.App. 2 Cir. 1998)....... 8

Chelentis v. Luckenback Steamship Co., 247 U.S. 372,

cio mee ee ky eee re errr Trier 4

Cope v. Vallette Dry-Dock Co., 7 S.Ct. 336, 119 U.S.

ey et Se Se ED 6 hab Noe analeees Oraeeee ns 10

East River Steamship Corp. v. Transamerica Delaval

Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865

ES a, fee te ee 4

Ellis v. Normal Life, 638 So.2d 422 (La.App. 5th Cir.

ig Fe Peer EEE OE Ey yh neaaipnntiepeye ren” 4

Executive Jet Aviation, Inc. v. Cleveland, 93 S.Ct. 493,

409 US. 429, SA U.GBG6.2e Gob Gee ove vcvccccssnce. 4

Green v. Vermilion Corp., 144 F.3d 332 (Sth Cir.

So ee re 1, 4, 7, 8, 10, 12

In re Treasure Bay Corp., 205 B.R. 490 (Bankr. S.D.

MOE.. TOON Rs ca vcnnnapaghe ten css cethonteneesessaes se 9

Ketzel v. Mississippi Riverboat Amusement, Ltd., 867

F.Supp. 1260 (S42. TROR. TORE) onc c cc cccssccccceses 10

King v. Grand Casinos of Mississippi, Inc. — Gulfport,

GPF God SOP Gees en 64 ob acer eveccascecsass 8

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40

S.Ct. 438, 64 L.Ed. S34 (IGGB)... .. cc cccccvccccces 4

TABLE OF AUTHORITIES — Continued

McAdow v. Promus ( ompanies, Inc., 926 F.Supp. 93

(W LD. La 1996) Pees euvetoeteuseneve

Pavone v Mississippi Riverboat Amusement ¢ orp., 52

F.3d 560 (5th Cir. 1995)..

PJ. Carlin Const. Co. v. Heaney, 299 U.S. 41, 57 S.Ct

75, 81 L.Ed. 27 (1936) ........

Preston O. King v. The President Riverboat Casino

Mississippi, Inc., 894 F.Supp. 1008 (S.D. Miss

1995)

Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct

872, 90 L.Ed. 1099 (1946) ..........

Waldron v. Moore-McCormack Lines. 87 S.Ct. 1411

386 U.S. 724, 18 L.Ed.2d 482 (1967)

STATUTES

33 U.S.C. § 902(3)

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10

BRIEF IN OPPOSITION

Respondent respectfully prays that this petition for a

writ of certiorari to the Supreme Court of the United

States be denied.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 144 F.3d 332 (5th Cir. 1998)

as is reproduced at Pet. App. A.

¢

JURISDICTION

As will be shown, there is no jurisdictional basis for

this Court to entertain the Petition for Writ of Certiorari.

The Fifth Circuit’s decision is not in conflict with the

decision of another United States court of appeals on the

same important matter.

STATEMENT OF THE CASE

Respondent, Sam Green was injured while mooring

THE M/V GADWALL on navigable waters. Green

claimed benefits under the Longshore and Harbor

Worker’s Compensation Act, in addition to asserting a

cause of action for unseaworthiness and negligence under

the General Maritime Law.

At the district court level, Green’s claims under

LHWCA and those under the general maritime law of

negligence and unseaworthiness were dismissed. On

appeal, the Fifth Circuit Court of Appeals found that

Green fell into the category of employees for which con-

gress drafted the “club/camp” exception, and affirmed

the district court’s judgment denying LHWCA coverage

to Green. However, the Fifth Circuit reversed the judg-

ment of the district court dismissing Green’s general mar-

itime negligence and unseaworthiness claims. First, the

Fifth Circuit determined that a remedy was available

under the general maritime law of unseaworthiness since

the LHWCA did not apply to Green. Secondly, the Fifth

Circuit determined that Green could assert his general

maritime negligence claim against his employer, despite

the exclusivity provision of the Louisiana Workers’ Com-

pensation Act, relying on Supreme Court precedent.

Petitioner seeks this writ which essentially calls upon

this Court to grant them total tort immunity against both

the unseaworthiness claim and the negligence claim

under the general maritime law despite the fact that there

are no overriding state interests in the application of the

workers’ compensation law which would outweigh the

federal interests regarding the uniformity in the applica-

tion of the general maritime law.

Petitioner takes the following positions:

A. The decision of the Fifth Circuit creates a

split in the circuits.

B. The decision of the Fifth Circuit creates a

split in the circuits on an issue that is

“important”.

C. The decision of the Fifth Circuit is wrong.

¢

REASONS FOR DENYING THE WRIT

NO SPLIT IN THE CIRCUITS

1. The Unseaworthiness Claim

Both the Eleventh Circuit! and the Fifth Circuit.do in-

fact recognize that an unseaworthiness claim is available

against the employer despite the availability of relief

under the state’s workers’ compensation laws. Both Cir-

cuits recognize that unseaworthiness is a “right peculiar to

the law of admiralty”? and the state worker’s compensa-

tion statute can be disregarded in favor of permitting an

action in general maritime law for unseaworthiness. In this

case, where the LHWCA does not apply, the 1972 Amend-

ments to the Act which abolished a longshoreman’s

unseaworthiness claim does not affect Green’s claim since

he falls outside the scope-of the LHWCA. Consequently

there is not a split in the circuits regarding this issue.

2. General Maritime Negligence

While it is true that the Eleventh Circuit in Brockington

and the Fifth Circuit in Green arrived at contrary results, it

is not entirely accurate to conclude that the circuits are

split on the issue. Both Circuits weighed the federal inter-

ests in promoting uniformity in the application of federal

maritime law against the state’s interests in overriding the

negligence claims of an employee against his employer via

its workers’ compensation statute.

1 Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11th

Cir. 1990).

2 Id. at 1531, citing Seas Shipping Co. v. Sieracki, 328 U.S. 85,

66 S.Ct. 872, 90 L.Ed. 1099 (1946) and Brown v. ITT Rayonier Inc.,

497 F.2d 234 (5th Cir. 1974).

The general maritime law is drawn from both federal

and state sources and is an amalgam of traditional com-

mon-law rules, modifications of those rules, and newly

created rules.* Within admiralty jurisdiction, the general

maritime law applies unless preempted by federal legisla-

tion.4 Under the general maritime law, a state law-which

changes, modifies, or affects maritime law may be given

effect unless

it contravenes the essential purpose expressed

by an act of Congress, or works material preju-

dice to the characteristic features of the general

maritime law or interferes with the proper har-

mony and uniformity of that law in its interna-

tional and interstate relations.°

The Fifth Circuit in Green did recognize the state’s

interest in overriding negligence claims of an employee,

citing Ellis v. Normal Life, 638 So.2d 422 (La.App. 5th Cir.

1994). However, when the Court compared the impor-

tance of uniformity of admiralty law with the state’s

interests, the Court ultimately found that the Louisiana

Worker’s Compensation Act interfered with the proper

harmony and uniformity of the general maritime law. On

the other hand, the Eleventh Circuit in Brockington found

the uniformity of the general maritime law and the usual

East River Steamship Corp. v. Transamerica Delaval Inc., 476

U.S. 858, 865, 106 S.Ct. 2295, 2299, 90 L.Ed.2d 865 (1986).

4+ East River Steamship, 475 U.S. at 864, 106 S.Ct. at 2298;

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160-61, 40 S.Ct. 438,

440, 64 L.Ed. 834 (1920); Chelentis v. Luckenback Steamship Co.,

247 U.S. 372, 381, 38 S.Ct. 501, 503, 62 L.Ed. 1086 (1917).

Chelentis, 247 U.S. at 381, 38 S.Ct. at 503, emphasis ours.

supremacy of the federal maritime law less significant in

light of the comparative interests of the state.

The divergence results simply from the fact that

when weighing the importance of uniformity of admi-

ralty and the state’s interests in the application of its

worker’s compensation laws, each court had certain

details before it which entered into the court’s assess-

ment, thereby producing a different result.

The Eleventh Circuit in the Brockington case barred a

plaintiff from asserting a negligence claim under the

general maritime law where an exclusivity provision of

a state workers’ compensation scheme applied.

Brockington was a land-based electrician who was

injured as a result of a boating collision while being

transported by boat to his job site. He brought a negli-

gence claim only (no claim was made for unseaworthi-

ness of the vessel) against his employer invoking the

admiralty jurisdiction of the federal courts under genera!

maritime law. The employer moved for summary judg-

ment, arguing that the claim was barred by the provisions

of the Georgia Workers’ Cempensation Act. He also

stated a cause of action under the LHWCA. However, the

court found that he was not a maritime employee as

defined by the Act.

Recognizing that under certain circumstances state

law may appropriately be applied by federal courts sit-

ting in admiralty, the Eleventh Circuit then evaluated the

propriety of applying the Georgia law in these circum-

stances. Using the analysis of balancing the relevant «tate

and federal interests, the Eleventh Circuit found the

“interest in applying the general maritime law to the

present action is not substantial.” Brockington, 903 F.2d at

1532.

Turning to the state interest invoived, the Eleventh

Circuit found that Georgia’s interest in applying state law

is relatively high. Brockington was a land-based construc-

tion worker, the work to be performed was totally land-

based construction. Brockington was injured on a ferry

boat which was transporting him to his job site on a

nearby island. Thus, the nexus to maritime activity in the

Brockington case was very slight since the actual work

performed by Brockington was completely non-maritime

in nature. Brockington’s only connection with the water

was the fact that he happened to be traveling over it

incidental to land-based employment. Furthermore, the

provisions of Brockington’s employment contract incor-

porated Georgia worker’s compensation law. Further-

more, it does not appear from the decision that the

contract had any relation to navigation.

On the other hand, in the case before this Court,

there is a stronger nexus to maritime activity implicating

serious concerns regarding uniformity in-the-application

of general maritime law. Green was injured while moor-

ing a vessel. Mooring vessels were part of Green’s duties

with Vermilion. Unloading and loading the boat was also

a part of Green’s duties, since all supplies, etc. had to be

brought to the camp by boat. There is no employment

contract between Green and Vermilion providing any

expectation that the Louisiana Worker’s Compensation

ee

laws would apply. Consequently, the federal maritime

interests were correctly assessed and accorded due

weight.

In Brockington, the employment contract provision

stipulating to the applicability of the state worker’s com-

pensation laws tipped the balance against application of

the general maritime law. Brockington cited the U.S.

Supreme Court case, P.J. Carlin Const. Co. v. Heaney, 299

U.S. 41, 57 S.Ct. 75, 81 L.Ed. 27 (1936) in support of its

position.® That case involved a construction worker who

was seriously injured when a violent explosion wrecked

the ferry upon which he was traveling to an island job

site. The Court ruled that the employment contract pro-

viding for coverage under the New York worker’s com-

pensation laws, must be given effect because the parties

and the accident were local, the contract had no direct

relation to navigation, and to enforce it against the parties

would not materially interfere with the uniformity of any

maritime rule. These significant concerns are not pre-

sent in the case before this Court.

In the end, then, there is no genuine conflict among

the circuits. Brockington should be limited to the facts that

—were present in the case. The Eleventh Circuit simply

attributed more weight to the state interests: a land-based

6 “Apparently the court in Brockington only unearthed the

line of Supreme Court cases giving preclusive effect to state

workers’ compensation statutes since it failed to cite any of the

cases recognizing the superiority of general maritime tort

claims over state remedies. See Brockington, 903 F.2d at 1532.”

Green, 144 F.3d at 342, fn.3

worker, coincidentally on a ferry, under a contract for

employment pursuant to state law.

S

NO IMPORTANT ISSUE

Petitioner claims this “split” would perpetuate differ-

ent remedies for similarly situated persons. This argu-

ment fails to recognize the important distinctions found

in the Brockington case as analyzed above. While, at first

glance, the circuits appear split on the issue, in reality, the

circuits did consider the competing interests. The Elev-

enth Circuit gave more weight to the state’s interest

based on certain factors; Green gave more weight to the

federal interests due to the lack of factors lending to the

state’s interest which could override the application of

the federal law. Simply put, there were no overriding

state law components which would make the Green case

one where state interests in the application of its law

outweighed federal interests.

Petitioner argues that the Green decision would affect

the workers employed in the casino gambling industry on

dockside/floating casinos. Had Petitioner done the

research, it would have discovered that the Louisiana

courts and the Fifth Circuit Court of Appeals have

already determined that the floating casinos are work

platforms, and thus, not “vessels”” for purposes of the

7 Chase v. Louisiana Riverboat Gaming Partnership, La. App.

2 Cir. 2/25/98 (La.App. 2 Cir. 1998); Pavone v. Mississippi

Riverboat Amusement Corp., 52 F.3d 560 (Sth Cir. 1995); McAdow v.

Promus Companies, Inc., 926 F.Supp. 93 (W.D. La. 1996); King v.

Jones Act and general maritime law. The courts consid-

ered, among other things, the activity associated with the

alleged injury, dockside gambling, and held that there is not

the sufficient nexus to traditional maritime activity to

confer admiralty jurisdiction on the court.®

The definition of “vessel” is relevant since it can

determine whether a case gives rise to admiralty jurisdic-

tion, because tortious acts occurring aboard a vessel are

presumed to fulfill the maritime nexus requirement for

maritime tort jurisdiction.? The Admiralty Extension Act

also confers federal jurisdiction to hear cases arising out

of damages or injuries “caused by a vessel on navigable

water.”!9 Further, the applicability of various statutes,

including the LHWCA depends on whether the structure

is a vessel. In addition, general maritime law claims, such

as unseaworthiness claims and salvage claims, require

Grand Casinos of Mississippi, Inc. - Gulfport, 697 So.2d 439 (Miss.

1997); In re Treasure Bay Corp., 205 B.R. 490 (Bankr. S.D. Miss.

1997). Pavone was a consolidated action which involved a

bartender and waitress on a floating dockside casino who filed

their individual actions alleging they were injured on a Jones

Act vessel.

8 Preston O. King v. The President Riverboat Casino

Mississippi, Inc., 894 F.Supp. 1008 (S.D. Miss. 1995)

9 Executive Jet Aviation, Inc. v. Cleveland, 93 S.Ct. 493, 409

U.S. 429, 34 L.Ed.2d 454 (1972)

10 The Admiralty Extension Act, 46 U.S.C. § 740 (1988

provides, in part, that “[t]he admiralty and maritime

jurisdiction . . . shall extend to and include all cases of damage

or injury, to person or property, caused by a vessel on navigable

water, notwithstanding that such damage or injury be done or

consummated on land

10

that the structure be classified as a vessel to bring those

claims."!

Courts have also held that even if these casinos were

moving over navigable waters, they would be serving a

purpose merely incidental to its primary function as a

gambling facility.!2 Therefore, a casino worker injured on

a dockside floating casino is precluded from asserting

claims under the general maritime law. Consequently, the

Green decision has no impact on the casino industry in

the way suggested by Petitioner. Green was injured while

mooring a vessel. . . . the action fell under admiralty

jurisdiction and general maritime law applied.

o

THE RULING BELOW IS NOT WRONG

1. Seeking to Divine Congressional Intent

Petitioner suggests that the ruling is wrong because it

was Congress who dictated that Green could not sue his

employer in tort. According to the argument, Congress in

promulgating 33 U.S.C. § 902(3) expressly excluded

(A)-(F) workers only if they were covered under a state

workers’ compensation act. Furthermore, according to the

argument, the Fifth Circuit ignored the clause in order to

11 See e.g., Waldron v. Moore-McCormack Lines, 87 S.Ct. 1410,

386 U.S. 724, 727, 18 L.Ed.2d 482 (1967) and Cope v. Vallette Dry-

Dock Co., 7 S.Ct. 336, 119 U.S. 625, 30 L.Ed. 501 (1887).

12 Preston O. King v. The President Riverboat Casino-

Mississippi, Inc., 894 F.Supp. 1008, 1012 (S.D. Miss. 1995); Ketzel

v. Mississippi Riverboat Amusement, Ltd., 867 F.Supp. 1260,

1263-68 (S.D. Miss. 1994).

11

fashion a new rule and to provide a new remedy which

Congress has decided not to accept and considered itself

to be unfettered by congressional intent.

Petitioner claims that since Congress added the con-

dition that the employee be covered under a state com-

pensation scheme then that meant Congress intended that

the employee has no remedy in tort against its employer.

Petitioner provides no support for what it thinks is the

intent of Congress, no committee reports, no Statement of

Congressional Intent, no part of the legislative record

whatsoever. Petitioner’s fundamental error is in suggest-

ing that conformity with the provision forecloses the

injured maritime worker, in spite of an existing state

worker’s compensation scheme, the right to his general

maritime claims. As the jurisprudence shows, the exis-

tence of a state workers’ compensation scheme does not

automatically preclude a maritime worker from asserting

his maritime claims. If Congress had wanted to foreclose

a general maritime cause of action for unseaworthiness or

negligence, it knew how to say so. But it did not and

there is nothing at all in that section to support Peti-

tioner’s conclusion.

CONCLUSION

The Petitioner misapprehends the issue and seeks

from this Court an ironclad rule that state worker’s com-

pensation statutes override federal maritime law. How-

ever, the considerations taken by both circuits do not

justify such a rule. Such a rule would not serve the

12 .

purpose of the federal maritime law or federal suprem-

acy. The considerations taken by both circuits cannot be

ignored and the relevant facts are different so that the

circuits responded to them in a different fashion. There

are no serious and farreaching consequences of the Green

decision.

Likewise, Petitioner fails to challenge the Fifth Cir-

cuit’s analysis of the federal interests and state’s interests.

Nor is there any suggestion that the method employed in

Green was novel. The only challenge is made to the hold-

ing and because the two circuits reached different results,

Petitioner presupposes a conflict in the circuits.

Supreme Court, rule 10 provides that “review on a

writ of certiorari is not a matter of right, but of judicial

discretion and that petition for a writ of certiorari will be

granted only for compelling reasons. Rule 10 also states

that a petition for a writ of certiorari is rarely granted

when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule of

law. Nothing in the Petition provides a compelling reason

for this Honorable Court to grant the writ of certiorari.

Therefore, the Petition for a Writ of Certiorari should

be denied.

Respectfully submitted,

Bos F. WRIGHT

Carita M. PERRON

DOMENGEAUX, WRIGHT & Roy

556 Jefferson Street, 5th Floor

Lafayette, LA 70502

(318) 233-3033