Opposition Brief — Polmar Fisheries, Inc. v. Hurlburt

F I

No. 98-1611

Supreme Court, U.S

Se eS

APR 14 1999

CLERK

IN THE

Supreme Court of the United States

October Term, 1998

POLMAR FISHERIES, INC.,

Petitioner,

VS.

SUSAN VIOLA HURLBURT,

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI

UNIVERSITY PLACE LAW OFFICES

THOMAS C. EVANS

Counsel of Record

4705 —15™ Avenue N.E.

Seattle, WA 98105

(206) 527-8008

Attorney for Respondent

Susan Viola Hurlburt

aBCD Legal Printers. Sesttle. Washington

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RESPONSE TO QUESTIONS PRESENTED FOR

REVIEW

In spite of Petitioner listing several "questions," there

is only one question in this case: Is there a sufficient fact

basis for the trial court to find Respondent Susan Viola

Hurlburt was a Jones Act/General Maritime Law seaman as of

the time and place of her back injury, that is, was there a

sufficient fact basis for the trial court to find that the vessel

F/V NORTHLAND was a vessel in navigation as of the time

and place of injury?

Petitioner's question #4, "Can the question of seaman

status be taken from the trier of fact?" proposes an entirely

new standard of review for the issue of vessel in navigation.

It would require reversing Roper v. United States, 368 U.S.

20, 22-23 (1961), in that Petitioner seems to ask for, and thus

claim, the "question of seaman status" should be taken from

the trial court any time a "reasonable person might conclude

that the injured workman was not a seaman."

Petitioner really proposes a new form of summary judgment

for seaman's status issues.

il

RESPONSE TO LIST OF PARTIES

Respondent accepts Petitioner's statement with respect

to List of Parties.

RESPONSE TO RULE 29.1 STATEMENT OF

RELATED CORPORATIONS

Respondent accepts Petitioner's statement with respect

to Related Corporations, excepting that to the extent Mark

Maring, a single individual, is the pnncipal behind both

corporations, Polmar Fisheries and Northland Fishenes, Inc.

are the same entities.

Tk Ne Pa irc Rl INT RMT ll

iv

TABLE OF CONTENTS

Page

RESPONSE TO QUESTIONS PRESENTED FOR

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RESPONSE TO LIST OF PARTIES. .....c.:.:scscscccssssosossesesesseses iii

RESPONSE TO RULE 29.1 STATEMENT OF RELATED

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RESPONSE TO JURISDICTION IN THE COURTS

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RESPONSE TO REPORTS OF OPINIONS BY OTHER

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RESPONSE TO JURISDICTION OF THE SUPREME

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RESPONSE TO CONSTITUTIONAL, STATUTORY, AND

OTHER AUTHORITY INVOLVED. ..0.......ccccsccsccssscececseseees 4

RESPONSE TO STATEMENT OF THE CASE........ccccccccse:. 4

A. Response to Statement of Facts.............cccccccsceoee: 4

B. Response to The Decision of the District

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C. Response to The Decision of the Court of

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I.

THE COURT SHOULD NOT ACCEPT REVIEW OF THIS

MATTER AS THERE ARE NO UNCERTAINTIES AS TO

THE DIFFERENCE BETWEEN SEAMAN AND LAND-

BASED WORKERS RAISED BY THIS CASE............0006 10

Il.

THIS CASE RAISES NO NEED TO CLARIFY THE

REQUIREMENT THAT FOR THE JONES ACT TO

APPLY, THE WORKER'S CURRENT EMPLOYMENT

MUST INVOLVE A SUBSTANTIAL CONNECTION TO

A VESSEL IN NA VERSA Tt ensssssrssessssscsssonsescootigasaenseunins 14

Il.

THIS CASE RAISES NO REASON WHY THE COURT

SHOULD CLARIFY ISSUES WITH RESPECT TO THE

TOTALITY OF CIRCUMSTANCES OF A WORKER'S

EMPLOYMENT TO DETERMINE WHETHER THE

WORKER IS COVERED UNDER THE JONES ACT OR

THERES TASES FaR Gs Bisa baevnsicesincdvcancubansterreteaction tenis WG

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B. There Is No Conflict With Other Applicable

DOCAIOENE CE TH GAMING: jets iscnstaricancciennktoean ied upenineasaiciace 18

THE COURT OF APPEALS DID NOT ACT CONTRARY

TO THE DECISIONS OF THE SUPREME COURT AS TO

THE ROLE OF THE TRIER OF FACT IN RULING UPON

THE STATUS OF MARITIME WORKERG............c:ccceeees 19

A. The Record Contains Substantial Evidence That

Hurlburt Was A Seaman Dunng The Period That

a ee en ee en ee

nt a heen a

vi

Maintenance And Minor Work Not Changing The Mission

And Function Of The Vessel Was Performed........................ 19

B. The Court of Appeals Did Not Hold That The

Question Of Seaman Status Should Be Withdrawn From The

Tner Of Fact And Did Not Do So In This Case....ccccccccccscoee. 20

V.

THIS COURT SHOULD NOT ACCEPT REVIEW OF THIS

MATTER AS REVIEW WOULD NOT ASSIST

MARITIME EMPLOYERS IN PREDICTING WHO

WOULD OR WOULD NOT BE COVERED BY THE

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TABLE OFAUTHORITIES

FEDERAL CASES

Chandras, Inc. v. Latsis,

S15 US. 347, S78 CGB Oo )isessiccssascerscsesesensageanss 9,14, 18

Harbor Tug & Barge Co. v. Papai,

$20 US. SAG CIGD TF) i cccccsscccsescsocenssecnesctarsocssocsuntonbonsseen ta

Roper v. United States,

368 U.S.C. 20, 22-23 (1961). ...cacorsscoccseces ii, 4, 8, 17, 21

McDermott International, Inc. v. Wilander,

498 U.S. 337, 347 (19ST ) un ccccscscsscscssvesensssscoscssseveneenses 14

McKinley vy. All Alaskan Seafoods, Inc.,

980 Fed.2d. 567 (Ninth Circuit)(1992)........ccccceeeeeees 8

Southwest Marine, Inc. v. Gizoni,

S02 US. Bi CHGS Jiccccsccissessssensecsassascsctsassncvsvousstcestones i4

V1

FEDERAL STATUTES

Jones Act/General Maritime Law,

46 USS.C. § 688............. ii, 2-5, 8, 11, 13-17, 20, 22, 27

Longshore and Harbor Workers Compensation Act,

BERS Og 1. TERR ee or Oo 2, 4, 7-8, 11, 17, 22-23

IN THE

Supreme Court of the United States

October Term, 1998

POLMAR FISHERIES, INC.,

Petitioner,

vs.

SUSAN VIOLA HURLBURT,

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

ior the Ninth Circuit

RESPONSE TO PETITION FOR WRIT OF

CERTIORARI

Respondent Susan Viola Hurlburt ("Hurlburt") prays

that this Court deny Petitioner's request for a Writ of

Certiorari to review the Memorandum Decision filed in these

proceedings by the Ninth Circuit Court of Appeals on October

8, 1998.

2

JURISDICTION IN THE COURTS BELOW

Hurlburt agrees with Petitioner's statement regarding

jurisdiction in the courts below.

REPORTS OF OPINIONS BY OTHER COURTS

Hurlburt suffered a back injury on May 17, 1995

while aboard the F*'V NORTHLAND, which was undergoing

minor maintenance and repairs between fishing seasons.

There was nothing “major” or "structural" about this between-

season maintenance and repair and the so-called "retrofit"

Petitioner refers to. The so-called "retrofit" was nothing more

than the addition of a different type of freezer system for

freezing product aboard the ship. Neither the mission nor

function of the vessel changed, in any respect. Always

believing at all times she was a Jones Act/General Maritime

Law seaman, Hurlburt does not and did not make any claim

under Section 5(b) of The Longshore and Harbor Workers

Compensation Act or 33 U.S.C. §905(b). On May 11, 1997,

the District Court entered extensive findings of fact and

conclusions of law, clearly holding that Hurlburt was a Jones

Act/General Maritime Law seaman as of the time and place of

her back injury. Petitioner correctly points out that Hurlburt

filed no appeal from the tnal court's decision and that the

decision of the Court of Appeals on October 8, 1998 held that

3

Polmar was liable under Jones Act/General Maritime Law for

the back injury. The hand injury, however, is no longer in

dispute as Petitioner does not seek review of the Ninth Circuit

Court of Appeals/Trial Court finding and judgment with

respect to the hand injury, which occurred subsequent to the

back injury.

JURISDICTION OF THE SUPREME COURT

Hurlburt agrees with Petitioner's statement with

respect to the jurisdiction of this court.

4

CONSTITUTIONAL, STATUTORY AND OTHER

AUTHORITY INVOLVED

No issues are raised by this Petition for Writ of

Certiorari concerning the interrelationship of the Jones Act, 46

U.S.C. §688 and The Longshore Act as it was clear to the tal

court that Hurlburt was a Jones Act/General Maritime Law

seaman, and the Ninth Circuit Court of Appeals found ample

evidence in the record to support the trial court's decision.

Whether a vessel is in navigation is a question of fact to be

reviewed by the appellate court for clearer error. Roper v.

United States, 368 U.S.C. 20, 22-23 (1961).

STATEMENT OF THE CASE

A. Statement of Facts: Polmar and Northland are

not separate entities and the trial record amply discloses there

is a single principal who speaks and acts on behalf of both

corporations, namely Mark Maring. Both Polmar and

Northland represented in certificates filed and contracts and

other documents at various times that each was the owner of

the vessel F/'V NORTHLAND. Substantial Coast Guard

documentation, including documents generated for stability

reports and related matters, discloses Polmar as the owner of

the vessel F/V NORTHLAND. In spite of Petitioner's

statements to the contrary, there is substantial evidence in the

record, referenced by the Court of Appeals, that Polmar had

absolute control over the F/'V NORTHLAND as of the time

5

and place of Hurlburt's injury, including specifically, who

went on the vessel and for what purpose.

As Petitioner points out, Roger Ortman, a personnel

director employed by Polmar, was responsible for hiring crew

on behalf of the owners of vessels managed by Poimar.

Hurlburt was hired by Ortman, as Petitioner freely admits, to

work aboard the vessel, initially as a salmon processor and,

subsequently, as a cook. There were multiple crew contracts

signed by Hurlburt, including a contract specifically covering

the period of the back injury on May 17, 1995, which contract

specifically provided that Hurlburt was a member of the crew

of the F/V NORTHLAND.

As Petitioner points out, prior to the back injury,

Hurlburt had progressively worked her way up as a member

of the crew of the F/V NORTHLAND, initially as a factory

processor, then as a second cook, then as first cook with

increased salary. Hurlburt's relationship with the vessel prior

to the May 17, 1995 injury was, at all times, as a Jones

Act/General Maritime Law seaman working as part of the

crew of the vessel.

The "major retrofit" alleged by Petitioner is a gross

overstatement of the between-season maintenance and repairs

that were done on the F/V NORTHLAND from March to

May 1995. The so-called "retrofit" work consisted of simply

installing new blast freezers in the processing section of the

6

vessel. Neither the function nor the mission of the vessel

changed in any respect, nor did the ownership.

While Petitioner makes much of the fact that the F/V

NORTHLAND needed a new stability letter, Captain Greiner,

Hurlburt’s marine expert at trial, testified that any minor

change in the balancing or weight distribution of the ship

would require a new stability statement and this had nothing

to do with the vessel being taken out of navigation. At no

time was the watertight integrity of the vessel affected.

When Ortman asked Hurlburt to return aboard the

vessel in early May 1995, he told Hurlburt that she and her

husband were to work as cooks and needed to be on the vessel

as crew came aboard to get ready to depart for the fishing

grounds. In that capacity, Hurlburt ran the galley, purchased

food and cooked for the crew prior to the May 17, 1995

injury. As of that date, there were at least seven

crewmembers aboard for whom Hurlburt was cooking, and, in

addition to her cooking function, Hurlburt cleaned staterooms.

Indeed, the logbook of her work activities as of the date of the

back injury on May 17, 1995 specifically states she was

cleaning staterooms for crewmembers on that date, not

performing longshore work, as Petitioner alleges. Emie

Marshall, who Petitioner identifies as a Polmar employee,

testified that, as of the time and place that Hurlburt rejoined

the vessel, virtually all of the between-season maintenance

-

work had been completed and there was no reason why the

vessel could not have been immediately put to sea.

As of the time and place of Hurlburt's injury, Hurlburt

was living, eating and sleeping aboard the vessel full-time,

was permanently assigned to the vessel; was contributing to

the mission and function of the vessel, to wit, acting as cook

for the crew. Although the vessel was tied up at the time, it

was subject to wave action and the navigation functions of the

vessel, including equipment, engines, etc., were functional.

B. The Decision of the District Court: At trial,

substantial evidence was produced to prove Polmar and

Northland were one and the same and controlled by the same

principal, Mark Maring.

Although at trial Petitioner alleged Polmar was

Hurlburt's employer and that Hurlburt was a Longshore and

Harbor Workers Act employee, Polmar did nothing with

respect to its obligation under that Act, even if such were true.

Indeed, Polmar did not pay Hurlburt's medical and only paid

her benefits under the Act initially and very briefly. This led

the Court to enter Finding of Fact #17: "Defendants [Polmar

included] have consistently, arbitrarily and in bad faith failed

to pay the required maintenance and cure and thus caused

plaintiff to be evicted from her home, denied pain medications

and to suffer the humiliation of collection proceedings against

her. The Court finds that Defendants’ conduct in this regard

8

was outrageous and intentional.” Whether as maintenance

and cure as a Jones Act/General Maritime Law seaman cr

with respect to benefits under the Longshore and Harbor

Workers Act, 33 U.S.C. 905(a), Polmar DID NOT pay

benefits to Hurlburt as required. Thus, Petitioner's claim,

Brief, page 9, to the effect that Polmar "...secured the payment

of compensation for Hurlburt's injunes as required by Section

4 of the Longshore Act, 33 U.S.C. 904" is completely false

and constitutes a material misstatement of fact to this Court.

C. Decision of the Court of Appeals: The Ninth

Circuit Court of Appeals correctly viewed the question as

simply one of fact to be reviewed for clear error:

Defendants next contend that Hurlburt is not

entitled to recover for her back injury under

the Jones Act because, at the time of the

injury, the F/V NORTHLAND was not in

navigation, an essential element of her claim

as a seaman. The District Court found that

the vessel was in navigation. Whether a

vessel is "in navigation” is a question of fact,

which we review for clear error of law. See

Roper v. United States, 368 U.S. 20, 20-23

(1961).

The Court went on to state there was substantial evidence in

the record from which the trial court could find that the F/V

NORTHLAND was a vessel in navigation. The Ninth Circuit

Court of Appeals specifically cited the fact that this vessel

bore no relation whatsoever to the vessel in McKinley v. All

Be aot oa oh at SSMONET a EL AMG Sk EN RR aE

9

Alaskan Seafoods, Inc., 980 Fed.2d. 567 (Ninth Circuit) 1992,

where a ship had been converted from an oil ship valued at

$451,000 to a $14,000,000 processing vessel, and that, in this

instance, there was no change in the mission and function of

the vessel since the so-called "retrofit" was simply adding a

new refrigeration system. As the Court stated:

...While reasonable minds might differ, we

cannot say that the District Court's finding

that she was in navigation was clearly

erroneous. See Chandras, Inc. v. Latsis, 515

US. 347, 374 (1995)("[v] Vessels undergoing

repairs or spending a relatively short period of

time in dry dock are still considered to be in

navigation, whereas ships being transformed

through major overhauls or renovations are

not.”

Decision at page 4.

Petitioner's concern that the Ninth Circuit Court of Appeals

"neither considered or remanded to the District Court for

consideration of other evidence in the record which related to

Hurlburt's status" is unfounded. The trial court thoroughly

aired all issues and testimony with respect to Hurlburt's status,

and the Court of Appeals reviewed this record. Nothing

whatsoever would result from a remand. Petitioner amply

aired its concerns, evidence and testimony on seamanship and

related issues, as to Polmar and/or Northland. At trial,

Hurlburt alleged the corporations were one and the same and,

10

while Petitioner maintained there were subtle differences

between the entities, it had its day in court with respect to the

fact issue of seamanship status. Thus, there is no basis under

the Rules of the Supreme Court and, in particular, Rule 10(c),

to consider granting a writ of certioran. There are no special

or important reasons for granting the wmit in that the matter is

entirely an issue of fact-based determination. The District

Court's holding that Polmar and Northland were one and the

same entities did not result in the District Court considering

any less evidence or testimony or Petitioner making any less

of a showing at tnal. Accordingly, there is nothing in the

record to support, as Petitioner claims, that the District Court

chose not to consider seamanship status evidence because the

District Court ultimately found Polmar and Northland to be

the same entity. The stay of the mandate issued on November

27, 1998 referred to by Petitioner contained no support for

Petitioner's argument and was simply a one-word order

allowing the mandate to be stayed.

1]

RESPONSE TO REASONS FOR GRANTING THE

WRIT

i. THIS CASE RAISES NO UNCERTAINTIES

REGARDING ANY DIFFERENCES BETWEEN

SEAMEN AND LAND-BASED WORKERS

COVERED UNDER THE LONGSHORE ACT.

Petitioner first ends its argument with words to the

effect that this Court should accept review in order to resolve

uncertainties between seamen and land-based workers by

arguing that "...the line between land-based and sea-based

maritime workers, though it may be clear in theory, has

proven very difficult to draw in practice." Brief, page 14.

This case, however, does not present any ambiguity regarding

this distinction. In this case, it was clear that Hurlburt was a

Jones Act/General Maritime Law seaman.

Petitioner's entire claim under this section is based on

its statement to this Court that Hurlburt "...at the time of her

injury...had no connection whatever to any vessel that was

capable of putting to sea..." This is again a material

misstatement of the record in this Case, as is evident from the

trial court's findings of fact and the Court of Appeal's review

of the trial court's record. Hurlburt's connection to the F/V

NORTHLAND was substantial and the F/V NORTHLAND

Was not, as Petitioner asserts, a vessel incapable of putting to

sea. Hurlburt's connection to the vessel consisted of: (1)

12

Living, eating and sleeping full-time aboard the vessel as of

the time and place of her injury; (2) working as an identified

member of a crew with a specific position, to wit, cook; (3)

performing shipboard duties consistent with being a member

of the crew, including duties on the day of her injury that

consisted of cooking und cleaning staterooms; (4) boarding

the vessel at the invitation of Roger Ortman, acknowledged by

Petitioner to be a representative of Northland that hired crew

for the F/V NORTHLAND; (5) working under a written

contract specifically covering the date of her injury wherein

she was hired to perform the function of cook.

With respect to navigational issues, the F/V

NORTHLAND, as of the time and place of the May 17, 1995

injury: (1) Was never in "dry dock," as Petitioner maintains,

but was tied alongside the dock in the shipyard; (2) never had

its watertight integrity breached or any work done that

breached the "box girder" watertight integrity; (3) had nothing

more substantial in the way of a "retrofit" done to it other than

the addition of new blast freezers with some minor

modification of existing decks; (4) as of the time and place of

Hurlburt's back injury, had substantially completed all of the

repairs, maintenance and so-called "retrofit" such that all that

remained was a minor paint schedule and associated matters.

The facts as stated above were exhaustively reviewed

by the trier of fact, and the Ninth Circuit did not, as Petitioner

13

alleged, find Hurlburt a Jones Act/General Maritime Law

seaman "...merely because she was injured on a vessel in

navigation, without allowing or requiring the trier of fact to

consider other circumstances bearing on her employment

Status." The trial court entered substantial findings of fact

directly relating to Hurlburt's seamanship status, including

several dealing specifically with the issue of navigation. For

example, Finding of Fact 8, finding that Hurlburt was

; operating under a signed written contract with defendants,

which made her a cook aboard the vessel; Finding of Fact 9,

i finding that, contrary to Petitioner's direct allegation, upon

: being asked to do Scraping and grinding work, she refused to

do so, informing supervisors that they had not been hired to

do this form of work, but instead was a member of the crew;

AP Feleace

Finding of Fact 10, Hurlburt, contacted both by Roger @rtman

| and a second Northland representative, Neil Anderson,

affirming that she was to act as cook for the salmon season, to

return to the vessel, to prepare the vessel for the forthcoming

Salmon season and to sign a contract to that effect (indeed,

Hurlburt left with the vessel] for the fishing grounds and

served as a cook); Finding of Fact 13, finding that Hurlburt

was cooking for crewmembers as of the time and place of her

Te

injury and had been buying food with money provided by

Northland; Finding of Fact 15, finding that the watertight

integrity of the vessel was unaffected by the work, that the

14

vessel remained a fish processor, that relative to the value of

the vessel, the work performed did not increase its value so

significantly that the vessel could have been considered to be

out of navigation. Thus, this case presents no basis for

reconsidering or disturbing the substantial body of law on

these issues, including McDermott International, Inc. _v.

Wilander, 498 U.S. 337, 347 (1991); Chandras v. Latsis, 515

U.S. 347, 355-56 (1995); Harbor Tug & Barge Co. v. Papai,

520 U.S. 548 (1997) and Southwest Marine, Inc. v. Gizoni,

502 U.S. 81(1991).

Il. THIS COURT HAS NO NEED, AS PETITIONER

ALLEGES, TO CLARIFY THE

REQUIREMENTS OF THE JONES ACT WITH

RESPECT TO EMPLOYMENT STATUS,

INCLUDING A SUBSTANTIAL CONNECTION

TO A VESSEL IN NAVIGATION

Petitioner seems to quarrel with MHurlburt's

employment-related status to the vessel and again raises issues

regarding the requirement of vessels in navigation. Petitioner

correctly points out that the purpose of requiring workers to

be connected to a vessel in navigation is to further the

Congressional aim of providing a remedy under the Jones Act

to seafaring workers whose employment exposes them to the

perils of the sea. Petitioners Brief, page 21.

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15

Petitioner then argues that the decision of the Court of

Appeals is "inconsistent" with these requirements. Again,

Petitioner argues facts that are thoroughly reviewed, including

issues about cost and purpose of the retrofit, how extensive

the retrofit was and whether the vessel could be put to sea —

again, all fact issues thoroughly explored by the trial court, a

record found by the Court of Appeals to be sufficient for

purposes of the District Court deciding the way it did.

Hurlburt's case is one that does not raise new issues

regarding seamanship status. If there ever was any doubt, and

there wasn't, all doubts were erased by learning what Hurlburt

ended up doing on the vessel. Hurlburt lived aboard the

vessel from early May 1995 and continued on with the vessel,

albeit with a bad back, after the vessel departed for the fishing

grounds. If, as Petitioner alleges, Hurlburt was not a Jones

Act/General Maritime Law seaman, why did she continue on

with the vessel, never leaving the vessel, always living and

working full-time aboard the vessel, and departing with the

vessel when it went to the fishing grounds where she served

as a cook? Unlike what Petitioner claims, this is not a case

where an individual had only a transitory connection with a

vessel and had no connection when it departed for sea, as is

often the case when seamanship is challenged.

The navigability of the F/'V NORTHLAND was hotly

contested at trial. Substantial admissions by

16

Polmar/Northland at trial clearly indicated the vessel was not

a "dead ship," as Petitioner seems to allege. When compared

to initial costs many years ago, the value of the new

refrigeration system seemed extensive proportionately, but it

was only a small percentage of the overall insured value of the

vessel. The so-called "substantial portions" of the ship's

structure, which were demolished and rebuilt, consisted of the

freezer area and, to a much lesser extent, the movement of

decks. The impact regarding the propulsion system and

engines was, again, only marginal. While there may have

been work to the fuel oil vents, there was no redoing of the

engines, new engines, change in engines, change in ship's

electrical, etc. Representatives of Polmar/Northland testified,

in essence, that with a few minor measures, the F/V

NORTHLAND could have immediately set for sea in early

May 1995. The stability letter discussed earlier simply refers

to a revision in stability required any time a change in weight

distribution on the vessel is effected.

Contrary to Petitioner's assertion, the Congressional

purpose of the Jones Act wouid be frustrated if this Court

were to enter into these proceedings on the grounds alleged by

Petitioner. Petitioner seems to argue for a standard that would

make any persons working aboard vessels that were tied up at

docks, for whatever reason, incapable of becoming Jones

Act/General Maritime Law seaman.

17

Finally, and of equal importance, is the unchallenged

fact that Petitioner never treated Hurlburt as if she were a

longshore worker. Finding of Fact 17, never challenged and

never appealed by Petitioner, specifically found that both

Polmar and Northland, individually or collectively, in bad

faith failed to pay Hurlburt's medical expenses. Indeed, the

record demonstrates and the findings confirm that Hurlburt

was deprived of medical cure and was forced to suffer pain,

“denied pain medications," because these entities were not

paying anything on behalf of Hurlburt, no matter how

denominated — Jones Act seaman, General Maritime Law or

Longshore Harbor Workers Act. The Court specifically

found: "The Court finds that Defendant's conduct in this

regard [denial of medical cure and maintenance] was

outrageous and intentional." Finding of Fact 17, page 14, A-

14, Petitioner's Brief.

Ill. THERE IS NO NEED TO CLARIFY THE TRIER

OF FACT'S OBLIGATION WITH RESPECT TO

MAKING A DETERMINATION WHETHER

THE CLAIMANT IS COVERED UNDER THE

JONES ACT OR THE LONGSHORE ACT.

A. Standard of Review. Petitioner's allegation

that the Court of Appeals "applied an improper legal standard

to the question of seaman status" is completely unfounded.

The Court applied the correct standard as set forth in Roper v.

United States, 368 U.S. 20, 22-23 (1961), a standard setting

18

forth that a question of fact shall be reviewed by the appellate

courts for clear error. That is exactly what the Court of

Appeals did in this case, finding substantial evidence in the

record to support the trial court's decision. There is no

"question of law" "

B. The Court Of Appeals Did Not Decide A

Federal Question In Any Way That Conflicts With The

Applicable Decisions Of This Court. As pointed out above,

subject to de novo review."

the Court of Appeals did not conclude Hurlburt was a seaman

merely because she was aboard a vessel in navigation. The

two-element test of Chandras v. Latsis, supra, to the effect

that an employee's duties must contribute to the function of

the vessel or accomplishment of its mission and the employee

must have a connection to a vessel in navigation, was

thoroughly analyzed by the Court of Appeals and thoroughly

tried by the trial court. Hurlburt was deemed to have been

providing services contributing to the function of the vessel

and to have had a permanent connection to the vessel, having

lived and worked aboard the vessel throughout all time

periods relevant to this issue. The totality of these

circumstances were analyzed in detail in both the trial court

and the Court of Appeals.

19

IV. THE COURT OF APPEALS DID NOT ACT

CONTRARY TO DECISIONS OF THE

SUPREME COURT AS TO THE ROLE OF THE

TRIER OF FACT WITH RESPECT TO

DETERMINING THE STATUS OF MARITIME

WORKERS.

A. The Record Contains Substantial Evidence

That Hurlburt Was A Seaman As Of The Time And Place

Of Her Injury. Petitioner's briefing on the above issue is

exceptionally vague and fails to point out that the only time

that counts is the time of the actual injury, May 17, 1995. It is

not, as Petitioner alleges, a requirement that Hurlburt show

that she was aboard the vessel as a seaman during the entire

"retrofit."

Contrary to Petitioner's allegation that Hurlburt was

discharged as a member of the crew in March 1995, the trial

court found that Hurlburt was under contract on the May 17,

1995 date of injury as a cook aboard the vessel. The contract

status in March 1995 is irrelevant, even though, as Hurlburt

proved at trial, she was then under a previous contract as a

crewmember for the vessel. Hurlburt did not come aboard the

vessel for purposes of acting as a longshore worker; indeed,

just as Finding of Fact 9 points out, when defendants

attempted to get Hurlburt to perform longshore-type work

such as hammering, etc., Hurlburt left the vessel until

20

Polmar/Northland agents Robert Ortman and Neil Anderson

asked her to come back to cook for the salmon season.

Petitioner's claim, Brief, page 29, to the effect that

"Mrs. Hurlburt's work during the retrofit was not covered by

crew contract or other written agreement" is directly

contradicted by unchallenged Finding of Fact 10, Trial Court

Decision, page A-12, which specifically found there was a

signed contract hiring her as first cook. It is true that the

contract was not signed until June 10, 1995, however, the

previous contract in the exact same form (only the position

changed) covered the 120-day period prior to the June 10

contract. See Finding of Fact 16, also unchallenged, "The

contracts signed by plaintiff all indicated that they were for at

least 120 days’ duration..." Trial Court Decision, page A-14.

While paychecks may have been issued by Polmar, this was

significant to the Court of Appeals only to determine which of

the two defendants, under circumstances where only one

defendant could be responsible, would be held liable for the

Jones Act remedies.

B. Nothing In The Court of Appeals’ Decision

Suggests That The Court of Appeals Ruled That The

Question Of Seamanship Status Should Be Withdrawn

From The Trier Of Fact. For reasons that are not self-

evident, Petitioner argues: "The Court of Appeals erred in

withdrawing the question of seaman status from the trier of

21

fact." Yet, nothing in any of the Court of Appeals’ decision

Suggests in any way that it held, or withdrew, the question of

seamanship status from the trier of fact. To the contrary, the

Court of Appeals reviewed the record and found a substantial

basis for the trier of fact to make the decision it did. Again,

the Court of Appeals specifically held: "... Whether a vessel is

in navigation is a question of fact, which we review for clear

error. See Roper v. United States, 368 U.S. 20, 22-23

(1961)." Decision of the Court of Appeals, page A-3. Again,

the Court of Appeals stated: "While reasonable minds might

differ, we cannot say that the District Court's finding that she

was in navigation was clearly erroneous." At page A-4.

Petitioner's "illustration" of how the trier of fact

"might have been misled," Brief, page 33, is puzzling and

suggests facts and issues unrelated to any issue in this case.

Petitioner suggests this Court consider "what if" Hurlburt had

worked for some other company, "such as a pipe fitting or

metal working contractor,” living off the vessel, working for a

different employer, having no connection with the vessel

whatsoever. Or, Petitioner urges that the Court consider

"what if" Hurlburt had been hired by a union hiring hall.

These are hypotheticals completely unrelated to this case and

this entire portion of Petitioner's briefing should be

disregarded as irrelevant and supercilious.

22

If anything, the fact that the trial court found Polmar

and Northland to be one and the same proves the tral court

considered all of the evidence equally with respect to-each

defendant. The tnal court did not draw any distinction

between Polmar and Northland when it came to facts in the

record regarding Jones Act/General Maritime Law status.

The trial court thoroughly analyzed these issues with respect

to both defendants. Nothing would be served in a remand to

the trial court or any further analysis.

Moreover, based on this record, it is clear that even if

Petitioner had an argument for application of the Longshore

Act, that Act itself discloses that Hurlburt would be entitled to

Jones Act/General Maritime Law remedies because of how

horribly Polmar has mishandled and failed to pay Hurlburt

any benefits. The Act, at 33 U.S.C. §905A-B, subpart (a),

states, in pertinent part:

(a) Employer Liability; failure of employer to

secure payment of compensation.

The liability of an employer proscribed in

Section 904 of this title shall be exclusive and

in place of all other liability of such employer

to the employee...except that if an employer

fails to secure payment of compensation as

required by this chapter, an injured employee,

or his legal representative in case death results

from the injury, may elect to claim

compensation under the chapter, or to

23

maintain an action at law or in admiralty for

damages on account of such injury or death...

As stated above, Polmar did not challenge Finding of Fact 17,

"Defendants have consistently, arbitrarily and in bad faith

failed to pay the required maintenance and cure and thus have

caused plaintiff to be evicted from her home, denied pain

medications and to suffer the humiliation of collection

proceedings against her. The Court finds the defendant's

conduct in this regard was outrageous and intentional." Page

A-14. And, indeed, Polmar even admits that it stopped paying

compensation, including payment of compensation under the

Longshore Act. Specifically, at Petitioner's Brief, page 35,

Petitioner states:

..When Mrs. Hurlburt reported her back

injury to Polmar, Polmar reported it to the

longshore compensation carrier.

Compensation benefits were paid until Mrs.

Hurlburt's attommey wrote a letter demanding

that she be compensated as a seaman rather

than a longshoreman.

In other words, even though Polmar now claims and,

according to its brief, believes Hurlburt was a longshoreman,

Polmar failed to pay any benefits, blaming its insurer, and

allowed Mrs. Hurlburt to be denied medical cure, including

pain medications. It is evident that Polmar knew of its duty

and failed to follow through. How, now, Polmar can argue

24

that Hurlburt was longshore and acknowledge, by way of

failure to appeal, a finding of outrageous conduct and denial

of benefits, is unexplained. The Act makes it very clear that

Hurlburt was entitled to admiralty remedies even if she was

longshore under circumstances where benefits were denied, as

is admitted in this case. This, alone, negates any argument of

Petitioner to the extent that Petitioner has any valid argument,

at all, that Hurlburt was a longshoreman.

Vv. THIS COURT SHOULD NOT ACCEPT

REVIEW OF THIS MATTER, AND NOTHING

IN THESE PROCEEDINGS WOULD ASSIST

MARITIME EMPLOYERS IN PREDICTING

WHO WOULD BE COVERED BY THE

LONGSHORE ACT.

Incredibly, Petitioner argues that which form of

insurance a defendant purchases should determine the status

of the claimant! Petitioner argues, Brief, page 34, that,

because Northland claims to have obtained standard

protection and indemnity insurance to cover seaman injuries

and Polmar obtained on-shore coverage, and the Court of

Appeals held Polmar liable, the Court should correspondingly

find that Hurlburt was not a seaman! There is no law, no

statute and no authority for this proposition. Further, it is

disingenuous for Petitioner to suggest this argument when it

did not provide longshore remedies to Hurlburt and let her

suffer in pain for want of medication and cure. Again, see

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Finding of Fact 17, finding that Polmar's and Northland's

actions were outrageous and had the effect of Hurlburt not

havimg pain medications and being driven out of her home. If

this Court was to accept Petitioner's argument, this Court

would be rewriting Congressional law on a basis that has no

support statutorily or in the common law.

Petitioner also substantially and materially misstates

the record when it claims "Northland Fisheries...observed

strictly at all times the requirements of State law pertaining to

observance of corporate formalities, separation of assets,

adequacy of capitalization, financial responsibilities and other

requirements for preserving their corporate form." Brief, page

35. In fact, the record indicates exactly the opposite. The

record discloses that a single individual, Mark Maring, was

the corporate embodiment for both Polmar and Northland.

Mr. Maring constituted every officer and the entirety of the

Board of Directors for Polmar Corporation. At the same time,

he was a member of the Board of Directors and the main

officer for Northland Corporation. Northland and Polmar

commingled all of their assets involved in this case. Indeed,

they shared the same telephone number, had the same address,

were physically located in the same place, used the same

personnel, were run by the same individual and were so bound

up in each other that they were indistinguishable. Thus, it

strains credulity and raises questions of fairness for Petitioner

26

to state, as fact, what the record so clearly and unequivocally

demonstrates to the contrary.

CONCLUSION

This Petitioner has so substantially misstated the

record that some of its fact allegations raise questions of

fairness with respect to the Court considering its petition.

Much of what Polmar urges as "fact" is belied by a simple

reading of the trial court's decision, the Court of Appeals'

review of that decision and the unchallenged findings of fact

entered by the trial court, including the unchallenged finding

of fact that Polmar treated Hurlburt outrageously in its denial

of medical benefits, a denial which makes Polmar’s claim that

Hurlburt is a longshore worker, covered by longshore

benefits, the epitome of inconsistency. There is nothing

significant in this case with respect to raising issues that

should cause this Court to reconsider any of its law on matters

of seamanship status. There is no confusion, as Petitioner

alleges, with respect to the role of the tier of fact as

demonstrated by the actions of the Court of Appeals, which

correctly reviewed the record to determine whether there was

clear error based on the record and the Court's decision. To

grant Petitioner's petition would tum the process of reviewing

the matter for clear error on its head and would create a new

standard that is wholly inconsistent with the cases cited by

27

Petitioner. In bringing this petition, Petitioner has again

succeeded in delaying and denying Hurlburt any remedy, or

the benefits of law, whether as a Jones Act seaman or

longshoreman in that it does nothing for Hurlburt other than

prolong litigation to delay the inevitable. The petition should

be denied and defendant Polmar should face the day when it is

made responsible for its inconsistent and largely reprehensible

actions.

Respectfully submitted on this 12" day of April, 1999.

UNIVERSITY PLACE LAW OFFICES

Thomas C. Evans

Attorney for Respondent Hurlburt

TCE/ab

Hurlburt\usscresp