Opposition Brief — Nacirema Operating Co. v. Johnson

INDEX

TABLE OF CONTENTS

PAGE

OprInions BELOW...................... 1

QUESTION PRESENTED... 2

StaTUTES INVOLVED............. 2

osc scgiscnapticaissncsnansnsvasnes ; 2

REASONS FOR DENYING THE WRIT... .. 4

ro Shs esinnsassenvsarssiiés ea B: 11

TABLE OF AUTHORITIES

Cases

The Admiral Peoples, 295 U.S. 648, 79 L. Ed. 1633 4,5

Avondale Marine Ways, Inc. v. Henderson, 346 U.S.

366, 98 L. Ed. 77............ . 7

Banks v. Chicago Grain Trimmers Association, Inc.,

390 U.S. 459, 20 L. Ed. 2d 30........... 8

Boston Metals Co., et al. v. O’Hearne, Admiralty No.

doe: csukisce: 7

Butler v. Whiteman, 356 U. S. 271, 2 ti Ed. od 754

ac 9

Calbeck v. Travelers ins. Co., 370 US. 114. eA 5, 6,7

Crumady v. The J. H. Fisser, 358 U.S. 423 ( 1959) 1 8

The Daniel Ball, 10 Wall 557, 77 U.S. 557, 19 L. Ed.

i). een 11

Economy Light & Power Co. v. _ United States, 256

US. 113, 45 L. Ed. 847 (1920)... 10, 11

Federal Power Commission v. Union Electric Com-

pany, 381 U.S. 90, 14 L. Ed. 2d 728 (1965) .. 11

Gondeck v. Pan American World Airways, Inc., 382

U.S. 25, 15 L. Ed. 2d 21 (Defense Bases Act, 1965) 8

EERE PRL AE ER GRIN AOI NER R IS EE:

Grimes v. Raymond Concrete Pile Company, 356 U.S.

eS SS) ee

Gutierrez v. Waterman Steamship Corp., 373 U. S.

ay EP NG MN I oo Sic s onsets bsccncns ecbsactsenssnz

Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272,

Be Wii ie Dooce cece

Ch eR ORETA CEA EMEE A ROS GIN Ea eacn wiceliation Pay rection

0 "Sa RRR ia a ag a

Interlake S.S. Co. v. Nielsen, 338 F. 2d 879, 882-883

BUR anasto le res SE a aes «tol Sa

International Stevedoring Co. v. Haverty, 272 U.S. 50

Jackson v. Lykes Bros. Steamship Co., Inc., 386 U.S.

731, 18 L. Ed. 2d 488 (1967) 20.

L’Hote v. Crowell, 54 F. 2d 212 (5 Cir.)

Mascuilli v. United States, 387 U.S. 237, 18 L. Ed. 2d

I

Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 5

"<< ¢ S: — . Saeiaierce cst oreeenes cee

Michigan Mutual Liability Co. v. Arrien, 233 F. Supp.

I NN I oss coeacecoustrandabascasiesinsee

aaa i ate mage .

Puget Sound Bridge & Dry Dock Co. v. O’Leary, 260

F. Supp. 260 (W.D. Wash. 1966)...

Pure Oil Company v. Suarez, 384 U.S. 202, 16 L. Ed.

aS Se IRS icone et ene aan

i

Rochester Gas and Electric Corp. v. F.P.C., 344 F. 2d

og | RIE cee Petey eo

Spann v. Lauritzen, 344 F. 2d 204 (3 Cir., 1965)...

Tipton v. Socony Mobil Oil Company, Inc., 375 U.S.

My BE Bi AID oon vcnscsnssiencsnvorcesccoseosossassrevss,

United States v. Appalachian Electric Power Co., 311

USS. 377, 85 L. Ed. 243 (1941) occ

PAGE

|

mA sath Hse RR

ili

PAGE

United States v. Holt State Bank, 270 U.S. 49

PU 5 cs cdunvapdersvehstorcen id tuwiacdouhtarectanah énoenabdbeniesnens ee

United States v. Rands, 389 U.S. 121, 19 L. Ed. 2d 329

SI aor choi erotetenves debasnvssnndeubtinsekvonenssove<tomminvasessoveeiies 11

Vaughan v. Atkinson, 369 U.S. 527, 8 L. Ed. 2d 88

No By ata Ssh peso aden gear eased earn 9

Voris v. Eikel, 346 U.S. 328, 98 L. Ed. 5. 7

Waldron v. Moore-McCormack Lines, lee. 386 U. S.

724, 18 L. Ed. 2d 482 (1967). a 10

Stctutes

Longshoremen’s and Harbor Worker’s Compensa-

tion Act, 33 U.S.C. 901 Et. Seq. wee + FFs

The Admiralty Extension Act, 42 U. S. C. ES 7

We Bh TINIE TD acs na ssesesscncesseveeinsenennntssonnvonerncanssnees 11

Miscellaneous

iis Commas, Tne. GUNG sks css ecccnsteesenensnne. 6

In THE

Supreme Court of the United States

OctToBer TERM, 1968

No. 528

NACIREMA OPERATING CO., INC. anp LIBERTY

MUTUAL INSURANCE COMPANY,

Petitioners,

v.

WILLIAM H. JOHNSON, JULIA T. KLOSEK anp

ALBERT AVERY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourT OF APPEALS

FOR THE FourRTH CIRCUIT

BRIEF FOR THE RESPONDENTS JOHNSON

AND KLOSEK IN OPPOSITION

OPINIONS BELOW

The Opinion of the Court of Appeals (pages 40a-64a of

the Appendix of the Petition) is reported at 398 F. 2d 900.

The Opinion of the District Court (pages 8a-3la of the Ap-

pendix of the Petition) is reported at 243 F. Supp. 184. The

orders of Deputy Commissioner Traynor are set forth on

pages 3a-8a of the Appendix of the Petition.

OLE SEA SEPI GIS LOLI RG SITET NEN TAY af aie AB Bate enero ,

2

QUESTION PRESENTED

Under contemporary admiralty concepts, does the Long.

shoremen’s and Harbor Workers’ Compensation Act cover

injury or death sustained on a pier over navigable water

a es

when the precipitating instrumentality is a shipboard

crane?

STATUTES INVOLVED

In addition to the portions of the Acts cited in the Peti-

tions heretofore filed, Respondent respectfully calls the

attention of the Court to the following section of the Long-

shoremen’s and Harbor Workers’ Compensation Act, 44

Stat. 1424, as amended, 33 U.S.C. 901, et seq.:

920 (Section 20 of the Act). Presumptions.

“In any proceeding for the enforcement of a claim

for compensation under this chapter it shall be pre-

sumed, in the absence of substantial evidence to the

contrary—

(a) That the claim comes within the provisions of

this chapter.”

STATEMENT

Together with other members of their gang, William H.

Johnson and Joseph J. Klosek, longshoremen, reported to

the Bethlehem Steel High Pier, Sparrows Point, Maryland,

to load a cargo of steel beams aboard a sea-going freighter

tied up alongside. The High Pier extends into the Patapsco

River, part of the navigable waters of the United States,

in a southerly direction for a distance of approximately six

hundred (600) feet.

The 16-member gang turned to at 8:00 A.M. November

14, 1963; the two men were part of the four longshoremen

who were working “outside” — that is, on the pier. The

—

3

beams which measured roughly forty feet in length were

delivered to the ship’s side in gondola railroad cars. The

ship’s crane was being used to pick up the drafts and load

them into the holds. The casualty occurred around 4:15

PM. Klosek and Johnson passed the chain under a draft

(the beams were banded into three drafts in the gondola

car in question) hooked on and started toward the side of

the car to climb out.

After starting up, the draft rotated, striking Klosek and

propelling him out of the gondola car onto the dock; the

same draft pinned his partner, Johnson, against the side of

the railroad car. Johnson recovered from his injuries with

residuals; Klosek died within a few hours from his injuries.

The Deputy Commissioner denied the claims on the ground

the injuries were not sustained “upon navigable waters”;

the District Court affirmed.

The Court of Appeals in a 5-2 en banc decision held that

the injury and death were compensable under the Long-

shoremen’s and Harbor Workers’ Compensation Act and

remanded the cases. Chief Judge Sobeloff, speaking for the

five man majority, cited four reasons for the decision, any

one of which was deemed sufficient to establish coverage

under the Act. The grounds for the decision were:

1. Congress possessed the constitutional authority to

cover all longshoremen injured during the loading, unload-

ing, repairing or refitting of vessels, and exercised the full

scope of its authority by designing the Act to reach all in-

juries sustained by longshoremen in the course of their

employment; it did not intend to “freeze coverage to in-

juries occurring within the admiralty tort jurisdiction as

it was thought to exist in 1927... .” (398 F. 2d at 904).

4

2. If, for the purpose of argument, one assumes Congress

had exercised the more limited tort jurisdiction, the phrase —

“upon navigable waters” must be “construed to include the

cept of maritime jurisdiction” (398 F. 2d at 906).

3. Small vessels are able to navigate beneath the piers.

“These waters are therefore navigable in fact” (398 F. 2d at

908).

4. This Honorable Court has twice mandated the human-

itarian Act “must be liberally construed in conformance

with its purpose, and in a way which avoids harsh and

incongruous results . . .” and has admonished “(those)

subject to the same danger . . . (are) entitled to like treat-

ment under law.” The Court of Appeals also adverted to

the observations of Judge Soper that “the references there

in to ‘maritime employment’ and the injury ‘upon the navi-

gable waters of the United States . . .’ should be broadly

construed,” and that the coverage of the Act “should not

be frustrated by needless refinements” (398 F. 2d at 906-

909).

With the above elaboration, Respondents accept the

“Statement” contained in the Government’s Petition.

REASONS FOR DENYING THE WRIT

Respondents oppose the granting of the writ, particularly

in the Klosek case, because this decision is consonant with

decisions in other circuits which have held that when a

longshoreman is lifted off the level of the pier and dropped,

his injuries or death are compensable under the Act. The

first decision to this effect was handed down in 1931 in

L’Hote v. Crowell, 54 F. 2d 212 (5 Cir.). In The Admiral

Peoples, 295 U.S. 648, 79 L. Ed. 1633, this Court explained

that it had reversed on the question of dependency but

Laat ei ea

: ‘

full range of the legislatively and judicially expanded con.

9]

left undisturbed the jurisdictional determination (of

L’Hote) that the injury was covered by the Act (295 US.,

at 653).

If, for policy considerations or because of the general

importance of the matter to the uniform administration of

the Act, the Court feels disposed to grant the writ, it is

respectfully submitted the writ should be granted and the

decision of the Court of Appeals affirmed per curiam with-

out assigning the case for plenary consideration and argu-

ment, for the following reasons:

1. The decision below is plainly correct, supported by

both logic and the philosophy of current admiralty con-

cepts as enunciated by this Court. It is significant that the

government did not attack the fairness, the legal correct-

ness or the social desirability of the holding in its petition.

After calling attention to the existing conflict in the circuits

and the disparity of benefits that would result therefrom,

the Solicitor General requested this Court to resolve the

question because of its “general importance”.

It is also illuminating to observe that — exclusive of

Calbeck v. Travelers Ins. Co., 370 U.S. 114 — of the other

six Supreme Court decisions cited in the Amici Curiae

Brief of National Association of Stevedores, et al., the most

recent was decided in 1952; the dates of the others are 1917,

1920, 1922, 1924, and 1946. The Petition of Nacirema Op-

erating Co., Inc., et al. contains no citation to a Supreme

Court case other than Calbeck.

As former Chief Judge Sobeloff pointed out, “Regardless

of the route traveled, we arrive at the conclusion that the

injuries of all four longshoremen are embraced by the Act”

(398 F. 2d at 908). The bases of the lower court’s decision

were itemized in the “Statement” portion of this Brief,

supra.

2. The lower court correctly interpreted the legislative

history of the Longshoremen’s Act. This aspect of the case

was thoroughly researched and argued below. The Peti. ; i

tioners filed a Supplemental Brief seven pages of which

dealt exclusively with the legislative history of the Act

These Respondents filed a Supplemental Brief thirteen

pages of which were devoted to the Act’s legislative history.

After calling attention to the fact the Act by its own

terminology was designated as one to provide compensa-

tion for disability or death incurred in certain “maritime

employments”, the opinion below traced the discussions in

the hearings and pointed out that all the interested prin-

cipals — the unions, the shipping industry and the Labor

Department — testified in support of an act that would

cover all injuries of maritime workers (398 F. 2d at 903).

In the final debate on the Act, shortly before it was

enacted into law by a vote of 265 to 7, Congressman La-

Guardia offered this explanation of the Act and its purpose:

“This law simply gives the longshoremen the benefit

of up-to-date legislation to cover injuries sustained in

the course of their employment. That is all there is

to it.” 68th Cong. Rec. 5414. (398 F. 2d at 905).

The lower Court then observed that theorizing was no

longer necessary since this Court authoritatively resolved

the question in Calbeck. It went on to quote excerpts from

that opinion, the most pregnant of which were:

“. . . Congress intended to exercise to the fullest

extent all the power and jurisdiction it had over the

subject matter. * * * ... Congress intended the com-

pensation act to have a coverage co-extensive with the

limits of its authority”. 370 U.S. at 130. (398 F. 2d

at 905).

-

_ “Puen Ot tet Rad

PR eRe 5h CM ed, be el

—

7

3. The court below was correct in concluding that the

Admiralty Extension Act expanded the coverage of the

Longshoremen’s Act.

As authority for its conclusion in this regard, the lower

court relied on Calbeck and also cited the Michigan Mutual

Liability Co. v. Arrien, 233 F. Supp. 496 (S.D., N.Y., 1964);

Boston Metals Co., et al. v. O’Hearne, D.C., Md., Admiralty

No. 4412 (unreported at District level, June 20, 1963);

Interlake S.S. Co. v. Nielsen, 338 F. 2d 879, 882-883 (6 Cir.,

1965); Spann v. Lauritzen, 344 F. 2d 204 (3 Cir., 1965) (by

implication); Puget Sound Bridge & Dry Dock Co. v.

O’Leary, 260 F. Supp. 260 (W.D. Wash., 1966) cases.

The above comments have been made in response to the

points set forth in paragraph 4 of Petitioner Nacirema’s

“Reasons for Granting the Writ”. We offer the following

affirmative reasons for affirming the decision of the Court

of Appeals:

A. The Act is remedial legislation and should be applied

with the utmost liberality to avoid harsh and incongruous

results.

One of the early cases in which this Court expressed its

solicitude for the safety and welfare of employees engaged

in the hazardous occupation of longshoring was Interna-

tional Stevedoring Co. v. Haverty, 272 U.S. 50, decided

October 18, 1926, before the enactment of the Longshore-

men’s statute. From Voris v. Eikel, 346 U.S. 328, 98 L. Ed.

5 (The Act must be liberally construed in conformance

with its purpose, and in a way which avoids harsh and

incongruous results.) and Avondale Marine Ways, Inc. v.

Henderson, 346 U.S. 366, 98 L. Ed. 77 (A death on a marine

railway 400 feet inland from the water’s edge was held

compensable under the Act.) (both decided in 1953).

—_——a

Through Gondeck v. Pan American World Airways, Ine,

382 U.S. 25, 15 L. Ed. 2d 21 (Defense Bases Act, 1965):

(On June 11, 1962 this Court denied certiorari. On October

18, 1965 it granted the petition for rehearing, vacated the

earlier denial of certiorari and reinstated the award of

compensation.) To Jackson v. Lykes Bros. Steamship Co, —

Inc., 386 U.S. 731, 18 L. Ed. 2d 488 (1967) (The widow of

a longshoreman was permitted to bring a suit against the

shipowner who was the direct employer of the decedent |

and Banks v. Chicago Grain Trimmers Association, Inc,

390 U.S. 459, 20 L. Ed. 2d 30 (April 1, 1968), (Section 29

of the Act was liberally interpreted to permit a widow ofa

longshoreman to file and recover on a second claim after

her first claim was rejected.) there has been a steady pro-

cession of cases in which the Act has been applied with

considerable liberality.

This humanitarian concern for the plight of the long-

shoreman is equally evident in third party actions. Among

some of the recent landmark decisions in this field may be

mentioned: Crumady v. The J. H. Fisser, 358 U.S. 423

(1959); (The negligent setting of a control device on a

seaworthy winch rendered the vessel unseaworthy and sup-

ported a judgment in favor of the longshoreman.) Hahn

v. Ross Island Sand & Gravel Co., 358 U.S. 272, 3 L. Ed.

2d 292 (1959); (An injury within the “twilight zone” en-

titles the longshoreman to select the more favorable com-

pensation Act and other concomitant remedies.) Gutierrez

v. Waterman Steamship Corp., 373 U.S. 206, 10 L. Ed. 2d

297 (1963); (A longshoreman injured by slipping on beans

from a broken bag in a pier shed several hundred feet from

the ship’s side may recover against the ship on ground of

unseaworthiness.) Reed v. Steamship Yaka, 373 U.S. 410,

10 L. Ed. 2d 448 (1963); (A longshoreman may maintain

an unseaworthiness suit against the vessel although he is

7-7"

9

employed directly by the bareboat charterer.) Mascuilli v.

United States, 387 U.S. 237, 18 L. Ed. 2d 743 (1967). (The

widow of a longshoreman was held entitled to recover

against the vessel for her husband’s death caused solely by

the negligent operation of the longshoring gang. )

If third party liability, with its open end recoveries, is

to be applied most liberally in favor of longshoremen,

a fortiorari the closed end Compensation Act, expressly

passed for their protection, should be so applied.

When dealing with the claims of seamen, whether the

injuries were sustained on an offshore platform, ashore

in a taxicab or aboard ship, the court has evidenced the

same paternal concern. As a sampling of the protective de-

cisions, we cite: Grimes v. Raymond Concrete Pile Com-

pany, 356 U.S. 252, 2 L. Ed. 2d 737 (1958); (An injured pile

driver employed in connection with the installation of a

radar tower was held eligible to sue as a seaman under

the Jones Act.) Butler v. Whiteman, 356 U.S. 271, 2 L.

Ed. 2d 754 (1958) (Inferences drawn from skimpy evi-

dence were sufficient to support a recovery of a widow

of odd job wharf laborer on the ground he was a sea-

man.) Mitchell v. Trawler Racer, Inc., 362 U.S. 539,

4 L. Ed. 2d 941 (1960) (The shipowner’s liability for

unseaworthiness is completely divorced from concepts of

negligence.) Michalic v. Cleveland Tankers, Inc., 364 U.S.

325, 5 L. Ed. 2d 20 (1960) (Seaman injured when he dropped

on his toes a worn and defective wrench he was using may

recover on the ground of unseaworthiness.) Vaughan v.

Atkinson, 369 U.S. 527, 8 L. Ed. 2d 88 (1962) (A seaman

is entitled to counsel fees when a shipowner wilfully and

persistently defaults in its obligation to pay maintenance

and cure.) Tipton v. Socony Mobil Oil Company, Inc., 375

U.S. 34, 11 L. Ed. 2d 4 (1963) (The fact an offshore drilling

RELAIS PSY “SOREL SER BEER ANNI Ya ONO REN Apa a

eHiployes revelved henefite under (he Larigelrenien'y Aq

le Het aeliiiawible i Nie evil ae a eeanan tinder the Jones Ls

Avt) Hope Terneo. tie. AH TEN AWA, VD, Wad del Hyp

(IMA) CA aiok sean Heli token toa United Mates Onl |

ANd TApuned ashore Cheouh (he HeuliBent cperation ofa.

TaNtoal procined hy the ship's Master may reeves Utider

the Jones Aet) Mare OM Compuny 0 Snares, 44 U N20,

Wh, Wa Bel dd CLM) Phe venti Proviaiona of the Jones

Avt were apptiod niant Viberally ty mtntenten a mesarnan's wuit |

ail Waldron e Moore MoCormach Lines, Ine, WHS Te,

Wh Wh Se ate CHM) CI too few men are HABIENE {y

(lo @ job a reanan Way ate (he vessel on the protuneds of

Vikaeaworthitieas )

, x ay ea

OGTR ema

The longahoreman should not be mtb jeoteed te peneulun”

Jutiadiotion and justice, AWihBIng back and forth between

state and federal jurisdietion, aa he performs bis duties

and (abex his relief breaks aboard Bhip and on the adjacent

pier.

Ho Our government and ite eourts have been no

tortoualy jealous of their Admiralty jurisdiction and their

dominion over “navigable waters",

In the Amici Curiae Drief counsel for the majority of

the stevedoring contractorn throughout the country axserts

that when a pier ix completed the “water over which it is

built is permanently removed from navigation..." (p. 5),

The sealousness of the courts in Kuarding the country’s

rights in navigable waters and related matters in evident

from their insistence of the recognition of “the public prop-

erty of the nation” and the “dominant servitude" in favor

of the government, Some illustrative decisions are: Econ-

omy Light & Power Co. v. United States, 256 U.S. 113, 45

L. Ed. 847 (1920); United States v, Holt State Bank, 270

iia iN Sa ak on MORES Ser Tener cit tee ame ees

=

;

ve

3

U.S. 40 (1026), United States 1 Apypulachion Bleetric Power

Co, M1 U8, ATT, Ws 1, Weal Yd C1041), Pederal Power Com

mimion », Union Bleetrie Company. ATT 90, 144, Wal BA

TON MIG), United States # Handle, MUTE Tt Od, Wa gal

yop (1007) and Hughes» Washington, any es Yo, WO d,

Kad, 2d 640,

The court below correctly aaserted that this Cont hes

expressly held “when onve found to he navigable, a water

way remains so.” (United Statee 1 Appalachian, ant Keon

omy Light », United Statea, enpray After queting this

excerpt from The Daniel Hall, 10 Wall 987, 77 US. 597,

9 L. Hd. ww C170) 'Mhiewe rivers mist be regarded as

public navigable rivers In law which are navigable in fact

And they are navigable in fact when they are used, or are

susceptible of being used, in their ordinary condition, as

highways for commerce ", the lower court went on te

concur in the sound conclusion of Judge Waterman in

Rochester Gas and Klectrie Corp» FOC), 4K ZA HA

(2 Cir., 1965) that a body of water is “navigable water” if

"(1) it presently is being used or is suitable for use,

or (2) it has been used or was suitable for use in the

past, or (4) it could be made suitable for use in the

future by reasonable improvements” (40% Fo ZA at

906)

See also, the defin tion of “navigable waters” eantsined

in Title 16, Section 706 of the United States Cle which

includes in the term “interruption falls, shallows, or rapids

compelling land carriage.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied. If granted, the reversal of

the judgments adverse to Respondents should be affirrned

per curiam, without plenary consideration by this Court

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and the cases remanded to the District Court for the entry

of judgments consistent with the opinion of the Court of

Appeals.

a

Respectfully submitted,

Joun J. O’Connor, JR.,

Leroy W. PRESTON,

Attorneys for Respondents,

Johnson and Klosek.

November 14, 1968.