# Opposition Brief — Nacirema Operating Co. v. Johnson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1969
- **Citation:** 396 U.S. 212

## Text

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

=

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0134%3A05. Public record. Not legal advice.