Amicus Curiae Brief — Nacirema Operating Co. v. Johnson

cP Yad ¥ < 2 gare

‘Nos: me and 663 Office-Susreme Co

il Ep

In TH

; MAR 17 196

Supreme Court of the United of lates

JOHN F. Bayis ¢

OCTOBER TERM, 1968 BAVIS, CL

NacrreMa Operatine Co., Lyc. anp Liperty

Mutua Insurance Company,

Petitioners,

Vv.

Wim H. Jounson, Juiia T. Kiosex ann

ALBERT AVERY,

Respondents.

Joun P. Traynor Ann JERRY C. OostTIne,

Deputy ComMMISSIONERS,

Petitioners,

v.

WuuiaM H. Jounson, Juuia T. KLosek ann

ALBERT AVERY,

Respondents.

On Writs or CERTIORARI TO THE Untrrep States Court OF

APPEALS FOR THE FourtH CiRcuIT

BRIEF ON BEHALF OF AMERICAN TRIAL LAWYERS

ASSOCIATION AS AMICUS CURIAE IN

SUPPORT OF RESPONDENTS

American Trial Lawyers Association

Admiralty Section

By: Paul S. Edelman

Pau S. EpeLMan,

99 Park Avenue,

New York, New York.

MU 7-8181

On the Brief

SUBJECT INDEX

PAGE

ee 5 ac waescbhub nes casebenss Vv

Statement of Interest of the Amicus Curiae ........ 1

eM RFMD p55 Kos cco pe ke edeWondeneeas

ee: ON iva nk es eviews euenswekusien

I biG deh a ShNauhen ds pened sence dvicaense x 4

Porst I—The Longshoremen’s Act extends to the

limit of the admiralty jurisdiction and Congres-

EE, GS'enu eas 054 eke bee ie te eite babees 5

Porst II—The Longshoremen’s Act applies to mari-

time contracts of employment on man-made

structures on or above navigable waters ........ 13

Port I1[—Application of the Longshoremen’s Act

to the situation at bar would apply a maritime

remedy to men injured by ship’s gear on strue-

OE go ccacbersep dev dake sedn cases 20

UE: 5s Shy Gs puaseeeeaabibabeeherave ses bac 22

List or AUTHORITIES

Cases:

Atlantic Transport Co. v. Imbrovek (1914), 234

SUV ceed evcanvodcuNvaeschectoudeees 18

Avondale Marine Ways, Inc. v. Henderson (1953),

SE Sg Sue sok keh odes eC dateseeskeses 14, 15

Baduski v. S. Gumpert Co., Ine., 277 App. Div.

591, 102 N.Y.S. 2d 297, App. dism. 302 N. Y. 702 13

POT A 2 Ai TREATED Sd TERRE LEE THOT ABST fee

OO PORE ES CE RR EATER Oe REE HS Pe I Ee I EN RR CS a BER RR RAR Se, QRS TOL Ae ea BL

ii TABLE OF CONTENTS

PAGE

Boston Metals Co. v. O’Hearne, D. C. Md. Adm.

#4412, unreported opinion, June 20, 1963, aff’d

(4th Cir. 1964), 329 F. 2d 504, cert. den. 379 U.S,

REE PE er ORE he yet hy ee ee 6,7

Calbeck v. Travelers Ins. Co., 370 U. S. 114

SS snd kecs hee wkddevasesesotmaane 6, 7, 9, 13, 18,

Crumady v. The Joachim Hendrik Fisser (1959), 358

Si Ee hire cute Fiea owe eae ik aakaes sauks 19

D’Aleman v. Pan American World Airways (2d Cir.

Se ee a ee eo kok s kien cis owes dedscxes li

Davis v. Department of Labor and Industries (1942),

SR Sg ERIS gE Een <hr A Getty eee 12,2

DeBardeleben Coal Corp. v. Henderson (5th Cir.

es Pe EE oi sc asbcces cee knrune ones 6,9

Deffes v. Federal Barge Lines, Inc. (5th Cir. 1966),

2 ek fe er ree rer er reer 19

Economy L. & P. Co. v. United States (1921), 256

ie EE boo Siva nee tee ee aaron te nee 16

Gutierrez v. Waterman Steamship Co., 373 U. S. 206

EE. Wisieavakcaapekesnda selene sein aaseenas 8, 9, 14

Holland v. Harrison Bros. Drydock, Ete. (5th Cir.

Sy ME ee EE OE ck bdb ssc tssesesacxeces 7, 8, 15, 18

Hopson v. Texaco, Inc. (1966), 15 L. Ed. 2d 740.... 12

Huff v. Matson Navigation Co. (9th Cir. 1964), 338

F. 2d 205, cert. den. 380 U. S. 943 ............. 19

Interlake 8. 8. Co. v. Nielsen (6th Cir. 1964), 338 F.

2nd 879, cert. den. 381 U.S. 934 ............ 10, 11, 16

Italia Societa v. Oregon Stevedoring Co. (1964), 376

MN cade ceases sahushacdsrecesisachecsdxs 19

a

TABLE OF CONTENTS iii

PAGE

Maryland Casualty Co, v. Lawson (5th Cir. 1939),

Wt 0, OE TOR, TED nc cc cccccvcccecccvccccccess 15

Michigan Mutual Liability Co. v. Arrien (S.D.N.Y.

1964), 233 F. Supp. 496, aff’d (2d Cir. 1965) 344

F. 2d 640, cert. den. 382 U. 8. 835 ..........- 9, 10, 16

Moores’ Case (Sup. Mass. 1948), 323 Mass. 162, 167,

80 N. E. 2d 478, 480, aff’d (1948) 335 U. S. 874

sub. nom. Bethlehem Steel Co. v. Moores ...... 13

Q’Donnell v. Great Lakes Dredge and Dock Co.

(1943), 318 U.S. 36 0.0... eee ee eee cece 6, 11, 18, 19

Port Houston Ironworks, Ine. v. Calbeck (S. D. Tex.,

1964), 227 F. Supp. 966 .......0--0ee cece eeeee 15

Reed v. The Yaka (1963), 373 U.S. 410 .......-..-- 15, 16

Seas Shipping Co. v. Sieracki (1946), 328 U. 5. s.. 19

Senko v. LaCrosse Dredging Corp. (1957), 352 U. 5.

Se sl ae ol ga haeb en raghenknne ss 12

Southern Pacific Co. v. Jensen (1917), 244 U. S. 205 5,18

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

cert. den. 382 U. S. 1000 ......-- eee cece eeeee 19

Strika v. Netherlands Ministry (2d Cir. 1950), 185 F.

2d 555, 558, cert. den. 341 U. S. 904 .......-..-- 11

Swanson v. Marra Bros., Inc., 328 U. S.1......--- 19

Travelers Insurance Co. v. Shea (5th Cir. 1967), 382

F. 2d 344, cert. den., sub. nom. McCullough v.

Travelers Insurance Co., 389 U. S. 1050 ....... 20

United States v. Appalachian Power Co, (1940), 311

U. S. 377, 408, 409 00... eee cece ce rvercecceeres 16

U. S. v. Matson Nav. Co. (9th Cir. 1953), 201 F. 2d

G10, G14... 22. erecccccccccccrcerevcscesercecs 11

Voris v. Eikel (1953), 346 U.S. 328 ....----- eee ees 12

inf

—_—— scumcen .

GOOLE MANA LL MMPEN GES IE ELE IOLA LEY ED AERO SEE VE TE OLS COLL ASCITES.

iv TABLE OF OONTENTS

STATUTES

PAGE

Admiralty Extension Act, 46 U.S.C., See. 740

CE a eVebecneesar eden disaedndanesea 6, 8, 9, 10,11

Jones Act (1920), 46 U.S.C., Sec. 688 et seq. ...... 1?

Longshoremen’s and Harbor Workers’ Compensation

pe ik ef rrr rr errr errr Terr 5, 10, 14

EE ED PU ce knabvosdodv susie bees t00007 0 5, 10

Navigation Laws,

33 U.S.C., See. 403

wa

In THE

Supreme Court of the United States

OCTOBER TERM, 1968

7%

7

Nacirrema Operatine Co., Lxc. ann LIBERTY

Murvav Insurance CoMPAny,

Petitioners,

Vv.

WuuuM H. Jounson, Juris T. KLosexk AND

Apert AVERY,

Respondents.

Joun P. Traynor Anp JERRY C. OosTrING,

Deputy CoMMISSIONERS,

Petitioners,

Vv.

Wuuiuam H. Jounson, Jutia T. KLoseK AND

ALBERT AVERY,

Respondents.

a

vv

BRIEF ON BEHALF OF THE AMERICAN TRIAL

LAWYERS ASSOCIATION

To THE HoNORABLE J UDGES OF THE Court:

CONSENT OF THE PARTIES

All of the parties in these causes have given their written

consent to the filing of this brief Amicus Curiae.

a ——_— SNELL MN GE Te MLO LE ETL LEELA GOST, DOLE ES. NACL ALD

Statement of Interest of the Amicua Curiae

The American Trial Lawyers Association, is a national

ine nseocintion, Consisting of more than ZO000) Inwyers,

primarily engaged in the practice of personal injury law.

The Admiralty Beetion of this Associntion consists of a

cubetantion number of attorneys and proctors whe spe

calize ino marifine personal injury law. These attorneys

represent members of the merchant marine and other

maritime workers who are enpayed inn hazardous industry

andare recogninel ns having a special status both by legis

lation and generally in the courts of the land All of these

maritime workers have a renal and direet interest in the

outcome of thie appent.

Said Association is vitally concerned in the final outeome

of this cnse involving ne it does a situation which may

finally resolve the tortious series of enses which have at

tempted forovern penerntion to take a clear line by which

attorneys and injured maritime workers will know their

rights, This a question of serious tniportanee since 257

of all longehoremen’s injuries occur on docks and piers, and

in most states the average compensation ia but half the

federal rate, Only a broad interpretation of the Federal

Act will protect these men as Congress intended.

A resolution of the issues in this case will materially af

fect not only the financial plight of injured maritime

workers, but is of paramount importance to hundreds of

thousands of workers, to the admiralty bar, and to the

a

maritime industry generally. For the foregoing reasons

it is respectfully prayed that this Honorable Court accept

this brief Amicus Curiae.

2

Pau S. Epetmay,

of Kreinpier & KRernpxer,

99 Park Avenue,

New York, New York 10016.

Chairman, Admiralty Section,

American Tria] Lawyers Association,

ee

3

In THE

Supreme Court of the United States

OCTOBER TERM, 1968

Nos. 528 and 663

NactremMa Operatine Co., Lyc. anp LIBERTY

Mutua Insurance CoMPANny,

Petitioners,

v.

Wun H. Jounson, Jutia T. KLosek AnD

ALBERT AVERY,

Respondents.

+

vr

BRIEF OF THE AMERICAN TRIAL LAWYERS

ASSOCIATION IN SUPPORT OF RESPONDENTS

Questions Presented

1. Whether an injury sustained by a longshoreman caused

by ship’s gear on a pier or dock over navigable waters is

within the coverage of the Longshoremen’s and Harbor

Workers’ Compensation Act.

2. Whether the Longshoremen’s Act is operable to the

widest extent of federal concern and power.

3. Whether coverage in this case will present problens

in applying the Longshoremen’s Act in other cases, or will

provide a logical and certain rule of law with justice,

4

Statement of the Case

Rather than repeat an extensive Statement, Amicys

American Trial Lawyers Association will adopt Petition.

ers’ statement as it appears in their Petition for a Writ

of Certiorari, and in the Opinion of Circuit Judge Sobelof

below.

Suffice it to say that Johnson and Klosek were members

of a longshore gang and were injured on a gondola car on

a pier while loading steel beams aboard ship. The vessel’s

cranes picked up a draft which swung when raised, and

caused injuries to both and from which Klosek died.

Avery was also aboard a gondola car on a pier and was

injured by a swinging draft hooked to a ship’s gear.

It was stipulated that the piers in question were over

water and high enough to permit barges and small boats

under them. The injuries occurred several hundred feet

from land.

This Court is being called upon to settle the issue as to

whether the Longshoremen’s Act is applicable to accidents

within Congressional power over admiralty and maritime

accidents, In addition, this Court is being asked to decide

whether the Longshoremen’s Act and Congressional power

is co-extensive with maritime contracts and interstate

commerce powers thereby including an injury to a long-

shoreman by ship’s equipment on a dock erected over

navigable water.

It has been statistically demonstrated that about 25%

of all injuries to maritime employees occur on docks and

piers while ships are being loaded, unloaded, or repaired.

5

Awards under the Federal Act are typically twice the

amount given under most state acts.

To overturn the decisions below is to withdraw a signifi-

cant number of maritime accidents from the reach of fed-

eral concern contrary to the intent of the Congress.

I. The Longshoremen’s Act Extends To The Limit

Of The Admiralty Jurisdiction And Congressional

Power.

A review of the Supreme Court decisions since Southern

Pacific Co. v. Jensen (1917), 244 U. S. 205 leads to the

analysis that the Longshoremen’s Act fulfills the Federal

concern to the limit of Congressional power.

Jensen limited a state’s power to the water’s edge; a

state compensation act was held inapplicable to an injury

and death on a gangplank. However, Jensen (at p. 217)

makes it clear that the Federal jurisdiction does not begin

at the water’s edge. The decision states without equivoca-

tion that there is Federal concern for any stevedoring

activity ; it involves a maritime contract of employment; by

its very nature it is a maritime engagement; it affects

“navigation between the states and with foreign coun-

Pees

Thereafter commenced the series of cases to limit the

rigidity of Jensen by establishing a rule of ‘*local’’ concern

to allow a state compensation act to apply to certain mari-

time injuries. But these cases were not limitations on

Federal power which at the time was not exercised.

It was in this context that the Longshoremen’s Act was

debated and passed by Congress. Thereafter, the juris-

diction of admiralty was clarified by passage of the Exten-

sion in Admiralty Act; not to create new causes of action

but to make American admiralty practice clearly in accord

with the law of England and other foreign countries.

— MLE IDEALS IMT EGE EEE LEAS TESOL SEARO LIES

6

Even before the passage of the Extension in Admiralty

Act in 1948, the Supreme Court had determined that the

maritime jurisdiction would reach dock areas where mari.

time personnel was injured in activities related to a Vessel,

In O’Donnell v. Great Lakes Dredge & Dock Co., 318

U. S. 36, decided in 1943, a crew member was injured while

a repair was being made on a connection to a land pipe,

used in discharging a ship’s cargo. The injury occurred

on ‘‘land’’ but the seaman recovered under the Jones Act

against his employer.

More recently, this Court has acknowledged in Calbeck, y,

Travelers Insurance Co, (1962), 370 U. S. 114 that in pass.

ing the Longshoremen’s Act, ‘‘Congress intended to exer.

cise to the fullest extent all the power and jurisdiction it

had over the subject matter’’, and that ‘‘. . . Congress

intended the compensation act to have a coverage co.

extensive with the limits of its authority”’.

Calbeck dealt with the application of the Federal Act to

a welder engaged in ‘‘new”’ ship construction, as opposed

to the suggested exclusive remedy of state compensation.

The Court cited extensively language from DeBardeleben

Coal Corp, v. Henderson (5th Cir. 1944), 142 F. 2d 481, at

page 130 of 370 U.S.

The wide application of the rule that the Longshoremen’s

Act is co-extensive with federal maritime jurisdiction is

underlined by Boston Metals Co. v. O’Hearne, D. C. Ma.

Adm. #4412, unreported opinion, June 20, 1963, aff’d (4th

Cir. 1964) 329 F. 2d 504, cert. den. 379 U. S. 824. In that

case a widow of a welder who as killed on a decommis-

sioned hulk was held entitled to collect under the Act. The

hulk was fast aground and in the process of being scrapped

District Judge Winter in the unreported opinion to this

case stated:

“I think the Calbeck case equates, I think the legis-

lative history (of the Longshoremen’s Act) supports,

—

7

and | think the decisions in this Circuit also support

the concept that navigable waters of the United States

means the admiralty jurisdiction of the United States,

wherever it may be from time to time.

*** 7 think that the Calbeck case makes perfectly

plain that the application of the Longshoremen’s and

Harbor Workers’ Act was not to be frozen to the

admiralty jurisdiction of the United States as it then

existed in 1927 or as it was considered then to exist

put that rather there may be read into the Longshore-

men’s and Harbor Workers’ Act a more flexible con-

cept that under subsequent legislation or, as a result

of subsequent court decisions, the admiralty jurisdic-

tion of the United States is being expanded and the

application of the Longshoremen’s and Harbor Work-

ers’ Act expands along with it.’’

As the opinion of Circuit Judge Sobeloff indicated below,

the Calbeck case dealt specifically only with the phrase of

the Longshoremen’s Act, precluding federal coverage where

a state act could validly apply. But the language of Calbeck

and its philosophy make broad federal coverage an under-

lying purpose of the Longshoremen’s Act and is the only

interpretation consistent with the application as intended

by Congress.

At pages 126 and 127 of Calbeck, the Court stated:

‘‘Congress brought under the coverage of the [federal]

Act all such injuries [i.e., on navigable waters]

whether or not a particular one was also within the

constitutional reach of a state workmen’s compensation

law.”’

In Holland v. Harrison Bros. Drydocks, etc. (5th Cir.

1962), 306 F. 2d 369, 373, footnote 4 states that not only

the locality is important but also ‘‘the nature of the work’’.

_——___ LAELIA PIS fa?

FE EEE TO Fe eS

8

The footnote further states:

‘‘# * * The literal language of the Longshoremen’s

Act seems to concern only the locality of the accident,

but the history of the Act indicates that its wnderlying

purpose was to embrace the admiralty jurisdiction

whatever that might be.’’ (Emphasis added.)

Once accepting this clear proposition, it is only necessary

to establish how far ‘‘ashore’’ the admiralty jurisdiction

extends.

By statute, the Admiralty Extension Act, 46 U.S.C., Se,

740 (1948), provides:

‘‘The admiralty and maritime jurisdiction of the

United States shall extend to and include all cases of

damage or injury, to person or property, caused by a

vessel on navigable waters, notwithstanding that such

damage or injury be done or consummated on land.”

The meaning of ‘‘ caused by a vessel on navigable waters”

has authoritatively been held to mean that even a dockside

injury is covered by maritime law where the injury arose

out of some ‘‘service to the ship’’.

The Supreme Court so held in Gutierrez v. Waterman

Steamship Co., 373 U. S. 206 (1963), and rejected the con-

tention that the injury must be caused by the vessel or

ship’s appurtenances. In Gutierrez, a longshoreman was

injured on a wharf when he slipped on beans that had

spilled out of bags being unloaded from the vessel, and

the Court held that this dockside accident was within the

mevritime jurisdiction and subject to the doctrine of unsea-

worthiness.

Justice White, speaking for the Court made it clear that

the impact on dockside was within the ambit of maritime

_

9

jurisdiction because of the Extension of Admiralty Juris-

diction Act, and stated:

‘Respondent contends that it is not liable at least

in admiralty, because the impact of its alleged lack of

care or unseaworthiness was felt on the pier rather

than aboard ship. Whatever validity this proposition

may have had until 1948, the passage of the Extension

of Admiralty Jurisdiction Act, 62 Stat. 496, 46 US.C.,

Sec. 740, swept it away. * * °”’

From DeleBardelben to Calbeck to Gutierrez, it is dem-

onstrated that the Longshoremen’s Act is co-extensive

with admiralty jurisdiction, and that admiralty jurisdic-

tion extends even to dockside where a worker is injured

because of an activity related to a vessel and particularly

when caused by direct contact with a vessel or its appur-

tenances.

This Court has never expressly held that a pier injury is

cognizable under the Longshoremen’s Act, The closest

ease—and one of the most brilliant decisions in the field—is

Michigan Mutual Liab. Co. v. Arrien, 233 F. Supp. 496

(S.D.N.Y., 1964), aff’d (2d Cir. 1965) 344 F. 2d 640, cert.

den. 382 U. S. 835. The facts of this case are of paramount

importance because, in some quarters, they have been

misconstrued.

‘‘At the time of the accident, he was working on a

‘skid’—a removable platform approximately six by

ten feet—which was attached to the dock. It ex-

tended out over the water and towards the ship some

twenty to twenty-five feet below the deck, its outer

edge short of the side of the vessel. The skid was

necessary because the stringpiece of the dock was too

narrow... .

‘“‘The skid was attached to the pier by two over-

head cables, extending from the superstructure of the

pier to its offshore corners. The onshore side of the

|

10

skid was secured to the stringpiece of the dock by three

angle irons affixed to the stringpiece.’’ (497)

The skid extended the working surface of the pier, [p

no sense was it a gangway or gangplank, It did not enable

passengers, longshoremen or other workmen to go back

and forth between the pier and the ship. It was exely.

sively an extension of the pier, and not of the ship.

The jurist epitomized the basis for his upholding an

award under the Act in favor of a longshoreman injured

while working on the skid in this one pregnant sentence:

‘‘It thus appears that ‘upon the navigable waters’

is to be equated with ‘admiralty jurisdiction.’ ’’ (501)

In commenting on the Admiralty Extension Act, he ob-

served, 502:

‘‘The basis upon which the Extension Act and the

Longshoremen’s Act rest is the same—the admiralty

jurisdiction of the United States; and both Acts must

be understood to have expanded pari passu with it.

Any departure from this view would compel the con-

clusion that the Longshoremen’s Act was to be frozen

to the admiralty jurisdiction of the United States as

it was understood at the time of its enactment in 1927,

a view rejected by the Supreme Court in the Calbeck

case by clear implication.’’

Another case underscoring the expansive influence of

the Admiralty Extension Act upon not only traditional

Admiralty concepts but also on the Longshoremen’s and

Harbor Workers’ Act is Interlake Steamship v. Nielsen,

338 F. 2d 879 (6th Cir., 1965), cert. den. 381 U. S. 934. A

shipkeeper drove his car off the end of the dock where his

vessel was berthed and died of a fractured skull sustained

on impact with the frozen waters of Lake Erie. The widow

was granted an award by the Deputy Commissioner but had

_—_

11

it taken away by the District Court. The Court of Appeals

reversed and reinstated the benefits.

Judge Edwards wrote:

‘“‘While the Admiralty Extension Act of 1948 obvi-

ously was not designed directly to affect the Long-

shoremen’s and Harbor Workers’ Compensation Act,

it did serve to make clear that admiralty jurisdiction

could extend to damage caused on land by maritime

events, although early case law had held to the con-

trary. (See Cleveland Terminal & Valley R.R. Co. v.

Cleveland Steamship Co., 208 U. 8. 316 (1908) ; State

Industrial Commission of New York v. Nordenholt

Corp., 259 U. 8. 263 (1922))” (882), and also:

‘*1¢ seems obvious to us that the trend of case law,

the impact of the Admiralty Extension Act, and the

effect of Calbeck have all pointed in the direction of

expanding the boundaries of admiralty jurisdiction

toward land.’’ (882)

Very soon after its enactment, the Admiralty Extension

Act was considered to be a clarification of jurisdiction

which had always existed, although not always exercised.

Strika v. Netherlands Ministry, 185 F. 2d 555, 5a8 (2d

Cir., 1950), cert. den. 341 U. S. 904.

The Act was even applied retroactively. U.S. v. Matson

Nav. Co., 201 F. 2d 610, 614 (9th Cir., 1953) (property

damage to a federally owned dike).

The reasoning above has allowed recovery for seamen

ashore when injured in the service of the ship under the

Jones Act.

In O’Donnell v. Great Lakes Dredge and Dock Co. (1943),

318 U. S. 36, a seaman was injured on land during the

repair on a gasket connection to a land pipe used in dis-

charging a ship’s cargo.

12

A ‘handyman who assisted in navigation of a dredge wag

injured in a shed on shore due to an explosion in a coal

stove while he was placing lamps from the dredge in the

shed. Recovery was sanctioned under the Jones Act in

Senko vy. LaCrosse Dredging Corp. (1927), 352 U. S. 370,

The most far-reaching case is, of course, Hopson y,

Texaco, Inc, (1966), 15 L. Ed. 2d 740. In that case two il]

seamen in a foreign port were being taken to the United

States consul in a taxi cab procured by the ship’s master,

The cab driver was in a collision, through his negligence,

One seaman was killed and one was injured. The taxi

service was held to be an ‘‘agent’’ of the shipowner, and

recoveries were allowed against the shipowner under the

Jones Act.

Accord:

Voris v. Eikel (1953), 346 U. S. 328.

In addition, we have the long and still vital history of

the ‘Twilight Zone’’ cases before us. Ever since 1942 in

Davis v. Department of Labor and Industries, 317 U. 8.

249, the Supreme Court has held that wherever there is

doubt in applying state as opposed to federal compensa-

tion acts in maritime situations, the tribunal chosen by the

claimant has a presumption of valid jurisdiction. Davis

states:

‘*. , . the line separating the scope of the two being

undefined and undefinable with exact precision, mar-

ginal employment may, by reason of particular facts,

fall on either side.’’

Davis has been interpreted as ‘‘. . . a revolutionary

decision deemed necessary to escape an intolerable situa-

tion and as designated to include within a wide circle of

doubt all water front cases involving aspects pertaining

both to the land and to the sea where a reasonable argu-

ment can be made either way .. .’’

—- Cy oe Pe

—

13

Moores’ case (Sup. Mass., 1948), 323 Mass. 162, 167,

90 N. E. 2d 478, 480, aff’d (1948), 335 U. S. 874, sub nom.

Bethlehem Steel Co. v. Moores.

The Calbeck case (1962), 370 U. S. 114, still makes clear

that in any doubtful area the claimant may elect his rem-

edy, and that the Twilight Zone rule still holds.

Respondents would undo all the practical solutions

brought forward by the Davis case, and applied since 1942.

Il. The Longshoremen’s Act Applies To Maritime

Contracts Of Employment On Man-Made Struc-

tures On Or Above Navigable Waters.

Admiralty jurisdiction extends to all damage or injury

occurring during the performance of a maritime contract,

including contracts of ship loading and unle ading and re-

pair, even though the injury involves piers and wharves

over navigable waters.

As indicated in Point I, it is the contractual maritime

jurisdiction which allows Jones Act recovery for crew

members injured ashore through the negligence of their

employer or agents of the employer and for unseaworthi-

ness recoveries by longshoremen injured on docks.

The Longshoremen’s Act is based on the New York

Workmen’s Compensation Act. Because the New York

Act regulates the employment contract, it even applies

to employees injured in other states so long as New York

has an interest in the employment contract.

Baduski v. S. Gumpert Co., Inc., 277 App. Div. 591, 102

N.Y.S. 2d 297, App. dism. 302 N. Y. 702.

Cases in Point I demonstrate the applicability of land-

based injuries in conjunction with repair work on drydocks

and adjacent land areas. These cases apply to the case

at bar since a pier over water is even more ‘‘maritime’’

14

than land areas near marine railways. Application of

the Longshoremen’s Act is more apt for areas ‘‘oyer”

water than land areas for which relief has been granted,

An accident on a pier or dock built above navigable

water is ‘‘upon’’ navigable waters.

As demonstrated above, the Supreme Court has allowed

recovery under maritime law for injuries caused by un.

seaworthy vessels and appurtenances where the impact

is on a dock ‘not remote’? from the offending cause

(Gutierrez).

The same grant of power to Congress by the Constitution

delimits the reach of the Jones Act and the Longshoremen’s

Act. Where an injury occurs because of a vessel-connected

activity the scope of both these federal statutes extends

and grants a remedy,

Since the Supreme Court has seen fit to allow damage

actions under maritime law for dock injuries, there is no

impediment for the application of the Longshoremen’s Act

to the same injuries,

The so-called dry-dock cases reenforce the admiralty

jurisdiction over land areas involving maritime pursuits;

the federal Act has been applied universally.

Maritime workers injured on a **drydock”’ are specifi-

cally covered by the Longshoremen’s Act as well as those

who work at least in part upon navigable waters.

33 U.S.C., See. 902(4) ; 903(a).

A **drydock’’ included a marine railway whereby a ves-

sel is drawn from the water onto land.

Avondale Marine Ways, Inc. v. Henderson (1953), 346

U.S. 366.

To make this meaningful, the land adjacent to a marine

railway is within the geographical and functional scope of

—

15

the Longshoremen’s Act. This has been the consistent view

of the Court of Appeals.

Holland v. Harrison Bros. Drydock etc, (Sth Cir. 1962),

306 F. 2d 369, 372, and Maryland Casualty Co. v. Lawson

(5th Cir. 1939), 101 F. 2d 732, 733, cited with approval in

the Avondale Marine Ways case.

A “building way’’ injury has also been held covered by

the Longshoremen’s Act. A building way is on land and

used for new ship construction, but the outermost end ex-

tends into the water for the launching of a completed ves-

sel. The ‘‘building way’? was held to be sufficiently within

the term ‘‘dry dock’’ to allow recovery for a workman

under the Longshoremen’s Act in Port Houston Ironworks

Inc. v. Calbeck (S. D. Tex., 1964), 227 F. Supp. 966.

A dock or pier is demonstrably within the admiralty

jurisdiction when a maritime worker is injured by ship’s

equipment. This is a reasonable and common-sense ap-

proach.

‘A wharf is a structure on the margin of navigable

waters, alongside of which vessels can be brought for

the sake of being conveniently loaded or unloaded.

Hence waters of sufficient depth to float vessels is an

essential part of every wharf. A wharf cannot be de-

fined or conceived except in connection with adjacent

navigable waters.’’ (Emphasis supplied.)

Langdon v. City of New York (1883), 93 N. Y.

129, 151.

Compensation acts in general, and the Longshoremen’s

Act in particular are to be liberally construed in favor of

coverage.

Many decisions involving the Longshoremen’s Act dis-

cuss this principle of statutory construction. Reed v. The

Yaka (1963), 373 U. S. 410, restates this proposition :

‘‘We have previously said that the Longshoremen’s

Act must be liberally construed in the conformance

16

with its purpose, and in a way which avoids harsh

and incongruous results.’’

The federal interest in piers and docks is also shown

by the fact that piers and wharves must be recommended

and approved by federal authorities. Title 33, Section 403,

makes it unlawful to build any ‘‘wharf, pier. . .” except

on plans recommended by the Chief of Engineers and av.

thorized by the Secretary of the Army. Section 406 es.

tablishes substantial fines (up to $2,500) and/or imprison-

ment for violations.

The section prohibits ‘‘any obstruction’? which is not

authorized ‘‘ to the navigable capacity of any of the waters

of the United States. . .’’.

The national concern is with the effects of structures

on navigable waters, and not only on the objects navigating

in the waters.

A federal interest in navigable waters is not withdrawn

by placing man-made structures on or over such waters.

United States v. Appalachian Power Co. (1940), 311

U. 8. 377, 408, 409.

Economy L. & P. Co. v. United States (1921), 256 U. S.

113, 118, 124.

Impact on a dock or pier has been the basis for recovery

under the federal Longshoremen’s Act where the employee

was thereafter propelled into the water.

Interlake 8.8. Co. v. Nielsen (6th Cir. 1964), 338 F. 2d

879, cert. den. 381 U. S. 934.

Michigan Mutual Liability Co. v. Arrien (2d Cir. 1965),

344 F. 2d 640, cert. den. 382 U. S. 835 (injury on a ‘‘stage’’

of skids extending over the water).

The mere fact that the injured party subsequently went

into the water should not be decisive of coverage of the

— si istttt”t”t~—S

17

Act where the initial injury was on the dock or pier; if the

injury was in maritime employment when it occurred on

the pier in these cases it should also be applicable to the

case at bar.

If on the other hand an artificial distinction is made

between what is ‘‘on’’ and what is ‘‘over’’ navigable water

then airplane accidents would be excluded from coverage

by the Death On The High Seas Act. But in all logic, such

deaths including explosions in airplanes in flight and the

like are covered by the Death On The High Seas Act.

D’Aleman v. Pan American World Airways (2d Cir.

1958), 259 F. 2d 493.

The word ‘‘upon’’ is susceptible of an interpretation

which not only means ‘‘on’”’ but ‘‘over’’ and ‘‘above’’.

National jolicy has been established concerning structures

which are ‘‘over’’ and ‘‘above’”’. A remedial statute which

has been construed to go to the limits of federal concern

would by both purpose and common sense make the Long-

shoremen’s Act applicable to the situation in this case.

In the cases at bar, the facts support the broad view

of national interest. The areas below the piers in question

here were in fact navigable by boats and by any reason-

able standard the piers were over, above, or if you will

‘‘on” navigable water. They certainly were over water

which had once been and in the future could be open to

all types of navigation.

This Court has never definitively decided that an injury

on a man-made structure adjacent to ship loading activity

is precluded from recovery under the federal Act. It is

respectfully submitted that the legislative history of the

Act sought this application; it is consistent with the juris-

diction of the Congress over such activities, and the Act

presumes coverage of the Act in a borderline activity

(Sec. 920).

The decision below (footnote 7) in discussing the legis-

lative history of the Act makes it clear that the House

18

thought it was meant to cover all maritime workers within

the federal jurisdiction. The Senate Report mentioned

is more restricted in its language; but it alludes to a mis-

taken idea of what the maritime jurisdiction even then

entailed. The Senate’s wording mistakenly assumes that

the Jensen case limited federal maritime jurisdiction to

the water’s edge. As Point I illustrates, Jensen attempted

to limit a state’s power to the water’s edge but not federal

power.

The legislative history of the Act in 1926 and 1927 in.

dicates that maritime coverage was the purpose of the

Act, and that the Act was to be applied as far ashore as

the maritime activity itself extended. If navigable waters °

are involved in a broad, common-sense definition, the em-

ployee has an election to come under the federal Act.

Calbeck v. Travelers Ins. Co. (1962), 370 U. S. 114.

Holland v. Harrison Bros. Dry Dock, etc. (5th Cir. 1962),

306 F. 2d 369, 372, 373.

From the very beginning of the controversy over federal

and state jurisdiction in Southern Pacific Co. v. Jensen

(1917), 244 U. S. 205, 217, it was made clear that a mari-

time worker whose ‘‘employment was a maritime contract”

and who received maritime-connected injuries was within

the federal concern. See also Atlantic Tramsport Co. v.

Imbrovek (1914), 234 U. S. 52, 62.

As indicated in Point I, both the Jensen case and

O’Donnell, decided prior to the Admiralty Extension Act

allow federal laws to be applied ashore. The maritime law

for instance, from its earliest beginnings, provided mainte-

nance to crew members and had other applications divorced

from restricted notions of a vessel’s location afloat.

As stated in O’Donnell (pp. 42, 43):

‘‘The right of recovery in the Jones Act is given to

the seaman as such, and, as in the case of maintenance

—,

19

and cure, the admiralty jurisdiction over the suit de-

pends not on the place where the injury is inflicted

but on the nature of the service and its relationship

to the operation of the vessel plying in navigable

waters.’’

In O’Domnell, the seaman was on shore when he was in-

jured.

Swanson v. Marra Bros., Inc., 328 U. S. 1, does discuss

the federal Act and its legislative history, but the thrust of

the decision is merely to clarify (1) that the Jones Act was

not to be applied to a longshoreman who was not a member

of a ship’s crew, after passage of the Longshoremen’s Act,

and (2) that a state compensation remedy would lie for in-

jury to a longshoreman for “‘land torts’’. But in fact, the

Court was not asked to pass upon the question whether a

longshoreman injured on a pier could elect federal over

state compensation rights.

Waterfront workers injured by shore-based equipment

used to load and unload ships are covered by a warranty of

seaworthiness. This was so held in Huff v. Matson Navi-

gation Co. (9th Cir. 1964), 388 F. 2d 205, cert. den. 380

U. S. 948; Spann v. Lauritzen (3rd Cir. 1965), 344 F. 2d

204, cert. den. 382 U. S. 1000, and Deffes v. Federal Barge

Lines, Inc. (5th Cir. 1966), 361 F'. 2d 422.° Deffes so held

because (p. 425):

‘‘Loading and unloading is clearly held to be ‘work

of the ship’s service’”’, citing Seas Shipping Co.

vy. Sieracki (1946), 328 U. S. 85, 89; Crumady v. The

Joachim Hendrik Fisser (1959), 358 U. S. 423, 427 and

Italia Societa v. Oregon Stevedoring Co. (1964), 376

U. S. 315, 323.

*A contrary result was decided in the Sixth and Second

Circuits.

20

All federal rights including federal compensation rights

should logically be given to those injured by ship’s equip-

ment while working in the ship’s service.

III. Application Of The Longshoremen’s Act To

The Situation At Bar Would Apply A Maritime

Remedy To Men Injured By Ship’s Gear on

Structures Over Water.

Affirmance of the Court below need not create paradoxes

in applying the Longshoremen’s Act nor open up new

areas of controversy.

The cases here can be affirmed on a rather narrow

ground. All the employees were injured by ship’s gear

while serving the ship, and all were on areas constructed

over the navigable waters.

Affirmance need not lead to a ruling that all injuries

even by men not serving a ship must be covered by the

federal Act if it occurs on land areas adjacent to water or

on a pier. The Court could deny a very general applica-

tion and still apply the federal Act to the cases before it

on the facts here presented.

In twilight areas, the law still has elasticity enough to

protect a claimant from being the victim of uncertainty.

An affirmance would also bring justice in cases where

the federal Act had been held inapplicable, we believe, im-

properly. For instance, in Travelers Inswrance Co. v.

Shea, 382 F. 2d 344 (5th Cir. 1967), cert. den., sub nom.

McCulluogh v. Travelers Insurance Co., 389 U. 8. 1050,

a worker was injured on a floating work barge which

rose and fell with the movement of the waters and which

was adjacent to and a necessary part of a floating drydock.

The Circuit Court felt impelled to rule these floating

barges an extension of land, and denied federal coverage.

—

21

The Longshoremen’s Act was not passed to create an

‘ron-clad boundary between state and federal territory.

The Act’s passage was meant to do away with the need

to decide the boundaries of .power. Calbeck discussed this

and reiterated the Davis case policy of a Twilight Zone

allowing overlapping coverage so that a claimant need not

elect between remedies at his peril. (Calbeck, p. 128, citing

Davis v. Department of Labor & Industries, 317 U.S. 249.)

Respectfully submitted,

American Tria, Lawyers ASsOcIATION,

By Paul S. Edelman,

Attorney for Amicus Curme,

Dated at New York, New York, this 5th day of March,

1969.

22

Certificate.

This is to certify that on the day of March, 1969,

copies of the above amicus curiae brief were served by

mail on Hon. Erwin C. Griswold, Solicitor General, United

States Department of Justice, Washington, D. C. 20530;

Randall C. Coleman, Counsel for Petitioner, Nacirema

Operating Co., Inc., 1600 Maryland National Bank Build-

ing, Baltimore, Maryland 21202; William B. Eley, coun-

sel for Petitioner, Liberty Mutual Insurance Company,

1000 Maritime Tower, Norfolk, Virginia 23514; E. D.

Vickery, Royston, Rayzor & Cook, 877 San Jacinto Build-

ing, Houston, Texas 77002, and Francis A. Scanlan, Kelly,

Deas‘y & Scanlan, 926 Four Penn Center Plaza, Phila-

delphia, Pennsylvania, counsel for National Maritime Com-

pensation Committee; Ralph Rabinowitz, 1224 Maritime

Tower, Norfolk, Virginia 23510, counsel for Respondent

Albert Avery; John J. O’Connor, Jr., The Law Building,

425 St. Paul Street, Baltimore, Maryland 21202, counsel

for Respondents William H. Johnson and Julia T. Klosek.

Pau. S. Epetmay.