Petition for a Writ of Certiorari — Gahagan Construction Corp. v. Armao

Subject Index.

Page

Petition 1

Statement of the matters involved 1

Jurisdiction 7

Reasons relied on for allowance of writ 7

1. Conflict between decisions of Circuit Courts

of Appeals 7

2. Need for clarification of law 8

3. Decision contrary to intent of Congress 10

Assignment of errors intended to be urged in the

event that a writ of certiorari issues : 12

Brief 15

Memorandum and opinion below 15

Jurisdiction 15

Statement of the case 16

Specification of errors 16

Summary of argument 16

Argument 17

1. There is conflict between the decisions of

the Circuit Courts of Appeals with respect

to application of the ‘‘local concern’’ doctrine 17

2. The law needs clarification, and to allow the

decision in this case to stand will create

widespread hardship 21

3. The decision in this case is contrary to the

intent of Congress and in violation of the

rights of the petitioner 22

Conclusion 27

Table of Authorities Cited.

CasEs.

Davis v. Dept. of Labor and Industries of State of

Washington, 317 U.S. 249 20, 21

ii AUTHORITIES CITED

Page

DeWald v. Baltimore & Ohio R. Co., 71 F. (2d) 810;

cert. den. 293 U.S. 581 24, 25

Fuentes v. Gulf Coast Dredging Co., 54 F. (2d)

69 18, 19

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

50 23, 24

J. C. Penney-Gwinn Corp. v. McArdle, 27 F. (2d)

324 18, 19

Kibadeaux v. Standard Dredging Co., 81 F. (2d)

670 24

Melanson v. Bay State Dredging & Contracting Co.,

62 F. Supp. 482 18, 19

Obrecht-Lynch Corp. v. Clark, 30 F. (2d) 144 24

South Chicago Coal & Dock Co. v. Bassett, 104 F.

(2d) 522 25

Taylor v. McManigal, Deputy Comm., 89 F. (2d)

583 24

Toland’s Case, 258 Mass. 470 20

United Dredging Co. v. Lindberg, 18 F. (2d) 453 19

Srarurss.

Merchant Marine Act (Jones Act), 46 U.S.C. § 688

16, 18, 20, 24, 26

Longshoremen’s & Harbor Workers’ Act, 33 U.S.C.

§§ 901 et seq. 16, 22, 23, 24, 25, 26

Mass. Workmen’s Compensation Act, G.L. (Ter.

Ed.) c. 152 15, 16, 20, 22

Supreme Court of the United States.

Octoser Term, 1947.

GAHAGAN CONSTRUCTION CORPORATION,

Petitioner,

v.

PHILIP ARMAO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIRST CIRCUIT.

To the Honorable the Chief Justice and Associate Justices

of the Supreme Court of the United States:

Statement of the Matters Involved.

The petition of Gahagan Construction Corporation re-

spectfully represents to this Honorable Court as follows:

Gahagan Construction Corporation, at the time of the

events herein referred to and for some considerable time

prior thereto, was engaged in conducting dredging opera-

tions for the Commonwealth of Massachusetts through its

Department of Public Works under the terms of written

contracts dated December 14, 1943, and October 2, 1944,

re

2

between the said petitioner (hereinafter called the defen-

dant) and the said Commonwealth. The terms and provi-

sions of the written contracts were introduced in evidence

at the trial in the District Court (R. pp. 69, 70) and certi-

fied copies of both contracts were admitted in evidence

and marked Exhibits 4 and 5, respectively. These original

exhibits were made a part of the record on appeal to the

Circuit Court of Appeals for the First Circuit and have

been certified from the Circuit Court to this Court and may

be referred to. Specifically the contracts required the

placing of approximately 4,000,000 and 10,000,000 cubic

yards, respectively, of hydraulic filling for embankments

‘A,’ **B,”? **C” and ‘*D’’ at the General Edward Law-

rence Logan Airport, East Boston. The defendant, Gaha-

gan Construction Corporation, by virtue of these con-

tracts, undertook to dredge material for the said embank-

ment by the hydraulic method from the designated ‘‘bor-

row area’”’ and to place this material as fill in the embank-

ments to the lines and grades shown on certain plans. The

dredging of the fill and depositing of the same at the Air-

port through pipelines connected to and running from the

dredge to shore was all part of one operation.

One of the defendant’s dredges, known as Dredge No.

5, was exclusively employed in the work described above

from July 23, 1945, to November 11, 1945.

Dredge No. 5 had no motive power of its own and had to

be towed by tugs or other vessels when coming from or

going to the locus of operations (R. p. 160). The only ma-

chinery aboard was steam turbine engines which »perated

the mechanism for digging and hoisting and controlling

the ‘‘spuds’’ which were used in holding the dredge in

place during actual dredging operations in shallow water.

The spuds were also used in conjunction with spring lines

attached to anchors, the spuds acting as pivots so that the

dredge could be moved forward short distances within the

3

confines of the ‘‘cut’’ (a more complete description of the

operation of the spuds may be found in the record at

pages 113, 114, 132, 133, 161, 170). There were no ac-

commodations for sleeping aboard Dredge No. 5 except

that there were two rooms with a cot in each reserved for

government or state inspectors. Nobody lived or slept

aboard during the operations in Boston Harbor (R. p.

173). All personnel of this dredge slept on shore and

were not furnished food by the dredge (R. p. 148). None

of the men aboard were licensed, including the so-called

captain and mates. The only license aboard this dredge

was a Massachusetts state boiler license (R. p. 171).

The respondent, Philip Armao (hereinafter called the

plaintiff), was employed by the defendant, Gahagan Con-

struction Corporation, on or about July 23, 1945, and was

hired to do general laboring work aboard Dredge No. 5.

Specifically his work consisted in working on the pipe,

floating pipe behind the dredge, cleaning up around the

dredge, taking stone out of the pump when it was sucked

in through the pipe, working on the derrick when moving

anchorage, checking ‘‘range lights,’’ and serving coffee to

the leverman or person in charge of operations aboard

the dredge (R. pp. 118-120, incl.; also p. 160). Armao had

no duties pertaining to navigation of the dredge except

possibly the occasional and incidental task of making lines

fast or unfast while the dredge was at the locus of dredg-

ing operations. He worked under a so-called ‘‘leverman,’’

who had no articles and was not an officer, but who merely

operated the machinery for digging, hoisting or moving

the spuds. Armao had no ‘‘articles’’ and never signed

‘farticles’’ with respect to any employment with the de-

fendant corporation (R. p. 159). He was paid by members

of the shore office personnel and not by anyone attached to

the dredge (R. pp. 160, 171). He was hired to do general

manual or laboring work; his contract was not with the

4

ones in charge of the dredge but with the corporation off-

cials on shore; his time card was kept by a timekeeper on

shore and he was required to have a social security card

(R. p. 171). Prior to his employment with the defendant

corporation, Armao worked in various capacities, none of

which were even remotely connected with ships, boats,

vessels, navigation or matters maritime in nature (R.

p. 33).

During the entire time from July 23, 1945, the date of

Armao’s employment with the defendant corporation, to

November 11, 1945, the date of his accident, he and all

other personnel aboard Dredge No. 5 were engaged in con-

ducting the dredging operations, which were exclusively

for the purpose of filling in land. The District Court

judge so ruled (R. p. 180).

At the time the plaintiff Armao sustained his injuries

and for a considerable period prior thereto Dredge No. 5

was operating in Boston Harbor close up to the shores of

East Boston, in shallow water, and was pumping silt and

sand from the bottom through a pipeline extending from

the pump on the dredge all the way to shore at the East

Boston Airport (R. p. 161), for the sole purpose of sup-

plying and actually depositing fill for the elevation and

grading of the embankments already referred to. In

most instances the dredge had to cut its own channel and

was digging in through flats (R. pp. 165, 166) which were

bare at low tide (R. p. 174). The waters immediately sur-

rounding Dredge No. 5 during its operations in Novem-

ber, 1945, were so shallow that at low tide the entire area

was above water (R. p. 95). Only four hours out of twelve

would the flats be covered by water, and even then at flood

tide the depth of water over the flats would not exceed 4

to 5 feet (R. p. 165). When Dredge No. 5 began excavat-

ing, the immediate area was all flats. As it excavated,

the dredge could then move in further and could float in

5

the ‘‘eut’’ that had been excavated in the flats (R. p. 166).

Dredge No. 5 was actually digging its way through mud

flats and was completely landlocked except where it had

already dredged (R. p. 95). During these dredging oper-

ations the dredge would move forward about 40 to 70 feet

per day. When the end of one ‘‘cut’’ was reached the

dredge would be towed back to the beginning of the next

‘‘eut’’ by attending tugs. (Certain charts and plans show-

ing location of work soundings, ete., were admitted in evi-

dence at the time in the District Court and marked Exhib-

its 6, 7 and 8, and subsequently were made parts of the

record on appeal. The original exhibits have been certi-

fied from the Circuit Court of Appeals for the First Cir-

cuit to this Court and may be referred to in support of this

statement of facts.)

On November 11, 1945, while engaged in the operations

described above, the plaintiff Armao was injured when his

hand became caught in a pulley block through which the

cable attached to the ‘‘cutter’’ ran.

Subsequently to the receipt of his injuries the plaintiff

Armao entered into a written agreement with the defen-

dant’s insurer with respect to payment. of compensation

under the Massachusetts Workmen’s Compensation Act,

and such agreement was filed with the Industrial Acci-

dent Board and approved by it (R. pp. 141, 142). Armao

was represented by counsel in pursuing his remedies un-

der-the State Compensation Act (R. p. 143). All pay-

ménts to the plaintiff by the defendant’s insurer were

/made under its obligations to the defendant corporation

by virtue of certain policies of insurance issued by the

insurance company to the corporation (R. p. 188; see also

Opinion, R. p. 208).

The plaintiff Armao accepted compensation from the

defendant’s insurer and otherwise actively pursued his

remedies under the State Compensation Act for a sub-

stantial period of time with the advice of able and com-

petent counsel and with the approval of the Massachusetts

Industrial Accident Buard, acting under the provisions of

the Workmen’s Compensation Act.

The defendant, in addition to accepting the provisions

of the Massachusetts Workmen’s Compensation Act, also

secured to its employees the payment of compensation

under the Longshoremen’s & Harbor Workers’ Compen-

sation Act of the United States (33 U.S.C. §§ 901 et seq.)

(Opinion, R. p. 200: ‘‘The defendant was insured under

both of these acts’’).

Although still receiving compensation under the State

Act and otherwise actively perfecting his claim before the

Industrial Accident Board, the plaintiff brought this civil

action at law under the Jones Act and the same was tried

before a judge and jury in the District Court of the United

States, District of Massachusetts. The entire record, pro-

ceedings and evidence, with certain omissions noted in the

petitioner’s ‘‘Designation of Contents of Record’’ (R. pp.

191-193, incl.), became a part of the record on appeal.

That record and all subsequent proceedings in the Circuit

Court of Appeals have been certified to this Court for the

purpose of supporting this petition and may be referred

to. The pleadings are completely set forth in the record,

pp. 1 to 9, inclusive.

The jury returned a verdict for the plaintiff Armao in

the sum of $19,255, which, on motion of the defendant, was

reduced by the amount of $2032 (the amount received by

Armao as compensation under the State Act) (R. p. 190).

The defendant corporation, claiming to be aggrieved by

the District Court’s denial of its motions for a directed

verdict, motions to set aside the verdict, its requests for

rulings and instructions to the jury, and by other errors

of law more specifically set forth in its ‘‘Statement of

Points’’ (R. pp. 195-197, incl.), appealed to the United

7

States Circuit Court of Appeals for the First Circuit.

This cause was argued November 4, 1947, and on January

6, 1948, the said Circuit Court affirmed the judgment of

the District Court. The memorandum of the District

Court appears in the record at pages 18 to 23. The opin-

ion of the Circuit Court of Appeals appears in the record

at pages 199 to 208. Neither the memorandum nor the

opinion has yet been printed in any official report.

Jurisdiction.

The jurisdiction of this Court is invoked under Section

240 (a) of the Judicial Code, as amended by an Act of

February 13, 1925, C. 229, 28 U.S.C. See. 347 (a).

Reasons Relied on for Allowance of Writ.

1. Conflict between Decisions of Circuit Courts of Ap-

peals,

The decision of the Circuit Court of Appeals for the

First Circuit in this case is directly opposed to and in

conflict with decisions of this Court and of the Circuit

Court of Appeals for the Fifth Circuit in that it concluded

that ‘‘if the plaintiff [the present respondent, Philip Ar-

mao] was a seaman injured on navigable waters, there

is no place for the application of the doctrine of local con-

cern’’ (Opinion, R. p. 204) and in that it declined to fol-

low the Fifth Cireuit cases of Fuentes v. Gulf Coast

Dredging Co., 54 F. (2d) 69 (1931) ; United Dredging Co.

v. Lindberg, 18 F. (2d) 453 (1927); cert. den. 274 U.S. 759

(1927), and J. C. Penney-Gwinn Corp. v. McArdle, 27 F.

(2d) 324, which are supported by a dictum of Judge

Healey in a case arising in the First Cirecuit—see Melan-

son v. Bay State Dredging € Contracting Co., 62 F. Supp.

8

482, 485 (D. Mass. 1943), even though the said cases which

were relied upon by the defendant (the present petitioner,

Gahagan Censtruction Corporation) are the only cases

in the country which are squarely in point and are not dis-

tinguishable from the undisputed facts of the case at bar.

The petitioner, Gahagan Construction Corporation, re-

spectfully calls the attention of this Honorable Court to

the fact that at the trial of this case in the District Court

the trial judge ruled that Dredge No. 5 was engaged

solely in procuring fill or dirt to add to the Airpo-t (R.

p. 180), and urges that in applying the doctrine of ‘‘local

concern’’ only the dredging of the fill and the depositing

of the same on the Airport, which was all part of one oper-

ation, may be considered. |

The petitioner earnestly submits that never will any

Court in the future be presented with a case which more

clearly demands the application of the ‘‘local concern’’

doctrine than this one; that, if the operations of Dredge

No. 5 are ruled to be without the scope and protection of

that doctrine, it is impossible to conceive of a set of facts

to which it could apply. (For arguments in support of

this assertion see pages 17-20 of supporting brief, attached

hereto.)

2. Need for clarification of law.

The law with respect to the applicability of the ‘‘local

concern’’ doctrine already is in a confused state and to

allow the decision of the Circuit Court of Appeals for the

First Cireuit in this case to stand will serve only to in-

crease that uncertainty and confusion, and will create un-

told hardship on employees, employers and their insur-

ers alike throughout the count:

Up to the date of the Circuit * Appeals’ decision

in this case, the ‘‘local concern’’ a. -cine has consistently

9

been held to be applicable to dredges and other harbor

craft engaged exclusively in filling in land (Fuentes v.

Gulf Coast Dredging Co., 54 F. (2d) 69 (1931); J. C. Pen-

ney-Gwinn Corp. v. McArdle, 27 F. (2d) 324), digging new

navigable channels through land (United Dredging Co. v.

zandberg, 18 F. (2d) 453 (1927)), and digging into the

land side of a harbor to enlarge the capacity of a private

dock. Toland’s Case, 258 Mass. 470. It is extremely sig-

nificant that not a single case has been produced by the

respondent’s counsel or in the opinions of the District

Court and Circuit Court of Appeals in this case which

directly or indirectly attacks the validity or the logic of

those decisions as applied to the uncontroverted facts of

this case. The petitioner after diligent search feels that

there are none. If the decision in this case by the District

Court and the Circuit Court of Appeals is allowed to

stand, at least on this particular issue, the numerous

Courts in the Circuits outside the First Circuit are left

free to follow either the First or the Fifth Circuits with

respect to any pertinent issues decided therein.

In the face of the situation as it now exists, the most

competent counsel may be unable to predict which line of

decisions will ultimately be followed or on which side of

the line a particular employment will fall. Yet employ-

ees, employers and their insurers are asked to determine

with certainty, before bringing their actions or before set-

ting up a defense thereto, issues over which Courts regu-

larly divide among themselves and within their own mem-

bership. As penalty for error the employee may suffer

serious financial loss or find his claim barred by the stat-

ute of limitations in the proper forum while he was erro-

neously pursuing it elsewhere. The employer likewise

may find that his insurance under State Compensation

Acts or under the Federal Longshoremen’s Act, to which

he is compelled to subscribe and contribute, wholly fails

10

to protect him against the very liabilities for which that

insurance was specifically planued. Davis v. Department

of Labor and Industries of the State of Washington, 317

U.S. 249.

3. Decision contrary to intent of Congress.

The decision of the Circuit Court of Appeals for the

First Circuit in this case is directly opposed to and in con-

flict with the expressed intent of the Longshoremen’s &

Harbor Workers’ Compensation Act of the United States,

33 U.S.C. §§ 901 et seqg., and decisions of this Court per-

taining to that Act. Also the refusal of the trial judge to

consider or submit to the jury the question as to whether

Armao was a ‘‘member of the crew’’ within the meaning

of the exclusion clause of the Longshoremen’s Act was a

violation of a fundamental if not a constitutional right of

the petitioner.

At the conclusion of the District Court judge’s charge

to the jury both plaintiff’s counsel and defendant’s coun-

sel request»d the trial judge to instruct the jury with re-

spect to the meaning and effect of the words ‘‘member of

the crew’’ in the exclusion clause of the Longshoremen’s

Act. The record, at pages 186 and 187, shows beyond a

doubt that in this connection the District Court judge did

not properly instruct himself or the jury as to the law

applicable to the point sought to be raised by both coun-

sel. When asked by plaintiff’s counsel to say a word to

the jury about the meaning of ‘‘member of the crew,”’

the judge replied: ‘‘That language does not appear in the

statute’’ (R. p. 186). The judge obviously referred to

the Jones Act. When plaintiff’s counsel ik pressing his

request explained that he referred to the exelusion clause

of the Longshoremen’s Act, the judge paige Pe p. 187):

‘‘T don’t think I need to because you are referring to a

statute which I have not commented on and I don’t want

11

to go into it.’’ Defendant’s counsel duly saved the de-

fendant’s rights for the failure or refusal of the judge to

properly instruct the jury with respect to the meaning,

effect and applicability of the said exclusion clause. The

defendant argued before the District Court judge and

again before the Circuit Court of Appeals that as a mat-

ter of law the plaintiff Armao was not a ‘‘member of the

erew,’’ and cited various decisions of the Court in sup-

port of such contention (see brief appended for cases re-

lied upon), but whether the question of the plaintiff’s

status as a ‘‘member of the crew”’ or as a ‘‘non-member

of the crew’’ be one of fact or of law, the defendant had

a fundamental if not a constitutional right to have that

question determined specifically, since, under all the de-

cisions of this Court rendered subsequently to the passage

of the Longshoremen’s Act, if Armao was not a ‘‘member

of the crew,’’ he cannot maintain an action under the

Jones Act.

The Circuit Court of Appeals in holding that ‘‘ Although

perhaps it would have been preferable for the trial judge

to use the term ‘member of the crew’ and then define it,

there is no magic in that phrase that absolutely requires

its use in a charge’’ and in further holding that ‘‘the

jury in substance found that the plaintiff was a member

of the crew, although it did not consider those exact

words’’ (Opinion, R. p. 206), completely overlooked or

ignored the intent and effect of the Longshoremen’s Act

and decisions of this Court, which have consistently held

that ‘‘Congress intended to except from the benefits of the

Longshoremen’s Act only those persons ordinarily and

generally considered as seafaring men, at least only those

employed on board a vessel having a master and crew.’’

DeWald v. Baltimore & Ohio R. Co., 71 F. (2d) 810; cert.

den. 293 U.S. 581, No. 207. The record is clear in this

ease that the issue whether Armao was a member of the

12

crew was never considered or submitted to the jury, but,

on the contrary, the trial judge actually refused to submit

that issue or comment upon any phase of the Longshore-

men’s Act. Your petitioner, therefore, was unlawfully

deprived of its absolute right to invoke an Act of Congress

which was by its very terms applicable in cases of this

nature.

Assignment of Errors Intended to be Urged in the Event

that a Writ of Certiorari Issues.

The petitioner submits that the Circuit Court of Ap-

peals for the First Circuit erred in affirming the judgment

of the District Court, in refusing to set aside the verdict

of the jury and any judgment entered thereon, in refus-

ing to enter a judgment for the defendant or in refusing

to grant a new trial.

In the event that a writ of certiorari is granted in this

case the petitioner intends to rely upon the following is-

sues of law and arguments amply supported by authori-

ties as grounds for reversal of the judgment of the District

Court and affirmation thereof by the Circuit Court of

Appeals:

I. The remedy afforded to the plaintiff under the Work-

men’s Compensation Act of the Commonwealth of Massa-

chusetts is exclusive of all other remedies. Therefore the

plaintiff’s cause does not fall within the jurisdiction con-

ferred upon this Court to hear cases of an admiralty na-

ture, whether on the admiralty or on the law side of the

docket.

Il. If the Circuit Court of Appeals should rule that the

State Compensation Act is not applicable to the cause now

under consideration, resort to the Longshoremen’s & Har-

bor Workers’ Compensation Act of the United States, 33

>

——

13

U.S.C. §§ 901 et seg., is mandatory as between the plain-

tiff employee and the defendant employer.

III. Even if the Circuit Court of Appeals should rule

that neither the State Compensation Act nor the Long-

shoremen’s & Harbor Workers’ Compensation Act ap-

plies to the case at bar, nevertheless the plaintiff cannot:

recover in this civil action.

IV. The District Court erred in denying the defen-

dant’s motions for a directed verdict.

V. The District Court erred in denying or refusing to

allow the defendant’s requests for rulings 1 to 13, inclu-

sive, which were duly filed at the conclusion of the evidence

in the District Court.

VI. The District Court erred in refusing or failing to

charge or instruct the jury in accordance with the defen-

dant’s requests for rulings and instructions.

VII. The District Court erred in refusing or failing to

charge the jury upon request of counsel for the defendant

that, in order to recover under the Jones Act, the plaintiff

Armao must have sustained his burden of proving not only

that he was a seaman within the meaning of the Jones Act

but that he was also a ‘‘member of the crew’’ within the

meaning of the exclusion clause of the Longshoremen’s &

Harbor Workers’ Compensation Act of the United States.

VIII. The District Court erred in charging the jury as

to the test to be applied to this case as set forth in the

record at pages 178 and 180.

Wherefore your petitioner respectfully prays that a

writ of certiorari be issued out of and under the seal of

this Honorable Court directed to the United States Cir-

cuit Court of Appeals for the First Circuit commanding

that Court to certify and send to this Court a full and

complete transcript of the court record and all proceed-

ings of said Circuit Court of Appeals in the case numbered

14

and entitled on the docket of that Court, ‘‘No. 4280, Gaha-

gan Construction Corporation, Defendant, Appellant, v.

Philip Armao, Plaintiff, Appellee,’’ to the end that the

said case may be reviewed and determined by this Court,

and that your petitioner may have such other and further

relief in the premises as to this Court may seem just and

proper.

GAHAGAN CONSTRUCTION CORPORATION,

By Paut R. FReperick,

Counsel for Petitioner.

Bapoer, Pratt, Dove & BapceEr,

Cuaries C. PETERSEN,

Of Counsel.

I hereby certify that the foregoing petition is presented

in good faith and not for the purpose of delay and that in

my opinion the case is a proper one for the issuance of a

writ of certiorari.

PAUL R. FREDERICK,

Counsel for Petitioner.

Dated March 12, 1948.

— UCC

Supreme Court of the United States.

Octoser Term, 1947.

GAHAGAN CONSTRUCTION CORPORATION,

Petitioner,

v.

PHILIP ARMAO,

Respondent.

BRIEF FOR THE PETITIONER IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI.

Memorandum and Opinion Below.

The memorandum of the District Court appears in the

record at pages 18 to 23. The opinion of the Circuit Court

of Appeals appears in the record at pages 199 to 208.

Neither the memorandum nor the opinion has yet been

printed in any official report.

Jurisdiction.

The respondent Armao was injured while he was em-

ployed on the petitioner’s dredge which was engaged ex-

clusively and solely in filling in land. For a substantial

period following the receipt of his injuries Armao was

paid compensation by the petitioner’s insurer under the

terms and provisions of the Massachusetts Workmen’s

16

Compensation Act (G.L. (Ter. Ed.) ¢. 152). Almost a

year from the date of the injury this action at law under

the Jones Act was instituted on the theory that Armao was

a ‘‘seaman’’ and a ‘‘member of the crew.’’ The peti-

tioner denied his status as such and contended among

other things that the accident was not within the maritime

jurisdiction of the United States; that Armao’s sole rem-

edy, if any, was under the State Workmen’s Compensa-

tion Act or under the Longshoremen’s & Harbor Workers’

Act of the United States (33 U.S.C. §§ 901 et seq.). Two

of the most important issues raised in these proceed-

ings are whether the ‘‘local concern’’ doctrine is applicable

to this case so as to render the State Compensation Act

the exclusive remedy, and whether the refusal or neglect

of the District Court judge to consider or submit to the

jury the question as to the applicability or effect of the

exclusion clause of the Longshoremen’s & Harbor Work-

ers’ Act of the United States was a violation of the peti-

tioner’s fundamental if not constitutional right.

Statement of the Case.

A statement of the case is set forth in the petition at

pages 1-7.

Specification of Errors.

See Assignment of Errors in the petition at pages 12-

13.

Summary of Argument.

1. There is conflict between the decisions of the Circuit

Courts of Appeals with respect to application of the ‘‘local

concern’’ doctrine.

ee

|

17

2. The law needs clarification, and to allow the decision

in this case to stand will create widespread hardship.

3. The decision in this case is contrary to the intent of

Congress and in violation of the rights of the petitioner.

Argument.

1. THERE IS CONFLICT BETWEEN THE DECISIONS OF THE CiR-

cuir Courts oF APPEALS WITH RESPECT TO APPLICATION

OF THE ‘‘LOCAL CONCERN’’ DOCTRINE.

The decision of the Circuit Court of Appeals for the

First Circuit is directly opposed to and in conflict with

decisions of this Court and of the Circuit Court of Appeals

for the Fifth Circuit in ruling that, if the respondent was

@ seaman injured on navigable waters, there is no place

for the application of the doctrine of ‘‘local concern.’’

At the outset it must be remembered that in this case the

dredge in question (Dredge No. 5) was engaged solely and

exclusively in procuring fill or dirt to add to the Airport,

that the District Court judge so ruled (R. p. 180) and that

this entire case was tried and argued and the jury charged

upon the uncontroverted fact that the dredging of the fill

or dirt and the depositing of the same on the Airport was

all part of one operation.

Since the exact nature of the operations of Dredge No. 5

is not in dispute and in view of the trial judge’s express

ruling that it was ‘‘engaged solely in procuring fill or dirt

to add to the airport’’ (R. p. 180), it would seem that no

extended argument is necessary to convince this Court

that decisions involving dredges or other craft engaged in

improving navigable waters or in like maritime operations

are not pertinent or applicable to this case.

It is respectfully submitted that this civil action should

and must be governed by the principles laid down in the

18

cases of Fuentes v. Gulf Coast Dredging Co., 54 F. (2d) 69;

J. C. Penney-Gwinn Corp. v. McArdle, 27 F. (2d) 324, and

by the supporting dicta in Melanson v. Bay State Dredging

& Contracting Co., 62 F. Supp. 482.

The Fuentes case is not merely a ‘‘close’’ or ‘‘parallel’’

case but is squarely in point and indistinguishable from

the case at bar. Like the instant one, the Fuentes case was

an action at law brought under the Jones Act to recover

for personal injuries sustained by an employee on a

dredge. The Court said at page 70: ‘‘The dredge on which

the appellant was working at the time of his injury was in

Galveston Bay close up to Virginia Point in shallow water,

not more than two or three feet deep pumping silt and

sand from the bottom through a pipe line for the purpose

of filling in and raising the elevation of . . . land on Vir-

ginia Point. It had not been able to float to its position

near the land but had cut its own channel ... The dredg-

ing operations were not being conducted in the aid of com-

merce or navigation, but the deepening of the water was

merely incidental to the improvements that were being

made on land. ... In this case it is agreed that the em-

ployer is a subscriber to the Workmen’s Compensation

Law of Texas and that the employee was bound by its pro-

visions if they are applicable.... We are of opinion

that notwithstanding the Merchant Marine Act the Dis-

trict Court was without jurisdiction to entertain the action

and that the remedy afforded to the appellant under the

Workmen’s Compensation Law of Texas is exclusive of

all other remedies. If it be conceded that the waters of

Galveston Bay, where the accident occurred are navigable

and that in the absence of a state compensation law the

Admiralty Court would have had jurisdiction, yet the

maritime law is not so exclusive as to prevent recovery

under state compensation acts in all cases of accident on

navigable waters; but where the matter is of mere loeal

19

concern and the regulation of the relation of employer and

employee works no prejudice to the general maritime law

the state may prescribe an exclusive remedy. [Cases

cited.] Upon the authority of the just cited decisions of

the Supreme Court the judgment is reversed and the cause

remanded to the District Court with directions to dismiss

appellant’s action for want of jurisdiction but without

prejudice to pursue any remedy he may have under the

Workmen’s Compensation Law of Texas.’’

The McArdle case involved dredges engaged in filling in

land in order to bring it to the required grade, and the

Court held at page 325: ‘‘There is no doubt that a dredge

engaged in navigation or in doing work for the purpose of

improving a channel, or that will be in aid of navigation in

certain circumstances is subject to admiralty jurisdiction,

but a distinction is made where a vessel or other floating

structure is not so engaged. ... Of course the dredging

deepened the water where the material was removed; but

that was merely incidental to the work being done. The

dredges were not engaged in either commerce or naviga-

tion. The purpose of employing them was to make im-

provements on land, not for the purpose of aiding mari-

time commerce, but to fill up land in order to bring it to the

required grade.’’

Judge Healey of the United States District Court for

the District of Massachusetts, in distinguishing the facts

of the case before him, Melanson v. Bay State Dredg-

ing & Contracting Co., 62 F. Supp. 482, from those in the

Fuentes and McArdle cases, said at page 485: ‘‘In the

Fuentes and McArdle cases supra the dredges involved

were being used for the purpose of filling in land which

activity of course is of purely local concern. [Cases

cited.].’’

In United Dredging Co. v. Lindberg, 18 F. (2d) 453, the

right of recovery was upheld under the Workmen’s Com-

—-

20

pensation Law of Louisiana. The dredge in that case was

engaged in cutting a navigable channel or canal across

land. Notwithstanding the fact that there was deep water

around the dredge and the channel being dug was intended

to be navigated when finished, the Court held that the

matter was of ‘‘mere local concern’’ and that the Work-

men’s Compensation Act governed to the exclusion of the

Merchant Marine Act. The Court specifically held that

the District Court was without jurisdiction to entertain

the action under the Jones Act. See also Toland’s Case,

258 Mass. 470, which is directly in point.

In the light of the foregoing decisions, which, in so far

as your petitioner can determine, have never been over-

ruled or repudiated until the Circuit Court of Appeals for

the First Circuit in this case refused to follow them, it is

manifest that the decision of the Circuit Court of Appeals

in this case is directly opposed to and in conflict with the

just cited cases of the Fifth Circuit.

Your petitioner earnestly urges that none of the cases

cited in the District Court’s memorandum (R. pp. 20-21)

or in the opinion of the Circuit Court of Appeals (Opin-

ion, R. pp. 201-203, incl.) in opposition to the petitioner’s

contention involved the filling in of land by dredging op-

erations, and that they therefore have no application to

the uncontroverted facts in this civil action.

It is respectfully submitted that never will any Court in

the future be presented with a case which more clearly

demands the application of the ‘‘local concern’’ doctrine

than this one; that this case does not represent one of those

‘‘twilight zone’’ or marginal cases so often referred to as

such (Davis v. Department of Labor and Industries of

State of Washington, 317 U.S. 249, 255-260), but involves

essentially a ‘‘land operation’’ having no direct relation to

navigation or interstate and foreign commerce.

21

2. THE LAW NEEDS CLARIFICATION, AND TO ALLOW THE DECI-

SION IN THIS CASE TO STAND WILL CREATE WIDESPREAD HARD-

SHIP.

The law with respect to the applicability of the ‘‘local

concern’”’ doctrine already is in a confused state. To allow

the decision of Circuit Court of Appeals in this case to

stand will only increase that uncertainty and confusion

and will create untold hardship on employers, employees

and their insurers throughout the country.

In order to avoid repetition, your petitioner incorpo-

rates by reference herein its reasoning set forth in the sec-

ond part of its petition and respectfully calls to the atten-

tion of this Honorable Court the decision in Davis v. De-

partment of Labor, which contains an excellent discussion

of the hardships which are continually injuring employees

and employers alike because of confusion and uncertainty

with respect to the applicability of the ‘‘local concern’’

doctrine.

It is respectfully submitted that the Court now has the

opportunity and indeed the duty to dispel any future un-

certainty with respect to the applicability of the ‘‘local

concern’’ doctrine to dredges or other craft which are

solely and exclusively engaged in filling in land. In many

cases involving ‘‘twilight zone’’ or marginal cases it often

is inexpedient or impossible to lay down any hard and fast

rule concerning that doctrine, but there are no such com-

plications here. It has been ruled in this case that Dredge

No. 5 was engaged exclusively and solely in filling in land.

The only cases in the country (except the present decision

now under consideration) involving dredges or other craft

exclusively so engaged have held such operations to be

‘fof purely local concern.’’ Manifestly those decisions

cited by the petitioner in its behalf are predicated upon

the logical conclusion that operations by dredges or other

craft which are to all practical purposes essentially ‘‘land

22

operations’? are not subject to admiralty jurisdiction.

Overruling those decisions would serve no useful purpose

and would, it is urged, merely increase the difficulties of

the Courts and all parties concerned.

The judgment and decision of the Circuit Court of Ap-

peals for the First Circuit should be reversed.

3. THE DECISION IN THIS CASE IS CONTRARY TO THE INTENT OF

CONGRESS AND IN VIOLATION OF THE RIGHTS OF THE PETI-

TIONER.

The decision of the Circuit Court of Appeals for the

First Circuit in this case is directly opposed to and in con-

flict with the expressed intent of the Longshoremen’s &

Harbor Workers’ Compensation Act of the United States,

33 U.S.C. §§ 901 et seq., and decisions of this Court per-

taining to that Act. Also the refusal of the trial judge to

consider or submit to the jury the question as to whether

Armao was a ‘‘member of the crew’’ within the meaning

of the exclusion clause of the Longshoremen’s Act was a

violation of a fundamental if not a constitutional right of

the petitioner.

One of the principal defenses to this action which was

relied upon by the petitioner at the time of trial and which

will be argued before this Court if certiorari is granted is

that, if it is decided that the work in which Armao was

engaged when he sustained his injuries was maritime and

that his injuries occurred under circumstances which pre-

clude the State Compensation Act from providing recov-

ery, resort to the Longshoremen’s Act is mandatory unless

Armao is found to be a ‘‘member of the crew’’ within the

meaning of the exclusion clause of that Act.

Your petitioner has also contended from the outset of

this case that, in order to establish any right whatever

under the ‘‘Jones Act,’’ Armao must specifically prove not

23

only that he was a ‘‘seaman’’ under the ‘‘ Jones Act’’ but

that he also was a ‘‘member of the crew’’ within the mean-

ing of the exclusion clause of the Longshoremen’s Act.

The Longshoremen’s Act expressly provides that lia-

bility thereunder ‘‘shall be exclusive and in place of all

other liability of such employer to the employee, his legal

representative . . . at law or in admiralty,’’ and that re-

covery may not be had thereunder unless the injuries oc-

curred under circumstances which ‘‘preclude the State

Compensation laws from providing recovery.’’ The

Longshoremen’s Act by its terms excludes from its cover-

age ‘‘A master or member of a crew of any vessel’’ (33

U.S.C. §§ 903, 905).

It therefore is manifest that, by virtue of the Act itself,

your petitioner has the absolute right to have specifically

determined the issue whether Armao was a ‘‘member of

the crew’’ within the meaning of the exclusion clause of

the Longshoremen’s Act.

The District Court judge not only refused to charge or

instruct the jury in this regard but stated to counsel (R.

p. 187) ‘*. . . you are referring to a statute which I have

not commented on and don’t want to go into it.’’

The petitioner respectfully submits that the refusal of

the trial judge to consider or at least submit that issue to

the jury constituted a violation of its fundamental if not

constitutional right.

The following cases are cited in support of its state-

ments in the foregoing paragraphs and in part 3 of its

petition (supra, pp. 10-12).

The case of International Stevedoring Co. v. Haverty,

272 U.S. 50, and many other cases decided before the pas-

sage of the Longshoremen’s & Harbor Workers’ Compen-

sation Act have held that one employed as a stevedore or

harbor worker was so far a ‘‘seaman’”’ that, if he was in-

jured on board a ship on navigable waters, he could sue his

= Beg

employer in reliance upon the Jones Act. Congress, how-

ever, has, since those decisions, and in the light of them,

varied the protection of maritime workers according to

nature and circumstances of their employment. No in-

ference that Congress seeks to protect stevedores and

harbor workers by the Jones Act can be drawn, because

since 1927 Congress has expressly indicated the protection

it intends for ‘‘longshoremen and harbor workers’’ as dis-

tinguished from ‘‘seamen’’ who are also ‘‘members of the

crew.”’

In Obrecht-Lynch Corporation v. Clark, 30 F. (2d) 144,

at 146, the Court said in substance that, although the Su-

preme Court in the Haverty case held longshoremen to be

‘“seamen’’ under the Jones Act, under the Longshoremen’s

Act Congress has apparently expressed an intention to re-

move such persons from the operation of the earlier Act

as thus construed and to place them under the later Act.

In Kibadeauax v. Standard Dredging Co., 81 F. (2d) 670,

it was stated at page 672 that ‘‘the Longshoremen’s Act

. of course modifies further the general admiralty law

of the United States in so far as it concerns persons who,

like longshoremen were seamen under the former law, but

are put under the latter by its terms.”’

The presumption is that in the absence of substantial

evidence to the contrary the claim comes within the pro-

visions of the Longshoremen’s and Harbor Workers’ Act.

Taylor v. McManigal, Deputy Comm., 89 F. (2d)

583.

DeWald’s case (DeWald v. Baltimore & Ohio R. Co., 71

F. (2d) 810; cert. den. 293 U.S. 581, No. 207) on its facts is

very similar to the case at bar and the sole point involved

was whether DeWald was a ‘‘member of the crew”’ at the

time he met his death by drowning. The judge below

found DeWald to be a ‘‘member of the crew,’’ but the Cir-

cuit Court of Appeals reversed the decree entered below

25

and ruled that DeWald was not a ‘‘member of the crew.’’

The Court said: ‘‘. . . While Congress has not in the Act

[Longshoremen’s & Harbor Workers’ Act] definitely clas-

sified those persons who are entitled to receive benefits

under it . . . it is to us reasonably clear that Congress in-

tended to except from the benefits of the Longshoremen’s

Act only those persons ordinarily and generally considered

seafaring men, at least only those employed on board a

vessel having a master and a crew. It is significant that

Congress did not use the term ‘seamen’ in section 903 of

the Act. It would undoubtedly have used that term had it

intended to exclude from the benefits of the Act all those

who have been held by the Courts to be seamen in the more

liberal interpretation of the term.’’

The case of Souih Chicago Coal € Dock Co. v. Bassett,

104 F. (2d) 522, reviewed and affirmed by this Honorable

Court, decided that, where a deceased workman employed

on a vessel used solely for fueling other vessels had no

duties pertaining to the navigation of the vessel except the

incidental task of throwing a ship’s line and his primary

duty was to free coal if it stuck in the hopper while being

discharged into the fueled vessel, and he had no ‘‘articles,”’

such a workman was not a ‘‘member of the crew’’ but was

a longshoreman under the exclusive protection of the Long-

shoremen’s Act. The Court said: ‘‘... While we have

given some weight to the fact that the certificate of in-

spection required the craft to have a crew of five . . . and

that . . . five would be present only if the [deceased] were

included, we are convinced that the word ‘crew’ as used in

the certificate has a different significance and connotation

than the word ‘crew’ as used in the statutory exception.

The Longshoremen’s Act contemplated the exclusion of

that body of men who in the common parlance make up

the ship’s complement, those who regularly or ordinarily

are engaged in seafaring and navigation, not those whose

tasks are of such a nature that they are independent of

—

26

navigation in their scope, such tasks which might as well

have their background on shore or at the dock ... It was

an ordinary laborer’s job, and it was mere happenstance

that the location of his position was on shipboard.’’

Taking into consideration the cases cited in this brief

and petition, and the history and intent of Congress in

passing the Longshoremen’s & Harbor Workers’ Act,

there can be no doubt that in order to recover under the

Jones Act the plaintiff must sustain the burden of prov-

ing not only that he was a ‘‘seaman’’ within the meaning

of the Jones Act but that he was also a ‘‘member of the

crew’’ within the meaning of the exclusion clause of the

Longshoremen’s Act. It follows, therefore, that both Acts

must be considered, specifically interpreted and applied.

In this case the District Court judge refused to consider

or comment upon the Longshoremen’s Act or any phase

thereof (R. pp. 186, 187).

Surely a writ of certiorari should be granted in this case

to enable this Court to review and correct the manifest

error of the District Court and the Cireuit Court of Ap-

peals in refusing to consider or apply a pertinent Act of

Congress.

27

Conclusion.

In conclusion, it is urged that this petition and brief,

verified by the record on file, discloses a serious conflict

between Circuit Courts of Appeals upon issues which not

only affect the immediate parties to this civil action but

gravely concern employees, employers and their respective

insurers throughout the country.

Wherefore your petitioner prays that a writ of certio-

rari issue as prayed for.

Respectfully submitted,

PAUL R. FREDERICK,

Attorney for Petitioner.

Bapcer, Pratt, Doyte & Bapcer,

Cuar.es C. PETERSEN,

Of Counsel.