# Petition for a Writ of Certiorari — Gahagan Construction Corp. v. Armao > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1582%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1948 - **Citation:** 333 U.S. 876 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1582%3A1. Public record. Not legal advice.