Petition for a Writ of Certiorari — Avondale Marine Ways, Inc. v. Wilson

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IN THE HAROLD B. WILLEY, Clerk

Supreme Court of the United States

OCTOBER TERM, 1953

No. 3 39

AVONDALE MARINE WAYS, INC.,

versus

SADIE ANTHONY WILSON, INDIVIDUALLY, SADIE

ANTHONY W:LSON, TUTRIX OF THE MINORS

GOVERNOR THOMAS, EDDIE JUNIUS THOMAS,

VAINEY THOMAS and ANNA ANTHONY.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT.

—_————

CHAFFE, McCALL, TOLER & PHILLIPS, and

HARRY McCALL,

LEON SARPY,

EDMUND McILHENNY,

Attorneys for Avondale Marine

Ways, Inc., Petitioner,

1500 National Bank of Commerce

Bldg., New Orleans, La.

SUBJECT INDEX

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SFR SR OOS 016 6 0’ OD 06's. & 20 5 Ue 8 Sb" st bt

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ewe eetee ee eee eee esense

THE DECISIONS BELOW ................0.. 5

SEATTLE WVU oo 0s foes cb TS 5

JURISDICTION 7

THE QUESTIONS PRESENTED 7

REASONS RELIED ON FOR THE ALLOW-

ANCE OF A WRIT OF CERTIORARI.. 8

SPECIFICATION OF ERRORS .............. 10

scent toivomnce anh EEE Meat ihe 11

CRIS Sc oo ye ena s oh ee a RSLS 21

RRO MINE os eV cede cess Wied care) ee. 22

CITATIONS

1. Statutes

Constitution of the United States, Article I, Sec. 8 .. 8, 11

Constitution of the United States, Article III, Sec. 2 7,8

Constitution of the United States, Article VI ...... 8

Constitution of the United States, Fifth and Four-

teenth Amendments ....................... 8

Act June 5, 1948, 62 Stat. 928, 28 U. S. Code 1254 .. 7

Longshoremen’s and Harbor Workers Compensation

Act, 44 Stat. 1426, 33 U.S.C. Sec. 901, et seq...

Sec. 902(14)

nt Pekin attoh) te eid Re Oe fo ee pe ok Uk ee nas Cee

8 SEO 8 OR OL SO 680 80S OS 8 Bk we ee Ue

Achat atresia nee ee ee a Te ee ee

CITATIONS—(Continued)

; 2. Table of Cases

PAGE

Bolin vs. Marshall, 76 F. 2d 668 .......-----+++++- 18

Davis vs. Department of Labor & Industries, 317

Oe Er, AG ki wighem baie ne ehesinesiue ee 12

Ellis vs. Henderson, 204 F. 2d 178 ........---+-+-- 2,5

Green vs. Crowell, 69 F. 2d 762 ........---+--++-++: 18

Heiner vs. Donnan, 285 U. S. 312 .........-+-+-++-- 16

Poff vs. Pennsylvania R. Co., 327 U. S. 399 ........ 18

Prudence Realization Corp. vs. Geist, 316 U. S. 89, 95 20

Robbins Dry Dock Co. vs. Dahl, 266 U. S. 449 ..... 12, 13

Sanderson vs. Sause Bros., 1953 AMC 1261 ........ 21

Schlessinger vs. Wisconsin, 270 U. S. 230, 240 ...... 9, 16

Southern Pacific Co. vs. Jensen, 244 U. S. 205, 214-5 11

Southern Railway vs. Gray, 241 U. S. 333, 338-9 .... 20

United States vs. Provident Trust Co., 291 U. S. 272,

EC Ch cena sw nnn he Cee Ominleaen Sree 18

Weyerhauser Timber Co. vs. Marshall, 102 F. 2d

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1953.

AVONDALE MARINE WAYS, INC.,

versus

SADIE ANTHONY WILSON, INDIVIDUALLY, SADIE

ANTHONY WILSON, TUTRIX OF THE MINORS

GOVERNOR THOMAS, EDDIE JUNIUS THOMAS,

VAINEY THOMAS and ANNA ANTHONY.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT.

To the Honorable the Chief Justice and the Associate

Justices of the United States:

Avondale Marine Ways, Inc., the employer of Mose

Wilson, deceased, prays that a writ of certiorari issue out,

of this Court to review a decision of the Court of Appeals

for the 5th Circuit in so far as it holds that petitioner

must pay compensation under the Longshoremen’s and

Harborworkers’ Compensation Act, 44 Stat. (1426, 33

U. S. C. §§ 901 et seq., for the benefit of four minor

illegitimate children of the decedent’s estranged widow.

eae

SUMMARY STATEMENT.

The case presents a novel question under the Long-

shoremen’s and Harborworkers’ Compensation Act (here-

in called the Longshoremen’s Act) which has not been,

but should be, decided by this Court. It involves the

interpretation of the words “child or children of the de-

ceased” in Section 9 of that Act, 33 U. Ss. C. § 909. It is

a companion case to Ellis v. Henderson, 204 F. 2d 178,

decided by the same court on the same day, and in which

an application for a writ of certiorari has been filed in

this Court, Docket No. 310.

A claim for compensation growing out of the death of

petitioner’s employee, Mose Wilson, was filed by his

estranged widow, Sadie Anthony Wilson, in her own

behalf and in behalf of her children. The employee’s

death occurred in an explosion on a barge which was

afloat on the Mississippi River near New Orleans.

The widow and the deceased employee were married

on November 25, 1927 (R. 5, 20, 23) and separated in July

1928 (R. 5, 20, 23). In 1934, while she was residing with

one Savoy Harrell she had a child whose birth was

registered under the name Governor Charles Junius Har-

rell; son of “Savall Harrell” (R. 7, 24). From 1942 on

she lived with one Harry Thomas during which time she

gave birth to the other three children involved in this

litigation, namely, Eddie Junius Thomas, born June 4,

1945, Vainey Thomas, born September 6, 1946, and Anna

Anthony, born October 8, 1948 (R. 8, 24). The two boys

were registered with the name Thomas, and the official

birth records showed their father as Harry Thomas, the

man with whom the widow was living (R. 8, 25). The

girl, Anna, was born in a hospital and someone there in-

formed the mother that she could not be given the name

of her actual father, Thomas, and consequently she was

named Anna Anthony (R. 8).

The record shows, and the District Court found, that

the four minor children in question were not “children

of the deceased,” but of other men with whom the widow

was living illicitly after her separation from the deceased.

The Deputy Commissioner made an award to the widow

individually and on behalf of her four minor children

(R. 10), and a complaint for an injunction (R. 1)

was filed by the petitioner in the United States District.

Court for the Eastern District of Louisiana under Section

21(b) of the Longshoremen’s Act, 33 U. S. C. 921(b). The

District Court granted a preliminary-injunction (R. 14),

and later a final injunction (R. 19), against the award

in favor of the widow individually and in behalf of her

minor childrer. The United States Attorney for the

Eastern District of Louisiana filed a notice of appeal from

the Distsict Court decision (R. 29), but later withdrew

from the case (R. 31), and the widow was granted

leave in her own behalf and in behalf of her minor

children to continue the prosecution of the appeal

(R. 31).

The Court of Appeals affirmed the decision of the

District Court that the widow could not recover compensa-

tion for herself, but reversed the District Court as to her

four illegitimate children and held in their favor on the

ground that under the law of Louisiana they were con-

clusively presumed to be the children of her husband,

petitioner’s deceased employee, regardless of the true

facts.

The widow’s original application for compensation for

herself and her minor children asked compensation also

for a son of the deceased Willie Wilson who was over

eighteen years of age. The Deputy Commissioner denied

compensation for that child and that part of the claim is

no longer an issue.

The sole issue presented is whether the words “child

or children of the deceased” in Section 9 of the Long-

shoremen’s Act include illegitimate children of his wife

who were born to other men long after the mother was

separated from the deceased, who never were acknowl-

edged by the deceased, to whom the deceased did not

stand in loco parentis, and who had never been dependent

upon the deceased. The Court of Appeals held that, even

though they might not have been the deceased’s children

in fact, they were conclusively presumed under Louisiana

law to be the children of Mose Wilson and therefore en-

titled to compensation under the federal statute.

THE DECISIONS BELOW.

The Deputy Commissioner’s compensation ordet and

award is printed at pages 4-11 of the record. The Dis-

trict Court decision has not been officially printed but is

contained in its findings of fact and conclusions of law

(R. 19-28). The Court of Appeals decision (R. 34) is

reported in 204 F. 2d 178. In that opinion the court re-

ferred to, and followed, its decision in Ellis v. Henderson,

204 F. 2d 173.

STATUTES INVOLVED.

This case involves the Longshoremen’s Act, 33 U. S. C.

§§ 902 (14) and 909, the pertinent parts of which are as

follows:

§909:

“If the injury causes death, the compensation shall

be known as a death benefit and shall be payable in

the amount and to or for the benefit of the persons

following:

* * * * * * + *

“(b) * * * * if there be a surviving child or

children of the deceased, the additional amount of 15

per centum of such wages for each such child; * * *

“(c) If there be one surviving child of the de-

ceased, but no surviving wife or dependent husband,

then for the support of such child 35 per centum of

the wages of the deceased; and if there be more than

one surviving child of the deceased, but no widow

or dependent husband, then for the support of such

children, in equal parts 35 per centum of such wages

* * * *»

§902(14):

“Child shall include a posthumous child; a child

legally adopted prior to the injury of the employee;

a child in relation to whom the deceased employee

stood in loco parentis for at least one year prior to

the time of the injury, and a stepchild or acknowl-

edge illegitimate child dependent upon the deceased,

but does not include married children unless wholly

dependent upon him. . .”.

The court below also applied Articles 184, 191, and 192

of the Louisiana Civil Code of 1870 which provide as

follows:

“Art. 184. The law considers the husband of the

mother as the father of all children conceived during

the marriage.”

“Art. 191. In all cases above enumerated, where

the presumption of paternity ceases, the father, if he

intends to dispute the legitimacy of the child, must

do it within one month, if he be in the place where

the child is born, or within two months after his re-

turn, if he be absent at that time, or within two

months after the discovery of the fraud, if the birth

of the child was concealed from him, or he shall be

barred from making any objection to the legitimacy

of such child.”

“Art. 192. If the husband die without having

\ made such objection, but before the expiration of

the time directed by law, two months shall be granted

to his heirs to contest the legitimacy of the child, to

be counted from the time when the said child has

taken possession of the estate of the husband, or

when the heirs shall have been disturbed by the child,

in their possession thereof.”

JURISDICTION.

This is a proceeding under 33 U. S. C. § 921, with

jurisdiction granted by said statute and by Article III, § 2,

of the Constitution of the United States.

The opinion of the Court of Appeals for the 5th Circuit

was rendered on May 1, 1953, and a subsequent petition

for re-hearing was denied by that court on June 26,

1953 (R. 40).

The jurisdiction of this Court to review this case on

certiorari is conferred by 28 U. S. C. § 1254.

ee ne

THE QUESTIONS PRESENTED.

This petition presents only questions of law as to the

effect of state laws on a federal statute enacted under

the constitutional grant to Congress of power to fix

and determine the maritime law; specifically, whether a

law providing a conclusive presumption of legitimacy,

contrary to the fact, can enlarge the classes of beneficiaries

under the Longshoremen’s Act with the result that in

some states there would be a greater liability of an em-

ployer than in other states under the same identical

federal maritime statute. |

Such questions necessarily involve the constitutionality

of the state statutes, when applied to the Longshore-

men’s Act, under the due process clauses (Fifth and

Fourteenth Amendments), the admiralty and maritime

clauses (Article I, § 8, and Article III, § 2), and the

supreme law of the land provision (Article VI).

REASONS RELIED ON FOR THE ALLOWANCE OF A

WRIT OF CERTIORARI.

1. The decision below subordinates the Longshore-

men’s and Harborworkers’ Act to the Louisiana State law

notwithstanding the rights and liabilities under the Long-

shoremen’s Act were provided by Congress under its

paramount and exclusive jurisdiction of maritime mat-

ters. The Longshoremen’s Act does not provide any con-

clusive presumptions, but the decision below allowed a

conclusive presumption of a fact, contrary to the true

fact, because of a Louisiana statute rather than anything

in the Longshoremen’s Act itself.

The Longshoremen’s Act is a law of the United States

made pursuant to the Constitution and is part of the

“supreme Law of the Land,” under Article VI of the

Constitution of the United States.

oo.

2. The Louisiana statutory conclusive presumption is

unconstitutional, when applied to the Longshoremen’s

Act, in taking property without due process of law, under

the Fourteenth Amendment. “The State is forbidden to

deny due process of the laws for any purpose whatso-

ever.” Schlessinger v. Wisconsin, 270 U. S. 230, 240.

3. The decision below is in conflict with the decision

of the Court of Appeals for the 9th Circuit in Weyerhauser

Timber Co. v. Marshall, 102 F. 2d 78, 81, which held that

a Washington state statute requiring the acknowledge-

ment of an illegitimate child to be in writing had no effect

under the Longshoremen’s Act, saying:

“Congress having provided all definitions necessary

to the determination of whether claimant is a ‘child’

and its authority being paramount and exclusive as

to the subjects on which it has iegislated, it is not al-

lowable to go beyond the Act provisions.”

4. The decision below imposes on petitioner a liability

not authorized by the paramount law of the land, the

Longshoremen’s Act.

5. The decision below gives an illegitimate child great-

er rights than legitimate issue of the deceased employee

in that, under that decision, the illegitimate child can

recover for the death of his mother’s husband and also

for the death of his own father.

6. The court below decided an important question of

federal law which has not been, but should be, settled by

this Court.

SPECIFICATION OF ERRORS.

The Court of Appeals erred in the following respects:

1. In holding that rights and liabilities under the

Longshoremen’s Act are governed by state law.

2. In misconstruing the express language of the Long-

shoremen’s Act and holding that it left the interpretation

of the words “child or children of the deceased” to the

laws of forty-eight different states.

3. In holding that, although the Longshoremen’s Act

“makes it clear that ‘child,’ without more, means a

‘legitimate child’,” the Louisiana law makes it also mean,

in that state, an unacknowledged illegitimate child of the

deceased’s estranged wife.

4. In holding that, although the Longshoremen’s Act

provides compensation only for “children of the deceased”

and those legally adopted by, or acknowledged and de-

pendent on, the deceased, or those to whom the deceased

stood in loco parentis, the Louisiana statutes extended

it, by the creation of a conclusive presumption, to

illegitimate children of his wife not acknowledged, but

denied, by him.

5. In holding that, under the Longshoremen’s Act,

an employee in Louisiana makes a child his own by failing

to disavow its paternity within a stated period, regardless

of the child’s true paternity.

6. In disregarding the explicit provisions of the Long-

shoremen’s Act, and sanctioning the taking of property

without due process of law.

7. In reversing the District Court’s holding that the

widow’s illegitimate children, unacknowledged by the de-

ceased, were entitled to benefits under the Longshore-

men’s Act.

ARGUMENT.

The Longshormen’s Act was passed by Congress under

its Constitutional power in matters of admiralty and mari-

time jurisdiction. As this Court said in Southern Pacific

Co. v. Jensen, 244 U. S. 205, 214-s:

“Article III, § 2, of the Constitution, extends the

judicial power of the United States ‘To all cases of

admiralty and maritime jurisdiction;’ and Article

I, § 8, confers upon the Congress power ‘To make

all laws which may be necessary and proper for car-

rying into execution the foregoing powers and all

. other powers vested by this Constitution in the gov-

ernment of the United States or in any department or

officer thereof.’ Considering our former opinions,

it must now be accepted as settled doctrine that in

consequence of these provisions Congress has a para-

mount power to fix and determine the maritime law

which shall prevail throughout the country.”

And in holding that a state compensation statute was un-

constitutional as applied to an accident on navigable

water, it said on page 216:

“And plainly, we think, no such legislation is valid

if it contravenes the essential purpose expressed by

an act of Congress or works material prejudice to

the characteristic features of the general maritime law

or interferes with the proper harmony and uniformity

of that law in its international and interstate rela-

tions. This limitation, at the least, is essential to the

effective operation of the fundamental purposes for

which such law was incorporated into our national

laws by the Constitution itself.”

In Davis v. Department of Labor and Industries, 317

U. S. 249, this Court pointed out the purpose and scope

of the Longshoremen’s Act.

There is no question in the case at bar as to the mari-

time nature of the accident involved. It is an established

and admitted fact that the accident occurred on a com-

pleted barge afloat in a navigable river.

In Robbins Dry Dock Co. v. Dahl, 266 U. S. 449, the

lower courts had allowed a jury in a state court civil

action to consider a New York statute in determining

whether defendant was negligent in a case involving a

marine tort. This Court reversed saying, at page 457:

“The alleged tort was maritime, suffered by one

doing repair work on board a completed vessel. * * *.

The rights and liabilities of the parties arose out of

and depended upon the general maritime law and

. could not be enlarged or impaired by the state statute

(citing cases). They would not have been different.

if the accident had occurred at San Francisco.”

It would seem clear that no state could enlarge, or

limit, the coverage of the Longshoremen’s Act. Certainly

a state statute could not extend that federal statute to

provide benefits to or for a decedent’s gardner. We sub-

mit that a state statute attempting to make a child born

to another than the decedent a “child of the deceased”

under the Longshoremen’s Act, likewise could not en-

large the beneficiaries fixed by Congress. In Weyer-

haeuser Timber Co. v. Marshall, 102 F. 2d 78, the Circuit

Court of Appeals for the 9th Circuit held that a

state statute involved in that case could not re-

duce the beneficiaries provided for in the Longshore-

men’s Act. If a state can not limit or lessen the bene-

ficiaries under the Longshoremen’s Act, there is no

logical reason why it could enlarge them.

We agree with the statement in the opinion of the court

below (204 F. 2d. page 174) that “the language

of this Act makes it clear that ‘child,’ without more,

means a ‘legitimate child’.” That would seem self evident,

When qualified, as in the Longshoremen’s Act, by the

words “of the deceased.” This maritime statute could not

legally “be enlarged or impaired by” a state statute

(Robbins Dry Dock Co. v. Dahl, supra, 266 U. S. at page

457).

The only child to benefit under the Longshoremen’s Act

is a “child of the deceased” or “a posthumous child, a

child legally adopted prior to the injury of the employee,

a child in relation to whom the deceased employee stood

in loco parentis for at least one year prior to the time of

injury, and a step-child or acknowledged illegitimate

child dependent upon the deceased.” Section 2(14). By

including adopted, acknowledged, etc. children, Congress

clearly and definitely disclosed its intention to provide

only for those who were issue of the deceased or held

out by him to occupy a similar relationship to him. Such

additional children are almost universally treated the

same as lawful issue. The Act does not, and Congress

did not intend to, provide that in addition to those

enumerated in the Act the beneficiaries would also in-

clude any minors specified by any state statute, whether

by presumption or substantive law. Its provision for

what children would benefit, besides true natural children |

of the deceased, necessarily excludes others.

Section 2(14) of the Act provides that “child” includes

those specified in it, not that “child” means those others.

Wherever the word appears in Section 9 it is “child of the

deceased.” If only Section 2(14) were considered it

might exclude lawful issue of the deceased.

It is inconceivable that Congress could have meant that

“child of the deceased” would include, not only those

specified in Section 2(14), but any other minors that any

state might add. A state law providing that a child of the

deceased’s wife’s cousin would be considered, or presumed

to be, a “child of the deceased,” certainly would not

create a liability of the employer to such child under the

Longshoremen’s Act. Nevertheless such child would be

as nearly related to the deceased as an illegitimate child

of his estranged widow. The District Court found:

“(3) Subsequently, Sadie Anthony Wilson lived

with Savoy Harrell in Clinton, Louisiana, and bore

him two children whose births she registered under

the names Governor Harrell and Mattie Harrell, and

named Savoy Harrell as their father.

“(4) Sadie Anthony Wilson then lived in con-

cubinage with Harry Thomas from 1942 through the

time of the hearing befure the Deputy Commissioner

on April 22, 1952, and bore him several children,

including the minors Eddie Junius Thomas, Vainey

Thomas, and Anna Anthony.

“(5) Deceased employee, Mose Wilson, was not the

father in fact of the four children in question, namely

Governor Harrell Thomas, Eddie Junius Thomas,

Vainey Thomas, and Anna Anthony.” (R. 26, 27.)

It then held:

“(3) The minors, * * * not being the children of

the deceased employee, Mose Wilson, are not entitled

to recover under Section 2(14) of the Act, 33 U. S.

Code 902 (14).”

“(6) The minor children not being the children in

fact of the decedent but children of other men, the

presumption of paternity set forth in Article 184 of

the Louisiana Civil Code of 1870, can have no effect

as to Avondale Marine Ways, Inc.” (R. 27, 28.)

The decision of the District Court was reversed on the

ground that, notwithstanding such facts, the Louisiana

statutory conclusive presumption required the petitioner

(employer) to pay compensation for the illegitimate un-

acknowledged children of the decedent’s widow. The

Court of Appeals said (204 F. 2d at page 175):

“A fortiori, what is termed a ‘conclusive presump-

tion’, in most instances is actually a rule of substan-

tive law. - (Citing authorities.) A conclusive presump-

tion as a rule of evidence without logic or basis might

be constitutionally invalid, but if the rule of sub-

stantive law would be constitutional, the form of the

words used in stating the rule is immaterial.”

It then proceeded to treat the purported “conclusive

presumption” of the Louisiana Code as a rule of sub-

stantive law applicable to the Longshoremen’s Act.

In Schlessinger v. Wisconsin, 270 U. S. 230, there was

involved a state statute providing that a transfer of prop-

erty within six years prior to the death of the grantor

would be considered to have been made in contemplation

of death. This Court held the statute unconstitutional un-

der the Fourteenth Amendment, saying:

“Rights guaranteed by the federal Constitution are

not to be so lightly treated; they are superior to this

supposed necessity. The State is forbidden to deny

due process of law or the equal protection of the

laws for any purpose whatsoever.” Page 240.

Heiner v. Donnan, 285 U. S. 312, involved the Revenue

Act of 1926 which imposed a federal estate tax and pro-

vided that transfers within two years prior to death would

be “deemed and held to have been made in contemplation

of death.” In holding the two year provision unconstitu-

tional under the Fifth Amendment, this Court said:

“But the presumption here created is not of that

kind. It is made definitely conclusive—incapable

of being overcome by proof of the most positive char-

acter. Thus stated, the first question submitted is

answered in the affirmative by Schlessinger v. Wis-

consin, * * *. The only difference between the

present case and the Schlessinger Case is that there

the statute fixed a period of six years as limiting

the application of the presumption, while here it is

fixed at two; and there the Fourteenth Amendment

was involved, while here it is the Fifth Amendment.

* * *. The presumption was held invalid upon the

ground that the statute made it conclusive without

regard to actualities, * * *.

“The Schlessinger Case has since been applied many

times by the lower federal courts, by the Board of

Tax Appeals, and by state courts; and none of them

seem to have been at any loss to understand the

basis of the decision, namely, that a statute which im-

poses a tax upon an assumption of fact which the

taxpayer is forbidden to controvert is so arbitrary and

unreasonable that it cannot stand under the Four-

teenth Amendment.

“Nor is it material that the Fourteenth Amendment

was involved in the Schlessinger Case, instead of the

Fifth Amendment, as here. The restraint imposed

upon legislation by the due process clauses of the

two amendments is the same.” Pages 324-6.

“The government makes the point that the con-

clusive presumption created by the statute is a rule

of substantive law, and, regarded as such, should be

upheld; * * *,

“If a legislative body is without power to enact as a

rule of evidence a statute denying a litigant the right

to prove the facts of his case, certainly the power

cannot be made to emerge by putting the enactment

in the guise of a rule of substantive law.” Pages

328-9.

We submit that the intent of Congress was to enact.

its own law within the maritime jurisdiction, which, like

the general maritime law, would be reasonably uniform

throughout the country. As this Court said in United

States v. Provident Trust Co., 291 U. S. 272, 285-6:

«“# * * * we well may assume that Congress could

not have meant to leave its aim to be diverted by a

purely arbitrary presumption, which, whether ap-

plicable or not to sustain another or different policy,

would deny the truth and subvert the policy of this

particular legislation.”

The rights and liabilities of the parties under this federal

statute should not be any different in Louisiana than “if

the accident had occurred in San Francisco” Robbins Dry

Dock Co. v. Dahl, supra, 266 U. S. at page 457. It is not

a case of determining “next of kin” Poff v. Pennsylvania

R. Co., 327 U. S. 399, or who is a “surviving wife” Green

v. Crowell, 69 F. 2d 762; Bolin v. Marshall, 76 F. 2d 668.

Naturally, unspecified next of kin are those recognized

as such where the decedent lived; and a surviving wife

is a survivor of a marriage recognized in the state where

contracted. A “child of the deceased” does not mean a

child of someone other than the deceased, as that would

“deny the truth and subvert the policy of” this Act of

Congress, United States v. Provident Trust Co., supra,

291 U. S. at pages 285-6. The fact that Congress specified

what children would be beneficiaries other than the

legitimate offspring of the deceased (Section 2), does not

indicate an intention to include still others, but shows the

contrary. The language discloses an intent that only

those ‘minors to whom the deceased had stood in loco

parentis by having put himself in that position would be

included as beneficiaries.

The children in this case were all born to other men

and their true father stood in loco parentis to them. If

their true father should die in an industrial accident with-

in the Longshoremen’s Act, they could recover com-

pensation benefits. Under the decision below they could

recover for two deaths, a result that would give greater

benefits to an illegitimate child than to a legitimate child.

Nowhere in the Longshoremen’s Act is there any indi-

cation that a child could recover under it for the death

of more than one father; but the decision below would

allow these children to recover foi the death of their

mother’s husband and also for the death of Harry Thomas

who stood in loco parentis to them and was the actual

father of at least three of them. It is Harry Thomas who

is the actual beneficiary under the decision below in that

it lessens his obligations to support the children.

We concede that in Louisiana a child born during mar-

riage is presumed to be the child of the mother’s husband.

However, we submit that such an arbitrary presumption

could not preclude the employer from showing the actual

facts as “that would deny the truth and subvert the policy

of the” Longshoremen’s Act. Such a conclusive presump-

tion would deny the employer the right to show the true

facts under any cirmumstances, and make it liable to

others than those specified by Congress.

Under the Louisiana statutes only the husband of the

illegitimate children’s mother could question their paterni-

ty, and the decedent never did take the required steps to

that-end, although the mother stated that they were not

his children (R. 21) and that he threatened her if she

should register their births in his name (R. 25). Never-

theless, the Court of Appeal held the employer liable to

them under the Longshoremen’s Act saying, “the paternity

ef the deceased husband of the mother of the children

cannot. now be attacked.” (R. 35) 204 F. 2d at page

179,

This court said (citing many supporting cases) in

Prudence Realization Corporation v. Geist, 316 U. S. 89,

95:

“In the interpretation and application of federal

statutes, federal not local law applies.”

See also Southern Railway v. Gray, 241 U. S. 333, 338-9,

where this court held similarly in an action under the

Federal Employers’ Liability Act.

CONCLUSION.

Recently, in Sanderson vs. Sause Bros., 1953 AMC

1261, the District Court for Oregon held that the Oregon

Employer’s Liability Act could not be applied to an ac-

cident occurring on board a barge afloat in Oregon waters

because the State law imposed a much higher standard of

care than the maritime law, and would destroy the uni-

formity of the maritime law, and declared:

“This is a much lower standard of care than is

required under the Oregon Employers’ Liability Act.

Fromm vs. Lang, 131 Ore. 501, 505, 281 Pac. 120. In

my view, the application of the Oregon Employers’

Liability Act with the higher standards required by

it in connection with the use of machinery and equip-

ment would destroy the uniformity of the maritime

law and is therefore not applicable to a situation in

which a workman is killed on navigable waters with-

in the territorial limits of Oregon.”

Just as the standard of care set forth in the Oregon Act

was held not to apply to a situation in which a workman

was killed on navigable waters within that State, so also

we maintain that the conclusive presumption of State law

should not apply to a case involving death under the

Longshoremen’s Act, for the reason that such application

will broaden the liability of employers in Louisiana and

will “destroy the uniformity of the maritime law”.

We respectfully submit that if the decision of the Court

of Appeal is permitted to stand, a far different result

would be written into the law than that intended by

Congress.

In view of the far reaching effect of the question, we

respectfully submit that this court should grant a writ

of certiorari, and that the decision of the Court of Appeal

be reversed.

Respectfully Submitted,

CHAFFE, McCALL, TOLER & PHILLIPS, and - ~

HARRY McCALL, 4

LEON SARPY,

EDMUND McILHENNY,

Attorneys for Avondale Marine

Ways, Inc., Petitioner,

1500 National Bank of Commerce

Bldg., New Orleans, La.

OCR

PERO E Ty MERRIE SN Da ep ete ee

PLAS SYS PLE PTET Te eS ET

SRE] PRU arate. ck eee warner neon oe

CERTIFICATE.

This is to certify that copies of this petition have been

served on counsel for respondent Sept. .... 1953.

ceeweoereeceeo ee ee eee ease eenee

Attorney for Petitioner.

}

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