# Petition for a Writ of Certiorari — Avondale Marine Ways, Inc. v. Wilson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1867%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1953 - **Citation:** 346 U.S. 875 ## Text LI ‘ S | O SEP 12 my 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 9 OOS, Se Re Oe ee 816 SSO SE Oe, OG 66 wae Oe © 6-0 6k SFR SR OOS 016 6 0’ OD 06's. & 20 5 Ue 8 Sb" st bt ER EE ORE CO OE Oe OS 6 ' 8. 0 oe es 0's She 6S & SOS ewe eetee ee eee eee esense 1 2 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 I 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 2 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 | 3 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 4 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. 5 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 7 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. te 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. 10 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. 11 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.” 12 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 13 (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 a 14 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 15 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- 16 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- 17 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. 18 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 19 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- 20 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. 21 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. 22 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, Te 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 mw 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. 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