BRAEN v. PFEIFER TRANSPORTATION CO.

Print this transcript Transcript: 

Argument of Benjamin H. Seiff

Chief Justice Earl Warren: Number 32, Christian F. Braen, Petitioner, versus Pfeifer Oil Transportation Company.

Mr. Seiff you may proceed.

Mr. Benjamin H. Seiff: May it please the Court.

In this Jones Act case, the petitioner had obtained a jury verdict in the District Court in the Eastern District of New York.

It was undisputed that he was a seaman and had been a seaman for some four months prior to the accident.

It was undisputed that he was a member of a crew and that had -- had been such for -- four months prior to the accident.

It was also undisputed that he was injured while performing work that his superiors had ordered him to do, and it was undisputed that the injury occurred aboard of vessel that was own by his employer and where you had to be in order to perform what he had been commanded to perform and it is also undisputed that it was a negligent maintenance of the vessel that had caused his injury.

The Court of Appeals for the Second Circuit reversed and dismissed his action on a ground that the nature of the work that he had been ordered to do was such as to -- as to -- as a matter of law, hold -- or that the injury that he sustained was not in the course of his employment as a member of the crew and as a seaman.

In other words, the case presents the reverse of the usual situation where a person not in general maritime employment claims that -- he has become a seaman and a member of the crew when injured by reason of the nature of the work he was doing.

In this case, a seaman and a member of the crew is held to be disestablished on status by reason of the nature of the work that he'd been ordered to do.

And the basic question in this case is what ingredient was there in this work that as a matter of law vitiated his Jones Act remedy?

Now, the facts briefly are these.

The respondent was in a business of transporting petroleum products by oil -- the by barges and tows and vessels of that kind and one of its vessels was a barge by the name of Pfeifer number two.

It had a crew of three and the petitioner was a mate aboard of vessel and had been a mate for some four months prior to the accident.

His duties were various, they included handling the lines and the cables, loading and unloading, hamming the hose, preparing food, setting up navigation lights, and included among his duties was also a duty of maintaining the barge which involved painting, scraping and as was called minor repairs, defined as with pairs which required two men, no more than two men to perform.

About two days before the accident, one the pumps of the vessel had become out of order and the vessel was ordered to the repair yard of the respondent in west -- in new and the West New Brighton, Staten Island.

The defendant or rather the respondent maintained at that yard a floating repair barge called the Winisook, which was secure to dock by cables and lines.

Now, between the dock and the Winisook, the respondent maintained a further facility, a floating raft.

This raft is used by the respondent for the chipping, and painting, and repair work of such of its vessels as needed to such to work to be done at such time when it was needed.

And when the Pfeifer number two arrived, it was moored at the open water side of the Winisook so you have this situation.

Here was a dock, the raft, the Winisook, the Pfeifer number two and it was conceded that in order for any crew men of the Pfeifer number two to get -- to go to shore, he would have to go by way of the Winosook, by way the catwalk, alleged that was man around the side of the Winisook and thereby get on to the dock by way of a – of a plank runway.

When the Pfeifer number two arrived, this -- this raft had been undergoing moon decking -- was being placed on it and a that the time of his accident about three quarters of a decking had been installed.

So when it arrived, the petitioner began to work aboard the Pfeifer number two, disassembling the pump and he worked from eight o'clock in the morning till four in the afternoon and when he got through, we – the board the vessel, he slept aboard the vessel and in the next morning he resumed work again.

It was the intention that he work until four o' clock in the afternoon at that day or sooner if the vessel left sooner and as the matter of fact, it was anticipated that the Pfeifer number two wouldn't leave on that date.

He had been working about an hour, when a man by the name Edward Smith, who is the overall repair boss for the respondent, came aboard the ship and he said that -- that the two men were too many to do the work of disassembling the pump and he told the petitioner, he gave him the following order which Your Honors will find at page 23 of the record.

He says that, "I would like you to finish putting this top deck of plank for this raft over there, so that we can use it, get it done."

At the trial incidentally, there was a claim that the petitioner had been discharged and then immediately rehired as a compensate to give him a chance to make a day's pay for working on this raft, as described, but that was categorically denied and my friend here has abandoned any implications that flow from that claimed discharge which in any event was for the jury to decide.

Braen, the petitioner having received his orders from his superior proceeded to obey him.

He got his tools together, he got his materials together, went over to the side of Winisook which was nearer to the raft, put his tools and materials down, and started to release the lines, so he could pull up the raft a little closer, in order to get to work on it – ultimately to get work on it.

And while his pulling on his line, the catwalk or ladder on which he necessary have to stand and which was part of the Winisook, gave way and he fell to the raft and sustained the injuries for which the jury had awarded him a judgment.

Now, these are undisputed facts which the -- the court below has held inter bit as a matter of law, the jury's finding that the petition was injured while the course of his employment as a seaman and a member of the crew.

Justice John M. Harlan: He fell from the catwalk, did he?

Mr. Benjamin H. Seiff: The catwalk broke and he fell to the raft, the catwalk which is part of the Winisook.

Justice John M. Harlan: There's no issue as to negligence.

Mr. Benjamin H. Seiff: No sir, Your Honor.

Justice Potter Stewart: The Winisook and raft as well as the Pfeifer number two were all own by the respondent?

Mr. Benjamin H. Seiff: Yes Your Honor.

Justice William J. Brennan: Now, despite (Inaudible) that the --

Mr. Benjamin H. Seiff: Yes Your Honor.

Justice William J. Brennan: Could be part of ranging from across -- that point of (Inaudible) approximately eight feet in someone's hand writing apparently this was exhibited at trial, is that the point in the catwalk --

Mr. Benjamin H. Seiff: Down to the raft he fell.

Justice William J. Brennan: -- on which he fell?

Mr. Benjamin H. Seiff: It's about the (Inaudible)

Justice William J. Brennan: And this -- this time was looking at the photograph at page 57 is what, left or right of that plank wood?

Mr. Benjamin H. Seiff: This is looking from the dock towards the Winisook.

Justice William J. Brennan: And where -- where would relation to that plank wood was it that he fell?

Mr. Benjamin H. Seiff: Well, if Your Honor will look at page 62, the photographs on page 62 --

Justice William J. Brennan: 62?

Mr. Benjamin H. Seiff: That's right.

58 I mean.

Justice William J. Brennan: I'm sorry.

Mr. Benjamin H. Seiff: You'll the raft there, and you see the Winisook, and you see the plank ledge there and he was at the plank ledge near that open space.

Justice William J. Brennan: Near the open space.

Mr. Benjamin H. Seiff: That's right.

Justice William J. Brennan: Right.

Chief Justice Earl Warren: Where on this (Inaudible) where on Exhibit 155 would he be?

Mr. Benjamin H. Seiff: Well, I don't quite know because this is -- this diagram was made by the witness in order to show the relationship of the dock, the raft, the Winisook and the Pfeifer.

Chief Justice Earl Warren: And it was between, what to -- between the repair barge and the repair raft was it, the cat walk?

Mr. Benjamin H. Seiff: He was on the repair barge.

Chief Justice Earl Warren: Yes.

Mr. Benjamin H. Seiff: On the repair barge which of course is higher than the floating of the raft which is on the water itself --

Chief Justice Earl Warren: Yes.

Mr. Benjamin H. Seiff: -- and the ledge or the catwalk of the repair barge is what gave way so he precipitated to the raft below.

Chief Justice Earl Warren: Oh, I see yes.

Mr. Benjamin H. Seiff: Now, they hadn't started working on the raft properly, he was getting ready as to do it, his pulling off the raft a little closer --

Chief Justice Earl Warren: Yes.

Mr. Benjamin H. Seiff: -- so that he could get down to it.

Chief Justice Earl Warren: And he was just on its way for the first time from the oil barge over there when it happened.

Mr. Benjamin H. Seiff: That's -- yes -- that's right.

Justice Tom C. Clark: He started working on the (Inaudible)

Mr. Benjamin H. Seiff: He hadn't started working on the raft yet, Your Honor.

He was getting ready.

Chief Justice Earl Warren: He hadn't gotten there, had he?

Mr. Benjamin H. Seiff: Well he got there --

Chief Justice Earl Warren: He fell there --

Mr. Benjamin H. Seiff: Ultimately but not by the reason that he wanted to.

Chief Justice Earl Warren: Yes.

Mr. Benjamin H. Seiff: Not, not for the reasons that he wanted to.

Chief Justice Earl Warren: Yes.

Mr. Benjamin H. Seiff: Now the petitioner's position that the most of the respondent can claim on this issue is that there was a question of fact for the jury as to whether the injury occurred in a course of the petitioner's employment as a seaman and member of a crew.

And the petitioner's further position that any finding that the petitioner was not injured in the course of his employment as a member of the -- as a seaman or member of a crew, will be contrary to law or contrary to the evidence and (Inaudible).

First, as to the issue as to whether there is a question of fact.

In Senko against LaCrosse in 352 United States, Your Honors laid the test down that the duties of a man during the vessel's travel are relevant in determining whether he is a member of the crew when -- when injured while the vessel is in anchor.

Now, applying that test to this case, we have man who is concededly, who concededly starts off work as a seaman and a member of crew, whose duties included in making minor repairs, who is injured when about to perform minor repairs as how he was ordered by his superior to do, and while the injury occurs by reason of a defective condition of the employer's vessel where he had to be in order to do what he had been directed to do and it seems to me that plain application of this only stated test in the Senko case just comes close to the finding that he was injured while in the course of his in employment as a seaman and a member of the crew.

My friend here says that it is not enough that all these conceded facts that are not enough, that there must be an additional factor namely that the work he was ordered to do, had to have a direct relationship with the Pfeifer number two.

Now, assuming for the moment that such a relationship is necessary to establish the petitioner's right to a Jones Act remedy here is the following.

The testimony was that the raft was used to paint and chip and repair such of -- the -- such of the respondent's vessel as needed it.

In addition, at page 48, Smith the overall boss testified as follows.

Did you have any use for that raft in connection with doing any work on the Pfeifer number two?

Answer, "Not at that time."

Question, did you contemplate using that raft in connection with any work on the Pfeifer number two?

Answer, "Not at that time."

Now, I submit that that answer, “Not at that time,” clearly the establishes that somewhere is in time whether today, tomorrow or in some other near future the raft was going to be used in connection with the Pfeifer number two.

Now there is certainly no requirement for the applicability of the Jones Act that the work as a seaman being – then and there connected with the navigation or the functioning of the vessel.

I've cited with the Hunt case and the -- the Butler against Whiteman cases where the work was being done on the ships that were in the dry dock.

They wouldn't be used for three or four weeks and took (Inaudible) and as the matter of fact in the Butler case the boat was being reconditioned as preliminary to an inspection which was a preliminary to putting it into navigation and Your Honors held that the Jones Act remedy was applicable.

So, I submit that by any test submission to the jury of the issue of plaintiffs -- of the petitioner's status at the time of the injury was the least that he was entitled to.

Now, apart from that, I say that since it is undisputed that the petitioner was a seaman at the time of the act when he's ordered to do work, he was a member of the crew at the time, that he was injured while doing what he'd been ordered to do and that he was injured on a vessel that was owned and maintained by the defendant and where he had to be in order to do what he'd been ordered to do, that the nature of the work he was about to perform whether it service the vessel or was connected with the vessel is immaterial, is irrelevant and the reason I say is this.

The question of the nature of the duties of a man and the -- the services he performed and the relationship to the vessel have import when one who was not in the first instance a seaman, tries to assume the cloak of one, the mettle of one in order to gain the -- benefits of the Jones Act and then all these matters are considered and the answers to those questions determined whether he was a seaman at the time he was injured.

But that's not this case.

Here, the petitioner was at all times a seaman and was at all times a member of the crew and then the only issue was insofar as the Jones Act is concerned is whether he was injured and the course of his employment, and there is nothing else.

And I think the language of the -- of the Jones Act might said very -- very clear because all that is says -- and your final language on page 3 of my brief, all that it says, "Any seaman who shall suffer personal injury in the course of his employment may at his election maintain an action for damages."

Nothing in there that it had to suffer injury while servicing a vessel or while aiding in his navigation or performing some duties in connection with its function as a vessel.

The only test is was the injury sustained in the course of his employment.

In such a case, the law is clear, and I cited any number of cases in that point, but a seaman does not lose his Jones Act remedy because he's been ordered to do something which ordinarily a seaman doesn't do, so long he is a seaman that performing orders and he's injured in the performance of those orders by a defective or dangerous condition of a place maintained by his employer, he is entitled to his Jones Act remedy irrespective of the "nature" of the services that he's performing.

Justice Charles E. Whittaker: Mr. Seiff may I ask you in that connection, if he had been ordered by the seaman aboard the ship to go ashore to perform work and had done so and was injured, would he then under the cases that you cite still be entitled to the remedy of the Jones Act?

Mr. Benjamin H. Seiff: It will depend on where he was hurt, Your Honor.

Justice Charles E. Whittaker: Ashore.

Mr. Benjamin H. Seiff: Well, if ashore and as the defendant and his employer negligence not contribute to in any way, then obviously he would not have a Jones Act remedy.

It might have -- get you a maintenance or something else but he wouldn't have the Jones Act remedy because it is not a place maintained or operated by his employer.

Justice Charles E. Whittaker: Now, may I ask for, do these cases that you have cited had -- hold that one who is a seaman, a member of the crew maintains that status even if discharged until he has left to premises and gone ashore?

Mr. Benjamin H. Seiff: I have cited a case precisely just like that, that's the (Inaudible) is --

Justice Charles E. Whittaker: What is?

Mr. Benjamin H. Seiff: (Inaudible), that's on page I think 14 of my brief where a seaman was told that there was no more work for him to do and he that he could go home and while he's going home, he is injured by reason of a defective condition of the vessel and it was held as entitled to a Jones Act remedy.

Unknown Speaker: (Inaudible)

Mr. Benjamin H. Seiff: (Inaudible)

Unknown Speaker: page 14?

Mr. Benjamin H. Seiff: I think its page 14, on the -- 16 Your Honor, I'm sorry page 16.

Justice Potter Stewart: Mr. Seiff to pursue Justice Whittaker's inquiry a little further, what if have he -- been or the shore or on a ship's business instead of get some provisions and was being driven on the street, on one the way to the grocery store by a chauffeur employed by the employer, driving a truck or station wagon and because of that agent's negligence they got into an automobile accident and this fellow was injured, would he -- would he be entitled by the Jones Act?

Mr. Benjamin H. Seiff: I would say he's entitled for the Jones Act remedy because he would come precisely within the fifth provision.

He's was injured in the course of employment as a seaman, injured in the course of his employment.

And there's nothing in the Jones Act that I find, certainly nothing in a language which limits its application only to certain of types of situation, the certain kinds of work or that -- work that aids and navigation the vessel or any other condition.

All it says in the injured while in the course of employment.

Justice Potter Stewart: And the place of injury is irrelevant for this preposition?

Mr. Benjamin H. Seiff: Irrelevant Your Honor.

It's irrelevant sometimes because there may not be any negligence on part of the employer.

Justice Potter Stewart: Well, I'm assuming there is negligence.

Mr. Benjamin H. Seiff: That's right.

Then -- then it's relevant I say.

Justice John M. Harlan: Your point is walking under the ship (Inaudible) to do another job which you might admit would not have been the course of his employment, he was -- in walking off the ship he was doing the course of his employment --

Mr. Benjamin H. Seiff: That's right.

Justice John M. Harlan: -- pursuant to orders, that's that your point.

Mr. Benjamin H. Seiff: Because as a matter of fact, they never reach the raft to do the work it was -- in other words if --

Justice John M. Harlan: This is to be, he was going home, right?

Mr. Benjamin H. Seiff: That's right or --

Justice John M. Harlan: Endorsing that --

Mr. Benjamin H. Seiff: (Voice Overlap) -- scene if Smith had call him, wait a minute will you just put on the vault under his pump and he turn around then he has a course of action.

And it certainly sounds inconceivable that he makes a right turn, he has a course of action, he makes the left turn it doesn't have a course of action when everything else is exactly the same.

Now, it deserves that there is something in the Longshoremen's and Harbor Workers' Act which limits the Jones Act in someway or another --

Justice Charles E. Whittaker: Mr. Seiff --

Mr. Benjamin H. Seiff: Yes sir.

Justice Charles E. Whittaker: -- it is my understanding what (Inaudible).

Now if this individual had gotten to the raft and we assume that it was not seaman's work and had commenced the work there, it not being a seaman's work, he wouldn't be entitled to Jones Act relief but that on, while going to that place and until he got to that place he was still in the same character as when he left the ship on which he had been a seaman.

Mr. Benjamin H. Seiff: That's a very least – the very least entitlement Your Honor.

Justice Charles E. Whittaker: I see.

Mr. Benjamin H. Seiff: Because since he didn't reach the raft I don't really have to argue what would happen if he were on the raft?

Justice Charles E. Whittaker: Yes, I see.

Mr. Benjamin H. Seiff: But for the very least he is entitled to what Your Honor just suggested.

Now, it is claimed that there's somehow or other the Longshoremen's and Harbor Workers' Act modifies or limits the application of the Jones Act.

Now, if Your Honors read Section 903, very short, it's on page 3 of my brief which contains the -- which contains the exclusionary provisions of the Jones Act, of the Harbor Workers' Act.

All that says is, "No compensation shall be payable in respect to disability or death of a master or member of a crew of any vessel."

It's very simple and then an ambiguous language and in it I find nothing that says only, "Such members of a crew are excluded from its coverage as a servicing a vessel or further navigation."

I find no conditions to the exception from the coverage.

All it says, "Members of a crew are accepted.”

Here we have a member of the crew and I said that -- I said it necessarily he's accepted from the application of the Longshoremen's and Harbor Workers' Act and the only question is what remedy is he entitled to and that of course depends of what happens whether it's an unseaworth -- in this case or a Jones Act case or a maintenance and cure case.

Now, it's been suggested before but demonstrating, I wanted to mention it once again that demonstrating the fact that the injured is a seaman and a member of the crew, then the only question for the relating for the appellate ability of the Jones Act is where the injury was in course of employment, and that the nature of his service is wholly irrelevant, other cases, the (Inaudible) case that I mentioned and the Marceau case on page 15 of my brief, where a man was coming back from shore after a night of pleasure and he's injured on the dock as he approached the boat and they held that he was injured in the course of his employment as a seaman and is entitled to a Jones Act remedy.

In other words, in this case if petitioner instead of do -- instead of doing the work that been ordered by his superior to do, were going off on shore or to -- for other purposes he had in mind, he'd have a Jones Act remedy.

But when he -- doing the work that he's ordered to do, he hasn't got the Jones Act remedy and it seems to me that that's an inconceivable situation.

So, I submit that the -- the language in the Senko case epitomizes the whole thing in just one sentence, it epitomizes my entire position, and as I've quoted from it at page 18 in my brief, it says, "Coverage of the Jones Act depends only on the finding if the injured was an employee of the vessel engaged in a course of his employment at the time of his injury."

Now, that's this case.

He was a seaman, a member of the crew, injured in the course of his employment while doing he'd been ordered to do and since all of the facts are undisputed and the jury has found that there was negligence in the maintenance of the vessel which caused the injury, I submit that his entitled to reinstatement of this judgment which brings me just for a few moments with my second point is what remedy is he entitled to.

In view of the fact that the lower court has said that if they were an error, there was an error in holding if there was no question of fact, they would reverse in any event in order a new trial because of the District Court's refusal to charge certain requests of the respondent all of which dealt with the status of the petitioner at the time his injury and it's my position that he's entitled to reinstatement of the judgment for two reasons.

First, that the denial of request did not constitute error and second if they did constitute error, it was harmless error.

Now, Your Honor will find -- Your Honors will find the request at page 75 of the record and if they are recited in the opinion of the court below.

The first request was the mere fact that the plaintiff had been a seaman and member of the crew of the barge Pfeifer number two prior to his injury does not entitle him to maintain this action against his employer.

Now, I submit that this request clarifies no issue.

It defines nothing.

At best it is caution of some kind which the record discloses, no need for such a caution.

It seems to me that if every time, every fear that a lawyer has during a trial it would be laid by our specific request, you'd never had an end to a charge.

And then it has confusing language this action -- it does not entitle him to maintain this action against the employer.

I don't know what it would mean to a jury it sound as if, involve to right to sue and I certainly think that the refusal of that request constitutes no error -- no error.

Now, request number two was, it is the nature in character of the work being performed by the plaintiff at the time of his injury, was a -- at the time of his injury was sustained which determines whether he has the right to maintain this lawsuit.

This is a very general, a very abstract preposition of law taken from a text book.

Certainly has no relation to the fact, insofar as the jury is concern that they have to decide and I think as the general abstract composition of law, it was not incumbent upon the trial court, the District Court to charge it, there is no error to refuse it.

Justice Charles E. Whittaker: (Inaudible) it would not be a defense under your theory of the Wong case, would it?

Justice Charles E. Whittaker: That's right.

Now, I will come to that in a moment why they say that it was harmless error.

The third request is that you find that the work which plaintiff was performing at the time he sustained his injury was not in connection with the furtherance of the navigation of the Pfeifer number two, the verdict received for the defendant.

Now, I -- the term “navigation”, I submit is a word of art.

What a jury -- what a jury's notion might be when they're told that use, told about navigation -- to me I mean -- it would seems to me, would be -- would be limited ton something like the -- the science of laying out of course and keeping to.

That would be the lame notion of navigation.

And the law, of course also as activities can be in furtherance of navigation being a bartender, beautician, or repair that the -- the catalog of things that can be done in -- in order to further navigation without end.

So, I say that unexplained the term, the use of the word “navigation” to a jury will tend to mislead and confuse rather to clarify and guide.

And the fourth request was that the evidence show -- that at the time plaintiff sustained his injury, he was in furtherance of the work completing the laying of the deck on the raft.

But first of all, as Your Honors know that is not quite accurate since he had never gotten to that point, yet he was only making ready for it and then unless you find that this work was being done by the plaintiff as a member of the crew of the Pfeifer number two, expressly for the purpose of furthering the repair of the Pfeifer number two in order to enable it to continue in navigation, the verdict must be for the defendant.

And I submit that this request has the same deficiencies with request number three has in it.

And second of all, it implied unless the word then and there, then it forget the vessel as of the verdict for the defendant and I've indicated that is not the correct law.

So, I submit that the refusal to charge as requested did not constitute error, but assuming that they were error then I say on the fact of this case on this record, it was harmless error, since it is undisputed that the petitioner was a seaman and a member of the crew, injured in a course of doing what he'd been ordered to do on a vessel, on a place where he had to be in order to perform the work then any finding that he was not injured in the course of his employment as a seaman and a member of the crew would be against the evidence could be country to law, could be insupportable.

And hence to the errors that then he was harmless and he's entitled to reinstatement of the judgment.

Chief Justice Earl Warren: Mr. Lamb you may proceed.

Argument of Edmund F. Lamb

Mr. Edmund F. Lamb: Your Honorable Chief Justice and Justices of this Court.

I think possibly in view of the argument that I might best open my argument by correcting what appears to be an error which has been injected during cause of the petitioner's argument.

It has not been argued in petitioner's brief, it was not argued below, and I submit to Your Honors it is not the situation that this man sustained his injury while going off to Pfeifer two before beginning engagement in the other work that he'd been ordered to do.

I would like Your Honors to look again at the diagram which is on page 55.

And you will see by referring to that diagram, that in the diagram there is a little rectangle mark repair raft, above the repair barge, Winisook and to the right of that you will see an X in the neighborhood of where there -- is written approximately eight feet.

If you will refer to the pictures on page 56, you'll find a line leading from an opening on the barge, that line being out along the catwalk tied to a bit which is set in a recess in the side of the covered barge at that point, that is the point from which Mr. Braen fell.

At the time that he fell, he was in a crouched position attempting unloosen that line, in order to pull the weight craft from the position in which it is as shown in the diagram on page 55 up to the position under the X from which he fell as shown in the diagram on page 55.

And if you will refer to the trial minutes the record at page 24, at the top of the page you will find that he testified at this way.

Upon receiving the orders from Mr. Smith to finished laying this deck on the raft, I first proceeded to get the necessary hammer, nails and saw and other materials, up to the door that I'm intended to use which was on the northwest end.

After getting the material, I proceed out along the raft would be intention of releasing this line and doing just as I have described to Your Honor and the full description of it continues successively through page 24 into page 25 up to the point of where he slipped while you turn on, I'm loosing this line and fell on to the raft.

So, that at the time that he was injured, it was apparent at the trial, it was so argued in the Court of Appeals and the briefs of the petitioner and my brief have developed or had been developed upon the premise that at the time this man sustained his injury, he had started to perform work which he had been ordered to perform this by Mr. Edward Smith.

Justice Hugo L. Black: What was the work?

Mr. Edmund F. Lamb: The work that he was ordered to perform was this --

Justice Hugo L. Black: Yes.

Mr. Edmund F. Lamb: -- Mr. Justice Black.

To enlarge that answer a little bit to bring in some of the factual framework, they were repairing a pump on this barge Pfeifer two, they had too many men there to do the work.

Smith who is the vice president of the company who was over there in this yard, went down and said to his fellow does supporting to the -- plaintiff petitioner's own testimony he -- you have carpentry experience, don't you?

And he said, “Yes.”

His about I wish you would go over here, there's too many men working on this barge, I wish you would go over here and complete laying a deck on this raft.

The raft being the one that I called Your Honors intention to that's located in the other side of the --

Justice Hugo L. Black: Laying of what?

Mr. Edmund F. Lamb: Deck, a decking or wooden decking on the raft.

That raft is weight raft that is used around the yard upon which man can stand while it floats in the water to work on vessels of the respondent that come into the yard that needs minor repairs that can be performed while the boats are at float.

The raft was lying on the opposite or shoreward side of this barge Winisook.

Now this barge Winisook to correct another error is not a vessel within any sense of the term.

The barge Winisook is an old covered barge which had been retired for navigation years ago was taken over to this yard, was wood with cables and anchors and lines in such a fashion that it could not engage in any navigation even to wind it or turn it around, involve a lot of work.

And that appears in the record very clearly at pages 47 at --

Justice Hugo L. Black: What is if (Voice Overlap)

Mr. Edmund F. Lamb: -- at the bottom page and the page, yes Your Honor.

Page 50 again --

Chief Justice Earl Warren: What was it there for, in that situation?

Mr. Edmund F. Lamb: The Winisook or the --

Chief Justice Earl Warren: Yes, Winisook.

Mr. Edmund F. Lamb: The Winisook was there Your Honor as a machine, a floating machine shop and storage place.

Over here, at this yard is a small yard --

Chief Justice Earl Warren: Was it in connection -- was it in connection with the -- with the repair of the Pfeifer?

Mr. Edmund F. Lamb: Oh!

It had -- the Winisook had -- had material on it that had been used in connection with the repair of the Pfeifer.

Chief Justice Earl Warren: Yes.

Mr. Edmund F. Lamb: The Winisook is used in connection with the repair of any of the boats that come there.

Chief Justice Earl Warren: Yes.

Mr. Edmund F. Lamb: In other words, if they have the machine on the barge, they have a machine shop on the barge, they -- they do it on the Winisook.

It's easier to work from the floating barge which is a long side of vessels that come in, instead of working up on the shore.

So, that it's only major work though it had to be done as for instance, in the saw mill or something like that that's done up on shore.

They have this machine shop that can thread and it can drill and things like that on this Winisook.

And then they also store access equipment on the Winisook.

So -- so it's really nothing but a -- a floating workshop.

That's all it is.

Chief Justice Earl Warren: Yes.

May I ask Mr. Lamb, is it your position that -- that the when he left the Pfeifer and went on to the barge, Winisook that he is no longer member of the crew?

Mr. Edmund F. Lamb: I'm not going to answer Your Honor categorically.

Chief Justice Earl Warren: Why not?

Mr. Edmund F. Lamb: -- because I couldn't answer you on a category from that.

So, far as payroll was concernred, I'm perfectly prepared to concede he'd never been taken off that barge payroll.

Chief Justice Earl Warren: (Voice Overlap)

Mr. Edmund F. Lamb: So, if you say he's a crew member from the standpoint of being on the payroll of the barge as a crew member, I'd have to answer Your Honor, yes.

Chief Justice Earl Warren: Right.

Mr. Edmund F. Lamb: -- if you -- you say to me, was he a crew member from the standpoint of whether at the time of his injury he was performing functions of a crew member, my answer to you Your Honor would be that he was not.

Chief Justice Earl Warren: Alright.

Let me ask you this question and if did -- did this foreman who gave him the order had the right under the articles that the seaman signed or under the -- the collective bargaining agreement of his union, had the right to assigned him to duties other than those of a crewman?

Mr. Edmund F. Lamb: There was nothing in his union contract that said anything about one way or the other.

These men do not sign articles.

This man who gave him the order was the vice president of the company.

He was overall charge of all of the employees of the company so, that I would have to answer Your Honor that he had authority, company wise to give the order.

Now --

Chief Justice Earl Warren: For him to do something other than as a crew member?

Mr. Edmund F. Lamb: Well, let me put it to you this way Your Honor, he had the -- or authority to give him the order to give them the order to do what he -- he told them to do, and there was nothing in the union contract that said that he couldn't tell him to do something that wasn't a crew member, that it wouldn't be the work of a crew member.

The union contract has been brought into this case in this way, and it's referred to in the briefs of the petitioner.

Mr. Smith, when he came on the stand, testified a little differently than Braen did.

Braen simply under testimony it was called to your attention page 23, said that he was told to do this and get the job done and he went about to do it.

Smith said, "I wasn't going to be able to use the barge for a couple of days."

So, I told this fellow I was going to have to lay him off but I asked him if he knew carpentry work and he said yes and so I told him I can give him a couple of days work, laying this deck on the raft.

Now, I put no reliance on that testimony of Smith at all.

In rebuttal of the testimony, the petitioner introduced the union contract to show that you would have had to give the man three days notice of discharge in order to fire him.

In other words, he couldn't be let go as Smith by his testimony indicated we've going to let him go that morning.

He would have to give him three days notice.

So, the man could have refused so far as the union contract is concern, could have refuse to this work, and could have said to Smith, "I wouldn't do it, if you want to let me go, you going to give three days pay."

That's the only effect that the union contract has here.

But what we're dealing with here is not, I submit to Your Honors, a question of what it might have been if had been otherwise but we are dealing with the question of what it is as it happened and that is the case that has been tried and decided and which is here on review.

Now, the fact of the matter is, Smith told him to do it and he proceeded to do it and he was engaged in doing at the time that he was injured.

Chief Justice Earl Warren: Well, by that, do you mean that he did lay him off for a couple of days?

Mr. Edmund F. Lamb: No.

I don't mean that he laid him off.

Chief Justice Earl Warren: I beg you pardon?

Mr. Edmund F. Lamb: I do not mean that he laid him off, Your Honor.

I mean that the -- the question of whether he laid him off or not is an absolute immaterial consideration here according to my contention.

I do not rest upon any claim of a discharge or layoff.

I'm perfectly willing to concede to Your Honors, for the purpose of determination of this case, that this man was not laid off, that he was not discharged, that he was still on the payroll of the barge as the member of a crew so far as the payroll is concern, because I say to Your Honors that it's utterly immaterial and irrelevant to the consideration of this case under your own decisions over all of the period of time since the Longshoremen Act was first enacted and consistently without variation in at least seven cases and where the only variation between this Court or the members of this Court, I should say as to the results reached has been because of a difference as to what facts might inferred from evidence but not as to a difference in the principle.

Now, here is the basic principle that has been laid down on this Court, I'm not going to go --

Justice Hugo L. Black: Would you go and give depending on the fact that the little --

Mr. Edmund F. Lamb: Yes Your Honor.

Justice Hugo L. Black: You say he was ordered to go to work pudeck planks?

Mr. Edmund F. Lamb: That's right.

Justice Hugo L. Black: Where did he have to do this work?

Mr. Edmund F. Lamb: He would have to go from the Winisook down to the raft in order to do it.

Justice Hugo L. Black: Did he have to do the work on the raft?

Mr. Edmund F. Lamb: Yes Your Honor.

Justice Hugo L. Black: Did he reach the raft?

Mr. Edmund F. Lamb: He reached the raft in the accident, not prior to the accident.

Justice Hugo L. Black: He did fell on to the raft?

Mr. Edmund F. Lamb: That's correct.

Justice Hugo L. Black: He had not yet gotten to the place where he was to do the work by putting the deck planks on dock?

Mr. Edmund F. Lamb: But Your Honor he was --

Justice Hugo L. Black: I'm just asking you that as to the fact.

Mr. Edmund F. Lamb: He had not as yet gotten down onto to the raft, that's right sir, but he --

Justice Hugo L. Black: And that was the place he was to do the work?

Mr. Edmund F. Lamb: That was the place where he is putting the planks on but the doing of the work --

Justice Hugo L. Black: Was he ordered to do in anything besides put the planks on?

Mr. Edmund F. Lamb: Well, sure because he had to get the raft in position, firstly he get on with the raft.

Justice Hugo L. Black: And --

Mr. Edmund F. Lamb: In order to get to the raft, he had to put the raft in position where he could get to it, to get -- get on with it.

Justice Hugo L. Black: The place of getting to -- in order to get away he was do the work, he had to get away he could do the work?

Mr. Edmund F. Lamb: That's right.

Justice Hugo L. Black: Which was on the raft?

Mr. Edmund F. Lamb: That's right sir and while he was doing that – unlossing this line to pull the raft up, to get down onto it that he fell.

Let me, if I may, give you (Inaudible) case that I think, will illustrate what I am trying to indicate Your Honors and possibly makes the situation a little clearer.

Suppose this same man being the carpenter had been told to go up on to the dock, on to the range and to put a shed on a -- a shack if they had up there were they stored materials that have been -- they're blown away by the wind.

And he takes to go up and do the work since he has to put a roof on.

He takes the ladder that has been used as means of ingress to an egress from the Pfeifer two and which is lying on the Winisook.

And he carries that up to where this shack is, he places it against the wall, mounting the ladder and he falls because of the defective conditions the ladder.

He hadn't yet started to drive the nail into this roof on the shack.

Isn't perfectly obvious that in that case, that this man would not be engaged at the time of his injury, in the work of a seaman or member of a crew of the vessel?

Justice Hugo L. Black: He'd be pretty close to both places, wouldn't, he?

Mr. Edmund F. Lamb: He'd be pretty close to the locale, but I don't think it he'd be closer from legal contemplation to a Jones Act remedy.

Justice Hugo L. Black: What you're saying is that they had been a ladder took from the wings of wines -- Winisook, whatever it is, down to the raft and he'd been ordered to go to the raft to do the work, you're saying that he was in the same situation as he had been, if he reached that ladder, the ladder will rotten and broken.

You say that he would not have been than a mate and was not had been entitled to recover as a member of crew.

Mr. Edmund F. Lamb: Well, I gave --

Justice Hugo L. Black: (Inaudible) book?

Mr. Edmund F. Lamb: I gave Your Honor a case a little more remote from that situation (Voice Overlap) more began accept my point.

Justice Hugo L. Black: I'm talking about this one.

As I understand it, he was on his way not by way of a ladder from the Winisook to the raft, but he was going there and try to pull up it up to it, so he could get to it?

Mr. Edmund F. Lamb: That's right.

That's really were doing but remember it already collected, he'd already collected the tools and the equipment to perform his carpentry work and had them assembled and he was in the act of getting those and himself aboard the raft to do this work that he was ordered to do.

Justice Hugo L. Black: According to your argument as I understand, you're walking from the job as a mate towards his job as whatever that was that was not a mate -- not a member of a crew and on his way he fell onto the place where he was to work?

Mr. Edmund F. Lamb: No.

I will not conceive that it's that simple Your Honor.

Mr. Justice Black, I do not make that concession.

I do not because there had been much that intervened --

Justice John M. Harlan: That's when he fell off the catwalk?

Mr. Edmund F. Lamb: He did, but he was just -- he was just --

Justice John M. Harlan: Where is the catwalk?

Mr. Edmund F. Lamb: The catwalk if you look at the picture on page 56 -- at 58.

Justice Hugo L. Black: This is the Winisook (Voice Overlap), isn't it?

Mr. Edmund F. Lamb: This -- catwalk in Winisook.

Justice Hugo L. Black: Winisook.

Mr. Edmund F. Lamb: That right.

If you look at that picture on page 58 Your Honor and as you look at the picture if you will notice this ledge that runs along the outside of the barge.

Unknown Speaker: That's the catwalk?

Mr. Edmund F. Lamb: That's the catwalk.

It really is a very incorrect title for it, but that's the way the man used.

It's nothing more than a deck of the barge outside of the housing.

It --

Justice Charles E. Whittaker: It does not explain catwalk for ledge as we see on page -- on the exhibit of two at page 56.

Mr. Edmund F. Lamb: A running between the Winisook and the railroad track, no.

There is no ledge or catwalk.

It is not indicated on the diagram of -- Your Honor asking me if the diagram or the picture, I'm sorry.

Justice Charles E. Whittaker: The picture of page (Voice Overlap)

Mr. Edmund F. Lamb: Yes.

Justice Charles E. Whittaker: It seems then to indicate a ledge run in the full length of the Winisook?

Mr. Edmund F. Lamb: That's right.

That's correct sir.

Justice Charles E. Whittaker: Is that what you call the catwalk?

Mr. Edmund F. Lamb: That's what had been called the catwalk in this case, yes.

Justice Hugo L. Black: How long it takes to go from the -- normally from the Pfeifer to the catwalk?

Mr. Edmund F. Lamb: Well, normally he wouldn't be out on this catwalk judge, it's just a point.

It will take you -- take five minutes, less than five minutes.

Justice Hugo L. Black: Was -- was he doing his duty when he was on the catwalk?

Mr. Edmund F. Lamb: He was doing his duty in connection with --

Justice Hugo L. Black: Then he would be there to do what he was ordered to do, when he --

Mr. Edmund F. Lamb: He'd be there to do what he was ordered to do in connection with the raft --

Justice Hugo L. Black: I'm not talking about in connection with (Inaudible).

I'm talking about is -- to go from the parts to the raft, he was going the right way, wasn't he?

Mr. Edmund F. Lamb: No sir.

If he was only going to the (Voice Overlap) --

Justice Hugo L. Black: What I mean, the duty – the job he was going to do.

Mr. Edmund F. Lamb: The Pfeifer, if I may answer Your Honor this way, the Pfeifer number two was on the opposite side altogether from where this catwalk was --

Justice Hugo L. Black: Right.

Mr. Edmund F. Lamb: -- that he fell from.

Justice Hugo L. Black: Certainly.

Mr. Edmund F. Lamb: So, that he had gone from the Pfeifer over on to the Winisook, the repair barge.

Now, he had gone then out on to this ledge or catwalk of the repair barge.

There would be no reason for him to have been walking out along that ledge of that barge.

There would have been no reason for him to be handling the line that he was handling at the time that he fell.

Justice Hugo L. Black: If he had been ordered to go to do the work?

Mr. Edmund F. Lamb: And he had been ordered to go do that work on the raft, that's correct sir.

Justice Hugo L. Black: And what you're saying is as a matter of law, it has to defend as a matter -- you have to defend it, right, it has been found as a matter of law.

And when he walked from there -- from the Pfeifer or to the Winisook catwalk, and before he fell on it, he was at that time as a matter of law, no longer engaged in any duty as mate.

Mr. Edmund F. Lamb: That's (Inaudible)

Justice Hugo L. Black: And therefore, it puts him on to the other hand.

Mr. Edmund F. Lamb: That puts him under the Longshoremen's Act.

Justice Hugo L. Black: That's your (Inaudible)

Mr. Edmund F. Lamb: That's correct sir, that exactly what I'm contending.

Justice Hugo L. Black: Alright.

Justice Felix Frankfurter: Is that the correct contention?

Mr. Edmund F. Lamb: What's that Your Honor?

Justice Felix Frankfurter: Is that a correct contention?

Mr. Edmund F. Lamb: I think it's a correct contention under the decisions of this Court.

Justice Felix Frankfurter: Is that -- is that really what we here about?

Mr. Edmund F. Lamb: That is what you're here about.

Now --

Justice Felix Frankfurter: I don't think so.

Mr. Edmund F. Lamb: Well --

Justice Felix Frankfurter: I think we're here about to decide whether the Court of Appeals could have found that, not what we would find it independently.

Mr. Edmund F. Lamb: Oh, well I -- I quite agree with Your Honor in stating that.

Justice Felix Frankfurter: Well, that makes a lot of difference at least to one member of this Court.

Justice Hugo L. Black: You mean, where you could have found it as a matter of law?

Does it find the -- does it find the law or suppose to enforce the law?

Mr. Edmund F. Lamb: It enforces the law, I would say Your Honor but --

Justice Felix Frankfurter: Can you take a yard stick it inside this is law, this isn't law this kind of a case?

Mr. Edmund F. Lamb: No, I won't --

Justice Felix Frankfurter: What (Inaudible) can you take in order to decide that?

Mr. Edmund F. Lamb: I wouldn't say Mr. Justice Frankfurter, you could take the yard that could say which is law and which isn't the law in this kind of a case.

Justice Felix Frankfurter: Then why do you say this, why do you say yes to saying --

Mr. Edmund F. Lamb: I say -- I say it to because of the way the question was propounded to me.

Justice Felix Frankfurter: You don't have to answer question the way they're propounded, you have to answer the way they (Voice Overlap) --

Mr. Edmund F. Lamb: Well -- I -- I tried if I may [Attempt to Laughter] the situation as I claimed it would be.

Justice Hugo L. Black: Well, I maybe unfamiliar to say that I think you answered it correctly.

Mr. Edmund F. Lamb: The situation as I think it is in this case, if I may express it my way now, is that you have established a framework of law, you have established a principle for determining whether in a case, no matter what the facts are, a man comes under the Jones Act, comes under the Federal Employers' Liability Act in the case of railroad workers, who frequently also come under the Longshoremen's Act, or whether he comes under Longshoremen's Act.

You have said that after the enactment of Longshoremen's Act, the Longshoremen's Act restricted and limited the application of the Jones Act.

You have said that it restricts and limits the application of the Jones Act to men who are not only seamen in the sense in which you had previously held men to be seamen in the (Inaudible) case but to men who are acting as seaman and members of a crew of a vessel at the time they sustain injury.

You have said that the test of whether or not the Longshoremen's Act or the Jones Act covers in a particular case is whether the activity which the man is performing at the time is an activity of a member of a crew which has to be in someway related to not direct participation in but related to navigation in the sense of the carrying on of a vessels of its function as a vessel.

Now, this man was the member of the Pfeifer two.

He was not a member of any crew of the Winisook or the raft.

He was a member of the crew of the Pfeifer two and my point very simply is this.

The facts here are very, very simple.

The whole fact picture here is contained within three pages of this record 23, 24, and 25.

Under that fact picture it is quite clear and it comes down to judging what Mr. Justice Black asked me a minute ago.

That's how, when and where this man got injured, and I say to you that under the law as you have enunciated, even in those cases where you have taken men who are not seaman, who are not members of the crew, who in terms of their general employment couldn't by any means of the imagination ever be considered members of a crew or seamen and you have taken them by that same test of a particular activity in which they are engage at the time of their injury and you have said that because an inference might be drawn that that activity was that of a seaman who is a member of a crew that therefore these men who had under no other aspect of the imagination could ever come under the Jones Act are accepted from the Longshoremen and Harbor Workers' Act and come under the Jones Act.

Now, I say to you by that same test that you have laid down, you have here a case where the Court of Appeals did correctly, applying the test which you have enunciated, consistently enunciated, has held that this man who normally would come under the Jones Act, whose general employment would bring him under Jones Act, because of the particular activity which he was engaged at time, which had no relation whatever to the navigation of the vessel of which he had been a crew member comes exclusively under Longshoremen's Act, which supersedes the Jones Act where it is applicable and it's applicable here because this was injury to a maritime worker on navigable waters who at the time did not sustain his injury in the course of his employment as a member of a crew of a vessel as such and that is what you have said time after time at every case that written on the subjects without any variation.

Justice Potter Stewart: Mr. Lamb, I'm familiar of course with the general cases you've been referring to in which this Court, another courts had held that, first the general employment is not that of a member of a crew of a vessel can -- hope become one.

Mr. Edmund F. Lamb: Yes.

Justice Potter Stewart: And there many cases so holding and most of them say this is a question of fact for the trier for facts.

Are there any cases in this Court involving precisely this kind of a situation where a person whose general employment admittedly was that of a member of a crew of a vessel who is ever held not to be subject to the -- not to be entitled to invoke the Jones Act?

Mr. Edmund F. Lamb: You have two cases where it was not amend with generally come under the Jones Act but a man who generally would come under FBLA.

Justice Potter Stewart: I know Pennsylvania against to O'Rourke, is that right?

Mr. Edmund F. Lamb: That Pennsylvania against to O'Rourke and the (Inaudible) New York, and Hayden and Harper.

You have not as yet had to -- to present it to you a case were it was a question of whether a Jones Act man --

Justice Potter Stewart: Who would generally be under --

Mr. Edmund F. Lamb: Is -- is generally come under Jones Act (Inaudible) to a Longshoreman.

You just had it in connection with the railroad men who generally would come under FBLA.

Justice Potter Stewart: And between FBLA and --

Mr. Edmund F. Lamb: And Longshoremen and after all the Longshoreman Act is more directly related and more directly supersedes the Jones Act than it does the FBLA where the relationship was more remote than the supersedence if only is --

Justice Potter Stewart: Were there any case like this in the Courts of Appeals or the --

Mr. Edmund F. Lamb: There are cases where men who have ordinarily been seaman having held to come exclusively under Longshoremen Harbor Witness Compensation Act where the relation -- the determination of the -- of the seamanship relation is a little more remote than it is here where for instance, vessels had been tied up for week or a couple of weeks and they said he's not a seaman, where there'd been admission vessels will put them back in the service but there out of service temporarily and they said his not a seaman, Desper against Starved Rock Ferry --

Justice Potter Stewart: Yes.

Mr. Edmund F. Lamb: -- one that you had in this Court, but not one where it's quite and close in time as it is here.

The nearest, for the closest of time the shifting back and forth of the rights under the one statute and the other, under FBLA or Longshoremen question as to (Inaudible) and Pennsylvania against O'Rourke (Voice Overlap) --

Justice Hugo L. Black: Would your argument be any difference if when this man had been told to go home to that, to do this on the plank, he'd been told now you could only be there five minutes, you come back after five minutes, your argument would be any different?

Mr. Edmund F. Lamb: Many differences, time has nothing to do --

Chief Justice Earl Warren: Suppose Mr. Lamb that -- that when Mr. Smith came aboard the ship and found too many men working on this one job, he said to -- to the petitioner in this case, now there are too many of you working on this job, I want you to do something else.

And he assigned him something to do on the Pfeifer but it was not -- it was not something that a crew would ordinarily do, what the man is a good employee went and did it and was injured through the negligence of the Pfeifer.

Would the Jones Act apply, would he be a member the crew at that time?

Mr. Edmund F. Lamb: That will depend upon the work that he was doing judge --

Chief Justice Earl Warren: Well, now -- now let's say -- let's say for instance that he was -- he was preparing some planks for this very -- this very decking that he was to supply for the other ship and was he went to a deck below on the -- on the Pfeifer to cut some planks or something that kind for that job.

Mr. Edmund F. Lamb: Under Your Honors assumption now, those facts as Your Honor assume, I say he would not come under the Jones Act.

Chief Justice Earl Warren: He would not come under the Jones Act.

Mr. Edmund F. Lamb: Because you have said in O'Donnell -- you've said in the O'Donnell case --

Chief Justice Earl Warren: Yes.

Mr. Edmund F. Lamb: -- and you -- you've said it a couple of times that the place of work is not yet involve

Chief Justice Earl Warren: Excuse me.

Mr. Edmund F. Lamb: The reason he'd been working on shore and still come under the Jones Act.

Chief Justice Earl Warren: Yes.

Mr. Edmund F. Lamb: So, similarly be working on the ship and not come under.

Chief Justice Earl Warren: Yes.

Mr. Edmund F. Lamb: Now, I haven't had time to address myself to the -- may be couple of minutes for the question of the request to charge but I as argued in the briefs and they are set forth at the page 11, and the charge of the Court --

Chief Justice Earl Warren: (Inaudible)

Mr. Edmund F. Lamb: -- is set forth at page 5 and if you will compare the request to the charge of page 5, where you see that the Court gave no test at all, the Court just said that this -- apparently the seaman, the member of the crew, I don't think we'd much question about it but he told you what kind of work he did before and then he went on to charge a negligence.

There was no charge at all really.

I -- I give him four requests, I'm not trying to hold each one of them individually, there weren't given as individual requests, they were given as a series of requests forming a complete context that suited in this case and the -- and the Court of Appeals unanimously said even though dissented on the other feature, unanimously said that if you could reverse then send it back for a new trail in any event because there was no fair charge on the --

Justice Hugo L. Black: May I ask you just one question?

Mr. Edmund F. Lamb: Yes Your Honor.

Justice Hugo L. Black: Looking at the Court's charge here it says that not seemed to be seriously disputed, do you remember the crew?

Did you ask a charge on the --

Mr. Edmund F. Lamb: Oh, definitely Judge and not only that, I accepted to that and he corrected that later on.

Justice Hugo L. Black: Which was the charge that they didn't give you?

Mr. Edmund F. Lamb: They didn't give me any of my charges Judge and you'll find them all at page 11 and you'll find where I accepted to that statement at the page 10.

And the Court corrected himself but I think the correction didn't really accomplish anything.

Thank you sir.