CHEVRON OIL CO. v. HUSON

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Argument of Lloyd C. Melancon

Chief Justice Warren E. Burger: We will hear arguments in number 11, Chevron Oils Company against Huson.

Mr. Melancon, you may proceed as soon as your friend is fully ready as I guess he is.

Mr. Lloyd C. Melancon: Mr. Chief Justice and may it please the Court.

The matter comes before you today in a writ of Certiorari directed to the Fifth Circuit in connection with its having reversed a summary judgment granted to petitioner who was the defendant in the District Court below.

The summary judgment came about as a result of a petition being filed by plaintiff wherein he alleged himself to be a special service employee of an independent contractor, Otis Engineering Company, doing work on as he alleged a fixed and immobile drilling rig off the coast of Louisiana.

He alleged in his complaint that the accident occurred December 17, 1965 and the complaint in connection with that alleged accident was filled with the clerk on January 4, 1968.

In the complaint, the plaintiff sought relief in the basic tort action alleging recovery under the Longshoreman and Harbor Workers’ Compensation Act, the Outer Continental Shelf Lands Act and otherwise.

Routine discovery transpired and ultimately it was conclusively shown that this was a fixed and immobile structure, an artificial island in which this alleged accident was supposed to have occurred and as result of that, petitioner filed his motion for summary judgment.

It was argued before the Court and the District Judge in furtherance of the recent opinion by this Court in Rodrigue held as a matter of law that Chevron was entitled to its judgment because the application of the laws of Louisiana to this tort action were that the plaintiff was compelled to file a suit within a one year period of time and not having done so, the matter had prescribed on time barred as in the other states we use the time of prescription.

An appeal was sought by respondent to the Fifth Circuit and the Fifth Circuit in deciding the case, notwithstanding the very positive position taken by this Court in Rodrigue that the admiralty and maritime law did not apply to fixed and immobile structures.

The Fifth Circuit went on to follow its earlier decision in this Pure Oil versus Snipes case and held that, yes, admiralty and maritime law did apply and since it did apply then the admiralty and maritime doctrine of laches was applicable and summarily reversed the District Court.

Justice Harry A. Blackmun: May I ask if that point, did you or did you not argue laches in the Fifth Circuit?

Mr. Lloyd C. Melancon: We did not, Your Honor.

The question of laches was never presented to the District Court.

The sole question presented to the District Court below was the application of the strict Civil Law doctrine of prescription, that is the application of the Louisiana law to plaintiff's alleged accident.

There was no --

Chief Justice Warren E. Burger: That was a two-year --

Mr. Lloyd C. Melancon: One year.

Chief Justice Warren E. Burger: -- One-year limitation?

Mr. Lloyd C. Melancon: It was the same as the Longshoreman and Harbor Workers’ Compensation Act which is one year.

The State of Louisiana compensation act, regular state act is one year and of course the historical tort limitation of Louisiana has been one year going back to the Civil Code so that we do not have anything here that was new or different.

All that Rodrigue said was that this Court was satisfied that Congress in having passed the Outer Continental Shelf Lands Act was paramountly interested and the men themselves being closely connected to the adjacent states in which they were working and this Court recognized that Congress held the admiralty and maritime law doctrine of laches otherwise would not apply to fixed and artificial island such as this.

Justice Harry A. Blackmun: But the admiralty, it was not the Admiralty Act?

Mr. Lloyd C. Melancon: That is right.

This is a pure action brought by plaintiff where we have a diversity situation, where if the accident happened for argument, now we contend of course that this accident happened in the territorial waters in Louisiana, which is an area under dispute at this present time where the Court has appointed a master to make recommendations with respect to that coastline of Louisiana, but --

Justice Byron R. White: This thing, (Inaudible) the District Court’s jurisdiction is invoked as a Federal question?

Mr. Lloyd C. Melancon: Yes, Your Honor.

Justice Byron R. White: It is the diversity?

Mr. Lloyd C. Melancon: Well, there is diversity between the parties.

Justice Byron R. White: I know it is, but that is a really Federal question (Voice Overlap) under the land of --

Mr. Lloyd C. Melancon: Yes, because they sued under the Outer Continental Shelf Lands Act and the --

Justice Byron R. White: Did the Federal covered that, governed by Federal Law?

Mr. Lloyd C. Melancon: Tried in Louisiana Court, in the Federal Court in Louisiana.

Justice Byron R. White: And they have -- even if you bar a state law as Rodrigue or the statute says, it is still federal law?

Mr. Lloyd C. Melancon: That is right.

And the Fifth Circuit went on in its decision in Huson below to take a distinction between substantive and procedural law and, of course, with the background of the Pure Oil versus Snipes case where of course it was very contrary holding to this Court's holding in Rodrigue justified the exception here and you had a real hideous so to speak because here in Huson we have a personal injury, the man was not killed.

In Rodrigue, Doupree, the companion case is you have death cases.

Now, this Court says in a death situation, the laws Of Louisiana apply, therefore, the survivors have one year within which to file their claim.

Look at the situation you have now, if the Fifth Circuit is to be maintained in its contrary opinion.

If a man is injured offshore and he lingers more than 12 months and then subsequently dies without having filed the claim or his survivors, he is barred under Rodrigue, yet, in a personal injury action if this Court maintains the Fifth Circuit, the individual who lives may file this lawsuit at anytime in the distant future as long as he can show that there is excusable neglect on his part and that the defendant was not prejudiced by his delays.

It is a totally inconsistent position Your Honor and the bar in Louisiana where the greatest number of this cases are pending and have been tried, having been looking to this Court for some resolution of this problem that has arisen in the Outer Continental Shelf.

We thought that had been reached in Rodrigue where this Court specifically stated under no unequivocal terms, otherwise, it said admiralty law does not apply.

The laws of Louisiana shall apply and those laws are as follows.

Now, I might mention to the Court in this connection that since the decision of Rodrigue and the Huson decision, the District Court in Baton Rouge which is also in the Eastern District Louisiana in the Guillory case wrote a very scholarly opinion holding quite squarely on this question of prescription that the one you applied that this is what the Supreme Court said in Rodrigue and just last month in fact with in the last three weeks another panel of the Fifth Circuit headed by Justices Tuttle, Wisdom and Ingram in the Dickerson case have specifically held following this Court in Rodrigue that the laws of Louisiana shall apply to these accidents occurring on fixed structures and then narrowly went on to apply the law but they held multiple faces of the Louisiana law to apply such as the question proximate cause, the calculation of damage, the application of contributory negligence, all of these faces that the Fifth Circuit seemed to be so concerned about as to having equality and uniformity of decision, yet, here is another panel of the Fifth Circuit saying specifically Rodrigue is the law, we recognize it is the law.

And in connection -- the question of prescription was not raised therein, but the Court did go on, Judge Tuttle went on, who was the organ of the court in his opinion, to observe that while he was not taking issue with the other panel which raised this fine distinction of substantive procedural law but he recognized that this matter was up before the Supreme Court on writs for ultimate decision.

Justice Potter Stewart: There is some verbal controversy in the briefs that you and your brother filed as to whether or not this Louisiana period of limitation is a period of correction or whether it is a prescriptive right, does that --

Mr. Lloyd C. Melancon: We would confess error, Your Honor.

Justice Potter Stewart: Does that go to any of the basics of the issue?

Mr. Lloyd C. Melancon: No, it does not.

It is simply this; in Louisiana, the Tort Article of 2315 is the Article under which an offense can be asserted in Court and recovery sought in the tort action.

In 2315, the legislature went on to state that where a death occurs and this was with respect to the survival of (Inaudible) that these survivors must, within one year, bring their action under 2315.

However, in a pure personal injury case, the code law article is Civil Code Article of 3536 as applicable thereto, and that is specifically one year.

And what happened in the court below that is in the Court of Appeals, the Fifth Circuit went on to take as I said before, a distinction between the substantive law of 2315, which it said was absolutely corrective etcetera with respect to a death action, but then went on to say well now 3536 is procedural, and therefore, being procedural we are not going to apply the admiralty and maritime law doctrine of laches, which is of course inconsistent with what had happened in Rodrigue.

Now, going back to this question of applications of laws, certainly on the Erie versus Tompkins where we have forum applying the federal law, the law outside of the United States, assuming that -- outside of the State of Louisiana, assuming Mr. B outside of Louisiana, it must of course apply a federal law, but the law of the forum with respect to prescription that the procedural aspects would be applied and here it is.

There is not dispute that 3536 limits a personal injury action to one year and that is precisely what we have here.

Now, there is nothing unique or new about the fact that a tort action must be brought in one year in Louisiana.

This goes back for a hundred years to the old code.

Anyone practicing in Louisiana is well aware that this is nothing new or different to something brought along.

I mentioned before, our state compensations statutes, specifically limits the right of recovery and the compensation to one year.

The Longshoreman and Harbor Workers' Act is very active.

The plaintiff has alleged in this lawsuit as being applicable which was denied, but he still alleged of it being applicable, limits the right of recovery to one year.

So therefore, I think that it is quite obvious and clear from the record that plaintiff having filed his suit in excess of one year from the date that this occurred that he has lost his rights.

These are rights, if he had them that he failed to say and they are time barred and prescribed, corrected whatever other terminology we want to use in connection with this.

Going back to the Fifth Circuit's decision, we say it is wrong because it was unsoundly thought about, where it held at that the District Court was an Admiralty Court.

The District Court was not an Admiralty Court.

The District Court was not applying admiralty and maritime law.

The District Court was applying the law of Louisiana as defined by this very Court in the Rodrigue decision.

It was thoroughly recognized by Congress and this very Court that adjacent states to these tied lands of the coastal waters have a vital interest in the men who worked offshore, who they must of course take care of any instances that arise and this was thoroughly recognized by Congress in all of the hearings that were held and the discussions of different Congressmen that were involved.

We then say that if that is true, little more can be said in this case because everything had been said in Rodrigue which is applicable to our situation here.

The only basic distinction that you can find if that be a distinction is the simple fact that in Rodrigue there were death and in Huson it was a personal injury.

Otherwise, the factual situation is identical; fixed structures and the relationship of the parties and the precedent.

Unless the Court has some questions that they would ask of counsel, I would just like to keep a short time for rebuttal to answer my brother in this instance, but I think this is as clear as any case as can be.

If Rodrigue is not the law then we have to go back all over this situation and find out what it is because you got a lot of litigants, you got a lot of lawyers in Louisiana who do not know what the law is.

Thank you, your Honor.

Chief Justice Warren E. Burger: You will undertake to be as brief as your friend.

You can finish up today counsel, but we do not press the point on.

Argument of Samuel C. Gainsburgh

Mr. Samuel C. Gainsburgh: Mr. Chief Justice and may it please the Court.

I think the reason or one of the reasons that my friend was able to be so brief is that he has a prima facie case on his side, namely the Rodrigue decision and I think it would be less than realistic as an advocate, if we did not acknowledge that this is so.

Justice William J. Brennan: Well, in addition to Rodrigue, I suppose he also has statutory language, does he not?

Mr. Samuel C. Gainsburgh: He has that. (Voice overlap)

Justice William J. Brennan: The statutory language is explicit that civil and criminal law of each adjacent state as the effective date of the subtracted are declared to be law of the United States?

Mr. Samuel C. Gainsburgh: This is explicit language to be sure, Your Honor.

Justice William J. Brennan: Judge Brown said do not let literalism prevent or emote on sound with the host?

Mr. Samuel C. Gainsburgh: I think there, perhaps is more than a little merit to Judge Brown’s observation in this particular case.

If for instance, we subscribe to the statement in Rodrigue, statements I should say as I read the decision, that Congress was concerned with the welfare of the offshore oil worker, the amphibious oil worker who undoubtedly is subjective to a rather hazardous environment in which albeit on a fixed platform, called theoretically an artificial island, he is subjected to the vagaries of the sea, of wind, wave and weather.

To a large extent the equipment with which he works is affected by all of these things.

In this particular instance, it would be difficult if one took a reasonable view of these circumstances, not to conclude that sea played a part in Mr. Huson’s injury, albeit it happened on an artificial island.

If as the Court suggests in Rodrigue, Congress was concerned with the protection of these equal groups, undoubtedly need protection.

It struck Judge Brown apparently as it should be apparent I would think to anyone who compares the two systems of law that under the maritime law which incidentally for almost a decade prior to Rodrigue in a number of cases several of which a certiorari had been denied and men such as Mr. Huson were allowed to have the benefits of the general maritime law when injured in this identical situation.

And a brief comparison I think will do no violence to the court's schedule.

I would simply suggest that under Louisiana law for instance, if a man and under the law of most states, which have adopted the common law that unfortunately in our civil jurisdiction in Louisiana, we have adopted in this area, assumption of risk is a complete bar to recovery.

Under the maritime law such would not be the case, contributory negligence are complete bar to recovery under Louisiana law.

Anomalous as it maybe as civil law jurisdiction, contributory negligence is the complete bar.

Contributory negligence is not a complete bar under maritime law.

In flexible statutes of limitation as Judge Brown points out in his opinion, “As opposed to the more equitable and humane consideration of laches,” the doctrine which Judge Brown allowed Mr. Huson to avail of himself up in this case.

The degree of legal duties to persons on the premises is a rather tricky thing at common law and to some degree in Louisiana where persons are classified as business visitors, invitees, licensee’s.

These are the problems now if Rodrigue is to be followed of the offshore oil worker.

This Honorable Court declared in Cameric (ph) that it is not going to run afoul of that under admiralty law, all persons lawfully aboard maritime premises would be entitled to the duty of reasonable care from the operator and owner of those premises.

Particularly is this important in the tied lands where much of the work that goes on, on these high seas platforms is special service contract and I think that these are some of the considerations that we are going through to Judge Brown’s mind when he declared that he ought not to let literalisms any more than he had to, he certainly cannot overrule this Honorable Court anymore than he had to let literalism bring about results which he considered unsound.

Justice William J. Brennan: May I ask --

Mr. Samuel C. Gainsburgh: Sure.

Justice William J. Brennan: -- it is not particularly relevant.

Was there any special reason why so much time elapsed before this action was brought?

Mr. Samuel C. Gainsburgh: I think that the record, Your Honor, will disclose that plaintiff, the much time is slightly two years.

Whether this is much time, we will assume that it is, the record will disclose that this man was initially injured in one year and then he was off for several months, receiving treatment and then allowed to go back to work.

He went back to work.

He had much more sedentary job, but it was a more convenient job instead on working off shore as he had been doing, he was a dispatcher and he got along very well at this job with no problems apparently until he attempted to return to this heavy type of employment, by which time another year had elapsed.

When he went back tried to continue, he had a recurrences, the record will reflect that references are made in our brief to this situation.

So that actually this suit was filed within a year of the time that this man’s injuries apparently became permanently disabling to him.

Justice Harry A. Blackmun: It is a typical disk syndrome, is it not?

Mr. Samuel C. Gainsburgh: No, this is the review of the maritime law that a person who can show these things and who had shown these things is entitled to have his day in court and to have the defendant’s legal liability tested for it, but not under the Louisiana law.

Justice Byron R. White: Is this all together that Rodrigue be considered?

Mr. Samuel C. Gainsburgh: Yes, it does, literally.

Justice Byron R. White: Do you also claim that Rodrigue is inconsistent with the Lands Act?

Mr. Samuel C. Gainsburgh: Your Honor, our position is that the Rodrigue decision places an interpretation on the Lands Act which is inconsistent with the general admiralty and maritime jurisdiction of this Honorable Court and an interpretation which is not necessary to bring about the results that Congress apparently intended.

We feel for instance that the inference is gone by the Court in Rodrigue --

Justice Byron R. White: You would say, though you are really saying that the admiralty law, if you really treated, particularly dealing with platform, vessels and people working on them as a seaman and at least have the admiralty law available to them?

Mr. Samuel C. Gainsburgh: Yes, Your Honor, but I would not particularly would seize upon the opportunity to suggest that it is not necessary to treat these high seas structures as vessels in order to make the man aboard them seaman, having them seaman is not problem.

Justice Byron R. White: (Voice Overlap) as I understand you say the admiralty law did apply not the law of the state?

Mr. Samuel C. Gainsburgh: The general maritime law in the tort area would serve, I respectfully submit to this Court, would serve to achieve the ends that Your Honors attributed to Congress in Rodrigue, namely the maximum protection of the offshore worker.

Justice Byron R. White: What do you do with the language?

I don’t think this is a re-argument of Rodrigue?

Mr. Samuel C. Gainsburgh: It certainly is, sir.

Justice Byron R. White: And you either win or lose?

Mr. Samuel C. Gainsburgh: That is correct.

Justice Byron R. White: And so what do you do?

So, accepting on that basis, what do you do with the language of the act and legislature history of the Congress clearly says that a dictum can be (Inaudible) governed by maritime law?

Mr. Samuel C. Gainsburgh: I will respectfully suggest, Your Honor, again that the Congress said that they did not intend to treat them as vessels and we submit and have attempted to support our submission in our brief that it is not necessary that the presence of a vessel is not indispensable to maritime jurisdiction, and therefore, we believe that this situation is no different.

If I may pose this hypothetical proposition; if you have a national park, totally within a state, an area of exclusive federal jurisdiction, totally within the state, through which ran a navigable stream.

I think that you could accommodate certainly the contracts, the other business activities that went on in the park and apply state law with no problems.

But let us get something into the stream, let us get something in the water, let us put something at sea and a tort occurs there which traditionally by locality would be within the jurisdiction of the admiralty.

It seems to me that it does no violence to Rodrigue, it does no violence to the Lands Act particularly, to apply maritime tort principles to what we feel by their very nature and service on maritime and admiralty premises.

And this is really the brawn of our brief.

We realize it is a difficult burden to carry, if we have to get that far.

We have urged to this Court as we did in the court below that even if Your Honors determined not to reexamine the Rodrigue decision, that it is inequitable in this situation.

Although, the record will not support overt reliance on Snipes and Ousley and the pre Rodrigue decisions, but if it is manifestly unfair to apply this Rodrigue decision retroactively in this particular case at the time this action was filed, the law under which we operated and had been operating for almost a decade in the Fifth Circuit, was that laches apply, not prescription.

There was no compulsion of law either statutory or case law.

It was all to the contrary.

Chief Justice Warren E. Burger: Except the statutory language?

Mr. Samuel C. Gainsburgh: Except the statutory language, which the Fifth Circuit had interpreted as intending to apply maritime law to these platforms.

Of course as Your Honor knows that Fifth Circuit in the Snipes case interpreted the same statute which was later interpreted by this Honorable Court in Rodrigue.

They just came to different conclusions, but the litigants in the Fifth Circuit and I assume elsewhere, certainly would have a right, they should have a right to rely upon the pronouncements of that Court, not once but in at least four different cases, three of which I think were denied cert by this Honorable Court.

We feel that this not the only matter of its kind in the Fifth Circuit.

My brother, Mr. Melancon referred to some, before coming here.

I will ascertain that there are actually three matters pending in the Fifth Circuit in which the decision is being withheld, dealing solely with cases filed before Rodrigue after the state prescription, dismissed by the District Court after Rodrigue was decided and now on appeal to the Fifth Circuit.

Perhaps, there are others in the District Court which have not yet reached that level that I am unable to canvass without a great deal of research, but those three do exist along with Mr. Huson.

These people will retroactively lose their causes of action.

It may be said by my brother that they never had it in the beginning so they cannot lose what they never had.

But this is a retroactive application of a time limitation of which there was no fair warning or reason given in view of Snipes and Ousley and the other cases that were decided.

We feel that in summary and in conclusion that the language, the literal verbiage of the Lands Act does not compel this Court to hold that that Congress intended to take out of maritime jurisdiction of what we contend was a part of the general maritime law of the United States.

Torts occurring on the high seas 80, some 80-90 or 125 miles at sea, it seems to us are certainly fitting subjects for admiralty and maritime jurisdiction traditionally and if not traditionally, certainly modernly and contemporaneously as our aircraft disasters which seem to have the blessing of admiralty law.

Thank you, sir.

Chief Justice Warren E. Burger: (Inaudible) briefly now.

Rebuttal of Lloyd C. Melancon

Mr. Lloyd C. Melancon: There is a serious issue, Mr. Justice Brennan, in connection with the plaintiff’s accident and the delays that involved that had not been presented, but simply to touch on them very briefly, the record does establish and show in the appendix that there is a serious dispute as to whether this man ever had an accident on the date alleged because his superior contends that they were working at Long View, Texas on this date and he knows that no accident happened.

That is in the record, but --

Chief Justice Warren E. Burger: That does not help us one way or the other (Voice Overlap)

Mr. Lloyd C. Melancon: No, that is right, but just to clarify that point Mr. Justice Brennan raised.

Secondly, if we ought to have the quality and uniformity as this Court recognized in Rodrigue, this is the function of Congress.

Congress can pass the laws and make these man seaman if they wish, make submersible rigs vessels, make fixed structures vessels and otherwise and clearly define the prescriptive periods which even under Huson, the theory that was advanced by the Court of Appeals, you have no uniformity.

You have Mississippi, you have Texas, you have Louisiana; each had different prescriptive periods.

Now, what do you apply?

So, the function here is the function of Congress.

I do not believe in fairness that it is the function of this Court.

Once it has fairly and clearly recognized Congress' intent in Rodrigue to now come and say, but wait death actions, yes, Rodrigue applies bar.

Personal injuries, no.

That is procedural, and therefore, admiralty and maritime law applies.

(Inaudible) Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.