VICTORY CARRIERS, INC. v. LAW
Argument of W. Boyd Reeves
Chief Justice Warren E. Burger: Mr. Reeves, you have 13 minutes.
Mr. W. Boyd Reeves: Mr. Chief Justice and may it please the Court.
If I can continue with my argument of yesterday, we submit that there must be a beginning and an ending to the loading and discharging process insofar as the obligation of a vessel's warranty of seaworthiness is concerned.
This is necessary for the guidance of litigants as well as for the law of course.
What started principally as the humanitarian policy by this Court in Sieracki to include those shore-based workers on a vessel, who were performing work, traditionally performed by seamen within the strict and rigid warranty of seaworthiness has now been taken onto the pier and extended to the shore-based worker who is operating exclusive shore-based equipment and as I stated yesterday, in recent case of McNeil has even been carried into the warehouse.
Justice Potter Stewart: The McNeil case was a Fifth Circuit case, was it?
Mr. W. Boyd Reeves: The McNeil case was out of the Eastern District of Pennsylvania.
It was within the past 2-3 months, Your Honor.
Justice Potter Stewart: Is that in your brief?
Mr. W. Boyd Reeves: Yes, in supplemental brief which we filed.
Justice Potter Stewart: Right, thank you.
Justice William J. Brennan: A Federal District Court or Court of Appeals opinion?
Mr. W. Boyd Reeves: It was a District Court opinion sir.
There must be a limit to the extent of the vessel's warranty.
We submit that the limits imposed by the District Court in this case are both realistic and reasonable, that is that loading of cargo insofar as the vessel's warranty is concerned, commences when the vessels tackle becomes a tax to the cargo and that unloading terminates when the cargo is landed on to dock or into a vehicle into which it is being discharged.
This has long been the test of liability as between a ship and shipper, often referred to tackle to tackle.
Such a limitation does no offense to Sieracki or to Peterson or to the Gutierrez's case, because the dockside worker who is actually injured by the ship's own gear, equipment, cargo containers, arch crew, would still remain within the warranty.
The Circuit Court below in this case held that the District Court's limitation of the warranty represented a minority view which defined the loading in an exceedingly narrow and mechanical fashion and chose to align itself with other cases, which define loading and unloading code in a realistic sense rather than hypothetical terms of art.
In so holding, the Court of Appeals below has in effect completely disregarded the basis upon which the seaworthiness doctrine is premised, that is to afford protection to those individuals who are subjected to the rigorous discipline of the sea, going back to Mehnich v. Southern Steamship Company.
Further, the Court below as we are argued yesterday, disregarded the extension of Admiralty Jurisdiction Act.
We would invite the Court's attention to the opinion of Judge Watkins in a recent case from the District Court of Maryland which is Greene (ph) versus Pope & Talbot, we have also cited in our supplemental brief, where after he gives a historical discussion of the seaworthiness doctrine, commence on this Bill Law case in Chagois versus Lykes Brothers and the Ninth Circuit case of Gilbert versus The Hawaiian Legislature and after saying what those cases hold, if I may quote, “this liability without theory ignores the situs of the injury, ignores causation, ignores whether realistically the ship is being loaded or unloaded and ignores the true status of the injured party.
Now, last term in the case of Usner v. Luckenbach Overseas Corporation, this Court held that it would be erroneous when no condition of unseaworthiness existed to hold the ship on a liable for third party single and wholly unforeseeable act of negligence.
We submit that similar logic and reasoning suggest to conclusion that a shipowner and his vessel should not be held liable for an accident which occurs solely on the dock as a result of exclusively shore-based defective equipment, which is being used for the purpose of moving or shifting cargo on the dock and over which the vessel has no control.
The justification for the imposition of the unseaworthiness doctrine with its rigid standard is absent under the facts of this case.
As I stated yesterday, unless the law under the facts of this case was not subject to the perils and hazards of a sea nor was his lift machine that he was operating in appurtenance of this vessel, we are not suggesting a reversal of Gutierrez case because there there was actual vessel involvement in that dockside injury.
We do urge that a limitation be placed on the extension of the seaworthiness warranty by limiting the principles which are set forth in Gutierrez to those instances where the vessel itself, its own gears, own equipment, has caused the shore-side injury, rather than shore-based equipment over which the vessel has absolutely no control.
Before I sit down I would like to say I understand that probably it was Friday, the American Trial Lawyers Association has filed the motion for an amicus curiae brief in this case, I have not seen it, I am not in a position to make any response to it.
I do not know what the Court's action would be on it, but we would respectfully submit that the Fifth Circuit has gone beyond the holdings of this Court in extending the warranty of seaworthiness out on to the dock to this shore based equipment that if limitations and guidelines are not placed, we believe that the hypothetical situations which the Court expressed in Gutierrez which the court below says, we do not reach this particular type of situation, however, it does leave the door open by saying we will reach that case when it comes before us.
I respectfully submit that for the reasons it was stated the First Circuit has erred and suggest and request that be reversed.
Justice Potter Stewart: Mr. Reeves?
Mr. W. Boyd Reeves: Yes sir.
Justice Potter Stewart: We do have filed, a brief on behalf of the National Maritime Compensation Committee as amicus curiae.
Mr. W. Boyd Reeves: Yes Sir and I believe --
Justice Potter Stewart: That was filed September 15.
Mr. W. Boyd Reeves: Yes.
Yes sir, I am told that --
Justice Potter Stewart: I am referring to that, (Voice Overlap) see that.
Mr. W. Boyd Reeves: The Court denied the motion for leave to file the amicus curiae brief on behalf of the Maritime Committee.
Justice Potter Stewart: That motion was denied?
Mr. W. Boyd Reeves: Yes.
It was denied and I understand that either Friday or perhaps yesterday the American Trial Lawyers filed the motion for an amicus curiae brief.
I have not seen it and had no opportunity to review it. I do not think this Court has ruled on that brief.
Chief Justice Warren E. Burger: Thank you Mr. Reeves, Mr. Diamond.
Argument of Ross Diamond, Jr.
Mr. Ross Diamond, Jr.: Mr. Chief Justice and may it please the Court.
I would like to talk about the facts in just a minute.
Bill Law was a member of the ILA, International Longshoreman's Association, local 1410.
He was a member of the gang of Willy Kaiser and he was selected in the Makeup Gang early that morning in front of Union Hall on Davis Avenue in Mobile to load this particular hatch of this particular vessel, the S.S. Sagamore Hill.
When he got to the dock, he was assigned by his foreman Willy Kaiser to operate the forklift machine on the dock, taking the landing mats from its storage pile from the open pier, some 50 feet from the cargo hook and delivering it to the cargo hook from where it was taken onto the vessel.
They were subsequently loaded to the vessel by other longshoreman has been used and I think it could be misleading, it was a continuous operation, the landing mats were sent out on targets and it was thus taken on to ship.
Chief Justice Warren E. Burger: It was the directing authority of -- who was the person who had the control over this man’s activities in this work?
Mr. Ross Diamond, Jr.: There was the foreman, a working boss and a walking boss, in stevedore they call him in Mobile a gang foreman.
He would have two.
Chief Justice Warren E. Burger: And they both worked for the stevedoring company?
Mr. Ross Diamond, Jr.: Yes and the mates of the ship would be in control of the loading and unloading operation generally.
The ship's officers always maintain supervision and control of the vessel in the loading and unloading operation.
Customarily, it is my understanding that they do not interfere with the stevedoring contractor's control unless they see something that is wrong in the manner of storage or something wrong, it is in the manner of the loading or discharging.
Chief Justice Warren E. Burger: Is the -- practice is the stevedoring company and independent contractors?
Mr. Ross Diamond, Jr.: Yes.
I would like to mention one fact that maybe considered pertinent, but is not in the record, if I may.
This case was heard on a motion for summary judgment, only the deposition of Bill Law was taken.
The fact that I would like to mention is that the Bill Law’s fellow workers had worked this vessel the day before, had loaded landing mats into the hold of this particular hatch, in the wings of this hold, and had worked to the hatch square.
The forklift that was used in the hold of the ship, the day before for taking the landing mats into the wings of the ship, was not necessary when they were landing in the square of the hatch and that morning it was taken out of the hatch onto the dock and it is the machine that Bill Law was using.
Unknown Speaker: That is not in the record.
Mr. Ross Diamond, Jr.: That is not in the record Mr. Justice.
I think that that it is commonly accepted in the industry and everybody recognizes that most of the cargo that requires a lift machine to get it to the hook, requires a lift machine in the hatch to get it to its place of storage in the hatch unless it can be landed directly into the square of the hatch.
Chief Justice Warren E. Burger: Well that would be, not the usual situation or would it be?
Mr. Ross Diamond, Jr.: Yes.
I do not understand your question.
Chief Justice Warren E. Burger: Well, the first stage after it reaches the vessel, when it comes down in the sling, does it normally get to its final resting place in the hatch at that point from as to be moved and loaded by people who are on the ship’s crew, must be put in place?
Mr. Ross Diamond, Jr.: It must be put in place unless that can swing to its place by the pendulum of the cargo fall.
If it is going into the wing it must get into its place in some fashion either by men carrying it, they are rolling it, they are pushing it, they are by forklift machine and taking it into the wings.
Chief Justice Warren E. Burger: It would be hard to say that most of the cargo has to be moved after it is removed from the sling on most --
Mr. Ross Diamond, Jr.: Most of it.
I imagine there would be more space in the wings than there would be in the hatch square, yes sir.
Justice Thurgood Marshall: Mr. Diamond suppose where the storage was on the pier and it slipped and struck somebody would the same doctrine apply?
Mr. Ross Diamond, Jr.: The storage of the landing mats on the pier, if they did what sir?
Justice Thurgood Marshall: Shifted?
Mr. Ross Diamond, Jr.: Shifted?
During the --
Justice Thurgood Marshall: Shifted there, they shifted.
Mr. Ross Diamond, Jr.: During the loading operation, had they shifted and gotten Bill Law --
Justice Thurgood Marshall: If they were sitting there and shifted and struck Bill Law, would you make the same argument?
Mr. Ross Diamond, Jr.: I think so.
Justice Thurgood Marshall: And I warn you I am going to take those mats back to the factory in a minute and see how far you go?
Mr. Ross Diamond, Jr.: I agree, Mr. Reeves --Mr. Justice that there has got to be a beginning and an end.
Justice Thurgood Marshall: Where do you think it is?
Mr. Ross Diamond, Jr.: I think that the beginning and end can be approached from several concepts of test.
I think that the beginning and end could be considered from a loading or unloading concept from a work traditionally done by a seaman concept, from a remoteness and time and place concepts, in the service of the ship concept.
I think that probably --
Justice Thurgood Marshall: If they go to truck and unload it on the pier?
Mr. Ross Diamond, Jr.: No, sir.
Justice Thurgood Marshall: Why not?
Mr. Ross Diamond, Jr.: I think that just what Your Honor is indicating that it must have a beginning and end.
I think that the delivery man delivering it onto the pier is just that a delivery man delivering it.
Justice Thurgood Marshall: But suppose that the delivery man in delivering it struck Law?
Mr. Ross Diamond, Jr.: I do not think that -- I think we would have to -- we are talking about unseaworthiness, we would have to have some unseaworthiness involved if Law to have a cause of action.
I think the unseaworthiness would have to be related to the cargo on the --
Justice Thurgood Marshall: Then it has to be related to the ship?
Mr. Ross Diamond, Jr.: Yes sir.
Justice Thurgood Marshall: But suppose the ship is out in the channel?
Mr. Ross Diamond, Jr.: I think that the remoteness in time and place, I think, that the vessel should be at the pier.
Justice Thurgood Marshall: Would that be tied up?
Mr. Ross Diamond, Jr.: I think the loading and unloading operation should be in actual progress and for it to be an actual progress, I suppose it would have to be tied up sir.
I think this vessel should be at the pier.
The loading or discharging operation should be in actual progress.
I think the day before, the day after is too remote in time and the place, I think, that it must be within the area of the dock.
We get into some hypotheticals there that would depend upon the various customs in the ports and the locations of the port.
Justice Thurgood Marshall: In my hypothetical the ship is tied up?
Mr. Ross Diamond, Jr.: Alright.
Justice Thurgood Marshall: The stuff is cleared out of the storage area and has been loaded and a truck backs up with forklift all the way on the pads to be forklifted off the truck and Law is running the forklift up to the truck, on the truck and picks up the material.
Would that apply while he was on the truck?
Mr. Ross Diamond, Jr.: It would depend if the forklift itself, the headache right came down and got Bill Law, I think that it would so.
Justice Thurgood Marshall: Why?
Mr. Ross Diamond, Jr.: Because he is loading the vessel.
He is doing work traditionally done by a seaman, is in the service of the ship.
Justice Thurgood Marshall: Is that traditionally done by a seaman today?
Mr. Ross Diamond, Jr.: It is not traditionally done -- it is done by seaman today in some instances.
It has not been completely --
Justice Thurgood Marshall: In the United States?
Mr. Ross Diamond, Jr.: In some instances I would suppose.
I do not know of any in port of Mobile but -
Justice Thurgood Marshall: (Voice Overlap)
Mr. Ross Diamond, Jr.: -- in times of war the crews customarily discharge the ships in foreign ports.
Justice Thurgood Marshall: Done by time of peace?
Mr. Ross Diamond, Jr.: Is done by the longshoremen --
Justice Thurgood Marshall: In the United States?
Mr. Ross Diamond, Jr.: It is done by the longshoremen, customarily yes sir.
Justice Thurgood Marshall: With machinery?
Mr. Ross Diamond, Jr.: With machinery, yes sir.
Justice Thurgood Marshall: And I do not imagine that the seaman could operate a forklift?
Mr. Ross Diamond, Jr.: The seaman, it might be considered in line with the reasoning of --
Justice Thurgood Marshall: Would ILA let a seaman operate a forklift on the pier?
Mr. Ross Diamond, Jr.: Yes, we have a --
Justice Thurgood Marshall: They do?
Mr. Ross Diamond, Jr.: No, no I misunderstood your question.
Justice Thurgood Marshall: Well, do you know any pier that ILA does not control in the United States?
Mr. Ross Diamond, Jr.: Only those piers on the West Coast are controlled by the West Coast Union sir.
Justice Byron R. White: Mr. Diamond, would your position mean that the Federal Law of Admiralty would preempt this area of the pier as long as the activity was in the service of the ship?
Mr. Ross Diamond, Jr.: I think that it would.
Justice Byron R. White: And the State law then, you move the line shoreward and within that area and within the area of that activity, there would no cause of action on the State law?
Mr. Ross Diamond, Jr.: I do not know if you could have concurrent jurisdiction at matter.
It would be my position, Your Honor, that the General Maritime Law should not be confined by the pier's age.
In General Maritime status --
Justice Byron R. White: I understand that, but the consequence of your not confining it would be to preempt State law in some respect?
Mr. Ross Diamond, Jr.: It could be, yes.
Justice Byron R. White: Let us assume that law had -- that there is a defective plank in the pier and he was walking along, he just got off the forklift and fell in the hole in the pier.
Would you make the same argument here?
Mr. Ross Diamond, Jr.: I find it a little difficult to distinguish between the defective plank and the --
Justice Byron R. White: So the ship is responsible for the pier?
Mr. Ross Diamond, Jr.: And the plank with the beams on it.
Justice Byron R. White: So the ship is responsible for the pier that it ties up to?
Mr. Ross Diamond, Jr.: If it is within the loading operation and loading is going on this tied up and it is in (Voice Overlap)
Justice Byron R. White: Let us assume that Law was riding along on his forklift, this forklift that he was run into by another forklift, run by another longshoreman loading another ship?
Mr. Ross Diamond, Jr.: I do not think that it would go to the doctrine of warranty of seaworthiness going to Bill Law would not cover him injured by the other forklift.
Justice Byron R. White: Why?
Mr. Ross Diamond, Jr.: Because this is quite loading it.
Justice Byron R. White: This is operational negligence, the seaworthiness just does not reach it, is that your view?
Mr. Ross Diamond, Jr.: My view is, Your Honor, that the appurtenance of the other forklift serving another ship was not in the service of this ship.
Justice Byron R. White: So you would say that would be a State law matter?
It could not be a Jones Act, it could not be Hamburg and Maritime negligence action, could it?
Mr. Ross Diamond, Jr.: It could not be a Jones Act, but it and I imagine it would be covered by State law.
Justice Byron R. White: So you have got this, sort of depending on what kind of an accident he had on piers and what was the governing law?
Mr. Ross Diamond, Jr.: I think we would either have to have negligence of the vessel on the seaworthy and the condition of the vessel appurtenance of the vessel.
Justice Byron R. White: Why would not it be the negligence of the vessel?
I mean, if the pier is the ship's responsibility and the ship has an obligation to provide a safe place to work, why should not it be responsible for mere negligence on the pier by a third party?
Mr. Ross Diamond, Jr.: I agree with the holding of negligence entirely.
We never did have operational negligence in the Fifth Circuit.
Justice Byron R. White: But that is your answer then, I mean, that is the answer you say rather than the --
Mr. Ross Diamond, Jr.: Yes, I think that the --
Justice Byron R. White: You would not still say Maritime Law applies, but it just does not give a remedy to that kind of negligence, but the answer would be then also that the State law could not supply the remedy because it is within the area of Maritime Jurisdiction?
Mr. Ross Diamond, Jr.: That maybe that, I am not sure.
Justice Byron R. White: Yes.
Justice William J. Brennan: Well, Mr. Diamond in that connection, as I understand it Mr. Law has been awarded and has accepted with a state worthiness compensation payment?
Mr. Ross Diamond, Jr.: There was no award as such.
He was paid compensation for temporary total disability for the period of time he was disabled.
Justice William J. Brennan: That is under the State law?
Mr. Ross Diamond, Jr.: Yes sir.
Justice William J. Brennan: Is that consistent with your view that there would be no state law remedy in this instance, but rather a federal maritime remedy?
Mr. Ross Diamond, Jr.: I think that under the holdings of this Court in Nacirema that the State law definitely would go to the longshoreman on the dock and when he leaves the docks going towards the ship it is of course become a Longshoremen and Harbor Workers' Act.
I do not know if I have answered your question sir.
Justice William J. Brennan: Well, your answer to Mr. Justice White indicated that you thought this would be an area of Federal Maritime Jurisdiction, which would preempt any state law remedy, in this very situation --
Mr. Ross Diamond, Jr.: I feel that it would be an area of General Maritime where as the General Maritime Law of the United States would have jurisdiction.
I do not necessarily feel it would preempt the State law.
Justice Byron R. White: So we are back to twilight zone days?
Mr. Ross Diamond, Jr.: Perhaps.
I see no conflict if we all had -- I see no reason why you could not have concurrent jurisdiction.
I do not think necessarily one precludes the other.
Chief Justice Warren E. Burger: Mr. Diamond in response to Mr. Justice White's question, you were dealing with operational negligence of one forklift in relation to another.
Mr. Ross Diamond, Jr.: Yes sir.
Chief Justice Warren E. Burger: Suppose instead of operational negligence if the injury occurred as a result of defective steering gear of one of the forklifts which let it run wild and hits either another man or his forklift?
Mr. Ross Diamond, Jr.: I think that --
Chief Justice Warren E. Burger: Same answer?
Mr. Ross Diamond, Jr.: My answer would be the same.
Chief Justice Warren E. Burger: So that there is no significance then --
Mr. Ross Diamond, Jr.: I do not think --
Chief Justice Warren E. Burger: -- to the operational negligence aspect?
Mr. Ross Diamond, Jr.: I think, we would have an unseaworthy machine if it went to ship B, but since Law was loading ship A, the Sagamore Hill, it would not be appurtenance of the Sagamore Hill and it would not be an unseaworthy condition of which Bill Law could recover against the Sagamore Hill or against the ship B because he was not engaged in service of that ship.
Mr. Reeves mentions the perils and risk of a seaman.
In 1954, the National Academy of Sciences conducted a study of the various dangerous occupations in the United States and in that study the Longshoreman’s industry was by far the most dangerous occupation, far exceeding the logging industry, the sawmill industry and steel erection occupation.
Chief Justice Warren E. Burger: Even more than coal mining?
Mr. Ross Diamond, Jr.: I do not recall.
This study is reported in volume 75 of the Yale Law Journal and is reported as the most dangerous industry, Mr. Chief Justice.
Justice Potter Stewart: That might suggest that the whole doctrine of unseaworthiness ought to be reexamined in perils of the sea, in the eighth decade of the 20th century on akin to what they were back in 17th and 18th and early 19th Centuries?
Mr. Ross Diamond, Jr.: I think going to sea is still a hazardous occupation.
I think every one will agree to that, but I think that the longshoring industry is more dangerous.
Justice Potter Stewart: And we all put seaman then under the Longshoremen and Harbor Workers' Act?
Mr. Ross Diamond, Jr.: I hope that, Mr. Justice, I hope not.
I think that the reason for the rule is that work is dangerous and still there.
That is one of the reasons in the service of the ship is other reason for the rule and the third reason that the industry is better able to distribute for the loss, more so than the injured seaman or the injured longshoreman, if the site was still there.
Justice Byron R. White: Another reason for the rule was that seaman is rather helpless?
Mr. Ross Diamond, Jr.: They are not as helpless as they were in days gone by.
We have --
Justice Byron R. White: Even the sailor was obviously helpless, how about the longshoreman?
Mr. Ross Diamond, Jr.: They are not any more so helpless.
Chief Justice Warren E. Burger: Unless they are shore-based and in a close relation with their employer all the time, are they not?
Justice Byron R. White: They have rather strong bargaining position, do they not?
Mr. Ross Diamond, Jr.: Well, they have the same position that most industries have in that bargaining set up in the country today.
Justice Thurgood Marshall: Who tied up all these ports allege you went through, was that a ship or the union?
Mr. Ross Diamond, Jr.: That was the International Longshoreman's Association.
Justice Thurgood Marshall: And they need protection?
Mr. Ross Diamond, Jr.: I think this --
Justice Thurgood Marshall: They need protection for months?
Mr. Ross Diamond, Jr.: They do not need.
Let me phrase this way if I may.
Justice Thurgood Marshall: Well, you (Inaudible), the Captain is driving and you went into it?
Now, is it true that the Captain is at the mercy of a union?
Mr. Ross Diamond, Jr.: No, sir.
Justice Thurgood Marshall: Or close to it, even?
Mr. Ross Diamond, Jr.: I think the master of the ships still runs the ship.
Justice Thurgood Marshall: He has (Inaudible) life and death of the crew?
Mr. Ross Diamond, Jr.: I would think not.
I do not think that he should have.
Justice Thurgood Marshall: I think as you know not?
Mr. Ross Diamond, Jr.: I agree that he should not have.
Justice Thurgood Marshall: What power does he have over the longshoreman?
Mr. Ross Diamond, Jr.: He has the power of the control of the ship.
They never relinquish the control of ship.
Justice Thurgood Marshall: What power did he have over Law, did the Captain of this ship have over Law?
Mr. Ross Diamond, Jr.: I think that in inquiry to an officer of the ship would reflect that the ship never relinquishes control over the loading or discharging operation.
They are in the control.
Justice Thurgood Marshall: What control did he have over Law?
None, is that right?
Mr. Ross Diamond, Jr.: Mr. Justice, Law was under the direct supervision of Willy Kaiser, his gang boss, he was a member of the same union.
Justice Thurgood Marshall: Not under the Captain of the ship?
Mr. Ross Diamond, Jr.: He was under the indirect supervision of the Stevedore Superintendent, a man named Mr. Marino in this instance.
Justice Thurgood Marshall: Alright.
Mr. Ross Diamond, Jr.: He was under the supervision of the mate in control of the ship.
As a practical matter the mate never instructs these longshoremen in the way that they do their work.
He does not tell them what to do or how to do it.
But he is in control.
He has supervising.
He is paid to be there and watch the operation.
He sees that the cargo goes into its proper place on the ship and if he sees an improper method or an unsafe condition going on, he has got a duty to correct it and to stop it.
Justice Thurgood Marshall: On the wharf?
Mr. Ross Diamond, Jr.: Yes, if he is loading his ship.
Justice Thurgood Marshall: If there is an unsafe condition on wharf it is the mate's duty to see that is corrected?
Mr. Ross Diamond, Jr.: If it is in the process of loading the ship, yes sir.
Justice Thurgood Marshall: You do not mean that, do you?
Mr. Ross Diamond, Jr.: I think I do.
Justice Thurgood Marshall: What you mean is that the sling is something that will damage the ship or damage the stowage he has brought in, but if the forklift was broken or had a faulty steering mechanism, did he have anything to do with that at all?
Mr. Ross Diamond, Jr.: Under my interpretation of the law, it would be an appurtenance in serving this vessel and if the doctrine of the seaworthiness extends to the appurtenances of the vessel, it would estimate.
Justice Thurgood Marshall: He could repair the forklift?
Mr. Ross Diamond, Jr.: I do not think so.
Would he repair the rope slings or the pallets, no sir.
Justice Thurgood Marshall: He could order the forklift (Inaudible)
Mr. Ross Diamond, Jr.: And he could order the forklift machine corrected, operated, I think so.
Justice Potter Stewart: There is nothing in the record on this that appears on this question, is there anything?
Mr. Ross Diamond, Jr.: No sir.
There is one summary judgment on a pre-trial discovery deposition of Bill Law which was taken before the motion for summary in anticipation of the motion for summary judgment (Voice Overlap)
Justice Potter Stewart: And deposition goes to what he was doing and his injury and what he is paid, that sort of thing?
Mr. Ross Diamond, Jr.: That is correct.
Chief Justice Warren E. Burger: Mr. Diamond, looking at the relationship between the master of the vessel and the stevedoring company, is the master's control substantially like or is it different control which a general contractor exercises over the employees of the subcontractor in the general field of construction or any other area?
Mr. Ross Diamond, Jr.: Mr. Chief Justice I think that it could be likened to that.
The general contractor over the subcontractor's employees on a general construction job, and that fairly for me would be hard effort, set up that goes.
Chief Justice Warren E. Burger: Now, you had said before that the Stevedoring Company has an independent contractor in his relations with the vessel and its owner?
Mr. Ross Diamond, Jr.: That is correct.
Chief Justice Warren E. Burger: I suppose the subcontractor is an independent contractor with respect to a general contractor?
Mr. Ross Diamond, Jr.: I do not think that the doctrine of seaworthiness should be extended to the beans in the oven (ph) from the bag in the warehouse in Denver.
I do not think that it should extend to the Longshoreman who has taken the truck of the Stevedoring Company to go downtown and get some rope.
I think if we come to a logical conclusion and apply these concepts or tests, remoteness in time and place, loading and unloading work traditionally done a by seaman in the service of the ship, we can come to some realistic guidelines, if we may call them that by which to apply the rule.
I was stating a minute ago that I felt the ship should be working cargo, either loading or discharging, it should be at the dock.
I think that the area would be within area of the confines of the loading operation.
We all know that these vessels carry huge amounts of freight.
It would be impossible to place all of the freight that they carry underneath the hook and have it ready there to be lowered onto the ship when it docks.
There has got to be a storage place on the dock or any adjacent warehouse and that is customarily what is done in the industry.
The cargo that is going to be loaded to this vessel that is coming in, it is at a storage pile on the dock or in the warehouse adjacent to the place that the vessel is going to dock.
It has to be brought from that point to the cargo hook.
And again it carries great quantities of cargo and on discharge it would be physically impossible to leave it all under the hook.
It must be taken from the hook to a storage place on the dock or in the adjacent warehouse in close proximity to where the vessel is docked.
Customarily, that is what is done in the loading and unloading operation.
The vessel contracts to do just this.
This is part of the cost of carrying the goods.
It is customarily in the trade.
You can have a special discharging or loading agreement.
But by great preponderance when the vessel contracts to carry goods, they agree to bear the cost of bringing it from its storage point on the dock or the adjacent warehouse, and agree to pay the cost of taking it from the hook to its storage pile on the dock or at a warehouse immediately adjacent to the dock.
Until each functions are completed, the vessel does not earn any freight at all.
The seaman in the olden days did this work.
They had to do just the same thing that Bill Law did.
They have to take it from the storage pile onto dock to the hook and they would have to take it from the hook to the storage pile onto dock.
Justice Potter Stewart: You really think that a seaman ever really has done the work of loading and unloading?
I know what it was said in Sieracki.
Mr. Ross Diamond, Jr.: Yes.
I think so, from what I have read it would seem to me that --
Justice Potter Stewart: What I have read in this Court's opinion is this is a traditional work of seaman, but what I read historically, going back to the Phoenician the ship tied up on the dock and seaman went to shore and relaxed, (Voice Overlap) and somebody else loaded and unloaded the ship?
Mr. Ross Diamond, Jr.: I have possibly not read as much as Your Honor has.
The reading I had that seems to bear that the Stevedoring -- longshoring specialization had it that meant in late in the 19th Century.
I imagine there was an overlap where there was some specialization and some seamen did it.
I am sure that if the seamen did that, that they would have to do it in this fashion, that they will have to take it from the storage.
Justice Potter Stewart: Whoever did it would have to do it in that fashion at that point?
Mr. Ross Diamond, Jr.: Yes.
I think, any interpretation of loading and unloading, that does not recognize that these functions are part of the ship's work and does not recognize that it has to be taken from this pile to the hook and from the hook to this pile, it defies the English language.
I do not see -- it is unrealistic to me, cut off that it is loaded or unloaded at the hook.
Unknown Speaker: Your point is simply that the loading was necessarily at least a two-stage process.
Mr. Ross Diamond, Jr.: Yes.
Chief Justice Warren E. Burger: Mr. Diamond now that we have passed the middle of the 20th Century, should not we look at what has been an almost uniform practice during this entire century with respect to loading and unloading ships and the seaman's part in it?
Mr. Ross Diamond, Jr.: We cannot ignore the present Your Honor.
I think we should recognize it.
I say this that the reasons for the rule are still there.
Any of as who have visited a freighter, general cargo freighter, and one of that doctrine in a port, that is loading at two or more hatches, several hatches, recognize the danger that exists.
Their pallets of the cargo swinging overhead coming here and there, their forklift machines running here and on, there seems to be an appealing of urgency in the air.
It is perhaps contributed to by fact that the stevedoring companies work on a tonnage basis in most ports rather than hourly basis and that the vessels themselves are on a strict schedule.
There is a feeling of urgency in the air and there is a danger that exists.
Justice Byron R. White: Only if they need to sustain the (Inaudible) customarily as whether State or Federal Law provide a remedy.
I do not fully see that the state remedy was equivalent as the remedy of maritime law?
Mr. Ross Diamond, Jr.: You are right sir.
Yes that is correct statement.
Justice Byron R. White: And surely in this instance the ship is not going to invest paying the bill anyway?
Mr. Ross Diamond, Jr.: The shipping industry itself will pay the bill.
Unknown Speaker: Well, yes but it will end up on stevedoring?
Mr. Ross Diamond, Jr.: And over the years it is a -- well, the stevedore is involved in the --
Justice William J. Brennan: Well, that is the very case.
Mr. Ross Diamond, Jr.: Mr. Reeves is here representing the insurance carrier for the stevedoring company, yes.
Justice William J. Brennan: That is (Inaudible)
Mr. Ross Diamond, Jr.: That is correct but we have also got to recognize that the whole industry pays the cost and not just a stevedore, because the stevedore has got to look at the actual inexperience and what it cost them in charge, make a charge distinction.
Justice Byron R. White: According to State law the relationship between the stevedore and its employer is governed by the Workers' Compensation?
Mr. Ross Diamond, Jr.: Under the Nacirema, the Gus Stevedoring in this case and Bill Law are governed by the Workers' Compensation's Act of Alabama.
Justice Byron R. White: Unless an amendment preempts out of it?
Mr. Ross Diamond, Jr.: I do not think that the doctrine of seaworthiness that is extended to the longshoreman loading and unloading the vessel would preempt the State law on the compensation.
Justice William J. Brennan: Does that mean that (Inaudible) both recovery both under State law?
Mr. Ross Diamond, Jr.: As to State law it is got a provision and subrogation just as The Longshoremen Harbor Workers' Act has, the impact of State law as the Longshoreman and Harbor Workers' Act provides for those situations where the injured worker has a cause of action against a third party.
Chief Justice Warren E. Burger: Mr. Diamond, Mr. Reeves you have about seven minutes.
Rebuttal of W. Boyd Reeves
Mr. W. Boyd Reeves: I would take a couple of minutes, if I may Your Honor.
I am going to take up on the last question of who must bear the cost.
The Court would recall that the Longshoremen Harbor Workers' Act was passed so that the injured longshoreman would have his remedy for the vessel side or the water side of the dock.
Now, the Court has held that this is the longshoreman's exclusive remedy against his employer, is under the Longshoremen and Harbor Workers' Act.
I think the Court has in its questions touched on the problem that we have here.
As a practical matter, Mr. Law got his employer where if he prevails here would pay whatever he receives that is sometimes in the industry known as two bites from the apple.
He had one bite for his compensation, he then brings his action against the vessel for this shore-side injury.
Justice William J. Brennan: Incidentally I gather there has never been a claim that this entry was compensable under the Longshoreman's Act, has it not?
Mr. W. Boyd Reeves: No sir, there has not been a claim for that.
It was voluntarily paid under the Alabama State Compensation Act.
Justice Byron R. White: The Longshoreman's Act does not cover the State law?
Mr. W. Boyd Reeves: The Longshoremen Harbor Workers' Act under Nacirema would not apply to this type of thing, as it happened on the dock.
Mr. Diamond spoke of the survey of the dangerous type of work that longshoremen do.
As I recall reading the Yale Law Journal article, says with the possible exception of logging and other industries to discuss all type of construction, heavy labor, any type of work where man is exposed to walking the beams of constructing buildings, on the dock, whatever he maybe doing is dangerous work.
Nowhere under any as the law as any workmen given the shield of protection as a longshoreman has been given specially in this case here as exclusively on the docket.
The court would recall the Pope & Talbot versus Hawn, teaches us this is not the label that we put on the man where these longshoreman with the type of work that he is doing.
The one other point that you said was not in the record, the record does state that in response to questions on page 91 that where he got those forklift machines, he said he picked it up at the garage, at Gus garage that morning and drove it down to the vessel to start his work.
I do not know where it was the day before.
Again I would respectfully submit the court below has extended the doctrine too far and request this Court to place limitations by reversing the court below.
Thank you very much.
Chief Justice Warren E. Burger: Thank you Mr. Reeves, thank you Mr. Diamond.
The case is submitted.