COOPER STEVEDORING CO. v. KOPKE, INC.

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Argument of Joseph D. Cheavens

Chief Justice Warren E. Burger: We'll resume arguments in Number 73-726, Cooper Stevedoring against Kopke.

Mr. Cheavens, you have 23 minutes remaining.

Mr. Joseph D. Cheavens: Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

Yesterday, when the argument was interrupted, we were discussing the specific District Court findings.

It will be recalled that the District Court found that the vessel was on sea, and vessel owner negligent in three respects: in failing to secure the cargo in Mobile, in failing to dunnage off the cargo in Mobile, and because of the presence of the piece of the paper covering the crack which was the immediate cause of the plaintiff's injury.

The District Court also found that Cooper was negligent in two respects with respect to the failure to secure and with respect to the failure to dunnage off in Mobile.

Now, the precise legal significance of these findings has to be rather carefully scrutinized.

First of all, it's to be noted that there is no finding of joint liability of the ship and Cooper to the plaintiff.

There is no finding of joint liability because the plaintiff, if it will be recalled, did not sue Cooper.

Now, the significance of this is that since the plaintiff did not sue Cooper, there is thus no and I am quoting here from respondent's brief, “No common liability for concurrent fault” which is,' and again I am to use the words of the respondent's brief at page 25 which is the 'sine qua non of contribution'.

That is, there is no joint liability because the plaintiff didn't sue Cooper.

The second significance of the District Court's findings is that Cooper negligence was found to be negligence vis-à-vis the plaintiff.

That is the acts which Cooper did.

The failing to secure and the failing to done a job were found on a careful examination of the District Court's findings at a 163 and 164 of the appendix are found to be negligence because of -- this created a risk of harm to the plaintiff and subsequent longshoreman.

But these findings are legally immaterial because again the plaintiff for tactical considerations did not sue Cooper.

The third legal significance to these findings is that under these findings and under the undisputed fact, there is not found to be any breach of duty by Cooper to the vessel.

Because the two things Cooper was faulted for, failing to secure and failing to dunnage as between the ship and Cooper.

The ultimate decision there was made by the ship.

It was the ship that decided whether or not to dunnage.

If the ship wanted it dunnaged, the evidence shows Cooper would have dunnage.

If the ship wanted the cargo secure, Cooper would have been happy to secure the cargo for of course an additional price.

But those decisions were decisions of the ship.

Thus, regardless of this Court's treatment of the more general problem before the Court, namely the right of contribution between joint tortfeasors in admiralty, there are two very specific reasons in this specific case, why this is an improper case for contribution.

First of all, because as we have seen that the party which has been granted contribution, the Vessel has already been fully indemnified.

It was fully indemnified by Mid-Gulf Stevedores.

So that if we view the case as one where it is the Vessel which is suing Cooper for contribution, the Vessel's cause of action is extinguished.

The Court might feel but why it isn't the real party at interest here Mid-Gulf, because Mid-Gulf has stepped into the shoes of the Vessel and it has taken over the Vessel's defense.

But if that's the situation, then contribution is doubly unfair because if the plaintiff -- let us change this situations like, had the plaintiff sued Cooper alone.

Let's assume for instance the ship was not -- could not get jurisdiction over the ship but the vessel owner was in souvenir something of that sort.

So, the plaintiff sues only Cooper.

Cooper even under the rule urged by the respondent would not be able to get contribution from Mid-Gulf because Mid-Gulf is statutorily immune from direct action by the plaintiff.

Justice Byron R. White: But if Mid-Gulf indemnified the ship, it would it indemnify only for its actual lost.

Mr. Joseph D. Cheavens: Its actual loss is measured by the liability of the Vessel to the plaintiff which is the amount of the judgment.

Justice Byron R. White: Isn't indemnity for out of pocket loss and if the ship doesn't -- ultimately is liable for only half let's say, it's only out of pocket for half the liability.

Mr. Joseph D. Cheavens: With all due respect, Mr. Justice White, I think that suggestion is circular.

Justice Byron R. White: Well, that somebody is going to -- let's assume the Vessel secures indemnity from Cooper.

Is it Cooper' Yes Cooper.

Mr. Joseph D. Cheavens: Indemnity or contribution'

Justice Byron R. White: In contribution, assume contribution.

Mr. Joseph D. Cheavens: Yes.

Justice Byron R. White: Then what?

Mr. Joseph D. Cheavens: Well, under the judgment of the District Court, entire liability was imposed on the Vessel.

Justice Byron R. White: Alright.

Mr. Joseph D. Cheavens: The full amount of the judgment is assessed against the Vessel --

Justice Byron R. White: And then?

Mr. Joseph D. Cheavens: And then the Vessel is entitled to contribution --

Justice Byron R. White: From --

Mr. Joseph D. Cheavens: From Cooper.

Justice Byron R. White: 50%?

Mr. Joseph D. Cheavens: 50%.

Justice Byron R. White: But then how about Mid-Gulf?

Then the Vessel is out 50% of the liability and then how much does Mid-Gulf have to pay for the Vessel?

Mr. Joseph D. Cheavens: But in the first instance before we reach that point and indeed that point has been reached, the judgment against the plaintiff is no longer in the case and the plaintiff's judgment has been satisfied and has been satisfied by Mid-Gulf as the refusal statement in the brief of the Fifth Circuit says

Justice William H. Rehnquist: But isn't it an indemnitor ordinarily subrogated to the rights of the indemnity, certainly toward common law.

Well, I'm not that familiar with maritime law.

Mr. Joseph D. Cheavens: I'm not sure this issue has ever been confronted in maritime law but in this instance, Mid-Gulf did not take an assignment of the Vessel's action.

Justice William H. Rehnquist: Well, of course, subrogation operates without regard to any formal assignment just by a virtue of having paid off the amount, doesn't it?

Assume the obligation --

Mr. Joseph D. Cheavens: Well, of course that's correct, but of course that assumes, of course, in the first instant that there is a right of contribution which is the more general issue in the case, I appreciate it.

Unknown Speaker: (Inaudible) I am perhaps substantially confused, does the record show the amount of the settlement Mid-Gulf made?

Mr. Joseph D. Cheavens: The record shows the total amount of the judgment and the refusal statement in the Fifth Circuit brief says that Texas employers is obligated by a contract of the indemnity to pay any judgment rendered against the Vessel, so that they are obligated by indemnity to pay that full judgment.

Unknown Speaker: Well, you mean the record doesn't show how much in fact the Vessel has paid the plaintiff?

Mr. Joseph D. Cheavens: Only indirectly, the record shows how much --

Unknown Speaker: What was the judgment the plaintiff got?

Mr. Joseph D. Cheavens: I've forgotten the exact amount, $38,000.

Unknown Speaker: And that's been paid?

Mr. Joseph D. Cheavens: That has been settled.

Unknown Speaker: By whom?

Mr. Joseph D. Cheavens: By Texas Employers Insurance Associate.

Unknown Speaker: Who represent the insurer?

Mr. Joseph D. Cheavens: Through the insurer for Mid-Gulf Stevedores.

Unknown Speaker: For Mid-Gulf?

Mr. Joseph D. Cheavens: Right.

Unknown Speaker: The Vessel has paid nothing?

Mr. Joseph D. Cheavens: That's correct.

The Vessel got out of the case in advance of the trial and the suit is prosecuted only in the name of the Vessel, even though Mid-Gulf did not take an assignment of the Vessel's cause of action whatever that cause of action may be.

Unknown Speaker: Well, if the Court of Appeals has affirmed, who pays what to whom?

Mr. Joseph D. Cheavens: If the Court of Appeals has affirmed that my client Cooper will be obligated to reimburse the Vessel, actually Texas Employers for one-half of what Texas Employers has paid.

Unknown Speaker: Texas Employer as being Mid-Gulf's insurer.

Mr. Joseph D. Cheavens: Insurer.

Unknown Speaker: So there is a -- so nobody is going to have a wind fall.

Mid-Gulf simply gets back half of what is paid.

Mr. Joseph D. Cheavens: That's true but Mid-Gulf would never even under the rule urge that respondents would not be able to have done that directly because it surely can't be said to have a right of contribution --

Unknown Speaker: All right -- (Voice Overlap)

Mr. Joseph D. Cheavens: -- against Cooper because Cooper had no right of contribution.

(Voice Overlap) It could insist and surely there is --

Unknown Speaker: But if the Court of Appeals is right below, then Cooper pays -- Cooper pays half and the Vessel pays half.

Mr. Joseph D. Cheavens: That's correct.

Well, the Vessel, it quotes, the fictional Vessel.

Unknown Speaker: Well, I mean the Mid-Gulf -- do I understand that did you tell us yesterday that the Mid-Gulf had an indemnity agreement with the Vessel?

Mr. Joseph D. Cheavens: That's correct.

In advance of trial, Mid-Gulf took over the defense of the Vessel but the counsel were substituted.

Let us move to the more general issue.

Unknown Speaker: Before we move on, may I ask you a question.

The respondent's brief disputes your assertion that there has already been full indemnification, was that issue addressed by the Court of Appeals of the Fifth Circuit?

Mr. Joseph D. Cheavens: It was not addressed in the Court of Appeals' opinion, it was the subject of the briefs in the Court of Appeals and in fact it consumed, I think the greater part of the oral argument, and I think both -- it's fair to say both counsel were somewhat surprised that the problem was not addressed by the Court of Appeals in its opinion.

Unknown Speaker: -- undisputed to what the facts are?

Mr. Joseph D. Cheavens: I don't believe that's correct.

I think we are in agreement.

Unknown Speaker: That there was indemnification?

Mr. Joseph D. Cheavens: That there was indemnification.

Unknown Speaker: In full?

Mr. Joseph D. Cheavens: That's correct.

Unknown Speaker: Is the record clear on that?

Mr. Joseph D. Cheavens: Yes, Your Honor.

The --

Unknown Speaker: I don't want to interrupt your argument.

Mr. Joseph D. Cheavens: The record is clear.

Mr. Smith testified at that matter at the trial of the case.

This question, the question I am urging, the point I am urging, this point was raised in the District Court and Mr. Smith, the counsel, appearing of record for the Vessel who had previously been counseled for the Stevedores was called as a witness by Kopke and testified these matters.

It appears of record there and it appears of record in the refusal statement filed in the Fifth Circuit brief.

Justice William H. Rehnquist: What was the reason that Mid-Gulf paid the judgment recovered by the plaintiff, was it because it was the insurance carrier of the Stevedore which had agreed to indemnify the Vessel?

Mr. Joseph D. Cheavens: That's correct.

The more general issue involved in the case involves the right of contribution in admiralty generally.

For purposes of oral argument, I would like to suggest and I see my time is running short, that this problem be approached by seeing what are the conceivable rules that the Court could develop here.

First and I submit that the existing rule is that the law draws a distinction between collision cases on the one hand and non-collision cases on the other.

In collision cases, there is a right of contribution, in non-collision cases, there is no right of contribution.

This is what the Halcyon decision says.

This was expressly reaffirmed by the Court two years ago in the Atlantic case.

That's the current law.

The law is urged by the respondents is the opposite into the spectrum as embodied by the Fifth Circuit decision in this case and in its earlier decision in Watz against Zapata which is that there is a right of contribution, except generally, except where the party against whom contribution is sought is statutorily immune.

I would suggest that there may well be middle grounds between these two polar positions.

The middle grounds being that a right of contribution could be granted in all instances saved where the parties, the relationship was governed by the Ryan indemnity doctrine.

Alternatively, a right of contribution could be granted either in all non-personal injury cases or in all non-harbor workers compensation cases.

If I have time, I would like to discuss possible rationales for those approaches.

The first approach, that is the existing law, the Halcyon Atlantic Approach may appear at first blush to be artificial why a distinction between collision and non-collision cases.

The distinction is a sound one and that is that collision cases which are perhaps the oldest form of maritime litigation had well developed rules governing these situations long in advance of any legislative activity in the area.

These rules even predate the 19th century activity of this Court in the field.

On the other hand, in non-collision cases as Justice Black's opinion points out so clearly in the Halcyon case.

There is substantial legislative activity.

That legislative -- this is most pervasive in personal injury is somewhat less pervasive elsewhere but is notable for instance in cargo damage cases.

But all legislative activity in the field has always stop short of creating a right of contribution.

Traditionally, contribution can only be created by the legislatures.

Indeed, in the states which have adopted contribution, it has almost been invariably done by legislation as opposed to judicial enactment.

Unknown Speaker: Is that so in the maritime field, I mean the existing law of contribution was --

Mr. Joseph D. Cheavens: Was developed judicially but it was developed judicially long before any legislative activity generally, in the fields which are at dispute in this case.

In those areas, the legislation has never enacted contributions.

In most recently, of course, the rules were substantially changed in 1972 Amendments.

Those amendments to the Compensation Act were enacted against the backdrop of the Sieracki, Halcyon and Ryan, Atlantic, line of decisions.

They were carefully tightened to meet those decisions and make very precise adjustments in the rights of plaintiff versus ship versus Stevedoring.

Unknown Speaker: But your opponents have urged that Halcyon has never been applied broadly to just all non-collision cases that it only had a narrow application that Courts of Appeals have not followed and have not applied it so broadly.

I know the Fifth Circuit hasn't, how about the other Circuits?--

Mr. Joseph D. Cheavens: The Fifth Circuit applied it broadly until the late 60's and it was not until 1972 that the Second Circuit went along.

This is a very recent phenomenon where Lower Courts have felt they could disregard the Halcyon, the clear language of Halcyon, all during the 50's and the early 60's.

Unknown Speaker: Well, it didn't disregard the application of Halcyon into the facts very similar to Halcyon.

Mr. Joseph D. Cheavens: That's correct.

If --

Unknown Speaker: Very dangerous here. [Laughter]

Mr. Joseph D. Cheavens: I didn't know the perils of argument.

Unknown Speaker: But you have the right to contribution.

Mr. Joseph D. Cheavens: I should hope.

The disregarding of Halcyon is a recent phenomenon.

And I do not think it's fair to restrict Halcyon to the specific facts of Halcyon.

This Court simply cannot just brush to one side, the whole basis for Halcyon and likewise in Atlantic, The Atlantic case was a totally different situation because they are the party against the contribution -- was not statutorily immune.

He could have been sued.

Justice William H. Rehnquist: Is there any indication in connection with the 72 Amendments that Congress was mindful of Halcyon or that general -- that specific area of maritime law.

Mr. Joseph D. Cheavens: There -- I cannot recall any specific reference in the legislative history to the Halcyon case as such.

There are many references to Ryan, and implicit in the Congress is considerations is that it was Ryan which was the law which governed the relationships between parties and that there was either all the way indemnity or no indemnity.

And in this respect, the decision -- a decision here must take into account the Ryan case because an analysis of a given fact situation under Ryan may yield radically different results than traditional analysis under contribution rule.

Because depending on the facts can yield inconsistent results.

Unknown Speaker: You say that Congress legislated against the background of Halcyon and on the assumption that Halcyon applies to non-collision cases.

But when Congress finally acted, changes the rules in this area, haven't the Fifth Circuit already departed on its own course?

Mr. Joseph D. Cheavens: Yes, that's correct.

The Watz case had been decided, this case had not been decided.

Unknown Speaker: How about the Second Circuit case?

Mr. Joseph D. Cheavens: The Second Circuit case In re Seaboard Shipping had been decided --

Unknown Speaker: Now, here were two major maritime circuits that were construing Halcyon not to cover certain kinds of non-collision cases.

What do you think we should do about that but that in terms of what congress intends to do.

Mr. Joseph D. Cheavens: I think it's perhaps speculative because I don't recall at least in the legislative history any reference to Watz or Seaboard Shipping and I don't think it is really fair for us to conclude one way or another about the matter.

The rule urged by the respondents would represent, we submit a radical change in the law of maritime law and it would be an ill advise change.

Briefly, it would work to the disadvantage of plaintiffs, it would discourage settlements, it cannot be harmonized with Ryan.

The Court would be called upon.

There is a great body of law under Ryan which would have to be completely rearranged and changed, putting a substantial burden on the lower courts and on this Court.

There are middle grounds which would expand contribution slightly but these middle grounds would be to grant contribution in all the cases, say those governed by Ryan or the grand contribution in all but personal injury cases, or in all but cases where the plaintiff was a beneficiary of the Longshoremen and Harbor Workers Act.

I would like to reserve my remaining time.

Chief Justice Warren E. Burger: Very well.

Mr. Smith.

Argument of Bruce Dixie Smith

Mr. Bruce Dixie Smith: Mr. Chief Justice and may it please the Court.

First, I want to address myself to the confusion that Mr. Cheavens has created about this full indemnity point.

First of all, after the plaintiff sued Steamship Company, the Steamship Company sued the Houston Stevedores Mid-Gulf Stevedoring Company on the Ryan theory of indemnity and they also sued Cooper Stevedoring Company and Mobile on a similar type case but for two separate breaches of what the ship felt like was a breach of the implied Ryan warranty running to the Vessel.

One, the negligence in the way the vessel was loaded and Mobile which is an entirely separate cause of action that the ship had against the Mobile Stevedore and they also had a separate cause of action against the Houston Stevedores.

My firm represented the Houston Mid-Gulf Stevedores.

Prior to trial, we negotiated out of settlement with our differences with the Vessel and as part of the settlement agreement of that cause of action, we assume that the defense of the Vessel.

There has been nothing in the evidence ever about what the real exact terms of the settlement were.

The first time this ever came up, Cooper filed no cross actions against us although they were free to do so, they're not statutorily immune or we're not statutorily immune from being sued by another Stevedoring and this has happened.

But they didn't sue us.

During the trial, Mr. Harm, one of trial attorney for Cooper put me on a stand quite by a surprise and asked me about the terms of the settlement agreement.

Well, I didn't even make them.

The attorney that was handling the case before I got it is one that worked out the settlement with the ship and I just went in to trial the case and I am handling it since.

But at that time I didn't know exactly what term where I had general idea, but the part of the terms of the agreement were that we would indemnify -- we took over the defense of the Vessel as the Vessel.

So, we stepped in the shoes of the Vessel and then dismissed ourselves out of this case and proceeded on and just the plaintiff against the ship, against the Mobile Stevedore and that's the way the case has come up.

And legal issues involved should be determined on that point.

This can be a very important case and I think Mr. Cheavens has done a good job to kind of confuse the matter.

Justice Thurgood Marshall: Mr. Smith, what were you suing for, how much money?

Mr. Bruce Dixie Smith: Well, we were pursuing the ship's claim against Cooper for whatever we might have to pay the plaintiff if we lost on a basic suit of the plaintiff against the ship.

Justice Thurgood Marshall: You didn't -- you didn't have any idea that there was $30,000.00?

Mr. Bruce Dixie Smith: No, not at that time.

That's the way these cases developed Mr. Justice Marshall.

The plaintiff sues --

Justice Thurgood Marshall: In the next stage, would you sell for $5,000.00?

Mr. Bruce Dixie Smith: No.

Justice Thurgood Marshall: You wouldn't sell for less than 38, would you?

Mr. Bruce Dixie Smith: No sir, I thought in the Court's findings found that the Mobile Stevedore breached its warranty and a workmanlike service to the Vessel and under the Ryan cases, I think we're entitled to full indemnity at that time.

But we wanted here to try the case after the agreement between the Houston Stevedore and the ships -- and the ship was negotiated.

Then we went on to try and file the case just as we normally do with all three parties being present to find that out among ourselves.

When it's asserting to see to get back to what the Court actually found in the case.

That they found that Cooper was negligent in the way they loaded the ship in Mobile.

That as a result of the negligent Cooper, the way they loaded the ship they breached that Ryan warranty workmanlike service.

The Court seemed to find that the ship was negligent too in not discovering the negligence of Cooper as about the best where you can read the Court's findings.

But the Court did not find that the ship was precluded from indemnity and in fact just ignored our claim for indemnity under the Ryan doctrine and just announced where he is going to split the damages --

Unknown Speaker: When you say our claim, you mean now, the ship?

Mr. Bruce Dixie Smith: Yes, the ship.

Unknown Speaker: And you are now the ship.

Mr. Bruce Dixie Smith: Yes sir, I'm the ship.

Unknown Speaker: Having stepped in the shoes -- Stepped in the shoes of the ship, has been on the ship, and we do not have to pay off any money but --

But your client is really Mid-Gulf?

Mr. Bruce Dixie Smith: For what?

Unknown Speaker: Mid-Gulf is out of this case.

Mr. Bruce Dixie Smith: Yes, Mid-Gulf was dismissed out of it and no fact findings that Mid-Gulf did anything wrong.

Unknown Speaker: By the time again of the trial was it tripartite case.

Mr. Bruce Dixie Smith: Yes.

Unknown Speaker: There had been four parties, now there are three.

Mr. Bruce Dixie Smith: Correct, one part --

Unknown Speaker: That is the injured Stevedore, the injured --

Mr. Bruce Dixie Smith: Longshoreman --

Unknown Speaker: Longshoreman, and the injured was Longshoreman --

Mr. Bruce Dixie Smith: Cooper Stevedore and Mobile.

Unknown Speaker: -- the Vessel and Cooper Stevedoring and those are the only three, and now the injured man is out.

Mr. Bruce Dixie Smith: Yes, we paid off the judgment and now we were fighting among ourselves.

Unknown Speaker: Right.

Justice William H. Rehnquist: It's not all that different from the insurance company of the defendant and the personal injury crossing accident.

As you would file -- (Voice Overlap)

Mr. Bruce Dixie Smith: This was very standard, really a simple situation.

We look there in the right perspective. Now, the Fifth Circuit -- we have argued -- Fifth Circuit and further the District Court awarding or affirmed that Stevedore was negligent that it breached its warranty and affirmed the 50% contribution and more or less assumed in its opinion that the Stevedores -- the ship was precluded from full indemnity because the judge didn't give it to him.

There is no fact-finding, there is no really evidence in anywhere in the case that the ship was precluded from recovery of full indemnity, it's just been something that has been ignored.

Unknown Speaker: You asked for it and the Court didn't give it to you.

Mr. Bruce Dixie Smith: That is right; we asked for it, they did not give it.

Unknown Speaker: That is a pretty direct answer, is it not?

Mr. Bruce Dixie Smith: Well, they did not call me honored judge.

They could have said that it is denied because and they did not just address themselves to it just --

Unknown Speaker: How much was full indemnity have been?

Mr. Bruce Dixie Smith: $38,697.90 I think, plus our current split -- but now the case --

Unknown Speaker: And the Court gave you how much?

Mr. Bruce Dixie Smith: Well, half of that.

Unknown Speaker: And half of it is?

Mr. Bruce Dixie Smith: They gave 50% but do not split it 50/50 and we paid off half plaintiff and now are at --

Unknown Speaker: How about Attorney's fees?

Mr. Bruce Dixie Smith: Well --

Unknown Speaker: You got half.

Mr. Bruce Dixie Smith: Well they didn't address themselves to attorney's fee --

Unknown Speaker: Who did indemnities?

Mr. Bruce Dixie Smith: Well, the way we handled that judge is normally, in this type of situation, if we get full indemnity we usually agree on the attorney's fees between the parties and then if we can agree we go back to District Court and he awards it.

But we usually work these things out.

The case is up here, and Mr. Cheavens has asked you to, I think, take a limited approach the way you decide this case.

As I see it, the Court can take a limited view and that they can affirm the case just and say there is contribution in this fact situation.

But this leaves, I think as Mr. Cheavens pointed out some conflicts, that's going to cause them trouble in some of the District Court.

You could reverse this case and just hold that under house, there will be no contribution in any non-maritime situation, non-collision maritime situation.

I think this is will be a horrible thing to do because as for reason, I will get into, I think it would make the law a lot more confused and a lot more arbitrary than it is now.

Now, you can take a third solution to the case and I think that kind of leave the law exactly like it is.

You can decide, then on the fact-findings that I was entitled to full indemnity and just under Ryan, give me full indemnity, but that would not change the law and leave it exactly where it is today and I don't think the Court granted a writ in this case to do that.

Now, I am going to suggest a rather bold sweeping approach that the Court can clear up this whole area for generations to come.

If you look at the case from a broad standpoint.

Now, before I get -- what I want to suggest, I would like to review historically the law in this field.

In 1946, this Court passed a Sieracki opinion which in effect granted the right of a doctrine of unseaworthiness to cover longshoreman.

A longshoreman could sue vessels for an unseaworthy condition which mounts to almost absolute liability without fault.

As a result, after the Sieracki opinion, the longshoreman around the country started suing the vessel owners and recovering substantial amounts of money and it was beginning to get out of hand.

And in 1952, the Steamship Company and Halcyon on the case sued the Stevedores that caused unseaworthy condition to try to get some relief.

They felt it was kind of unjust that Stevedores could go on board, create an unseaworthy condition and then the Steamship Company had to pay for it.

So, the Court took the case on review but because of the statutory immunity of the Stevedore denied the rights of the ship to collect contribution in the Halcyon on the case.

Justice William H. Rehnquist: Of course they did not see in so many words, they were denying it because the statutory immunity, did they?

Mr. Bruce Dixie Smith: Well, it's in the opinion that Section 5 of the Act and then you kind of -- there is a lot of dictum in the case so that is why, I think there is so much trouble as to what Halcyon really means.

But anyway, they didn't let -- the ship have contribution against Stevedore and then things really got in to high gear.

Until 1956 when the Court handed down Ryan, did not address itself to the contribution issue but came out with this warranty workmanlike service theory to grant full indemnity.

So, where the man's employer, the Stevedore employer breached this, here before unknown warranty and in somehow was contractual theory in the negligence lawsuit, then it got to be a 100%.

One, the ship either had to pay a 100% of the Stevedore debt and this is a way it's going since then.

In Yiatchos 1963, you extended it even further.

Then in 1964, you backed off a little bit with the Italia decision, that the ship was guilty of such conduct sufficient to preclude then the Stevedore wouldn't have to pay 100% even if it breaks its warranty.

But here again, both ways, because of the Ryan case which in effect respondent came about because of the Sieracki opinion, you have got two parties as many times equally at fault or both at fault having one of them having to pay all of the money and it's inequitable and it has been criticized by many Court, by many scholar and it got so bad.

And in 1972, Congress drastically amended the Longshoreman's Act.

One of the things they did was that they took away the longshoreman's right to sue the ship for unseaworthiness.

This in effect overrules the Sieracki opinion that came down in 1946.

Number two, they said that Section 5 of the Act means what it says that Steamship Company can't sue the employer either for implied warranty or expressed warranty that even if they contract that they consume, they can't do it.

This in effect overrules Ryan as it applies to the injured man's employer which was what Ryan came out at that particular fact situation.

So, Amendments to the 1972 Act affectively reversed two prior leading cases that they have caused all these, that is, Sieracki and Ryan.

Now --

Justice Potter Stewart: But neither of those amendments affect the situation here?

Mr. Bruce Dixie Smith: No, sir they don't.

Justice Potter Stewart: Because the vessel was found to be negligent in addition to being unseaworthy and also because Cooper Stevedoring is not the employer of the injured?

Mr. Bruce Dixie Smith: That's right and even if this act does not happen today.

Justice Potter Stewart: Right.

We still have the same problem now?

Mr. Bruce Dixie Smith: We still have the same situation, This is what I am getting here.

The ship can still sue Cooper Stevedoring Company if accident happened today.

They could sue Cooper tomorrow for breaching the Ryan warranty of Stevedore is not the employer and Ryan wasn't intended to come up that way anyway.

What I want to suggest that this Court do is go ahead and abolish Ryan completely.

Congress has done so drastically where a situation applies most of the time anyway between the employer, the injured longshoreman and the ship.

But Ryan also has been spread over to cover particularly in the Fifth Circuit area where we have so much off shore activity in maritime situations and Ryan has been applied and not applied in so many of these other situations where it's been fit.

Justice William H. Rehnquist: But here, what you are asking us to do is to completely overrule a case that was just tailored by Congress two years ago?

Mr. Bruce Dixie Smith: No, Congress, I think effectively overruled the original Ryan opinion in the context in which it arose.

Justice William H. Rehnquist: Well, but isn't that a rather strong implication that Congress in reviewing this situation wanted it overruled in that area, but left standing where it would apply otherwise?

Mr. Bruce Dixie Smith: Well, that is a very, very broad thing for Congress to do.

I think this Court created the problem and I think it's clear that this Court under the historical context, that this Court ought to step in and correct it.

Justice William H. Rehnquist: But to say it's a very broad thing for Congress to do, surely it's an even broader thing for this Court to do?

Mr. Bruce Dixie Smith: Well, not in the way the law is set up now with the amendments to the Longshoreman's Act of cutting out or doing away with Ryan and a big portion of the cases you are going to have Ryan not applied in most of the cases where it was and then still applying in some other cases where it wasn't intended.

Justice Potter Stewart: Well, is this -- My brother Rehnquist has just suggested that the inference would be that that's precisely what Congress intended when they looked at this problem in 1972 and amended the Act and cut down on Ryan pro tanto to the extent they want to cut down on it?

Mr. Bruce Dixie Smith: Well, Justice Stewart I don't believe that the legislative history would indicate that there were a lot of maritime inference that this Ryan case could not affect with present and negotiate it the amendments of the Act.

The Stevedoring Companies, the Steamship Companies and the Labor Unions were the ones that hammer this out with Congress and there are a lot of other inference that are affected by Ryan that I do not think they are considered and I do not think that they were trying to correct Ryan in every position or every possibility that it could --

Justice Byron R. White: Can you suggest any possible reason for leaving Ryan in effect or negligence is at issue, but not unseaworthiness?

Mr. Bruce Dixie Smith: No sir, and that what I am fixing, that's my latter point.

Justice Byron R. White: Do you think it was just -- it must have been then just an oversight or just bad legislating and say they took care of the seaworthiness thing but didn't reach the negligence?

Mr. Bruce Dixie Smith: No sir, this was covered and they did this on purpose.

There was the steamship industry pushed very strongly to do away with all third party suits by longshoremen against vessels for unseaworthiness or negligence and Congress and the Department of Labor expressly rejected this because of the policy they want to encourage steamship companies to come in with safe ships and if they were completely --

Justice Byron R. White: We are not talking about ship liability, we are talking about the indemnity.

I mean they did away with the indemnity on unseaworthiness?

Mr. Bruce Dixie Smith: Indemnity as to the employer.

Justice Potter Stewart: All together unseaworthiness only?

Justice Byron R. White: All together?

Mr. Bruce Dixie Smith: Well, it came certainly on seaworthiness.

All the steamship companies got to worry about (Voice Overlap) it is the regular negligence case.

Justice Potter Stewart: There is no Ryan indemnity left after the 1972 amendment except against the non-employer, isn't that right?

Mr. Bruce Dixie Smith: Yes sir and I think to make it all --

Justice Byron R. White: Except for negligence.

Unknown Speaker: No, no there is none left.

Mr. Bruce Dixie Smith: Oh!

I think the steamship company can sue any other negligent third parties that has powers to wrong.

Justice Potter Stewart: But that's not Ryan indemnity?

Mr. Bruce Dixie Smith: No.

Justice Potter Stewart: No.

Mr. Bruce Dixie Smith: No.

But as what I am saying is, I think that since that plaintiff can sue the ship for negligence and the plaintiff's case is governed by comparative negligence that if he is 30% at fault, his damages are do serve by.

Alright, he is no longer has an unseaworthiness frankly, then go ahead and -- to allow contribution or comparative negligence between the ship, or anybody else that the ship might sue or the plaintiff might sue.

In this case, it's conceivable that the plaintiff could have sued Cooper directly and so he could have gotten the judgment directly against him or the judge could have found that we were both at fault and awarded a 50% judgment against Cooper and a 50% judgment against the ship.

It could have done that, it just didn't choose to do it.

What I am suggesting here is to go ahead and put it in these three party suits or in this whole area maritime personnel law, put it on a comparative negligence basis.

Let the plaintiff sue anybody who thinks he is at fault.

On negligence three, comparative negligence as far as the Contrib go and as to the negligence to the fault of tortfeasors, let them all pay their fair share.

If you got two more people --

Justice William H. Rehnquist: One said there is no right of contribution and the other said there's an absolute right to -- absolute liability on a warranty?

Mr. Bruce Dixie Smith: Well that's why you got this bad conflict. Congress came back in 1972 and says that the employer will be immune because of his payments or part payments.

Compensation where they up the benefits substantially and that's all employer is going to have to pay.

Now, among other guilty party, I think the plaintiff is free to sue anybody he wants to and they should be able to sue themselves or each other on a comparative basis.

And since there is no more Ryan warranty to the employer, there will not to be a Ryan warranty to anybody else.

And this other situation where did Ryan apply and where it does not apply is really mud in the water.

Justice Thurgood Marshall: Mr. Smith how do we explain that in opinion, we say that Congress went half of the way and refuse to go the other half the way, so we will go to other half the way, is that to way we explain it?

Mr. Bruce Dixie Smith: Yes sir, the Ryan case (Voice Overlap) you overruled the standing authority that there was no cause of action in the maritime law.

You just said that you overrule on that decision and what I have indeed --

Justice Thurgood Marshall: Well here, we do not overrule Congress here?

Mr. Bruce Dixie Smith: No, you do not overrule Congress here.

You are coming in to following Congress' lead.

Justice Thurgood Marshall: Congress did as of now, this is far as we want to go, as far as we tend go.

So we will say well since you didn't go, we'll go there?

Mr. Bruce Dixie Smith: Well I think in fairness (Voice Overlap) uniformity and fairness when everybody agrees that there is an 100% indemnity theory is unjust.

Congress thought so because they did away with it in that situation.

Chief Justice Warren E. Burger: Doesn't this boil down to the proposition that you are really asking us to tidy up and finish up the legislative job that Congress begun but didn't complete?

Mr. Bruce Dixie Smith: Yes, exactly.

Chief Justice Warren E. Burger: I thought that's what it sounded like?

Mr. Bruce Dixie Smith: Well [Attempt to Laughter] that is what I have been trying to state here.

Justice Potter Stewart: Well, it may or may not be unjust or it may or it may have not been criticized by the commentators and so on, but this is an industry and at least I have heard it and read it and perhaps even written it many times, in which it is peculiarly imbued with insurance arrangements and the important thing is to know what the rules are, isn't it and not keep changing them all the time.

Even though the rules are unsymmetrical or in a perfect world inequitable, but nonetheless that the insurance arrangements are made and it is important that there be certainty, is there not?

Mr. Bruce Dixie Smith: Yes Your Honor, I think they have still just as much certainty here and it would be a lot more justice in that those --

Justice Potter Stewart: Well, the public pays the bill in the end anyway and as we all know through insurance, and if the arrangements are made and the problem is handled, isn't that correct?

Mr. Bruce Dixie Smith: Justice Stewart --

Justice Potter Stewart: Halcyon and Ryan had been on the books a long time.

Now we have the action of Congress in 1972 which changed the rules of the game somewhat, but now those are the rules of game.

And the shipowners, and the Stevedores and so on should be able to make their arrangements with their liability insurers accordingly, shouldn't they?

Mr. Bruce Dixie Smith: Yes sir, but I do not think insurance companies are entitled to justice just like anybody else.

Justice Potter Stewart: Is that saying, we are indefinite, as I say we all agree that society pays for these entries one way or another?

Mr. Bruce Dixie Smith: Yes, but I think you all might to give to pay for the entries they bill and not encourage --

Justice Potter Stewart: What do you do with the Atlantic case incidentally?

Mr. Bruce Dixie Smith: Nothing.

Justice Potter Stewart: Well, how do you explain it?

Mr. Bruce Dixie Smith: Well let us say on the same (Voice Overlap) Halcyon --

Justice Potter Stewart: It's against you?

Mr. Bruce Dixie Smith: No sir it's not.

That man was paid -- the Atlantic case, they got into trial and almost through trial before they knew there was maritime question.

Justice Potter Stewart: Well, but by the time the case came here, that question was exposed --

Mr. Bruce Dixie Smith: In the briefs of his employer, he was paid longshoreman of Harbor Workers' Compensation benefits Section 5 of the Act applied.

They pled it, they argued into their briefs and under the Halcyon situation where the employer has paid his compensation under the Federal Act, there's no conflict at all.

The employer was immune from contribution.

Justice Byron R. White: Are you not going much farther than you have to win in this case --

Mr. Bruce Dixie Smith: Yes sir.

Justice Byron R. White: You're urging us not only to -- you're urging us to affirm this judgment on another much broader ground?

Mr. Bruce Dixie Smith: Yes Your Honor.

Justice Byron R. White: You could prevail by just that -- it's going with the Fifth Circuit.

You do not need to overrule or urge us to overrule Halcyon and Ryan, one of the cases that need you, needs you to do that?

Mr. Bruce Dixie Smith: Well first of all I'm not urging to overrule.

Justice Byron R. White: The question is right now is if the judgment below was reversed, we're changing the law of two Circuits, aren't we?

Mr. Bruce Dixie Smith: Yes sir.

Justice Byron R. White: Because in the Circuit in the Fifth Circuit, Halcyon has been laid to rest in a certain way?

Mr. Bruce Dixie Smith: Yes sir, distinguished very --

Justice Byron R. White: I suppose you would rather win than lose?

Mr. Bruce Dixie Smith: Oh yes sir.[Laughter]

Justice William J. Brennan: Tell me Mr. Smith, the 1972 amendments make unenforceable even an explicit indemnity provision as between employer and shipowner?

Mr. Bruce Dixie Smith: Yes sir.

Justice Harry A. Blackmun: And yet didn't you tell us earlier [Attempt to Laughter] that your former client Mid-Gulf made a settlement with the ship, what was that, a settlement of what' Ryan indemnity or what?

Mr. Bruce Dixie Smith: Yes sir, that was before --

Justice William J. Brennan: Before the Circuit Court?

Mr. Bruce Dixie Smith: Before the 1972 amendment.

Justice William J. Brennan: Alright, that's the answer though.

Mr. Bruce Dixie Smith: We rephrase for Ryan indemnity.

Justice William J. Brennan: Had this happened after the statute, there would have been no settlement between obvious --

Mr. Bruce Dixie Smith: No sir, why -- we would be immune.

Just sit back and watch.

Justice William J. Brennan: You would still be here, the problem, would you?

Mr. Bruce Dixie Smith: I doubt about it.

Justice William J. Brennan: You wouldn't have --

Justice Byron R. White: The amendments expressly apply on the prospect of this or what?

Mr. Bruce Dixie Smith: Yes sir, they went into effect in latter part of November 1972.

Justice Byron R. White: I know but did they have a specific provision as to what of those standards would apply in pending legislation or in pending litigation.

Mr. Bruce Dixie Smith: No sir, and I have tried a Number of cases, since the act was amended but when the acts did not happen before and we have handled all the way through under the old Ryan --

Justice William J. Brennan: Well, I take it Mr. Smith, had they been effective the ship probably would still be here but you would not be talking for it?

Mr. Bruce Dixie Smith: Well probably not but possibly.

Justice William J. Brennan: As I understood, you're here for the ship only because you step into the ship shoe after Mid-Gulf paid off.

Mr. Bruce Dixie Smith: That is right Justice Brennan.

Justice William J. Brennan: Perhaps if the amendment should have applied, you wouldn't have to pay off.

Mr. Bruce Dixie Smith: Addressing myself back to Justice White's question that in contribution the general theory behind it is that joint tortfeasors opt to pay their part of the wrong that they caused an injury to somebody.

And then there is just no logical reason in a non-collision maritime situation where you do not have employer involved as we don't have here.

That is why the plaintiff just chooses to save one of them, why they cannot sue a co-tortfeasor Waterman and then divide the damages or as they approve or not.

I just do not think it's fair or just or equitable that you have -- and particularly where you have contribution in so many other areas of tort law.

There is the single layout maritime law and just say we won't have it.

Justice Byron R. White: Let's assume we agreed with you that Halcyon should not be read as preventing contribution on these factors in this kind of situation.

Are you also urging that there should be a different rule of contribution than 50/50?

Mr. Bruce Dixie Smith: No sir, unlike when you got two co-tortfeasors, if you have contribution it is 50/50 --

Justice Byron R. White: You are not urging comparative negligence then?

Mr. Bruce Dixie Smith: Well, I think comparative negligence would be if you are going to right in this area, I am like comparative negligence would be the more equitable way to do it.

Justice Byron R. White: But the maritime collision rule is 50/50 no matter what?

Mr. Bruce Dixie Smith: The divided damages rule but --

Justice Byron R. White: Is that what the Fifth Circuit applied in this case?

Mr. Bruce Dixie Smith: No.

I mentioned the divided damages.

Unknown Speaker: So it's comparative?

Mr. Bruce Dixie Smith: Well, Judge Singleton, the District Court judge said, 'I am going to find you both equally about 50/50.'

Justice Byron R. White: I see.

Mr. Bruce Dixie Smith: And so that's what he did and the Fifth Circuit affirmed.

Justice William H. Rehnquist: But in a collision case, all he would have had to find was some fault on both sides then it would be an automatic 50/50?

Mr. Bruce Dixie Smith: The way you have both damages and divide it by half, and the one who has the least damage pays the --

Justice Potter Stewart: In an ordinary tort law apart from maritime tort law is 50/50, isn't it (Voice Overlap)

Mr. Bruce Dixie Smith: Yes.

22 called tortfeasor (Voice Overlap).

Justice Potter Stewart: Yes but if they are both called tortfeasor.

Mr. Bruce Dixie Smith: Yes 50/50, the first three is divided to tort.

This case can be far reaching one, can be limited.

I know I have suggested something that you probably did not expect, but I think that give this consideration and at least Your Honors, please affirm this case as to contribution in any way.

But I think that this could be a very dynamic case and handles of this whole area of law if you take one step further or at least give it some consideration.

Justice Thurgood Marshall: I think anytime we amend the Act of Congress, it would be very dynamic.[Laughter]

Mr. Bruce Dixie Smith: Justice Marshall, you will not be amending an Act of Congress.

Justice Thurgood Marshall: Why not?

Mr. Bruce Dixie Smith: No sir, you will be just kind of dove-tailing and toggling along behind it.

Justice Thurgood Marshall: Who and where they would not go?

Mr. Bruce Dixie Smith: No sir, just doing all in the areas, the area they pointed out but this is what goes that far.

Thank you very much, I have enjoyed being here.

Chief Justice Warren E. Burger: Mr. Cheavens, do you have any further, you have two minutes left.

Rebuttal of Joseph D. Cheavens

Mr. Joseph D. Cheavens: I would like to make just a few brief points.

First, the merits of the contribution rule are at best arguable and they are certainly appropriate for legislation not for judicial action.

This is the common law tradition.

They are legislative because they vitally effect amongst others the rights of injured plaintiffs.

If there is one category of people Mr. Justice Stewart who cannot be adjusted, whose rights cannot be adjusted by insurance, it is the plaintiff (Voice Overlap) plaintiff and as professor James points out, a rule of contributions severely restricts the plaintiff's rights about one-third of the state.

Well, first, the states are closely divided on the merits of legislation and I refer Your Honors, to the Yale Law Review article which analyses the different state rule.

Justice Potter Stewart: You mean on the merits of contribution?

Mr. Joseph D. Cheavens: On the merits of contributions.

Only a bare majority, even half contribution.

Justice Potter Stewart: In the ordinary common law, in your common law.

Mr. Joseph D. Cheavens: That's right, of those and that is viewed all by legislation and of those nearly one-third of those do so only where the plaintiff has as a matter of tactics chosen to sue and has obtained a finding against both defendants, that has not occurred here.

So this Court would be doubly asked to create a rule which would work against injured plaintiffs in an area of the law where this Court has been especially solicitous of the rights of injured plaintiff.

The rules of contribution in the states also frequently do not equally apportion but do so in a comparative thought basis.

A separate matter is that the issue of Ryan indemnity in this case is not before this Court, the Fifth Circuit denied it.

Ryan indemnity had no cross petition for certiorari.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.