EDMONDS v. COMPAGNIE GENERALE TRANSATL.

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Argument of Calvin W. Breit

Chief Justice Warren E. Burger: We'll hear arguments next in 479, Edmonds against Compagnie Generale Transatlantique.

Mr. Breit, I think you may proceed whenever you're ready.

Mr. Calvin W. Breit: Mr. Chief Justice, may it please the Court.

This matter comes on out of the Fourth Circuit arising out of a decision which was then in conflict with the Ninth and now with the Second and Fifth Circuits as well concerning the rights of a longshoreman who was injured aboard the defendant's vessel as a result of the combined negligence of the longshoreman himself, the stevedore, and the shipowner.

The major issue before the Court is whether or not the longshoreman has a right to recover in full his damages under the longest established common law principal of joint and several liability from the various tortfeasors who caused his harm or whether that right has been abrogated by statute under the Longshoreman and Harbor Workers' Compensation Act.

The history of the right in both maritime and land-based law is extensive.

This Court has ruled in Halcyon versus Haenn.

It is ruled in Pope and Talbot versus Hawn.

It is more recently ruled in Cooper versus Fritz Kopke.

In ACL versus Uri (ph), numerous other cases that the injured party has an indivisible right of recovery in full.

The question now posed is whether Congress intended to abrogate that rule when it amended the Longshoreman and Harbor Workers Compensation Act in 1972.

Prior to 1972, it was clear that Halcyon and versus Haenn, Pope and Talbot versus Hawn, was the law on that particular issue.

Congress made no act which would suggest that it intended to change that law.

There is apparent but not actual discrepancy between two sentences in 905 (d) of the Act which has been taken to suggest that the Congress was intending proportionate fall.

Nothing could have been further from Congress' mind at the time.

Respondent in page 11 of his brief concedes that the purpose of the second sentence of 905 (b) was intended to preserve the doctrine established by this Court in Reed versus Yaka namely that a shipowner could not by hiring his own longshoreman and thus become the stevedore avoid the harm that he does of that stevedore.

It was in the context of Reed versus Yaka that the second sentence was passed in the 1972 Amendment and the purpose of it was solely to retain the doctrine as espoused by this Court in Reed versus Yaka.

On page 43 and 44 of respondent's brief, it is suggested that 933 of this same Act was passed so that the longshoreman could not effect a double recovery and received double compensation.

Well, it's inconceivable that he could have received double compensation unless in the first instance, he is compensated in full by the shipowner tortfeasor who has caused his harm.

An appellee in the Second Circuit, Anderson versus Iceland on the first both have stated that the purpose of that sentence in 905 (b) was to preserve the doctrine of Reed versus Yaka.

But more important than that Congress itself was not silent on the point.

Congress specifically stated that the longshoreman's right of action in negligence against the shipowner shall survive.

Now, that right of action against the shipowner is the right to recover 100% of his damages from the shipowner or any other person who independently or concurrently created the harm that he has suffered.

The congressional record is replete of literally dozens of cases that it intended to overrule that were in existence at the time.

This Court in an active role which it is permitted to do in matters of maritime under the doctrine of Seas Shipping versus Sieracki provided for the longshoreman a cause of action which created in effect an absolute right of recovery for any unseaworthy condition regardless of fault.

Interestingly enough, the seaworthy condition, the unseaworthy condition was almost always cause by the negligence of the stevedore.

The Court had held in Halcyon versus Haenn that there was no cause of action over against the stevedore for contribution in tort.

And this Court then went on to extend the Seas doctrine under a contract theory when in Ryan it held that there is not contribution but indemnity.

The Congress spent a great deal of time on those issues and in doing so in its reports, it clearly established when it was intending to do.

It set forth specifically the names of the cases that it intended to overrule particularly under the section of elimination of unseaworthiness remedy it cites Sea Shipping versus Sieracki as one of the cases.

It intended to overrule.

No longer does the longshoreman have a cause of action merely because he was injured and merely because there was a defective condition.

He now is reduced to the common law negligence action instead of an action under unseaworthiness.

The court went on, rather Congress went on further to suggest further and then reciting Ryan Stevedoring versus Pan-Atlantic.

The third party action, the tripartite cause of litigation which had burdened the courts and had expended large sums of money by the stevedore and his carrier ownership on alike is better put to use paying compensation.

And so Ryan was specifically overruled.

(Inaudible) Italia Society versus Oregon Stevedoring, all cases which had established the cause of action for unseaworthiness was specifically overruled.

And finally, under the same suggestion, elimination of unseaworthy remedy -- unseaworthiness remedy we finally come to the sentence which is the crux of this case.

The vessel will not be chargeable with the negligence of the stevedore or employees of the stevedore.

Respondent and the Fourth Circuit, I suggest erroneously have interpreted that statement to mean that a percentage of negligence requires only a percentage of payment when in fact what was intended here by the vessel not being chargeable with the negligence of the stevedore was to do away with Seas Shipping which said that in effect, the shipowner is vicariously responsible for the acts of the stevedore and thus becomes liable when the stevedore commits an acts on negligence.

Today, under the amendments, the Act of negligence must be committed by the shipowner himself.

But that does not mean that they cannot be more than one proximate cause of an injury and nowhere was it intended by Congress that the shipowner would become liable in tort if it were the sole and exclusive tortfeasor.

To suggest that is to defeat the purpose of the Act and as Congress has said to cause to the shipowner to remain responsible to his obligations in tort to the injured longshoreman.

Unknown Speaker: So, Mr. Breit supposing this case had originate had risen interstate common law tort situation and the trial court have mistakenly submitted interrogatories regarding comparative fault to the jury and they found 20% in one party, 7% on the other, it goes the highest court as the highest court of the state says the trial court was wrong we don't have comparative fault, we just have traditional, ordinary negligence.

Could it uphold a verdict against the 20% liable party for the entire amount?

Mr. Calvin W. Breit: If we are talking about comparative fault of others besides the injured person, clearly, under every case that has ever been decided, it must give that injured person 100% of the recovery with the exception of those states which have incorporated into a statute under the doctrine of comparative negligence, under the common law doctrine of ordinary negligence both land and maritime, the injured person always was entitled to the whole because his harm is indivisible even though two or three or four may have cause to contribute it.

The broken leg is the broken leg and if three people concurrently aided in breaking it, he still has one harm.

And so, my answer to you sir is that every case has always held that the injured party is entitled to the full recovery at common law.

Justice Thurgood Marshall: Do I get the feeling that in most of the maritime cases as one insurance may have to have to pay it all in their, so what that cause litigation?

That law had paid it anyway?

Mr. Calvin W. Breit: Mr. Justice Marshall, I have argued in my brief that the ultimate economic loss is going to be shared between the stevedore and the shipowner somehow or other in any event.

But the sole purpose that we're here is because they are both in concert suggesting that the injured person suffered the economic loss and he is the least able to bear that loss.

You are correct sir, regardless of this Court's ruling provided it gives the injured longshoreman his full recovery.

Sooner or later in the course of dealing between the stevedore and the shipowner, the cost will be passed on to the shipowner and the ultimate consumer.

No question about that.

The issue then is, do we take it away from the injured party so that their respective losses are less.

Common law doesn't permit that.

Unknown Speaker: Your submission Mr. Breit as I understand it is that the statutory language in question was intended to do no more than to preserve the rule of Reed against Yaka?

Mr. Calvin W. Breit: Yes, sir.

Unknown Speaker: That's it?

Mr. Calvin W. Breit: That is correct.

Preserve the rule of the -- the conflict in the statutory language.

The second sentence was intended solely to do away with Reed versus Yaka.

The issue of the vessel not being chargeable with the negligence of the stevedore referred to the unseaworthiness vicarious liability which had come as a result of Seas Shipping versus Sieracki.

Unknown Speaker: Would you state it for me again.

Mr. Calvin W. Breit: Yes, I --

Unknown Speaker: You were saying he was to preserve or to overrule Reed against Yaka?

Mr. Calvin W. Breit: To preserve -- well, let me modify that, Reed versus Yaka had two rules.

One rule was that the shipowner who is a stevedore --

Unknown Speaker: Is his own stevedore?

Mr. Calvin W. Breit: -- is his own stevedore, is responsible as a shipowner.

Unknown Speaker: Right.

Mr. Calvin W. Breit: That rule was intended to be preserved.

Unknown Speaker: There the stevedore was the bearable charter, I think?

Mr. Calvin W. Breit: Yes.

And the second portion of Reed versus Yaka which follows Seas Shipping which said that unseaworthiness is a cause of action.

Unknown Speaker: Well, that was --

Mr. Calvin W. Breit: That was intended to be overruled.

So really they were modifying Reed v. Yaka but retaining the portion which said, “If you are a shipowner and the stevedore at the same time, you are responsible as a shipowner not as a stevedore.”

Unknown Speaker: For unseaworthiness?

Mr. Calvin W. Breit: No, sir.

Only for negligence as a shipowner.

Unknown Speaker: Right.

But that was an -- wasn't Reed an unseaworthiness case?

Mr. Calvin W. Breit: Reed versus Yaka was an unseaworthiness case.

And Reed versus Yaka was the case which held that the shipowner could not abort the law by hiring his own longshoreman.

It held that if he were a stevedore and a shipowner, he was responsible as a shipowner.

Now, ---

Unknown Speaker: Of unseaworthiness?

Mr. Calvin W. Breit: For unseaworthiness or for negligence certainly.

Unknown Speaker: Well, but did the case -- I did sense that the thing that puzzled me is I didn't understand the case to decide any negligence issue.

Mr. Calvin W. Breit: Well, Reed versus Yaka did not.

Unknown Speaker: But it held that a -- when a stevedore was both stevedore and shipowner, you could sue him as shipowner despite of then statute?

Mr. Calvin W. Breit: That was the holding and that was the purpose of this --

Unknown Speaker: And his liability depended upon unseaworthiness or negligence was really not the issue in the Yaka case although it was an unseaworthiness claim.

Now, that unseaworthiness has now been eliminated by Congress.

Mr. Calvin W. Breit: That is correct.

Unknown Speaker: But your contention at least is that this statutory language at issue in this case was to preserve the rule of Reed against Yaka with fundamental rule that when a person is both stevedore and shipowner, he can be sued as shipowner?

Mr. Calvin W. Breit: Yes, sir.

And I think every Court of Appeals that is ruled on that point has so held.

The Fourth Circuit did not touch the point in its argument and concluded only that the only way you could reconcile the two sentences was to come up with a rule of proportionate fall.

A rule of proportionate fault as between tortfeasors is really not a rule at all as to the injured person proportionate fault should speak to the degree of liability as between the tortfeasors.

Unknown Speaker: And you concede that the damages should be reduced by the percentage of the plaintiff's fault, do you not?

Mr. Calvin W. Breit: Yes, sir.

That's specifically within the statute.

Unknown Speaker: And no question, that's not at issue here?

Mr. Calvin W. Breit: That is not at issue here?

We concede there was $100,000.00 verdict here.

We concede that 10% of that is a reduction as a result of the longshoreman's own fault.

Unknown Speaker: I hate to reveal my stupidity so frequently but the second sentence is what's critical here and it's your critical part of your argument as I understand and I just want to be sure I do catch it.

Because the sentence says if such person was employed by the vessel that provide stevedoring services, no such action shall be permitted if the injury and so forth.

Are you saying it was to preserve the action rather than to prevent it?

Mr. Calvin W. Breit: It is to preserve the action against the shipowner who was likewise a stevedore.

Unknown Speaker: But it says no such action shall be permitted against him that's why I'm so fangled about it.

Mr. Calvin W. Breit: Right.

Unknown Speaker: That was the next sentence.

Maybe I'm reading the wrong sentence.

If such person was employed by the vessel --

Mr. Calvin W. Breit: To provide stevedoring services, no such action shall be permitted if the injury was cause by the negligence of persons engaged in providing stevedoring services.

What they were saying is that the shipowner as a shipowner remains liable.

As a stevedore, he does not.

He's got two heads at that moment.

If it's the stevedoring services that are the sole cause of this man's injury or that create an unseaworthy condition aboard that vessel, then there is no right of recovery.

But if the shipowner as a shipowner for instance, bringing in grease and oil from another port and leaving it on the deck, or having a defect of which, which was not part of its stevedoring operation remains liable.

Unknown Speaker: But you construed that sentence as primarily preserving a claim rather than destroying a claim.

Mr. Calvin W. Breit: Preserving Reed versus Yaka.

Unknown Speaker: I understand, okay.

Mr. Calvin W. Breit: (Voice Overlap) The committee reports have said so.

The committee report --

Unknown Speaker: It's very unavoidable doing it, isn't it?

Mr. Calvin W. Breit: Sir.

Unknown Speaker: I mean you would grant at least that it's inartfully drafted, I suppose.

Mr. Calvin W. Breit: Oh, I think it's very poorly drafted.

Yes, sir.

I think it was just a very simple matter for them to put in proportionate fall if they had intended.

And if they had intended it by this sentence, it is grossly inartfully drafted.

But I don't think that was the intendment of Congress because at the time, proportionate fault was not a doctrine known in maritime law.

At the time in 1972, when these amendments were passed and before this Court had ruled in reliable, the only proportionate fault that ever existed was the old 5050 Rule which later this Court amended.

But of course when the Court acted in reliable, it did so changing a common law doctrine and not a matter that had been heavily debated by the Congress.

Unknown Speaker: An admiralty law doctrine?

That's a common law.

Mr. Calvin W. Breit: Yes, admiralty law doctrine.

Unknown Speaker: May I ask one question about this example.

See the plaintiff is an employee of the shipowner performing stevedoring services and he wants to sue the shipowner for negligence unrelated to the stevedoring services.

Do you say he can or he cannot?

Mr. Calvin W. Breit: He can under Reed versus Yaka and he can under this preservation in the Amendment.

The committed belief --

Unknown Speaker: But even though he is an employee, he may sue for negligence, is that it?

Mr. Calvin W. Breit: Yes.

Unknown Speaker: Yes, okay.

I understood your position now.

Mr. Calvin W. Breit: On page 11 of the committee report, the committee has recognized a need for special provisions to deal with the case where a longshoreman or shipowner or repairman is employed directly by the vessel.

In such case notwithstanding, the fact that the vessel is the employer, the Supreme Court in Reed versus Yaka and Jackson versus Lykes held that the unseaworthiness is available to the injured employee.

It then goes on to say that it wants to retain that right of action against the shipowner.

Throughout something like 1200 pages of testimony, there was never once the statement of proportionate fault propounded to the Congress.

One speaker, a gentleman by the name of Kaplan who spoke on behalf of a plaintiff's bar in passing mention that it may be a harsh rule to put all of the burden on either the shipowner or the stevedore and perhaps some proportionate fault would be appropriate and he was immediately shut down and that was the only time that was ever mentioned in the reports.

Unknown Speaker: Who shut them down?

Mr. Calvin W. Breit: Multiple other speakers.

Unknown Speaker: Saying that this wasn't the intent of (Voice Overlap).

Mr. Calvin W. Breit: Actually, it was the Senator's questioning when he shut it down I forgotten quite frankly who --

Unknown Speaker: Mr. Regalton.

Mr. Calvin W. Breit: Yes, that's correct, shut it down and there was -- it was never heard from again.

Mr. Vickery in his article which was cited by Judge Haynsworth suggests that Congress had intended that.

However, he was on the witness stand for a substantial length of time.

His testimony is many pages long and he never wants throughout his entire testimony mentioned the issue of proportionate fault or anything that resembled it.

Now, they did put in a comparative negligence rule was a rule aimed at aiding the injured longshoreman so that he did not suffer the harsh common law rule of being barred in the event he is contributorily negligent in any degree.

Unknown Speaker: But hasn't that kind of comparative negligence always been part of admiralty law?

Mr. Calvin W. Breit: Yes.

And it was specifically retained by statute here.

Unknown Speaker: Why --

Mr. Calvin W. Breit: The reason --

Unknown Speaker: Why did it have to be?

Mr. Calvin W. Breit: Because in the legislation, they said that the right of recovery by the longshoreman shall be identical to land-based law.

Unknown Speaker: Oh, I see and therefore --

Mr. Calvin W. Breit: And therefore to preserve it, they added the comparative negligence the lack of assumption of risk. Other doctrines that were not land-based.

In short what we have here and --

Chief Justice Warren E. Burger: I don't know whether you saw your light.

Mr. Calvin W. Breit: No, sir.

Chief Justice Warren E. Burger: The white one is warning you of your rebuttal.

Mr. Calvin W. Breit: Alright sir.

I will take just one or two more moments and then -- I did not see it.

The other issue which I'd like to bring out is this.

In effect what we are asking the Court to do is to legislate because the statute seems clear that it never intended a doctrine of proportionate fault.

In Section 933, it specifically said that when the stevedore file suit he is entitled as the first order of business to recover his expenses and every penny that he is paid.

And his suit is of course is derivative.

This Court in Higginbotham declined to legislate or go further when it was posed with a statutory interpretation.

This Court just a few weeks ago in (Inaudible), I think Mr. Justice Rehnquist wrote it, declined to go further in interpreting the Act.

It is suggested that this Court again should not attempt to legislate when it became clear what Congress had intended.

Argument of Charles F. Tucker

Chief Justice Warren E. Burger: Mr. Tucker.

Mr. Charles F. Tucker: Mr. Chief Justice, may it please the Court.

The question before the Court for determination, it seems to me is one of fairness inequity and as well or not a shipowner which has been found by jury to the only 20% at fault for an accident shall be required to pay full damages to the plaintiff while the stevedore employer found to be 70% at fault recovers the full amount of its compensation lien and thus shares none of the financial burden of the loss.

Now, I think it's important to understand or consider what the Congress was trying to do in adopting the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act.

It's clear that they acted in order to correct the number of inequities which I developed over the years.

Primarily of course, it was to provide a liberal system of compensation for longshoreman, the injured parties.

But secondarily, it was certainly to more equally distribute the financial burden occasioned by an accident among the three parties involved, the longshoreman himself, the shipowner and the stevedore.

And I think here, it's important to recognize what had happened under litigation which had developed under the Longshoreman's Act.

And Mr. Breit has referred to the Sieracki case and the Ryan case.

And it had developed as you know that longshoreman were given the warranty of seaworthiness and could recover against the vessel owner not only for negligence but for unseaworthiness which in effect almost made the shipowner an insurer for the safety of the longshoreman.

In order to correct this inequity or in an attempt to the Ryan doctrine allowed the shipowner to claim back over against the stevedoring company for indemnity and the stevedore ended up in that type of three-party litigation by not only paying compensation but by paying full damages assessed by jury or the Court.

This was recognized by everyone as being quite inequitable.

If you adopt the position of the plaintiff petitioner in this case, we are going right back to the same old inequity except it now falls on the shipowner instead of on the stevedoring company and I don't believe as Judge Haynsworth stated in his opinion that it was ever the intent of the Congress while taking away on the one hand the right of the shipowner to recover any indemnity from the stevedoring company to then settle the shipowner with full liability for an accident when it may well have been only slightly at fault and the stevedoring company greatly at fault.

This was not the intent of the Congress as shown by the legislative history and could not have been we contend in light of the historical background of the 19 -- of the Longshoremen's and Harbor Workers' Compensation Act as existed prior to 1972.

Now, there was also one other intention of the Congress I believe in the 1972 Amendments and that was to provide a liberal compensation scheme whereby the longshoreman could look to the Act to compensation for full satisfaction for his injuries and would not have to file a third party action against anyone except on unusual circumstances in order to recover compensation.

The result as suggested by the petitioner would do away with this intention of the Congress.

Now, the decision of the Fourth Circuit, the en banc decision serves to further the proxies of the amendments by balancing the equities among the three parties.

As this decision has indicated, the shipowner will pay its proportionate fault.

In this case, the jury found there were 20% at fault for the accident.

The longshoreman recovers not only his statutory benefits under the Act which this case serves to show a quite liberal.

He's already received in excess of $50,000.00 in compensation payments.

But in addition, he will recover the 20% liability damages which the jury has said are attributable to the shipowner.

Unknown Speaker: Reduced by his own by the percentage of his own negligence?

Mr. Charles F. Tucker: Yes, sir.

Well, he was found to be 10% at fault and I don't think anyone contends that.

Unknown Speaker: Apparently, there's no issue?

Mr. Charles F. Tucker: That's correct.

Unknown Speaker: In any event, that liability would be reduced.

Mr. Charles F. Tucker: It would be reduced.

The total adjustment was $100,000.00 it would be reduced to $90,000.00.

Unknown Speaker: Then you're contention would be --

Mr. Charles F. Tucker: But the shipowner's --

Unknown Speaker: -- $18,000.00?

Mr. Charles F. Tucker: No.

No, sir, the shipowner's liability is 20% of the whole, 20% of $100,000.00.

Unknown Speaker: $20,000.00 --

Mr. Charles F. Tucker: $20,000.00.

Unknown Speaker: -- reduced by -- to $18,000.00 isn't it?

Mr. Charles F. Tucker: No, sir.

I don't think so.

I think the reduction is in the total award.

Unknown Speaker: I see.

Mr. Charles F. Tucker: Which would mean $90,000.00.

Justice William H. Rehnquist: Under these circumstances, the longshoreman had no action against the stevedoring because the compensation was a substitute for the tort act, right?

Mr. Charles F. Tucker: The longshoreman received compensation from his employer.

Yes, sir.

Justice William H. Rehnquist: And he could not have therefore have sued in tort?

Mr. Charles F. Tucker: Correct.

Correct.

No, the employer is statutorily immuned from liability.

Chief Justice Warren E. Burger: These numbers have made confusion now Mr. Tucker, I wonder if you recapitulate --

Mr. Charles F. Tucker: I'll certainly try.

Chief Justice Warren E. Burger: Dollars and percentages entails what?

Mr. Charles F. Tucker: The judge propounded interrogatories to the jury.

He first asked them, was there any fault, was any negligence on the part of the shipowner, and if so in what percentage?

The jury said, 20%.

He then said, was the stevedoring company negligent in any way, and if so, in what percentage?

And they answered, 70%.

And he then said, is the plaintiff himself negligent in any respect and if so, in what percentage?

And they answered 10% and then they answered in total damages $100,000.

The judge, the district judge entered judgment reluctantly for $90,000.00 and it then went to the Fourth Circuit and the Fourth Circuit reversed.

Unknown Speaker: Mr. Tucker, under the District Court's judgment of $90,000.00, $50,000.00 would have been paid by the stevedore, is that right?

Mr. Charles F. Tucker: No, sir.

The stevedore -- let's assume the judgment are reinstated.

Unknown Speaker: I don't mean that the $90,000.00 but wouldn't it be credited against the $90,000.00 the $50,000.00 receiving compensation?

Mr. Charles F. Tucker: Well, they would recover that back.

The shipowner would pay $90,000.00 to the plaintiff --

Unknown Speaker: And it get back $50,000.00.

Mr. Charles F. Tucker: The plaintiff would be required to pay back $50,000.00.

Yes, sir.

Unknown Speaker: And therefore the net payment by the shipowner would have been $40,000.00, is that?

Mr. Charles F. Tucker: Yes, sir.

That's correct.

Unknown Speaker: The net payment?

Mr. Charles F. Tucker: No, I'm sorry.

That's not correct.

The net payment rather shipowner would be $90,000.00.

I'm sorry.

You see the shipowner pays the total $90,000.00 --

Unknown Speaker: Yes.

Mr. Charles F. Tucker: -- out of that judgment, the plaintiff is required to reimburse the stevedoring company for what it has paid.

Unknown Speaker: The $50,000.00?

Mr. Charles F. Tucker: Yes, sir.

Unknown Speaker: Right.

Mr. Charles F. Tucker: That's correct.

Unknown Speaker: So the stevedore will come in his home free basically?

Mr. Charles F. Tucker: Yes, that's exactly right.

And that is our point, Your Honor that it is certainly most inequitable for the stevedoring company which is the party in this case most at fault which will come home free.

They will not pay money.

Unknown Speaker: Is that true in the law and land-based negligence law if you have two joint tortfeasors and the plaintiff elects to sue only one of them and collects for all his damages even though that one is only 20% at fault and somebody else's who's not sued is 80% at fault.

The person not sued gets off scot-free if --

Mr. Charles F. Tucker: The difference here Mr. Justice is that this people, the stevedore and the shipowner are not joint tortfeasors.

They are not joint, they are not jointly liable.

Unknown Speaker: No.

You acted so shocked at the inequity and I my question was directed as in their similar inequity in ordinary tort law, land-based.

Mr. Charles F. Tucker: Right.

But there is, the party Your Honor that does pay the entire amount is not restricted in any matter from recovering over if he can from one of the other parties.

Unknown Speaker: But normally, I mean the common rule was there was no contribution on joint tortfeasors?

Mr. Charles F. Tucker: That is correct sir except and I would get to this.

We feel that the case law as it has developed in this Court has now modified that rule and we feel it no longer applies in this situation.

We think that in all fairness and equity, which we believe the Court has tried to do in many of its decisions, that affect this such as the Cooper Stevedoring in reliable transfer, certainly indicate that proportionate fault is what we should be aiming for and this is just the next step in this type of litigation which will take the burden and apportion it among the parties involved.

That, and just to finish up that statement as to how it would be apportioned, the shipowner would pay its proportionate shares now by the jury.

The longshoreman receives his compensation which in this case, exceeds $50,000.00 to date and he is still receiving it by the way plus he will still use the 20% from the shipowner and the stevedoring company never pays, never pays more than its statutory obligation under the Act and is protected by the Act from any claim of indemnity by the shipowner.

Now, to me that is the fairest --

Unknown Speaker: I'll translate that Mr. Tucker --

Mr. Charles F. Tucker: Yes.

Unknown Speaker: -- under these figures again.

Mr. Charles F. Tucker: Alright, sir.

Unknown Speaker: Under that approach, the shipowner would pay how much to the --

Mr. Charles F. Tucker: The shipowner would pay $20,000.00, Your Honor.

Unknown Speaker: To the longshoreman?

Mr. Charles F. Tucker: To the longshoreman.

Unknown Speaker: And the longshoreman would receive from the stevedore the $50,000.00.

Mr. Charles F. Tucker: He has already the $50,000.00 and he is continuing as I understand it to receive.

Unknown Speaker: And so the consequence with is that instead of under the District Court judgment where the stevedore pays nothing in effect --

Mr. Charles F. Tucker: Yes, sir.

Unknown Speaker: -- he now will be paying the $50,000.00 plus.

Mr. Charles F. Tucker: He will be paying his statutory obligation under the Longshoreman's Act.

Unknown Speaker: But under the Courts of Appeals rational would the stevedore have any subrogation rights against -- to get any part of this $20,000.00?

Mr. Charles F. Tucker: Well, that Your Honor, the Court of Appeals left the District Court and did not meet that.

We have suggested in our brief two possible ways that that could be handled the Fourth Circuit did not get into it.

They suggested that that should be handled on the District Court.

Unknown Speaker: But there is a great big interesting question.

Mr. Charles F. Tucker: It is an interesting question and that has been discussed in our briefs and in particular in the brief of Mr. Coleman in the amicus brief.

There are two approaches to that, and if you would like, I'll be happy to --

Unknown Speaker: Well, I rely on your brief.

I'm sure you talked about it.

That issue is not covered by the question presented by the certiorari petition either --

Mr. Charles F. Tucker: It was not specifically covered Your Honor, no, sir.

Unknown Speaker: But your argument you've been making to is based upon the right of recovery by the stevedore under the District Court's theory?

Mr. Charles F. Tucker: I'm sorry.

Unknown Speaker: I mean, your point is that the shipowner under the District Court's construction pays it all and he pays it all because the stevedore has a right of subrogation to get back this sum $50,000.00 and you've been arguing that to us.

Mr. Charles F. Tucker: Right.

The stevedoring company pays its statutory obligation.

Unknown Speaker: But then gets it back from the --

Mr. Charles F. Tucker: Under the District Court, yes, sir.

Correct.

They would get it back from the judgment paid by the shipowner.

Unknown Speaker: And that's an important part of your equitable argument?

Mr. Charles F. Tucker: It certainly is.

Yes, sir.

It's quite important.

Unknown Speaker: And even though that perhaps is not specifically governed by – covered by the question.

Mr. Charles F. Tucker: It is not and I do think it certainly is a (Inaudible).

Unknown Speaker: And the lawsuit is a matter of law that when the stevedore is 70% negligent that it will have the right of subrogation, is it?

That has been settled, has it?

Mr. Charles F. Tucker: That's correct.

Unknown Speaker: I know it was by the District Court but I mean is it, there is debate in the scholarship about this, isn't it?

Mr. Charles F. Tucker: Well, there is, under the present law as I understand it, under the District Court's decision, the shipowner pays the full judgment of $90,000.00.

Under existing law the stevedore has a land, equitable land to recover all of the money that it has paid to that longshoreman.

Unknown Speaker: Isn't there a debate on whether that lien may be enforced when the stevedore is 70% negligent.

Mr. Charles F. Tucker: Well, we say it is in this situation Your Honor when the court -- but you see what has happened on the other cases --

Unknown Speaker: All I'm asking isn't there a difference of opinion on that issue?

Mr. Charles F. Tucker: I don't think there's a difference of opinion under the existing law.

Unknown Speaker: I see.

Mr. Charles F. Tucker: I think the stevedoring company always receives its full compensation.

Unknown Speaker: What if there's a -- what if the liability of the shipowner is limited to the degree of his fall which is $100,000.00 damages and this determine that the shipowner is negligent for 25% of it.

And he has to pay $25,000.00.

Mr. Charles F. Tucker: That's correct sir.

Unknown Speaker: And then the stevedore gets his money back?

Mr. Charles F. Tucker: Well, that's -- that is what the Fourth Circuit left to the District Court and --

Unknown Speaker: You just said always he's going to get his money back.

Mr. Charles F. Tucker: No, the question though was under the existing law, without regard to the percentages of proportionate fault.

Unknown Speaker: But on the face of the statute, he would get his money back?

Mr. Charles F. Tucker: I'm sorry, sir?

Unknown Speaker: Well, just on the face of the law, he does have a lien on the recovery?

Mr. Charles F. Tucker: As it stands, yes.

Unknown Speaker: Up to the ceiling of --

Of what he's paid?

-- what he's paid, yes.

Mr. Charles F. Tucker: That's correct.

Unknown Speaker: So that then if he is paid more than the $25,000.00, he get's it all?

Mr. Charles F. Tucker: Well, what in our briefs, we have --

Unknown Speaker: That's the way it looks on the face of the law.

Mr. Charles F. Tucker: Well, at the moment, he does under the proportionate fault argument where a court has asked the jury to apportion the fault between the parties -- among the parties.

Then our contention is the shipowner is responsible only for its proportionate fault.

The question of how much of the damage is paid to the --

Unknown Speaker: So your answer to Mr. Justice Stevens is really is yes, there is difference in opinion.

Mr. Charles F. Tucker: At -- well, I may have misunderstood his question.

I assumed he meant as the law exists prior to the Fourth Circuit opinion in this case and it is true and there is a difference of opinion however under the proportionate fault argument.

Chief Justice Warren E. Burger: Are we going to be able to know the whole story of this allocation until the District Court acts?

Mr. Charles F. Tucker: Well, the District Court has stayed, it has not acted.

And we -- Your Honor, what we have stated here is that there are two ways of looking at it.

One, if under what we contend is an equitable credit if the percentage of fault of the stevedoring company reduces the plaintiffs judgment by more than the amount of the recovery then they receive nothing back on their lien.

Chief Justice Warren E. Burger: Someone might want to be back here again after the District Court acts, isn't that possible?

Someone, I'm not sure which one of you?

Mr. Charles F. Tucker: Well I don't think that that would necessarily be an issue if the Court decide the --

Chief Justice Warren E. Burger: Not necessarily but it's possible that --

Mr. Charles F. Tucker: It is possible but I don't see that it would be an issue for this Court because it would have decided the basic issue of proportionate fault and leaving up to the District Court's the method of handling the repayment of the compensation lien.

Unknown Speaker: Well, let's assume a fair major damage as an accident, is it an accident is it is $100,000.00.

And the stevedore -- the stevedore's limit however is under the Act.

I mean he is -- the absolute limit of what he has to pay is whatever the Act provides.

Mr. Charles F. Tucker: Alright, sir.

Unknown Speaker: Is that right?

Mr. Charles F. Tucker: That's correct.

Unknown Speaker: Now, I suppose, if it's a proportionate fault rule obtains and the shipowner say we're limited a liability $25,000.00 and the stevedore only had to pay under the Act $25,000.00.

The employee is out $50,000.00 from what he could have obtained from the shipowner except for apportionment.

Mr. Charles F. Tucker: But the difference is that the shipowner was --

Unknown Speaker: Was that right or wrong?

Mr. Charles F. Tucker: Yes, sir.

If -- but the difference is --

Unknown Speaker: Oh, yes.

Yes, right or wrong, which one is it?

Is it right or is it wrong?

Mr. Charles F. Tucker: Well, it is certainly right that under the status of the law, he is out to $25,000.00.

Unknown Speaker: Well, how does is it the stevedore is never going to be liable for any more than what his --?

Mr. Charles F. Tucker: It never, that's correct.

Unknown Speaker: And if the shipowner pays only his proportion or it's the fault.

Mr. Charles F. Tucker: But the --

Unknown Speaker: (Voice Overlap) together less than the damage is somebody is out.

Mr. Charles F. Tucker: Not the shipowner pays his proportion of the total damages.

Unknown Speaker: Right.

Mr. Charles F. Tucker: They stated or pay is his statutory damages.

Unknown Speaker: Right.

Mr. Charles F. Tucker: The two had it together of what the plaintiff receives.

Unknown Speaker: Yes.

Justice William H. Rehnquist: Yes, even though he suffered more damage than he receives.

Mr. Charles F. Tucker: Even though he suffered more damages and there are cases where he will get less but that is reflective of the compensation seen whereby he recovers compensation without the necessity of proving any fault.

Unknown Speaker: So by -- you would construe the Act then as changing the ordinary rule of liability of the tortfeasor?

Mr. Charles F. Tucker: No, because I don't think we are dealing with joint tortfeasors in this situation.

Unknown Speaker: I didn't say joint tortfeasor.

I said tortfeasor.

Mr. Charles F. Tucker: I don't think so.

The tortfeasor, the shipowner in this instance has been found to be 25% at fault or 20% in our case.

He is paying damages proportionate to his fault.

Unknown Speaker: But that's contrary to the ordinary rule a tortfeasor where he would pay even though only 25% negligent would be required to pay if there were judgment against him a 100% of the damages?

Mr. Charles F. Tucker: But that is only in the situation where you're dealing with one or more -- you've got to have another tortfeasor in order to have proportionate fault.

Unknown Speaker: Or maybe that tortfeasor is way back beyond the jurisdiction and the plaintiff is not interested in suing him for one reason or another.

The -- you only assume as one tortfeasor.

That tortfeasor is only 10% at fault.

He's nonetheless liable for 100% of the plaintiff's damages.

Mr. Charles F. Tucker: He is where you have two possible tortfeasors liable to the plaintiff.

Unknown Speaker: But he's the only one sued.

Mr. Charles F. Tucker: I understand that.

Unknown Speaker: Well, didn't the Court here find that out that there were two tortfeasors?

Mr. Charles F. Tucker: Not two joint tortfeasors in the sense --

Unknown Speaker: Well, they decided that one contributed 25% and 100% or whatever the percentage is.

Mr. Charles F. Tucker: But one is not liable to the --

Unknown Speaker: There are 3% weren't they?

Mr. Charles F. Tucker: 3% yes, sir.

Unknown Speaker: The employee, the ship, the stevedore.

Mr. Charles F. Tucker: One is not liable; the stevedoring company is not liable.

Unknown Speaker: Alright he may not be liable but he violated a duty

Mr. Charles F. Tucker: He violated a duty--

Unknown Speaker: but he violated a duty so he's a tortfeasor.

Mr. Charles F. Tucker: But not liable to the plaintiff and as I understand --

Unknown Speaker: Well, I know but that doesn't make him a tortfeasor?

Mr. Charles F. Tucker: It's rule.

Unknown Speaker: Yes.

Mr. Charles F. Tucker: But the rule does not.

The rule only applies where you have two or more persons jointly and severally liable to the plaintiff and we do not have that situation.

Justice Thurgood Marshall: Mr. Tucker, let's get away from some semantics a minute.

The maritime bar that doesn't recognize the word tort at all, does it?

This moment, tortfeasors, am I right?

It (Inaudible) it's not quite a tort.

Mr. Charles F. Tucker: Well, a tort as I understand it is along and I think in that context that it would be recognized.

Justice Thurgood Marshall: I mean, you had joint wrongers?

Mr. Charles F. Tucker: You do?

Justice Thurgood Marshall: Yes, that's why I thought, you just don't like to use the word tort.

Mr. Charles F. Tucker: Well, --

Justice Thurgood Marshall: (Voice Overlap) I'm not condemning the court.

Unknown Speaker: Maritime sometimes calls it a wrong and calls it instead of negligence, he calls it fault but it's the same concepts.

Mr. Charles F. Tucker: Your Honors, I'd like to speak for a moment with regard to the issue of proportionate fault because I feel that that and along with the fairness and equitable argument in this case is the basis upon which the Fourth Circuit decided this case.

The legislative history contrary to what counsel for petition acclaimed clearly states that the vessel shall not be liable in damages for the acts or omissions of the stevedore.

They said it on page 4703 of the congressional reports “A vessel shall not be liable in damages for acts or omissions of stevedores.”

It could not be clearer.

This Court has stated in recent decisions in the Fourth Circuit is now in accord with the doctrine of comparative fault.

The Cooper Stevedoring case permitted contribution among joint tortfeasors in a situation, the admiralty situation and in non-collision cases which was done in order to correct the inequity of one bearing the entire loss though the other may have been equally or more to blame.

So they all rule against no contribution in non-collision cases was changed by this Court.

In reliable transfer, in collision cases, the all rule of equally divided damages was changed to one requiring allocation in proportion to fault.

And this Court said that this standard should be adopted allocating liability according to fault where other possible.

And this is exactly what the Fourth Circuit has done and which we contend is the fairest and most equitable rule for this Court to adopt.

Unknown Speaker: Mr. Tucker, do you have a comment on your opponent's argument that the second sentence of the statute was merely intended to preserve the rule of the Yaka case?

Mr. Charles F. Tucker: Yes, sir.

Clearly it was intended to recognize the special situation where the longshoreman is employed by the vessel to run the stevedoring or ship repair services.

But we contend that that was not the only reason for placement in there.

That it was placed in there to emphasize what seem to be clear in the congressional intent that the shipowner should not be liable or for the act or missions of the stevedore and it says that quite clearly as I recall the Senate's involved if such person was employed by the vessel to provide stevedoring services.

No such action shall be permitted if the injury was cause by the negligence of persons engaged in providing stevedoring services to the vessel.

It seems perfectly clear.

We in our brief, we have commented on the fact that two sentences the first sentence and the second and the third if you read them literally cannot possibly mean what they seem to say.

Because if you read them literally, it would indicate that if the longshoreman is employed by independent contractor to provide stevedoring services and if there is any negligence on the part of the of the vessel owner then he recovers a 100% whereas if you read the second and third sentences that way, you find that if he's employed by the shipowner to run the stevedoring services in any fault of the stevedoring -- people providing stevedoring services cause the accident he recovers nothing and I don't think that anyone could contend that the Congress intended to do that and the only way to reconcile the two sentences is to read them to mean to the extent the injury was caused by the fault of the vessel or the fault of the stevedoring people employed to render stevedoring services and if you read it that way, it is entirely consistent and also consistent with the language of the Act in the legislative history which indicates that they shall not be responsible for acts or omission of the stevedore.

Unknown Speaker: And the employee weight has remedied his benefits under the Act and sued the shipowner?

Mr. Charles F. Tucker: Well, he's not required to do so.

Unknown Speaker: I didn't -- may he?

Mr. Charles F. Tucker: I assume he may.

Unknown Speaker: And then but you'd still say apportionment?

Mr. Charles F. Tucker: He cannot sue the shipowner for unseaworthiness because --

Unknown Speaker: I didn't ask that, suing for negligence may recover all of his damages from the shipowner if he waives his right against the stevedore.

Mr. Charles F. Tucker: I'm not sure that that's ever come up if he took it --

Unknown Speaker: Don't you have to say that --

Mr. Charles F. Tucker: If he took himself out of the Act and said I'm no longer covered then he could do that.

Yes, sir.

Unknown Speaker: You mean you would then say that he may recover from the ship all of his damages even if the ship didn't cause it.

Mr. Charles F. Tucker: If the Act does not apply and you're looking for common law action that's correct.

Unknown Speaker: But he can't decide whether the Act applies, can he?

Mr. Charles F. Tucker: I don't think so.

Unknown Speaker: So then your answer is no to Mr. (Inaudible)?

Mr. Charles F. Tucker: I was trying to answer it in a hypothetical sense but I don't think he can decide where the Act applies.

Unknown Speaker: I didn't say, I didn't ask you to say he waives -- he just tells the stevedore don't send me any checks.

Mr. Charles F. Tucker: I understood you to say that.

Unknown Speaker: Just don't send me anything, I won't – cause I know what to get from you which is very little and I know what I can get from the ship.

I can recover $100,000.00 and I only get $25,000.00 from you.

Mr. Charles F. Tucker: I took it to be a hypothetical question in that way.

Unknown Speaker: (Voice Overlap) Third party actions are very normal in this business.

But is it not correct the statute doesn't give him that option?

Mr. Charles F. Tucker: It doesn't give him the option if he has paid compensation benefits.

He has no --

Unknown Speaker: If he's a longshoreman within the meaning of the Act.

Mr. Charles F. Tucker: Yes, sir.

Unknown Speaker: Does he have an option not to be a longshoreman?

Nobody has an option not to apply for benefit.

Mr. Charles F. Tucker: I assume he have an option.

Unknown Speaker: And he certainly can sue the ship under the Act because he did hear and you don't say that he can.

Mr. Charles F. Tucker: He can sue the Act -- the ship under the Act for negligence, yes, sir.

Unknown Speaker: Sure.

No question about that.

Rebuttal of Calvin W. Breit

Chief Justice Warren E. Burger: Do you have anything further, Mr. Breit?

Mr. Calvin W. Breit: One very brief comment, I realize it is beyond the normal time for the Court.

In Cooper versus Stevedoring in 1974, this Court held that Halcyon versus Haenn was still good law under the facts.

Those facts were identical in all respects with the case here, a stevedore who is immune from suit of by the injured party and sues the shipowner and recovers in full.

There is no contribution in tort from the immune employer.

The statute intended to keep that.

When the statute said that the employer shall not be liable to the vessel for such damages, directly or indirectly and in any agreements, the warrants of the contrary shall be void.

It was specifically intended by Congress regardless of the equities as argued here that the stevedore not play a part in the tort action or not suffer contribution by waiving what would normally be the lien that it should recover.

And in exchange for that, the stevedores have paid two, three, and sometimes four times as much in weekly compensation as they did before the Act.

They give what was a relatively small payment and tripartite litigation and got in exchange higher payments but absolutely no litigation.

That was the purpose of the statute.

And if we follow the Fourth Circuit, we must then implead the stevedore in this case and in every case to find out what is the percentage of their fault.

This was an ex parte determination of 70% in which they played no part or hearing and clearly if they were there, advocating their position, as they must do under the Fourth Circuit in every other case from hereon in.

They become a party to the litigation.

It's exactly what Congress was intending to avoid.

Chief Justice Warren E. Burger: What do have to say about whether this case might be back here could conceivably be back here after the District Court acts?

Mr. Calvin W. Breit: If the Court rules that the longshoreman is entitled to his common-law remedy of 100% recovery from the shipowner which we have espouse and which the other circuits have held then no one will ever be back here because he will be required to repay his lien to the stevedore and receive a credit against future compensation which may be payable.

We don't know now what the lien is.

We may never know what the lien is until this man dies because it's an ongoing lien and each year it's subject to change under a formula device by Congress geared to inflation.

So that each year, his formula changes.

We suggest that there would be no further litigation except if this Court says that the Fourth Circuit is correct and we have to go now under the District Court and fight over the distribution and then every case thereafter will have to be fought with the stevedore involved to determine whether they are 70, 60, 50 or 30% at fault and Congress did not intend it.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.