RESPONDENT:Raymond Concrete Pile Company
LOCATION:First Unitarian Church of Los Angeles
DOCKET NO.: 456
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the First Circuit
CITATION: 356 US 252 (1958)
ARGUED: Mar 10, 1958
DECIDED: Apr 07, 1958
Audio Transcription for Oral Argument – March 10, 1958 (Part 2) in Grimes v. Raymond Concrete Pile Company
Pardon — pardon me — no — no.
You have (Voice Overlap) —
Thank you, Your Honor.
I forgot —
Frank L. Kozol:
I think the timekeeper indicate that I have about eight or 10 minutes left.
Frank L. Kozol:
We have here a case, may it please the Court where a workmen who consciously and intentionally hide himself out as pile driver and went out into the ocean to help construct a defense base is except as he may be found to be a member of a crew on sufficient evidence to support such a finding is covered by the humane protective provisions of the Workmen’s Compensation statute, which Congress established under the Defense Bases Act as the sole and exclusive remedy for all American workers who went out to work on such bases which were to be constructed on the contracts with the Government of the United States or any department or agency thereof, precisely such as happened in this case.
In this case, it suits the plaintiff’s purpose because he received minor injuries and has collected this $200 under workmen’s compensation to see if he can gamble for a better result from a jury and the only way to possibly achieve that result is if he can get a jury — get to a jury and persuade the jury to hold him to be a member of a crew of a vessel.
This is because for six hours, as the Chief Justice has brought out in your searching question, he worked on the barge, doing a work that is frequently and commonly done by seaman who are members of the crew of a vessel.
But I have indicated in my answers and I am certain that the case support my position that that is not determinative nor significant even though I can give mathematical formulas to what point the status of the individual changes.
I do know this however, that there are certain criteria which this Court has seized upon over and over and over again most recently in the Senko case, which was decided last term.
One of those is permanent connection with a vessel.
The majority opinion on the Senko case setup three tests and I’ve quoted the language on page 26 of our brief.
The first one was that there was a testimony introduced by the plaintiff in that case tending to show that he’s employed almost solely on the dredge which was the vessel involved in that case.
In our case, the testimony is perfectly clear that he was not employed almost solely on the barge.
And that’s why my brother has to resort to the argument that the Texas Tower is a vessel which I argue most sincerely and obviously was not.
The second test is if the duties of the petitioner were primarily to maintain the dredge during its anchorage for its future trips.
The petitioner in this case had no such duties whatsoever.
Its perfectly clear and beyond doubt on the record that the duties of this petitioner was to help construct a defense base in line with his normal duties as a pile driver and what he was doing on the barge was a casual transitory of thermal task, preparatory and ancillary to his main job.
And the third test is that he would have a significant navigational function once the instrumentality, which is called the “vessel is put into transit.”
In this case, the petitioner would have no such significant function whatsoever.
The argument that the Jones Act should be expanded as widely as possible, I most respectfully submit, misses the mark.
The Congress intended our defense base workers to have the protection of a Workmen’s Compensation Act where they need not rely upon negligence as they must under the Jones Act.
What about the next case that’s waiting in line in my office with my brother of the defense base worker who was killed without negligence?
Is he to be left — his family to be left entirely without any protection?
That certainly was not the purpose in the intent of Congress.
Under Compensation Act, he would covered if the broad principle recently established by the Massachusetts Supreme Judicial Court prevails as I’m quite sure it will even if he was shot to death as happened in a Massachusetts case by some evil intention of a person engaged in target practice.
But it —
Is there any problem or any question of election to remedy?
You don’t argue with that —
Frank L. Kozol:
I don’t believe there was any election of remedies.
I’m just curious.
Frank L. Kozol:
Because we’re dealing here with two mutually exclusive federal statutes, Your Honor.
And Mr. Justice Douglas has pointed that out most significantly in a note in Norton and Warner where the court in a majority opinion, points out the problem that was raised by the Jensen case.
Here, he has no election of remedies.
It’s purely a case of determining which statute covers him.
If he truly is a seaman, as this court has now defined in the light of the Longshoremen’s Act which means he must be a member or a crew of a vessel, then Jones Act is his remedy and if he fails to prove negligence, he’s out.
If he is not a member of the crew of a vessel, his exclusive remedy is under the Defense Bases Act which incorporated the entire compensation system of the Longshoremen’s and Harbor Workers’ Act.
Now, I have taken the liberty and most respectfully urge upon your Court — upon the Court that the scope and coverage of the Compensation Act should be construed as broadly as possible.
And the cases of this Court have indicated from timely memorial that the basic purposes of a statute like the Defense Bases Act should be broadly construed whereas the exclusions to it such as the exclusion of a member of a crew of a vessel should be most narrowly construed.
So as to give this protection sure, certain and rapid to all workers who are killed or injured to the construction of a defense bases.
And because I think that the case has significance, broader than the particular facts or the particular decision here, I have taken the liberty and I respectfully invite the court’s attention to state — restate what I believe the teachings of this Court had been and I believe that if they are restated in some such manner as I have dared to do on page 43 conclusion (a) of our brief, that the country will be well-guided and this Court will not further be troubled as much as it has been with petition for certiorari to — in cases of this nature, as similar to the FELA cases where the principal issue as it is here is, is there a sufficiency of evidence to establish negligence or a status of an individual?
It is to be kept in mind I most respectfully suggest that the six hours of this man’s work on the barge were all completed and done for forever before the accident happened.
He was back on his way in transit.
A situation specifically covered by the Defense Bases Act which covers in transportation to his principal job on the tower and have almost gotten there when the tug boats swung with the motion sea and struck him and caused his minor injuries.
All concept of this man having been a member of a crew of a vessel ended when that job was done.
And I say, may it please the Court, never began because I do not subscribe to the principle of shifting status such as my brother (Inaudible).
I would just —
Like to be brief on — on rebuttal.
My brother has pointed out on a photograph on the record and he says that is a picture of the photograph as it was at the time of the injury.
If the record were examined, that would be picture of the photograph when the tower was fully elevated.
At the time this accident happened, the tower was elevated for 20 feet.
Its full height was 63 feet but the most important thing of all was in order for the tower to be firmly affixed, it had to have three permanent caissons driven by sucking out air, by sucking out sand from those caissons.
Those caissons had to be driven 43 feet into the sea bottom.
And then after it was driven 43 feet into the sea bottom, it had to be fill — full of concrete and — full of concrete to seal it in.
So, at the time this accident happened, this tower rest merely on her temporary caissons.
And just rested on one permanent caisson, no permanent caisson had been driven as required 43 feet into the oceans bottom and certainly hadn’t been sealed off.
That was how firmly affixed the tower was at the time this particular accident occurred.
Now, the second thing is that my brother relies upon nomenclature.
This man was called and described and signed the paper describing him as a pile driver.
Nomenclature is never determinative of what a man’s job is.
I think perhaps the most at phrase is that arose by any other names now is Justice Sweet.
It’s what the man does, not what he is described.
Now, this barge was the first barge to arrive at the scene with supplies for the tower.
This petitioner didn’t have a chance to have a more firmer attachment to this particular barge.
And I have argued in my brief that if this petitioner had proved competent, then the respondents would have used him again for they would have profited by his experience.
Now, a man can be a crew member of a vessel even though the time for which he serves upon the vessel maybe small.
If I have a boat tied up in New Bedford Harbor and I want it transported to Fairhaven across the harbor, 15 minutes away if she has no crew.
And if I go out and get a captain, an engineer and a deckhand and asked them to take that boat over to Fairhaven across the harbor, they are the crew of that vessel.
There is no other crew.
They have a duty to stand by that vessel to preserve her and to aid her in her peril and they can look to her even for their wages.
The — the problem is where you have another class so that you can distinguish them from what is aboard and from what — from who comes on thereafter.
For example, it’s easy to distinguish a longshoremen or a harbor worker from the crew members.
They — they come on and they leave.
But the crew members remained.
But if a man, if a — if the major, the chief mate left the vessel so that they have to substitute a night mate and a night mate came on for the night, he is one of its crew because that’s his character and his compliment.
Now, my brother argues that this is a minor case.
It’s not a minor case.
The issues here are great.
What it — what this Court does here will affect a whole class of workman and that’s the reason that the petitioner has brought this case up to this Court and that’s the reason the respondent has taken this case up to.
Otherwise, the case would have been adjusted a long the line.
Now, Judge Wyzanski’s error and I — I’m not impugning his intellect at all.
I mean no one cold possibly impugn his intellect.
He read Section 1651.
Now, one directed their attention to Section 1651 they would read, that the provisions of the Longshoremen’s and Harbor Worker’s Act shall apply, unless otherwise modified to the following accidents.
Then it goes on into describe the accident.
Then when the judge reached that fourth paragraph which was so broad in language and scope, he says I don’t have to apply.
I don’t have to incorporate into the Defense Bases Act all the provisions of the Longshoremen’s and Harbor Workers’ Act, I say that the definition of scope of employment as used in the Defense Bases Act is so broad that it negatives a congressional intent and he did raise a serious question of law.
But had he read on and found that the Defense Bases Act had its separate exclusionary clause, he wouldn’t have made his ruling because the way he ruled, he said, it don’t make any difference if you are a crew member.
If the work that you do is preparatory and ancillary to work on a public work then you don’t come within the exclusionary clause of the Defense Bases Act because he said, the exclusionary clause of the Defense Bases Act was derivative to the Longshoremen’s and Harbor Workers’ Compensation Act and he couldn’t do any, deriving in view of the very broad language of Section 1651 especially, that fourth paragraph, which defines a contract and which defines a public work.
And therein lies the start of this case on its way up.
Now, my brother in his brief has devoted a lot of tension to the glories of workmen’s compensation legislation.
And I submit that it hasn’t fulfilled the dreams of its office.
Workmen’s compensation legislation originated in Germany on the days of Bismarck at the time when the German worker have no other remedy and they gave him a sum in place of no remedy whatsoever.
When it was carried over into England, it was taken as an alternative remedy, in — in case the worker had no other common law remedy.
And when it is brought into this country, first, the employers objected to it and then they waived their objection rather suddenly and that — and the court might infer that they did so because as the law was supposed to be copied from the English model, it was copied not accurately and it became the exclusive remedy of the worker rather than an alternative remedy.
Workmen’s Compensation Act has proved litigious.
The — the amounts are small and limited at a time when the workers need is greatest.
And the worst feature about it is that it is a limited recovery and it is in lieu of all his other remedies.
I think I — I think I am done.
So — questions?