Jackson v. Lykes Bros. Steamship Company, Inc.

PETITIONER:Jackson
RESPONDENT:Lykes Bros. Steamship Company, Inc.
LOCATION:Hayden Residence

DOCKET NO.: 575
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: State appellate court

CITATION: 386 US 731 (1967)
ARGUED: Apr 12, 1967
DECIDED: May 08, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – April 12, 1967 in Jackson v. Lykes Bros. Steamship Company, Inc.

Earl Warren:

Number 575, Helen Jackson versus Lykes Brothers Steamship Company Incorporated.

Mr. Maloney.

Charles R. Maloney:

Yes sir.

I would like to have 20 minutes on direct and 10 on rebuttal.

Earl Warren:

You do have the time anyway you want.

Charles R. Maloney:

Yes sir.

Can I begin sir?

Earl Warren:

You may proceed, yes.

Charles R. Maloney:

Yes.

This is a death case.

This is a death case involving a longshoreman employed by Lykes Brothers Steamship Company Inc. Lykes Brothers is a steamship operator that acted as a stevedore, acted as a ship owner and acted as a ship operator, the primary purpose instead of a ship operator and a ship owner.

Stevedoring is only secondary ancillary to their operation of the ships.

They have approximately 45 ships that they operate.

Luther Jackson was a longshoreman; he was employed to board one of the vessels owned and operated by Lykes.

He was employed direct by Lykes.

In the course of this employment, he was caused to inhale fumes from insecticide which ultimately cause or contributed to his death.

No proceedings were had in this case before the U.S. Deputy Commissioner.

There’s no award here, there is no compensation payments, there is no voluntary or involuntary payments of compensation under the Deputy Commissioner proceedings.

There have been no proceedings before the Deputy Commissioner.

The first proceeding was in the Civil District Court for the State of Louisiana, the Civil District Court for the Parish of Orleans.

This is a state court.

This is a state court forum.

Suit was filed in a state court forum on the four basic counts.

Number one, under the Jones Act; number two, under the General Maritime Law has supplemented by our survivorship and wrongful death statute 2315; and number three, on the Louisiana tort; number four, in Louisiana workmen’s compensation.

Byron R. White:

Is there any question in this case that if there had not been a death involved that you would have had a maritime cause of action for negligence?

Charles R. Maloney:

No sir.

They denied us a claim under the Jones Act.

They denied —

Byron R. White:

But that’s different, that’s a different —

Charles R. Maloney:

They — this have might —

Byron R. White:

— if there hadn’t been a death wholly aside that in the Jones Act you would have had a maritime cause of action for negligence?

Charles R. Maloney:

No sir.

In Robinson versus Lykes there was no death and this judgment of Jackson versus Lykes is based on Robinson versus Lykes.

In Robinson versus Lykes, Rufus Robinson was a live longshoreman, but they denied the right of action and the cause of action in General Maritime Law under Rufus Robinson versus Lykes on the basis of the fact that 905, Section 905 of the Longshoremen Harbor Workers Act excluded such right.

And they were to based it on (Voice Overlap) —

Byron R. White:

Well, that — that they said that against that particular employer, the Longshoremen’s Act was exclusive.

That was the basis for that?

Charles R. Maloney:

Yes sir, under Rufus Robinson that would —

Byron R. White:

But if he had been a seaman — if he had been a seaman, he would have had a maritime cause of action for ordinary negligence?

Charles R. Maloney:

If he had been a member of the crew, they said he would have had a Jones Act but we contend that there was a question of fact in the salute to judge —

Byron R. White:

Well, what if — if the owner of the vessel here had not been the stevedore, let’s assume it is an ordinary owner, it wasn’t a stevedore also.

And then a longshoreman is injured on the vessel, he had a maritime cause of action for negligence?

Charles R. Maloney:

If it would have been a non-Lykes employee, I would imagine that the state court would have granted him a right in cause of action on the General Maritime Law.

Since we file so few of these suits over in state court, I really can’t tell you — tell you exactly what it would be if it were put to issue.

Byron R. White:

But there is such a cause of action presented in some court, in the federal court?

Charles R. Maloney:

In federal court, we file this type all the time.

We have no problem like this in federal court.

Byron R. White:

The longshoreman can — can — who isn’t killed and sue the ship owner for unseaworthiness and also ordinary negligence —

Charles R. Maloney:

I —

Byron R. White:

— as a maritime matter?

Charles R. Maloney:

We have a problem with ordinary negligence when the employer is a direct employer, because —

Byron R. White:

I understand that.

Charles R. Maloney:

— in this case this comes within the scope of Yaka versus Reed or Reed versus Yaka, so we have a problem with reference to negligence.

And we don’t know exactly whether or not we can have a cause of action if the mate or the master, or one of the regular bosons or ABs or members of the crew had caused or created an unsafe condition.

Byron R. White:

Yes.

Charles R. Maloney:

We don’t know where we stand on that.

We assume that the courts will make a dichotomy between the negligence of a regular member of the crew and give us a cause of action.

They generally throw us out on the basis that a fellow longshoreman has created the unseaworthy condition or that he has caused the negligent act that injured him.

But I think that what we have right here is that we’ve been denied before we even presented any facts.

We’ve been denied on a summary judgment.

Charles R. Maloney:

We’ve been thrown out right at the very beginning stating that we have no right of action, no cause of action for a claim under the Jones Act, for a claim under General Maritime Law.

I’m not going to bring up Louisiana Tort Law because that’s not the basis for this appeal or I won’t bring up Louisiana Workmen’s Comp, that’s not basis of this appeal.

I would just confine myself to the Jones Act and to General Maritime Law.

Before — Judge Carey in the Civil District Court, it was urged that whether or not Luther Jackson was a member of the crew, is a question of fact.

It’s a question of fact for the jury to decide, that he had no authority to make that decision which based on the various cases that you don’t take the mere name that this is a Longshoremen Act, he is a longshoreman than he’s automatically as matter of law within the scope of the Longshoreman Act just like a railroad employee, if he was a brakeman, he isn’t automatically within the scope of FELA.

He may come under the Longshoremen Act if he’s over navigable waters and he may be a member of the crew if he has aboard a vessel.

I contented before Judge Carey that it was a question of fact for the jury to decide.

And he felt that was a matter of absolute law that he couldn’t be a member of the crew, that he had to be a longshoreman within the scope of the Longshoremen’s Harbor Workers’ Act.

My second argument to Judge Carey was that conceding — that you assumed he’s a member — that he cannot be a member of the crew.

Then, I have a General Maritime Law claim for my client.

And he has a claim based on the warrant of seaworthi — seaworthiness pursuant to Reed versus Yaka.

His position was that Section 905 of the Longshoremen Harbor Worker Act precluded any claim whatsoever against Lykes Brothers on the General Maritime Law.

His position was that this was the same problem that he had handled in Ellis versus Travelers and in Stepter versus T. Smith.

If you go back to the Robinson case, you’ll find that there is a quote of at least one of those cases in the Robinson versus Lykes case.

And he based his decision on the Robinson versus Lykes decision that the only remedy that the weather had was pursuant to Longshoremen Harbor Workers’ Act.

My position to the judge was, that he was making in the determination under the Longshoremen and Harbor Workers’ Act that this particular employee was an employee within the meaning of the Act and that he was making the determination as a matter of law.

He couldn’t be a seaman.

He was making the determination as a matter of law that he had to be a longshoreman and even though he was making this determination, he was excluding the ruling or the holding at least to the spirit of Reed versus Yaka.

Well, I lost in the lower court.

So we went up to Court of Appeals.

All these same points were urged and that under the Jones Act, it was a question of fact for the jury to determine that it would not be as a matter of law he was a longshoreman.

It had — it was a question of fact that had to be determined by the Deputy Commissioner, since the Deputy Commissioner had made no determination it was moot.

And in this case before the Court of Appeals, their opinion was there are all questions which included the Louisiana Tort and Louisiana Workmen’s Comp.

All the questions resolved themselves to one point, 33 U.S.C. 905 the Exclusive Remedy Clause.

And their position was that the Exclusive Remedy Clause of the Longshoremen Harbor Workers’ Act excluded this man from being a member of the crew, excluded this man from having any rights under General Maritime Law or his widow and precluded any claim under Louisiana Tort or Workmen’s Comp.

An appeal was taken to the Louisiana Supreme Court and a writ was applied for.

The writ was denied, two justices dissented.

The two justices were Saunders and Samuel.

And they were the same ones who dissented in Robinson versus Lykes and for basically the same reason that they dissented in Robertson versus Lykes.

And now I’m before this Court urging the same thing, I’m urging that Mrs. Jackson has a right to bring this case before the jury, for the jury to determine whether or not her husband was a member of the crew.

Charles R. Maloney:

I’m not asking you to agree that she — that her husband was a member the crew, I’m just asking for the right to bring this to the jury to let them make the determination.

Byron R. White:

Your — let’s assume that you were right, assume you’re right on the fact that the Harbor Workers’ Act does not bar you from seeking some kind of a relief, some kind of other relief, do you rely on both the Jones Act and General Maritime Law?

Charles R. Maloney:

Yes sir.

I think I have a right to go for under Jones Act and General Maritime Law.

General Maritime Law supplemented by 2315.

Byron R. White:

Well, now did the Louisiana court here reach the question of whether under the local law, the death — the remedies on death reaches the maritime causes of action?

Charles R. Maloney:

We had a very brief minor — fewer discussion on Tungus, Goette, Hess —

Byron R. White:

Yes.

Charles R. Maloney:

— and all of these landmark cases.

Byron R. White:

And I read that (Voice Overlap).

Charles R. Maloney:

— very little —

Byron R. White:

As I read it, they did not — we have no rule again in this case anyway as to whether the appointment of the state courts, your state statute reaches — your death statute would reach this kind of a cause of action?

Charles R. Maloney:

Our state — that statute is a very broad death statute.

I quoted it in my brief.

And it would be my position that this death statute gives more than General Maritime Law would give because we have a civil law here, and we have other statute besides 2315.

We have 667, we have 617, we have 2322, 2317.

We have a number of state statutes.

All of these statutes or survive under 2315.

We even have some admiralty statutes.

This wasn’t —

Byron R. White:

What’s your position as to the law that governs whether or not the state remedy is available to supplement admiralty law?

Charles R. Maloney:

My position would be that the state law is only a vehicle — is only a vehicle to give him a right on the gen — give the widow a right under General Maritime Law.

My view would be the — my minority view in Tungus.

Byron R. White:

Well, is that — you mean that — well, in your cause of action on the General Maritime approach is you think rest on overruling Tungus?

Charles R. Maloney:

Well, I don’t say overruling, because I also feel that the 2315 statute of State of Louisiana is broad enough to include General Maritime Law.

This comes from a French Napoleonic Code.

Byron R. White:

But you have no — you have no construction of your state statute to that effect?

Charles R. Maloney:

We have a case right now.

That’s in the Fifth Circuit, Judge Putnam was an ex-state court judge, was in the Western District for the State of Louisiana decided the Grigsby case.

And he decided in favor of the petitioner and this case is now in the Fifth Circuit and we’re hoping that the Fifth Circuit will affirm his —

William J. Brennan, Jr.:

That is he decided that the widow and defendants had a —

Charles R. Maloney:

Yes sir.

William J. Brennan, Jr.:

— cause of action (Voice Overlap) —

Charles R. Maloney:

Yes.

He’s decided —

William J. Brennan, Jr.:

— under Louisiana law?

Charles R. Maloney:

Yes sir.

He has decided in favor of the widow and the defendants.

Byron R. White:

So even if — so that if this is a federal question, the federal law of government in general, at least the trial court’s decision in that case is persuasive as to what the state law is?

Charles R. Maloney:

He really never considered this here a problem of Tungus.

He was only concerned with that we had no right of action or cause of action because of Stepter and Ellis.

Ellis and Stepter were a conflict between state compensation and federal compensation.

And that went back to the Richard’s decision.

In the Richard’s decision, they would allow you to go into federal court.

And seek that workman’s compensation in the federal court $70.00 a week.

Then you could sue into the state act for a lump-sum settlement which was not provided for in the state court and —

William J. Brennan, Jr.:

Yes, but in this Grigsby case as I understood you with the — at least — but what did you say, his name, this district judge?

Charles R. Maloney:

Judge Putnam.

William J. Brennan, Jr.:

Judge Putnam apparently says that in these instances of a maritime death plan, there is a remedy and you suggest that maybe a good or better than a federal maritime?

Charles R. Maloney:

Yes sir.

William J. Brennan, Jr.:

There is a statement under your state statute?

Charles R. Maloney:

Yes sir.

Potter Stewart:

You don’t have to — I thought your claim was here that your client was a member of the crew?

Charles R. Maloney:

That’s my first — my first claim that —

Potter Stewart:

If he was, you have no Tungus problem at all you have the Jones Act which gives you a right of recovery for wrongful death.

Charles R. Maloney:

But if I’m wrong under the Jones Act —

Potter Stewart:

That that is —

Charles R. Maloney:

— then I have to make my claim under General Maritime Law and then I have to resort to 2315.

Byron R. White:

That’s a big — it was the same thing truly the longshoreman.

It’s true that isn’t fair with the stevedore.

Byron R. White:

Stevedore was the acting ship operator but he was still doing longshoreman’s work?

Charles R. Maloney:

He was doing longshoreman work which work was traditionally that of the seaman.

But he was working — he was working for a ship operator who was primarily a ship operator was primarily involved in ship operation.

And whose stevedoring was only secondary.

And we would try to urge to the jury that this man could meet the test of being a member of the crew.

Byron R. White:

Well, let’s assume there’s been some other operator of the ship, does it take the difficult ship operator goes in being unloaded by longshoreman?

Charles R. Maloney:

Yes sir.

Byron R. White:

Longshoreman is hurt on the ship.

Charles R. Maloney:

Yes sir.

Byron R. White:

He hasn’t enjoyed that cause of action.

Charles R. Maloney:

No sir because if he was — it was a T. Smith & Sons situation, T. Smith is a stevedore.

Mainly there is a stevedoring operation.

Well, he has to make his claim under the Jones Act against his employer.

He can’t make it against the ship owner.

Byron R. White:

That’s right.

Charles R. Maloney:

He must make it against his employer.

T. Smith & Son does not operate ships.

Byron R. White:

So you’re saying that the situation was given here because stevedore here was the ship operator and he was the employer of the stevedore?

Charles R. Maloney:

Yes sir.

Byron R. White:

And he can make the claim against his employer, but if he’s going to make it against his employer then you know what you’ll get little bit cut off by the Longshoremen’s Act.

You want to get out on the Longshoremen’s Act because it was on the ship and — and you want that you go on and get back under it for that reason?

Charles R. Maloney:

I want to first urge what any ordinary bonafide member of the crew would urge that he has a claim under the Jones Act against his employer who is a ship operator.

William J. Brennan, Jr.:

Well, now suppose you lose out on that, how do you get out — suppose you lose them?

Charles R. Maloney:

Alright, I lose that.

William J. Brennan, Jr.:

Now, how do you get out from the under the Longshoremen’s Act if you’ve lost on that claim?

Charles R. Maloney:

Well —

William J. Brennan, Jr.:

Where do you get a General Maritime claim?

Charles R. Maloney:

Alright.

William J. Brennan, Jr.:

Actionable under your states statute?

Charles R. Maloney:

Well, the longshoreman — the longshoreman have a traditional third party claim against the vessel.

William J. Brennan, Jr.:

I see.

Byron R. White:

Against the ship operator?

Charles R. Maloney:

Against the ship operator.

William J. Brennan, Jr.:

I see.

Charles R. Maloney:

Against the ship and in pursuant to Reed versus Yaka whoever owns the ship.

William J. Brennan, Jr.:

Yes.

Byron R. White:

Could there be a difference between your general maritime and negligence plan to get the operator in the Jones Act claim?

Charles R. Maloney:

Yes sir.

Byron R. White:

The Jones Act claim would be easier?

Charles R. Maloney:

The Jones Act claim is the easiest.

The maritime claim presents problems.

Maritime claim presents problems of negligence and who was negligent if the wrong posed negligence you wouldn’t have any claim.

Byron R. White:

Is there comparative negligence in Louisiana law?

Charles R. Maloney:

That’s a little problem in Louisiana.

We have a statute for comparative negligence, but it’s been ignored.

It’s completely ignored and they followed the common law rules.

Byron R. White:

It should be the maritime law, wasn’t it?

Charles R. Maloney:

Sir?

Byron R. White:

It should be the maritime law, wouldn’t’ it?

Charles R. Maloney:

Well, this should be maritime law, yes sir.

Potter Stewart:

Well that’s only if Tungus were overruled?

Charles R. Maloney:

You’re right.

Potter Stewart:

Only if Tungus were overruled.

Charles R. Maloney:

If Tungus were overruled then this would be comparative.

If Tungus wasn’t overruled then this would be — contribute to a negligence partial recovery.

Well, I’m urging as I say, I’m not urging this Court to agree that this is a Jones Act employee.

I’m just urging a constitutional right under Seventh Amendment and under the Jones Act to present this to the jury who is the trier of fact.

It may be argued that we chose a convenient forum but that’s the prerogative of a plaintiff.I don’t know that we necessarily chose the convenient forum because we’ve lost all the way up, but we did choose what we thought would be the better forum.

We’ve chose state over the Deputy Commissioner.

We have no problems in any of these cases with the Deputy Commissioner.

Charles R. Maloney:

If we urge a case under the Jones Act, he stays his proceedings.

We have no problems in any of this with the Deputy Commissioner.

The U.S. Deputy Commissioner sees our point completely on all of these problems.

It’s a question of fact for the jury or the trier of the fact to decide.

If you lose in this case here do you foreclose the one from the decision below?

Charles R. Maloney:

I don’t know yet, Your Honor.

I’ll have to examine that point or maybe.

Hugo L. Black:

May I ask you if you understand the Supreme Court’s opinion.

You indicated that you do have — you would have a case against the vessel in rem, should you not have a case because you’re suing in personam?

Charles R. Maloney:

No sir I understand from reading Reed versus Yaka that I have an in personam case against Lykes Brothers Steamship Company, Inc.

Hugo L. Black:

Against what?

Charles R. Maloney:

Against Lykes Brothers in personam.

As I read Reed versus Yaka or I have that right to go direct against the ship owner, ship operator as I read Reed versus Yaka.

That’s my interpretation of Reed versus Yaka.

And you have some Circuit Courts that have agreed with me.

You have Biggs and Clowers, I believe, in the Fourth Circuit, you have the Ninth Circuit case.

I think my time has gone up.

Earl Warren:

Very well said.

Mr. Yancey.

Benjamin W. Yancey:

Mr. Chief Justice, if the Court please.

The real nub of this case is the exclusive feature of the Longshoremen’s and Harbor Workers’ Compensation Act.

This is the first case before this Court where there has been an effort to fix personal liability for damages for negligence on the employer in a longshoreman’s case.

Now, the original petition that is the complaint below is specifically predicated upon negligence.

It alleges that Lykes failed to do certain specific things which brought about the death of the decedent.

The first allegation in the petition was that the decedent was a longshoreman engaged in the cargo operations of the vessel.

Having alleged that the decedent was a longshoreman engaged in the operation of the vessel and then having specified the negligence, the first claim is made under the Jones Act.

Then it claims under the General Maritime Law then it claims under the Louisiana death statute.

All cumulatively nothing alternatively and then serves a copy of the petition on the United State Deputy Compensation Commissioner to preserve the rights under the Longshoremen’s and Harbor Workers’ Compensation Act.

And finally, claims under the Louisiana Workmen’s Compensation Act.

Now to this, we filed exceptions.

Abe Fortas:

Early complaint did also overt that the decedent was a member of the crew?

Benjamin W. Yancey:

Yes sir I included, I meant to include that when said it claimed under the Jones Act.

Because in order to claim under the Jones Act, he had to allege that he was a member of the crew.

Abe Fortas:

Well, then you say did make the necessarily allegation?

Benjamin W. Yancey:

Right.

Now, to this cumulative package of claims, we filed exceptions.

First, that the Longshoremen’s and Harbor Workers’ Compensation Act was the exclusive remedy for the widow of this longshoreman.

Second, as to the Jones Act that the Jones Act itself as the Court well knows vests the cause of action in the personal representative of the decedent and under Louisiana law and under federal law, the widow has no standing in Court to pursue any right under the Jones Act.

The person in whom the Jones Act vests the cause of action is a duly qualified administratrix or executrix of the decedent’s estate.

That vital lack in this petition, this original petition was called to the attention of our friend illuminate and then never has been any attempt to correct that.

Although under Louisiana practice, any defect of that time brought to the Court’s attention can be the subject to proofing of amendment.

There’s never been any offer of proof and then never any offer of amendment.

So that when my friend stands in the highest court in this land urging the Jones Act he has no right to stand in this Court.

Abe Fortas:

Well what’s the meaning of that opening allegation of the complaint?

Benjamin W. Yancey:

That is —

Abe Fortas:

— that you forgot some surviving widow in personal represent —

Benjamin W. Yancey:

If you please sir, that is a conclusion of the pleader.

That is no allegation and so far as we know never has been any allegation that an executrix or administratrix has been appointed.

That is a —

Abe Fortas:

What?

Benjamin W. Yancey:

— bold allegation of plea — of the conclusion of the pleader.

Abe Fortas:

Under Louisiana practice, there’s customer that set out more than the —

Benjamin W. Yancey:

Oh yes sir.

Abe Fortas:

— end result that is say —

Benjamin W. Yancey:

Yes sir.

Abe Fortas:

— the claim of his personal representative?

Benjamin W. Yancey:

He alleges that she is the duly qualified administratrix by the judgment of such and such a court.

But — and that of course is in my judgment vital to this Jones Act business in this Court.

But I go one step further.

I say that so far as Jones Act is concerned, if the Court please, a longshoreman is the type of person for whom this Longshoremen’s Act specifically was passed.

Byron R. White:

But you wouldn’t —

Benjamin W. Yancey:

And —

Byron R. White:

–you wouldn’t say that this longshoreman would be barred by the Longshoremen’s Act, if there had been someone else operating the ship?

Benjamin W. Yancey:

If you mean that there was a third party whom he could sue?

Of course not —

Byron R. White:

Well if he’s — if that stevedore employer haven’t been operating the ship, he would have had the —

Benjamin W. Yancey:

He would have a right to sue the ship, yes.

Byron R. White:

And the —

Benjamin W. Yancey:

And the —

Byron R. White:

— and the he would not have been barred by the Longshoremen’s Act?

Benjamin W. Yancey:

Precisely.

Now —

Potter Stewart:

But his right against his employer would the — it’s been exclusively under the Harbor Workers of Longshoremen’s Act?

Benjamin W. Yancey:

Precisely, that is the (Voice Overlap) exact point of the case.

Now, I don’t want to launch into any extended history but as Your Honors know, this whole thing flows from the Jensen case where in 1917 a longshoreman employed as in this case by the ship owner, they attempted to avail himself if he was killed incidentally, his widow attempting to avail herself of the New York Compensation Act.

And in Jensen, this Court held that the uniformity of the maritime law required rather prevented the application of individual Compensation Acts of the various states.

After two efforts by Congress to relegate the questions of the states, this Court in the Grand Smith case strongly headed to Congress to the thing they do for longshoreman was to pass a Longshoremen’s Act.

Congress did not act immediately but in 1926, this Court held in the Haverty case that a longshoreman was a seaman as against his employer and was entitled to the rights under the Jones Act.

Congress then and there in 1927 passed the Longshoremen’s Act to correct the decision of the Haverty case and to give longshoreman the very character of employee which we have here.

Give the longshoreman a carefully thought out compensation plan that has been held constitutional.

And it’s been the subject of some litigation in this Court.

The Longshoremen’s Act covers two situations.

It carefully preserves the injured employee’s rights against their bodies.

And as against the employer, it makes the provisions of the Act exclusive.

Exclusive of all other liability whether in admirality or at law.

Now, in Sieracki, this Court held that the longshoreman injured by unseaworthiness of a third party’s vessel had the same warranty of seaworthiness as a seaman had and could recover damages.

Then Ryan comes along and Ryan recovers from the steamship owner a typical third party situation.

And the ship owner impleads the stevedore employer because the stevedore’s negligence had brought about the unseaworthy condition which had cast the ship owner in damages.

The majority of the Court held in Ryan that there was an implied warranty of workmanlike performance running between the stevedore employer on the one hand and the ship owner on the other.

It was a strong defense and the principal thing which concerned the dissenters was that this implied indemnity which the Court found running between the stevedore employer and the ship owner warranty of workmanlike performance was a violation of Section 5.

Benjamin W. Yancey:

Then comes Yaka, in fact that’s why we’re here, Yaka.

Yaka was a suite by a longshoreman against a vessel in rem, vessel not owned by his employer but bareboat chartered to his employer under a bareboat charter which contained and expressed indemnity of the charterer and of the ship owner by the charterer for anything arising in the operation of the ship.

It had been emphasized in the dissent in Ryan that if there had been an expressed indemnity in Ryan, the dissenters would have gone along with the majority with what the dissenters objected to, was this implying of a warrant.

Now, in the District Court in Yaka, there was a decree in rem against the shipment and there was a decree over against the bareboat charterer’s stevedore employer under the express indemnity.

When that case got to the Third Circuit the arguments went allover the place.

When the case came to this Court although the indemnity, the real basis on which the case was decided, the indemnity was mentioned, it was more or less lost cite of and the case was decided in this Court on more general grounds.

But there is absolutely nothing in Yaka and I want to say this as strongly and as sincerely as I can.

There is absolutely nothing in the facts of Yaka which justify this longshoreman’s widow suing her decedent employer direct in the face of that exclusive provisions of the Longshoremen’s and Harbor Workers’ Compensation Act.

Now, —

Byron R. White:

Can I ask you —

Benjamin W. Yancey:

Yes sir.

Byron R. White:

I’m sorry to interrupt you but a while ago you said that this had been a third party and not a stevedore employer that was operating the ship.

There wouldn’t be this longshoreman at bar, would you say that the if the seaman — if the longshoreman hadn’t died and it had been a third party operating the ship he could have had a maritime cause of action against him?

Benjamin W. Yancey:

Louisiana Court in spite of what my friend had said, have not passed upon that.

Judge Putnam in the western district has said that in dictum.

And that case is now for the Fifth Circuit —

Byron R. White:

Well, that is if he is dead — that if he has died (Voice Overlap) —

Benjamin W. Yancey:

Right.

Byron R. White:

— he has said that you can borrow that Louisiana law, isn’t it?

Benjamin W. Yancey:

Right.

Now, there is the occasion in the state courts which is rather weak as I have say is Judge Putnam’s cases weak which says the other.

But the — I did not —

Byron R. White:

Is that case cited in your brief?

Benjamin W. Yancey:

No sir.

Byron R. White:

What case is that?

Benjamin W. Yancey:

That is a case of a Babin, B-A-B-I-N versus Lykes the citation of which I do not have but I can get for you if you want in the Court of Appeals for the Parish of Orleans — the Court of Appeals for the Parish of Orleans.

This position of that point in this Court is that the Louisiana courts have not in fact passed upon that question and under Tungus, it is their province to pass upon it and in this particular litigation they didn’t reach it because they felt that the exclusive provisions of the Section 5 bother from going any further.

Now, I want to say in a few words that if the position of my friend is maintained in this Court that Section 5 of the Longshoreman’s Act doesn’t mean what it says and that a longshoreman is free to sue his ship owner, operator, stevedore employer for damages.

And of course the constitutionality of the Act is immediately cast into doubt.

The basis on which the Longshoremen’s Act, all Compensation Acts have been held to be constitutional is the quid pro quo.

Benjamin W. Yancey:

The employer gives up defenses.

The employer is liable without fault for stated amounts.

The employee gives up the right to sue but he in return back, he gets a fix amount.

In other words as the courts have said many, many times it was a quid pro quo.

And with no intention to be anything but deadly serious, what my friend is suggesting here is that Congress having given him the quid.

Now, this case should — this Court should give him the quo, and leave the employer with absolutely nothing under this Act.

And aside from the unconstitutionality of this position, I’m impressed by the fact that the position makes absolutely meaningless.

The third party provisions contained in Section 33 of the Act, Congress envisioned — envisaged the right to sue a third party and preserving that provided that if the employer pursues that right against the third party, the employer must account to the employee for anything over the recovery after reasonable attorney’s fees.

If the employee pursues the rights against the third party then if he settles without the employer’s permission, in other words, protecting the employer’s right in the suit against the third party then, the right to further compensation is lost.

Now, of course this position makes hash of those provisions.

We can’t sue ourselves.

The position really is that we are liable without fault under the Longshoremen’s Act.

We are liable without fault for unseaworthiness.

We are liable with fault for negligence and incidentally I reiterate this suite is based on negligence and we are liable under the Jones Act.

Of course, if the Court please, that the — well, my real point is that the Longshoreman and Harbor Workers’ Compensation Act is as between employer and employee exclusive and incidentally but a congressional intent.

Before I sit down, there’ve been one or two remarks in decisions by this Court about congressional intent.

In 1959, I mentioned that it in the brief, after this Court had decided Sieracki, after this Court had decided Ryan, the provisions of Section 33 for the third party practice were amended and liberalized and in the Senate report with the whole background to Sieracki and Ryan before it, in the Senate report, the reporters reiterate the exclusive feature of the Longshoremen’s Act as between employer and employee.

One final word, there’s an effort to split our personality into ship owner, stevedore employer that if the Court please in my humble judgment won’t wash.

When the Longshoremen’s Act was passed in 1927, it was known, as Jensen explained, it was known that many ship owners did their own stevedoring, so that the Longshoremen’s Act was passed in 1927 with this situation in focus.

Thank you, sir.

Earl Warren:

Mr. Maloney.

Charles R. Maloney:

Yes sir.

William J. Brennan, Jr.:

What — what about the pleadings?

Charles R. Maloney:

Sir?

William J. Brennan, Jr.:

What about the pleading point?

Charles R. Maloney:

I would suggest that the pleading covers and includes a claim for the warranty of seaworthiness and if it wouldn’t have we could’ve amended that specifically to cover anything that wouldn’t have.

In Louisiana pleadings, Article 1115 of our code — excuse me 1151 and 1153 of our code of procedure allows you to amend pleadings prior to answer or after answer by leave of court and any amendment goes back to the date of the original filling and likewise if our pleadings are defective with reference to qualifications of a personal representative, the proper court was the same court we were in to qualify her as an administratrix, if that had to be, if that’s what they would have required, we could’ve qualified the rest.

She’s the sole surviving wife that there is no other wife, she’s a lawful marriage.

There are no descendent children.

There are no mothers or fathers involved.

Charles R. Maloney:

She is the only one who was involved.

She could have qualified under any test as the personal representative.

Any method or manner that they wanted us to fix it up, we could have fix it, amended the pleadings and go back to the date of the original filling.

The case that was cited by Mr. Yancey in his brief, go to a trial, jury trials, judgments.

There’s been no jury trial, there has been no judgment.

If this is reverted back to the District Court I can still amend my pleadings.

If my pleadings had effect —

William J. Brennan, Jr.:

Well, is this correct that — I gather the point that the — that Mr. Yancey makes is that under Jones Act you have not — they’re properly pleaded a Jones Act claim because that will be pleaded in the death case only by a personal representative that Louisiana practices as I understood requires an allegation that indeed she is by virtue of appointment by such and such a court a personal representative and that although you knew this all along you’d never made an effort to qualify it.

Charles R. Maloney:

No.

No sir.

We don’t — we have very few Jones Act cases in Louisiana courts.

The Louisiana courts are not familiar with Jones Act cases, and we have no body of law built up with reference to what it is a personal representative.

There maybe some vague references to them in some of the cases.

We don’t have any great body but we do have a liberal pleading as far as amendments that you can have amend your pleadings and go back.

And we have a case specifically that was even reviewed by this Court.

So —

Potter Stewart:

Well, I gather what you’re saying is that for this effect, that you can still amend it, is that it?

Charles R. Maloney:

This could — this Court (Voice Overlap) —

Potter Stewart:

If this goes back, it’s not too late to amend it, that’s what you’re saying.

Charles R. Maloney:

Lanis versus Illinois Central Railroad Company.

This goes back in 1960, 140 Louisiana 1, 72 Southern 788.

It was a reviewed by this Court, 38 Supreme Court, 334, 246 U.S. 652.

In this particular case the widow sued under a state statute.

This is a F-E-L-A case and they allowed her, she stood in her own name and he allowed her to go back and amend her pleadings and come in as an administratrix.

They allowed that in federal court, they allowed that in state court.

Byron R. White:

Well, the state court didn’t dispose of the case on this ground.

Charles R. Maloney:

Sir?

Byron R. White:

State court didn’t dispose the case on this ground?

Charles R. Maloney:

The Court of Appeals —

Byron R. White:

They didn’t — they didn’t rule against you on this ground?

Charles R. Maloney:

The state court didn’t specifically rule on this particular point —

Byron R. White:

What about the pleadings point?

There would have been merit?

Charles R. Maloney:

No.

The Court of —

Byron R. White:

They would —

Charles R. Maloney:

— Court of Appeals based everything on —

Byron R. White:

The Longshoremen’s case?

Charles R. Maloney:

— on 905.

Every — in 905 throughout everything that’s it.

Or every question that was presented to him was thrown out at the exclusion cause on 905.

And that was the reason for everything, and that’s why we’re up here.

I’d like to say one — I don’t want go into the history of these.

But the Haverty case brought about the 1927 Amendment for the Longshoremen and Harbor Workers’ Act.

But it wasn’t to correct false in the Haverty case.

It was to correct lapse in the Haverty case.

The Haverty case would only apply to longshoremen who were employed direct as Luther Jackson was.

The great mass of longshoremen, at that time, was employed by independent contractors.

Therefore, the Jones Act was not available for them.

The Jones Act was no remedy for the great mass of a longshoreman at the time of Haverty.

It was satisfaction to the longshoreman in Haverty to be able to come to make a claim but not — for all the other ones.

So the 1927 Act for longshoreman corrected this and gave remedies to enlarge not to restrict.

Mr. Yancey would argue that the idea of the Longshoreman and Harbor Workers’ Act was to restrict, that I disagree.

The Babin case, he mentioned, was not a case of unseaworthiness.

The attorneys for both sides, plaintiff and defendant agreed that there was no unseaworthiness.

I don’t agree with their interpretation, but the attorneys by agreement and the court, all parties agreed there was no unseaworthiness involved.

So they tried it on negligence.

Therefore it wouldn’t stand for the proposition we have before us here.

Judge Putnam is an ex-state court judge.

He is now a federal court judge his opinion should be read.

Charles R. Maloney:

And there’s also the article that he refers to by (Inaudible) should be read in it.

That’s all I have to say, Your Honor.

Earl Warren:

Thank you.