Patterson v. United States

PETITIONER:Patterson
RESPONDENT:United States
LOCATION:U.S. District Court for the Southern District of New York

DOCKET NO.: 429
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 359 US 495 (1959)
ARGUED: Apr 21, 1959
DECIDED: May 18, 1959

Facts of the case

Question

Audio Transcription for Oral Argument – April 21, 1959 in Patterson v. United States

Earl Warren:

Number 429, James S. Patterson, General Administrator for Mobile County Alabama, et al, versus United States of America.

Mr. Rassner.

Jacob Rassner:

Mr. Chief Justice, Associate Justices, the Supreme Court.

I’m indebted to this Court for the privilege of coming here to present a problem which has played the merchant marine industry for many years with the hope that the expression by this Court may help us meet some of the problems which meet — meets our — our everyday lives not only those representing the seamen but also representing the shipowners and the U.S. Government.

Mindfully aware of the fact that this problem has been presented to this Court some 10 years ago in the Johansen and the Mendel cases.

But at that time, it seems that a reading of the cases and the opinions from the District Courts up including this Honorable nor these body’s reports on the various items that were considered that the problem was considered as separate, unilateral matters instead of taking the entire field, entire material, in determining where are we heading and are we adding confusion to turmoil?

We must consider the problem from its very beginning.

The United States Government when it first started to operate vessels did so solely for the purpose of creating a — an auxiliary to its defense.

But it went beyond that and went into business, the same as the man who was selling dresses on the corner store.

We are now concerned with the question of whether the Government having gone into the business of merchandizing or manufacturing shall receive special privileges over and beyond that accorded to the man next door.

If the Government opens the store on one corner, does the Government get special privilege over and beyond that of the man who is opening the same identical store on the adjourning corner?

And if this Court says yes, that’s the end of it.

And if this Court says no, that also was the end of it but at least we are entitled to know how this Court feels about it.

The Clarification Acts of Congress in dealing with these problems have seemed to add confusion rather than help us by —

Felix Frankfurter:

You don’t want us to take over their job, do you?

Jacob Rassner:

I certainly wish we could, the answer to Your Honor’s question is, yes, (Inaudible) which has mean nothing.

But I’m answering, Mr. Justice Frankfurter, your question directly, I wish you could.

At least, we get some — some idea of what is meant by the words of the English language as used to be so-called.

And I use the expression so-called advisedly Clarification Acts.

Now, where do we start?

With the United States Government first went into the business of the merchant marine back in 1916 with the Shipping Act pursuant to the provisions of which the Emergency Fleet Corporation was created then we had all the troubles that this Court was fully aware of where our vessels were seized and then we have the flag case where this Court held that an action in rem would lie against the vessels although the Government had not waived sovereign immunity.

Then we had the Public Vessels Act, the suits in Admiralty Act followed by the Public Vessels Act which took away the right to libel the vessels in rem but did create a new light, that is an action in personam against the government.

We went from there to various corporations, companies, and entities which were formed like the mechanical division of the Panama Canal.

Then we have the Inland Waterways Corporation, the War Shipping Administration, all makeshift means and methods of meeting sudden emergencies.

And all of these were created for a temporary time to meet an immediate need but never was it intended that the U.S. Government should go into the business permanently of being a merchant shipper.As these different entities were formed and then changed from one to the other, the mechanical division of the Panama Canal was taken over by the Panama Canal Corporation.

The Inland Waterways Corporation was taken over by the Department of Commerce in 1939.

The War Shipping Administration had — was ended and its functions were taken over by the Maritime Commission for liquidation and the Department of Commerce.

And as — they were changes from time to time, we have played their troubles.

Now, we didn’t know — we just don’t know where to go that’s why we’re here.

We want to know what — what are we to do?

Jacob Rassner:

Now, if a seamen as the U.S. Code States any man working on a ship of the Government is a seaman except an apprentice, if a seaman is to be judged by the scale that his work shall determine his rights then we’re entitled to bring our actions against the U.S. Government regardless under what name or in whose name the shipper is operating.

If the right sought to be judged by the title then before I can tell my perspective client, you’ll have a cause of action, I have to come down to Washington and endeavor the impossible, find out what kind of cargo was carried on the ship.

Now to me that seems a little ridiculous that the right a seamen should depend upon what is the number five hold and who knows what was there after that ship lands as a practical matter, nobody.

You just can’t find out what was carried in the number four and number five hold and what was that cargo?

And if that is to determine the right of the man to a cause of action then I for one certainly don’t see the justice of it.

This Court has expressed itself time and the gain that we are dealing with a practical proposition.

Congress has stated time and again that it wants seamen to be considered, as words of the Court, that they are entitled to have any doubtful issues resolved in their favor.

They have further expressed in every Act, that nothing contained in this Act shall affect their rights, of officers, of members, of the crew.

Now, we had some question come up on whether or not the 1949 Amendments of the Federal Employees Compensation Act changed the rights of seamen, of course not.

If they had any rights before they had them after and if they didn’t, they don’t have it after.

But that isn’t the basis of my being here.

It seems to me that insofar as the — when the Inland Waterways Corporation was formed, nothing was said about anybody working for the Inland Waterways Corporation or for a subcontractor or agent of the Corporation having any rights under the Federal Employees Compensation Act.

And the 1949 Amendment was — one of the purposes was to include employees of the Inland Waterways Corporation within the benefits of that Act, but they said not seamen, not members of the crew, indicating that legislature — with every a statute says that.

Every time Congress spoke it said, “But not seamen, not members of the crew.”

So when — when we have the Public Vessels Acts enacted that also gave us some confusion and some concern.

Now, this Court and the American Stevedore against Porella, stricken that problem out and said, “Well, it doesn’t matter that the Act does not specifically say that a seaman may — may or may not sue.”

Nothing was said in the Public Vessels Act and that time Mr. Justice Frankfurter, you didn’t seem to agree with our argument but since then I thought your expressions indicate that we’re dealing with the practical problem.

Felix Frankfurter:

I didn’t (Inaudible), I mean, the results, did it?

Jacob Rassner:

Well, you — you have — you have more than pleased that man interested in seamen’s right since then by telling us point blank, we’re entitled to the practical proposition that confront us, not theoretical.

We are not concern in whose name the title is.

We are concerned in what is the man doing.

Is he working as a seaman, therefore, shall he be governed by one standard and his brother be governed by another standard?

Now, when the Clarification Act was up for consideration by the 77th Congress and the General Counsel to the War Shipping Administration was asked for his opinion, he said if I can remember correctly, I think Mr. Colby has quoted it on page 27 of his brief, “Seamen constantly interchange from time charted vessels to deported and owned vessels where the personnel become employees of the Government.

The rights of seamen may does change from voyage to voyage dependent upon the particular status of the vessel at the time they sail.”

He mentioned the fact that this created many administrative problems and recommended that by reason of the interchanged ability of seamen and that is his expression this creates many administrative problems.

Felix Frankfurter:

Every — I mean these problems in this can either all of them if —

Jacob Rassner:

Yes, Your Honor.

It’s all in here.

It’s all —

Felix Frankfurter:

You’ve all considered the seamen beyond that?

Jacob Rassner:

Yes, no question about it.

Felix Frankfurter:

They’re all — the merchant vessel is owned by the United States.

Jacob Rassner:

No.

One is a — well, one is a public vessel.

That’s the Vallebona.

That was a tank boat.

Felix Frankfurter:

Public vessel in this (Voice Overlap) —

Jacob Rassner:

— which was owned —

Felix Frankfurter:

(Inaudible)

Jacob Rassner:

Yes.

Felix Frankfurter:

Then that’s not a problem because that’s — I supposed that will —

Jacob Rassner:

Well, I can — I certainly can ask you to revise yourself —

Felix Frankfurter:

Yes.

It have —

Jacob Rassner:

— whether you’ll do it or not is another story.

Felix Frankfurter:

I just want to know what — what it is we are taking in this —

Jacob Rassner:

Mr. Justice Frankfurter, I’ve never hedged.

Felix Frankfurter:

We had no — with no problem being with a seamen?

Jacob Rassner:

That’s right.

Felix Frankfurter:

They’re free, the merchant men which we have to decide again on public —

Jacob Rassner:

Well, frankly I can’t see the difference.

Felix Frankfurter:

Pardon me.

Jacob Rassner:

I — frankly, I can’t see the —

Felix Frankfurter:

Neither was Judge Hand.

Jacob Rassner:

That’s right.

And I’m not going to come here and try to get a victory on a technicality.

I don’t see the difference so I am asking —

Felix Frankfurter:

(Voice Overlap) — to reconsider your answer?

Jacob Rassner:

Precisely.

Felix Frankfurter:

All right.

Jacob Rassner:

I — and I’m not going to try and get a victory on the technicality in which I personally have no confidence.

I don’t see the difference and I care in what conscious argue that there is.

But I do feel that people should be judged but what they are doing and not by some type and not by what’s in the number five hold or the number four hold which you can find out.

Potter Stewart:

I don’t quite understand that Mr. Rassner, maybe I have — perhaps, I haven’t quite completely followed your argument but what — what’s this business of what’s in the number five hold —

Jacob Rassner:

Whether the vessel is privately the operator, operators of merchant vessel by the U.S. Government or operated as a public vessel, let’s say, carrying war supplies or soldiers.

And it said that Johansen and Mendel decisions have left that question open so that if we construe the decision in one court, we may find we are in court.

And we go next door, to Costa River to Jersey, we find a different situation.

Potter Stewart:

Well, it depends on —

Jacob Rassner:

The debate —

Potter Stewart:

— who’s operating the ship, doesn’t it?

Jacob Rassner:

No.

It depends on what’s in the hold according to these last decisions.

Potter Stewart:

Well, that’s what I didn’t follow.

Jacob Rassner:

Oh, it depends on what type of cargo the vessel is carrying whether it is a public vessel so that it may not be subject to suit if the Johansen and Mendel cases are affirmed.

Potter Stewart:

Whether it’s a public vessel or a merchant vessel —

Jacob Rassner:

Or a private seems to be the question.

Potter Stewart:

–or a merchant vessel operated by the government in both cases.

Jacob Rassner:

It seems to be that that seems to be the station left open in the — in those last two —

Potter Stewart:

But that’s a distinction that you at least don’t —

Jacob Rassner:

I can’t because —

Potter Stewart:

— think it has any validity at all.

Jacob Rassner:

I can’t see it.

Of course, it was one of my bases for coming here.

Potter Stewart:

Yes, I understand.

Jacob Rassner:

But, I can’t go ahead and urge that.

Potter Stewart:

That’s the distinction that the Eight Circuit saw.

Jacob Rassner:

Yes.

Potter Stewart:

That the Second Circuit could not see.

Jacob Rassner:

That’s right.

And I don’t see it and I’m not going to say I do.

Potter Stewart:

I understand that.

Jacob Rassner:

But I do think it’s about time that we went along but didn’t what the concept of this Court that we are dealing with the realistic problem.

Are these men who are one day working for the Government on a government owned ship and many of time they don’t even know who owns the ship.

They go to work.

They go aboard the ship and they’re injured.

His brother goes to work on a ship in the next pier.

He get — meets with the same accident, he collects four and five times as much.

As a matter of fact, you can’t collect for pain and suffering under the Compensation Act.

You can’t collect for your wages.

You only get a fraction.

You can’t collect for permanency.

You just don’t get it.

In other words, a seaman working for one owner whether it’s a corporation created by the U.S. Government and this Court has stated time and again that the corporations which are formed by the Government are to be treated as separate entities and also all those Emergency Fleet Corporations cases.

They’re supposed to be treated as separate entities and even there, the question came up, are the question of in rem actions and this Court has held consistently.

That was the need for the 1920 Act, the Suits in Admiralty Act because vessels are being seized and they held that this was a method where the corporations were separate entities and not the Government, now we are faced with a different situation.

In other words, we don’t know what the answer is, so we’re here.

We’d like you gentlemen, there’s nine of you, tell us poor fellows what are we up against?

Are we suppose to find out what’s in the hold and then come in on a technicality as the Doyle Inland Waterways case and say, “Well, they were carrying a general cargo.”

Are we to consider the title?

Look up and see who’s got the title before we tell a man you may have a cause of action or not.

Are we suppose to find out whether the government is operating under a company formed by the government or under a situation where a corporation has been formed by — by the Government?

I’d like to — and I wouldn’t want to take any more time of the Court.

This is a — a rather difficult problem.

I’ve tried to brief it as best I could in the brief and I’ve tried to give us much aid to the Court as I put on my research.

I know I’ve fallen for short of what would be expected.

Mr. Colby has done likewise.

I believe he has added a great deal of information and knowledge particularly in his footnotes to the problem so that if both briefs are considered, I believe the Court will get some aid and some assistance as to the problem that is confronting us.

I would like to conclude with these remarks again thanking the Court for the privilege of being here, the opportunity to express myself.

I’ve tried to give it to you as candidly as I can.

We are faced with a difficult problem that seems to me that justice in accordance with the expression of Congress requires that we show that a man as a seaman and if he is a seaman that he is entitled to redress under the most liberal laws enacted by Congress rather by a very strict application going back to 1916 when we didn’t have the government operating ships.

Jacob Rassner:

In other words, in 1916, Congress never considered this problem.

It didn’t exist.

The government did not have ships that was not in business as a merchant marine operator.

So that to go back to a time beyond when this country was operating ships as a merchant marine business and applied the 1916 law to conditions which became present later, I think is carrying it a little too far and I believe that this Court in considering the question should be — should construe these enabling acts and these remedial acts in a liberal manner the same it was done in the Canadian Aviation case and in the American Stevedore against Porella.

I want to thank the Court for the indulgence it shown me and the time.

Potter Stewart:

Mr. Rassner, just before you sit down.

Jacob Rassner:

Yes sir.

Potter Stewart:

We’re reflecting your very admirable candor.

Am I correct in understanding that you’re asking us to overrule the Johansen case?

Jacob Rassner:

Yes sir.

Potter Stewart:

Yes.

Earl Warren:

Mr. Colby.

Leavenworth Colby:

Mr. Chief Justice, may it please the Court.

These five cases involved five seamen employees of the United States of the particular kind of seamen employees of the United States whom Congress have seen fit to leave within the coverage of the Federal Employees’ Compensation Act.

So, that all of these men are entitled to receive Federal Employees Compensation or their widows in the event of a death.

Of the five cases, two cases, Patterson and Vallebuona are cases where compensation has been collected.

The other three cases are cases in which no application for compensation has been made but the 1949 amendments provide that in the event that these cases are decided adversely to the contention of the seamen that he has a right to sue.

He can then make his claim for compensation and have this compensation claim considered.

Now, as Mr. Rassner has said —

Felix Frankfurter:

May I — may I interrupt Mr. Colby, what was — was there any explicit explanation for — for that provision that you just stated, or the case they had fail in other remedies?

Leavenworth Colby:

Yes.

As Your Honors know, this question that we have here before us today is being mooted for the fourth time.

It is the second time that it has been mooted in this Court and twice before it was mooted in Congress.

It was before Congress at the time of the Clarification Act of 1943 as I recall Mr. Rassner and I both had a small part in that affair.

It was mooted again at the time of the Compensation Amendments of 1949.

And this particular provision of 1949 that saves the man’s rights to claim compensation after they have lost their right to suit, if the Court decides against them, was inserted because of a floor amendment in the Senate after the bill had passed the House.

The situation there was this.

The Compensation Act was being revised and somewhat liberalized and representatives of certain of the seamen’s groups came and wanted to have themselves excluded because Congress was of course unwilling to give them both compensation and also to give them the right to suit.

So some of the seamen wanted to be excluded from the coverage of the Compensation Act and have just the rights to sue.

That is what had been done at the occasion of the Clarification Act in 1943 with respect to the War Shipping Administration seamen during the war.

Leavenworth Colby:

Your Honors we’ll recall that during the wartime operations, we had over 200 thousand seamen.

We took over that whole — of the merchant marine and as Mr. Rassner says and as it shows in the brief, everybody said these fellows were going interchangeably.

Now, that has nothing to do of course with this problem.

That had been disposed off by the Clarification Act of 1943.

These men working on commercial type vessels of the United States had been under that regime.

They are still under that regime although they are only a few thousand of them now because the Maritime Administration as successor to the War Shipping Administration has very little.

Now, those people had been taken care of.

They had been assimilated to private seamen.

They had been excluded by Congress from the benefits of the Compensation Act.

When the 1949 Compensation Amendments came forward, the same controversy broke out, what is to be the seamen’s right?

Now, just as in 1943, the Government seamen other than those on these commercial operations remained under the Federal Employees’ Compensation Act.

So, in 1949, Congress took the position that they would not without hearings take away the compensation right of the large numbers of regular government seamen.

And so we had this provision writtedn into the Act to take care of the possibility that the regular government seamen —

Felix Frankfurter:

What does that mean Mr. Colby?

Leavenworth Colby:

The regular government seamen?

Well, it’s a very difficult problem to talk about government seamen.

The regular government seamen I suppose in the largest number are the seamen of the Department of Justice and the seamen of the Department of Agriculture and the seamen of the Department of the Interior and all these other agencies.

Remember if Your Honor please, everybody who works aboard of vessel is a seaman.

Now, the Immigration and Naturalization Service has patrol boats.

The Coast and Geodetic Service has patrol boats.

The Immigration and Naturalization Service has ferry boats, I think they still do.

They used to have quite a big one that went out to Government — to —

Felix Frankfurter:

Ellis Island.

Leavenworth Colby:

Ellis Island.

William J. Brennan, Jr.:

Are these largely covered under the Civil Service Law?

Leavenworth Colby:

Well, if Your Honor please, they are excepted positions in the Civil Service.

In other words, the regime for government seamen is to assimilate them in pay in other respects to private seamen but they are under the Federal Employees’ Compensation Act.

Now, Congress in its wisdom —

William J. Brennan, Jr.:

Well, what I’m trying to get at is, do they have certain Civil Service Law benefit by reason of their government service?

Leavenworth Colby:

Well, if Your Honor please, if you mean by Civil Service Law benefits, matters of status and things like that, no, but neither do I.

Leavenworth Colby:

In other words, I’m in an excepted position just the same as the seaman is.

I’m in a classified position so that my pay is regulated that way whereas the government seamen’s pay is regulated according to the pay scale of the industry.

In other words, every time the NMU passes a contract with the employers upping the wage for private seamen, the Government seamen’s wages go up too.

And these are the numerically large crew.

William J. Brennan, Jr.:

Well, how about the protections against discharge in discipline, and all that sort of things, are those from the Civil Service Law defined?

Leavenworth Colby:

I think you can say in general that they don’t.

William J. Brennan, Jr.:

Do not?

Leavenworth Colby:

They are in excepted positions just like attorneys are in excepted positions and most of this kind of thing doesn’t apply, some of it does.

It’s a very difficult question.

I might say I think I –I have no right to talk about it.

I think that many of these government seamen are subject to various veterans’ preference and appeal rights of that sort, but this is a terribly difficult question.

This is a matter which makes Mr. Rassner’s problem about whether the seamen who has a clear right to compensation might also be able to sue for negligence.

It pale’s in — in significance along side of these questions of Civil Service Rights.

But these men are of course in the larger sense, Civil Service employees, an expression which means merely that they are civilian employees.

They are not in the military service.

They are in the civil end of the business.

Now as I say, this is the big group.

Then there’s a large group of those who serve on the army tugs and army barges at the ports of embarkation.

Now, these seamen are engaged in the handling of cargo for the military departments.

They take it from the railhead and they take it over to the army base and they take it over to a vessel which may be government or maybe private and it goes ahead.

Now, as Mr. Rassner says, if there’s cargo that consist of defendant’s property — a dependents’ property aboard one of those barges being moved by a tugboat then the contention is made at any rate that — that vessel is subject to the suits in Admiralty Act and not a subject to the Public Vessels Act because the cargo aboard is not exclusively governmental cargo.

There is property of dependents and so forth.

These are — are very difficult concepts as my Brother says.

Now, if the question of jurisdiction is to be made to depend on what the cargo is aboard, you have no end of difficulty.

In many instances you don’t know a year or two later when a man tries to bring a suit, you wouldn’t know what the cargo was aboard.

On large military types, the cargo manifest is probably confidential.

Commonly, we admit that all of these things are employed as merchant vessels because we don’t know that it makes any difference and you can’t say that it isn’t.

But these are the controversies here that Mr. Rassner is talking about.

And that is why we believe that the correct reading of this Court’s opinion in Johansen was that if the vessel was a publically operated vessel, a public vessel in that sense so that the seamen were — of the class who are entitled to Federal Employees’ Compensation then it was their exclusive remedy.

That is consistent what — with what this Court held in the Feres case with respect to military benefits and what has been done about compensation for the police by the District of Columbia Court, a certiorari denied in Louis and what has been done for post-exchange employees of the Government in the Audrey case, which I believe is again certiorari denied from the District of Columbia.

Leavenworth Colby:

In other words, if the man gets compensation, why then he has no right of suit but as the —

Felix Frankfurter:

He gets compensation for claiming which?

Leavenworth Colby:

Well, I mean of course, if he is entitled to claim it.

Felix Frankfurter:

Entitled?

Leavenworth Colby:

Is he — if he is covered by —

Felix Frankfurter:

(Voice Overlap) — if he — if he’s covered.

That’s what you mean.

Leavenworth Colby:

Now, —

Potter Stewart:

Well, I — I understand then that you and Mr. Rassner do not differ in your reading of the Johansen case, is that your understanding?

Leavenworth Colby:

Oh, I would hesitate to say —

Potter Stewart:

Well, I’d say —

Leavenworth Colby:

— say that, I mean —

Potter Stewart:

— I mean, to speak for him of course but —

Leavenworth Colby:

He says yes.

At any rate, let us say this that any attempt to distinguish whether between a publicly operated vessel which has a military cargo aboard and a publically operated vessel which has some private cargo aboard is white list.

We had a delightful time with Mr. Freedman who was a counsel for Mendel in the Johansen and Mendel cases over a — army engineer corps barge dredging the Delaware River up in Philadelphia.

He contended that of course dredging was a private operation.

So therefore, the army engineer’s dredge which was dredging the river was engaged in a commercial function.

It was employed as a merchant vessel.

And he introduced testimony to show that on the same job, the army engineers had to contract barges hired from private contractors and they had one of their own with the Civil Service crew.

And he said they are all the same.

The Third Circuit wouldn’t buy it.

They seem to think that the question again was if it was publically operated probably it was a public vessel.

We refer in our brief to the cases in this Court on this doctrine that whatever is done for the public is a public vessel.

That is at the bottom of page 14 here, the Berizzi Brothers against the Pesaro and Navemar and Ex parte Peru merely holding in line with I guess its graves ex rel — well, Graves against the State of New York that when the public does something that it’s a public operation.

Now, to this extent apparently then, we are in accord with Mr. Rassner on the question.

Now on this question of chain circumstances, the only chain circumstance basically is that all these type of operation has declined the great deal.

We had 200,000 WSA seamen who are not under this regime at all.

That’s cut down to a few thousand now.

We use to have this Inland Waterways Corporation which had 500 seamen and it sold all its vessels in 1953, so it’s out of business and these are the last cases.

Leavenworth Colby:

It’s Hays, Sullivan, and Duncan here, they are the last cases.

There were two others brought I believe and we lost those and we didn’t take an appeal.

In Mr. Rassner’s brief, it has spoken about how much more favorable the right of suit would have been and the recover — the — where Mr. Cullen recovered the $85,000 in the compensation remedy.

This is of course rather amusing to me because the Bureau of Employees’ Compensation didn’t want the case appealed because they said the value of the man’s compensation rights are around $175,000.

So they were happy that he should get $85,000.

The significance of the thing again is that of course the figure that appears in the law reports was the minimum that he was entitled to before he made his claim.

And perhaps I should at this point explain that the Federal Employees’ Compensation Act is not the same kind of a small payment act that the Longshoremen’s Act is.

The Federal Employees’ Compensation Act has a maximum yearly payment of $7200 a year.

In other words, that’s as follows.

If command needs an attendant, he may be awarded $75 a month for that purpose and Mr. Cullen by the way could have had such an award made to him.

Then, there is the maximum compensation generally which is $6300 a year or $525 a month or a $125 a week if you like to figure your four and a third weeks down.

Now, this is a very different thing than the prices under the Longshoremen’s Act.

And as Mr. Rassner has pointed out, seamen are high priced men but that also works that they are high priced men from the standpoint of compensation.

Your Honors must understand that of the 25 attorneys on the Admiralty Staff of the Government, 20 approximately do not make as much money as a — as the average seaman makes.

So consequently, we have the situation of seaman who make of course nine to $12,000 a year and they are in the upper brackets on this compensation business.

Now, my Brother has said in his brief that it’s a dreadful thing that the laws of a — of a arm is valued at only 312 weeks compensation.

But 312 weeks compensation of the $125 a week as I recall is $39,000.

And remember, he hasn’t had to pay any attorney at a rate of 25% to 55% to get it.

So, we feel that $39,000 for that arm corresponds almost to $75,000 recovered under the Jones Act in a private case.

So, this is not a discrimination unfavorable to the seamen.

It is a discrimination by Congress.

Congress and its wisdom has said certain seamen aren’t to be under the Federal Employees’ Compensation Act.

Certain other seamen to wit the War Shipping Administration Seamen, the Maritime Commission Seamen are excluded from the Compensation Act and are given the same rights as private seamen to sue the Government under the Jones Act for unseaworthiness for maintenance and cure.

Now —

Felix Frankfurter:

Is that — if that’s what — I’m sorry to interrupt you.

That’s what Judge Hand referred to in a seaman that’s not subject to the implication arising from the expressed grant of relief —

Leavenworth Colby:

Yes, sir.

Felix Frankfurter:

— to employees of the ship — War Shipping Board, that’s what he’s referring to, is it?

Leavenworth Colby:

Yes, sir.

That arises in Patterson because Patterson — Doody, the man who was killed in the Patterson case, Doody was an employee of the mechanical division of the Panama Canal.

Leavenworth Colby:

In other words, he was a shipyard man from the — a ship repairman from the Panama Canal Company.

And he came aboard a War Shipping Administration vessel back 1945 and was killed in the course of his duties.

He was of course in some sense a shore side employee.

But under Section 713 of Title 46 of the United States Code, everybody who works aboard a vessel is a seaman.

So, if compensation had not been missed to duties exclusive remedy, he would have been able to sue the Government under the Jones Act just like any other seamen for negligence.

That of course is what this Court held in the Imbrovek and Haverty and Uravic against Jarka, I believe were the three cases.

So consequently, the Patterson case presented the question of whether it made any difference that Doody, when injured on the War Shipping Administration vessel in 1945 was an employee of the Panama Canal as opposed to an employee of the War Shipping Administration.

And of course the answer is yes, as the War Shipping Administration employee would have been excluded from compensation and would have of course had a right to suit.

Being an employee of the Panama Canal Company, he was entitled the compensation and was not entitled to sue.

Felix Frankfurter:

Well, what is the man in an ambiguous situation so that legally speaking, he definitely know (Inaudible) could find out of what agencies and employee?

Leavenworth Colby:

I don’t think there’s the slightest bit of difficulty Mr. Justice.

I — I had the greatest trouble in thinking that these fellows and the — the regular government seamen have any such difficulty.

A man who goes to work and he’s hired through the army base by a bunch of fellows who wear those uniforms you know, he knows pretty well that he is working for the United States and he doesn’t confuse an army tug or an army barge with a private tug or a private barge.

And a man who works on a ferryboat run by the Immigration Service of the Department of Justice, I don’t think that he probably is in much doubt either.

And when you come to the 500 seamen of the Inland Waterways Corporation, I think they were perhaps the least because that corporation carefully posted up aboard all of its vessels scheduled about the Federal Employees’ Compensation Act how the employees were under that and that you’re an employee of the United States and so forth.

That is perhaps one of the reasons why we had only five or six cases involving the Inland Waterways seamen even though there were 500 a year of them from 1916 or whenever it was that IWC was organized down to its sale of its vessels in 1953.

So I — I think that’s greatly exaggerated.

There maybe a few seamen who don’t know who they’re working for.

But it keeps turning up if Your Honors please.

When you sign your payroll, it’s in there, thing at the top about how you take an oath that you haven’t supported the communist or something.

I don’t know that — there’s all these stuffs sticks on it.

The idea that a man doesn’t know he is working for the Government is of course quite inconceivable to me because the Government won’t let you forget it.

And this is just as true — [Laughter] — this is just as true — this is just as true if you’re a seaman as if you’re an attorney.

They — things are just not private employment.

Now, Mr. Rassner is perfectly correct about the War Shipping Administration of people back there in 1943 when we passed the Clarification Act.

But of course it’s only fair to give the devil its due.

One the reasons that passed the Clarification Act and excluded the man from compensation was they thought it was cheaper to put them under the Jones Act negligence.

We cut that part out in our brief where the quotation appears.

We — we thought that was sort of intruding —

William J. Brennan, Jr.:

Well, in any event Mr. Colby, did you tell us earlier that if one mistake is granted and sue rather than seeking compensation.

William J. Brennan, Jr.:

Nevertheless under this 1949 Amendment that he is protected in his right to compensation?

Leavenworth Colby:

Well now, I wouldn’t want you to think that Mr. Justice because that’s true with this — respect to this man in this law suit.

I am not so sure it is for the future.

That was a transitory provision and it may not go on for the future.

I — I don’t think however that there are probably any noticeable number of cases of people who are getting caught.

And in addition, there is this which probably renders all of this academic ordinarily.

The Federal Employees’ Compensation Act authorizes the bureau to consider a claim within five years even though no notice of claim has been given.

Now, of course, this is a very exceptional case.

As you understand Mr. Doody was killed in 1945, Mr. Rassner brought this suit in 1947, the Government answered 1948 and it goes along like that.

I think the youngest of these cases as you might imagine from the fact that they involved Inland Waterways Corporation, the injuries were in 1951or 1952, somewhere along in that.

At any rate, we do not think that that is a troublesome matter.

Felix Frankfurter:

As to these — as to the case and actually before the Court, your answer is unequivocal that they are covered.

Leavenworth Colby:

That’s right.

They were covered.

Felix Frankfurter:

And as to the future, except if they’re outside of the five years span, any decision this Court may make will take care of that.

Leavenworth Colby:

Will take care of them.

Because I think really that there is anywhere near this amount of confusion about a man telling whether he’s working for the United States as said — said.

Now, as I say that War Shipping Administration situation was quite different because there were wartime secrecy on it and you sent a man from the hiring hall down to report to a master aboard a ship, appears, something or other and he went down and they put him on and that was that.

He might very well not know who was running the ship.

Hugo L. Black:

(Inaudible)

Leavenworth Colby:

Well —

Hugo L. Black:

— that’s right under the Compensation Act?

Leavenworth Colby:

Ordinarily, his superior who of course has to make a report on this on the form CA2 gives him a form CA1 and says, “Will you fill this out or shall I send it in?”

In other words, this is the man’s superior on — on the ship or if he is in the shore side manning pool and the personnel people ashore.

Felix Frankfurter:

Mr. Colby, so long since I’ve been in the Government service, what is CA1 or CA — what are these cabalistic —

Leavenworth Colby:

These are those — those lovely governmental things.

These are the symbols of the Bureau of Employees compensation forms.

And —

Felix Frankfurter:

(Inaudible)

Leavenworth Colby:

We — we have had those —

Felix Frankfurter:

Are we — hold on, I’m still in the Government service but I mean —

Leavenworth Colby:

That is correct Mr. Justice, if you — if you wanted to — if someone wanted to make a claim for your burial expenses, I believe you are entitled to — your estate is entitled — excuse me to —

Felix Frankfurter:

(Inaudible)

Leavenworth Colby:

— $400 dollars on application on a form CA42.

And I asked that question if they supplied the judiciary because I understand it does.

Felix Frankfurter:

[Laughter]

Leavenworth Colby:

Now, Mr. Rassner has talked about this test of knowing what the man’s employment is.

Seamen are not the only group that present that problem.

We have the same problem with respect to the railroad workers which are probably a larger group.

We have 1450 men working for the Alaska Railroad and approximately 500 men working for the Panama Railroad.

Now, they’re under the Federal Employees’ Compensation Act.

There has never been any doubt on the part of any of the lower courts that these people may not sue under the Federal Employers’ Liability Act and the Tort Claims Act.

Three or four of them sue every year but the District Courts usually have dismissed them without any opinion.

But that’s exactly the same kind of thing if you’re going to try to make the test what the man does as opposed to the fact that he is employed by the Government.

On the same principle, I would think that maybe some distinctions could be drawn with respect to doctors who work for the government and lawyers who work for the Government that might not be good but they could be drawn.

I’m sorry not to have presented a more coherent argument.

I had endeavored to organize one but perhaps by answering the questions as they came along I have been as helpful.

If there are no other questions then thank you.

Earl Warren:

Mr. Rassner.

Jacob Rassner:

I was wondering if solely in the interest of the savings some work for the Court, if I could point out some of the matters that Mr. Colby and I are in accord and then show where it stems from.

We’ve done it rather briefly.

I thought perhaps a little more detail might aid the Court and the Court is so disposed, if the Court would give me, say five or 10 days.

Earl Warren:

Yes.

Go right in.

Jacob Rassner:

It might be helpful.

We’ve tried to cover it but we — we haven’t gone quite with (Inaudible) voluminous that perhaps we can agree on some of the items.

I noticed that Mr. Colby in his brief has agreed with some of my views and I certainly agree with some of his.

In other words, we are here seeking for aid, we’re both seeking aid.

So if the Court would give me the privileges of submitting a short five or six page.

Earl Warren:

Go right ahead.

Jacob Rassner:

Thank you.

May I have five days or 10 days?

Earl Warren:

Yes, go right ahead.

Jacob Rassner:

Well, I thought I’d submit it in writing to the Court.

Earl Warren:

Oh, in writing?

Jacob Rassner:

Yes.

Earl Warren:

Well, that’s all right.

Yes.

You may do that.

Jacob Rassner:

I suppose I think I could do —

Earl Warren:

You may respond if you wish Mr. Colby.

Jacob Rassner:

I — I could probably do in five or 10 pages where it would take me two hours.

Earl Warren:

Yes.

But I understood you say minutes and so I said go right —

Jacob Rassner:

Oh, I’m — I’m awfully sorry, Your Honor.

Earl Warren:

I said go right ahead.

Jacob Rassner:

No, I don’t like to impose on the Court.

Earl Warren:

Yes.

Jacob Rassner:

We can’t do justice to as difficult a problem as this —

Earl Warren:

Correct.

Jacob Rassner:

— by just taking up the time of the Court with oral discussion.

I’d rather point out in writing just where we stand so we can have the aid of the Court in telling us, where do we go from here?

Earl Warren:

Yes.

Well, that may be help — very helpful to us.

Jacob Rassner:

Thank you.

Earl Warren:

You may do that?

Jacob Rassner:

May I have 10 days on that?

Earl Warren:

Yes.

Jacob Rassner:

Thank you sir.

Earl Warren:

We’ll adjourn.