Rodriguez v. Compass Shipping Company

RESPONDENT:Compass Shipping Company
LOCATION:Home of George Summers

DOCKET NO.: 79-1977
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 451 US 596 (1981)
ARGUED: Jan 12, 1981
DECIDED: May 18, 1981

Francis X. Byrn – for respondents
Joseph T. Stearns – for respondents
Martin Lassoff – for petitioners

Facts of the case


Audio Transcription for Oral Argument – January 12, 1981 in Rodriguez v. Compass Shipping Company

Warren E. Burger:

Thank you gentlemen.

The case is submitted.

We’ll hear arguments next in Rodriguez and others against Compass Shipment Company.

Counsel, you may proceed whenever you are ready.

Martin Lassoff:

Yes, Your Honor.

Warren E. Burger:

Mr. Lassoff.

Martin Lassoff:

Mr. Chief Justice and may it please the Court.

This is an appeal brought as a result of a conflict in the interpretation of part of a federal — federal statute.

The conflict arises in the application of Section 933 (b) of an Act known as the Longshoremen’s and Harbor Workers’ Act.

This Act was last amended by Congress in 1972 at which time Section 933 (b) was not amended.

Section 933 (b) was last amended in 1959 at which time it was amended to give the longshoreman an additional six months period to sue from the date of a formal award in compensation.

William H. Rehnquist:

Mr. Lassoff, might I interrupt your preliminary — preliminary there.

I noticed that there are these — there are three cases consolidated here and that in the Rodriguez case as opposed to the other two, there was a — an order filed and in the other two there were none.

Does that have any bearing on the outcome in your view?

Martin Lassoff:

It does but this was not one of the points I was given certiorari on.

It is our — it is our view in all three of these cases, there was never an order which triggered this mechanism, but that was not one of the points that we were given certiorari on.

The American Association of Trial Lawyers have raised that in their brief, but we didn’t raise it in our brief for today.

William H. Rehnquist:

It’s not before us?

Martin Lassoff:

It’s not before you.

The point involved is who was this statute designed to protect?

Going back to the original basis in law, at one point, a longshoreman had to elect before the first payment of compensation whether or not he could sue a third party because if he accepted one payment of compensation, his rights to sue were assigned absolutely to his employer.

That changed until he was given the right to accept compensation short of an award.

If he, out of the words, if there was voluntary payment of compensation for a man who was out for six months and the employer voluntary pay that money, that would not give the case to his employer.

But if there was a hearing at which permanency was decided, and an order was entered, that order gave the case to the man’s employer.

In 1957 I believe, this Court decided Blazey Czaplicki case which said that conflict of interest and Blazey Czaplicki was a very strong conflict of interest case.

The insurance carrier represented both parties to the litigation.

Therefore in 1959, Congress amended this Act and said, “You can keep your case Mr. Longshoreman until such a point as six months after a formal award because we have several interest here.

All of this is based on a quid pro quo between the longshoreman and the employer.

Nowhere is the shipping company or the shipping corporations mentioned they do not belong in the statute and they have never been mentioned until 1972 when an additional part of the statute was added called Section 905 (d).

What — what was the intent?

Martin Lassoff:

All right.

After — after the enactment of this Act by Congress — by judicial law, certain things apply.

Prior, there was a Sieracki case, the Court gave longshoreman the right to sue vessels for a violation of the doctrine of seaworthiness.

Subsequent, the Ryan case gave the ship companies the right to sue the employer for — on a contract basis for actual or implied warranties of workmanlike performance.

So the issue was sort of dead because any employer of maritime labor obviously had a conflict of interest between the employee and the fact that they would immediately be brought into the action by the shipowner.

Notwithstanding that, there were several cases in that period, the Potomac Electric Power Company case and McClendon against Charente which interpreted the meaning of Section 933 (b).

Both of these cases say and certainly PEPCO in clear language say that any time there is a failure by the employer or the persons subrogated to the employee’s rights to sue, then that case should go back to the employee and that it is not up to the employee to prove a conflict of interest with his employer.

In 1972 as stated, there was sort of a political arrangement made between the stevedoring companies and the laborer suppliers.

The political arrangement was that in exchange for a substantial increase in benefits, the longshoreman would have certain judicially created rights taken away from them.

They would have the right of a doctrine of seaworthiness taken away from them.

The shipowner, in exchange for that benefit, would have taken away from it the judicialliated — judicially created application of Ryan.

William H. Rehnquist:

Will this political compromise that you referred that took place in 1972 had the full participation of the longshoreman workers union, did it not?

Martin Lassoff:

It had participation of the long — of the Maritime Unions, non-sea — not non-sea unions and of the stevedores.

The shipping companies had no part in this arrangement at all.

It was strictly the longshoreman, the shipper carriers, the stevedoring companies.

This was not really a bill that was participated in or abetted by shipping interest.

This was strictly stevedoring interest and I’m not sure that the longshore unions were aware of what was happening because in 1972, there was no application of a six-month assignment because quite clearly, Congress, being in this Circuit and PEPCO which is a DC case and the District of Columbia Workers which are covered by this very Act, since the Act is silent about the intent of this section, it must be assumed that Congress believed the law to be as it was in Potomac Electric Power.

And that is there was no assignment or if there was, it would revest if for any reason the right to bring this action did — was not undertaken properly.

In Czaplicki, the Court talks about a trustee situation which they didn’t feel necessary.

Mr. Justice Frankfurter did think it necessary but it wasn’t done.

We have certain equitable proceedings here.

The only interest that the shipowner has in this litigation at all is that he’d be sued by the real party in interest, one lawsuit.

There has not been more than one lawsuit brought since 1972, since the decisions in Rodriguez, since decisions in the Caldwell against Ogden Steamship Company, since the Bandy cases, no stevedoring company has brought a lawsuit to enforce its statutory lien.

We have been successful under the decision in Rodriguez which indicated that ratification was a measure where companies were willing to cooperate to get certain insurance companies, not stevedoring companies, but insurance companies of stevedores to ratify the longshoreman’s course of action.

The one time we tried the suggestion in Caldwell which was involuntary joinder, that was against the company called International Terminal Operating Company, their attorney’s opposed the involuntary joinder and was denied.

But the fact is that no stevedoring company that I know of anywhere has ever sued a ship to assert the claims of the injured employee and the decision that a longshoreman can prove a conflict of interest which is so apparent on the face, never happened without means of extra protection, it doesn’t make sense to me, Your Honor.

Byron R. White:

Only — of course it could be that — I mean logically it could be that the injured longshoreman has always sued.

Martin Lassoff:

Not quite Your Honor as you can see this appeal —

Byron R. White:

Well, logically — I know.

Logically, it could be but here’s one case where it didn’t happen.

Martin Lassoff:

There were at least 10 cases here Your Honor.

There are five in Virginia or three and five here — all in this one appeal.

Byron R. White:

Well I would suppose the vast majority of the cases, the longshoreman himself would sue?

Martin Lassoff:

Yes, yes, but there are hundreds of cases affected by this particular.

There are hundreds of cases in the District Court now which are on a so-called suspense calendar because of this — the — this particular case.

Potter Stewart:

Why as a matter of practical fact doesn’t the longshoreman sue in the six months period given to him?

Martin Lassoff:

Ordinarily he does.

There are problems when you are dealing with foreign flag steamship companies as 92% of the — of the ships coming to the United States are.

They are difficulty in locating the company.

We can start an action by mail, but if we do not perfect service, the courts dismiss these actions so that to say that it is easy to start these actions within six months of an award is usually so but not always so.

Warren E. Burger:

Congress could do or put it this way, could Congress correct that and make some of their form of service possible so that it would eliminate the problem?

Martin Lassoff:

Congress could do many things.

Congress could compel these shipowners to post a bond of insurance on their coming here.

Warren E. Burger:

Or using an agent for service?

Martin Lassoff:

Yes or an agent to service.

None of these things had worked at the time.

Potter Stewart:

Well, could enlarge the time beyond six months, make it a year, 18 months, two years?

Martin Lassoff:

The question is — is not a period of time.The question is what is the intent of Congress?

Potter Stewart:

Well, it could do that.

Martin Lassoff:

Every bill — every bill says safety — this is hazardous occupation, eight times the national rate, four times the national rate.

Every bill says that.

How is it protecting the rights of this longshoreman by saying that if the employer does not sue, a party not intended to be benefit the negligent tortfeasor has an absolute indemnity from suit.

The stevedoring company is wasting its assets which are intended to be used for the protection of longshoreman and we all —

William H. Rehnquist:

Does the — the stevedoring companies assets are intended to be used for the benefit of longshoreman?

I would have thought if it were a corporation, its assets were probably to be used for the benefit of the stockholders.

Martin Lassoff:

That is true.

But the statute says that since this is such a hazardous occupation, the only way we know of is to make the employer responsible.

We want these benefits to be substantially increased and we don’t want the employer to waste its benefits by not collecting them.

That is what would happen here.

If the employer does not sue because of a business reason and I have said they’ve never sued, they are wasting assets that probably belong to the longshoreman who has 80% interest in the remainder of the case.

William H. Rehnquist:

And who has six months in which to assert it?

Martin Lassoff:

He has six months in which to assert it, but the question is equitably, equitably does the purpose of the statute, is it — is it perfected by giving a negligent tortfeasor a right that it was never intended to have?

William H. Rehnquist:

What do you say to — to the — any statute of limitations argument in a situation like this? These are —

Martin Lassoff:

I say —

William H. Rehnquist:

There must come a period of repose where past things that have not been litigated can no longer be litigated?

Martin Lassoff:

I have no objection to a statute of limitations.

There is a statute of limitations.

This is not the statute of limitation.

William H. Rehnquist:

But it is the same type of principle?

Martin Lassoff:

It isn’t because every lawyer practicing in this field knew of the various statutes of limitations.

As Your Honor pointed out to me, not yourself, nobody knew that this Act could be triggered by an informal agreement of a claims examiner when the statute specifically said that it had to be the deputy commissioner or the Board.

This is the problem.

We are making a — a statute of limitations out of an assignment.

The assignment wasn’t intended to hurt the employee, it was intended according to law to give the cause of action to the employer who had better assets to pursue it.

I don’t believe that but that was what Congress specifically stated.

Now, what is the actual fact?

The actual fact is that employers may not choose to do this, one for fear of antagonizing their customers, bad business or two, their lawyers do not work the way plaintiff’s lawyers do on a contingency basis.

They would expect to be paid whether they won or lost.

And I say to you that the best person to have these rights is the plaintiff’s lawyer, the plaintiff, the injured worker.

If he has a right, let him have the right that he always had, the statute of limitations.

If an employer refuses to sue and we can give the employer the right to sue.

We can send him a registered letter, if you don’t sue, we’re going to sue.

That protects the employer, does it not?

But why should this injured man who gets nothing for pain and suffering, who gets nothing except two thirds of his pay and unless it’s permanent, that two thirds does not go up if the union pay scale goes up.

In other words, the best that a longshoreman can get here is two thirds of his pay at the time of the accident regardless of whether the pay scale goes up.

Nothing for pain and suffering and while you will hear argument that the pay scale went up a great deal, in certain instances, it went down a great deal.

I will save that for rebuttal if I may.

Thank you.

Joseph T. Stearns:

Your Honors, may it please —

Warren E. Burger:

Mr. Stearns.

Joseph T. Stearns:

May it please the Court.

My name is Stearns.

I represent the first two respondents being Compass Shipping Company, Djakarta Lloyd and Arya National Shipping Line in this case which involves the question of Section 33 and also Section 5 (b) of the Longshore and Harbor Workers’ Compensation Act.

There’s been a brief reference to some part of the history of the Act.

As I understand it, the Longshore and Harbor Workers’ Compensation Act was adopted in 1927 in response to a decision of this Court making the Longshore and Jones Act seamen.

At that time, there was a Section 33.

It provided that longshoreman have an election that we have a compensation or a suit for damages.

In response apparently to the concern for the possibility that someone would unwittingly lose his right to a third — third party damage suit, Congress in 1938 amended Section 33 to expand the rights in a way which this Court in 1947 in the American Stevedore against Porello case held to extend a longshoreman the dual right to accept voluntary compensation and thereafter a sue for damages.

After Ryan and perhaps before that, perhaps in the contribution cases, the existence of the right to accept a — a voluntary compensation and sue for damages created a conflict of interest.

Unquestionably, there was a conflict of interest which was raised by the Ryan indemnity right which in instances where there was common insurance between a defendant and a third party defendant as in the Czaplicki case.

It was held by this Court that it was inappropriate to give effect to the Section 33 (b) assignment.

In response to that, Congress in 1959, in attempt to overcome the conflict of interest, gave longshoreman an additional six months to sue following receipt of compensation pursuant to an award.

As a result of this Court’s efforts on behalf of longshoreman, that in part demonstrated by the Porello case, the extension of the dual remedy of compensation and a right to sue for damages as a result of this Court’s Ryan decision, as a result of this Court’s Sieracki decision.

The situation existed — a situation existed whereby longshoremen were of course, by statute guaranteed — guaranteed compensation and in effect have guarantee — guaranteed — excuse me — a — virtually a certain right to recover damages as — as a result of these facts.

And as a result directly of this Court’s efforts on behalf of the longshoreman, there followed an explosion of litigation in the years according to the congressional documents between 1961 and 1972 to the point where in courts such as New York, virtually every longshoreman’s reported accident resulted in a third party suit.

By virtue of Sieracki, it was virtually necessary only for the longshoreman to show that he was hurt aboard the ship as a result of a contest between the shipowner and the stevedore as to who should pay the damages.

The ultimate recovery of the plaintiff was further guaranteed.

Congress in 1972 was there — therefore consul — confronted with a situation where this Court’s efforts had resulted in a situation where a longshoreman had a free access to suit and a free access to recovery in the third party cases where as a result of those facts, there had been a tremendous increase in litigation and took steps by enacting the 1972 amendments in order to reduce the volume of litigation in exchange for vastly increased compensation benefits.

As Mr. Lassoff has indicated, Congress in 1972 took away from longshoreman certain things and this represents the first instance since 1927 where either by this Court or any other Court or by Congress, something was taken away.

What was taken away was two things, we submit.

The first one obviously being the right to recover for seaworthiness and the second thing we believe is that there was an additional restriction placed on the third party right in order to serve the first purpose of the 1972 amendments which was to reduce litigation and relieve shipowners and the courts from the enormous burden of case after case after case of personal injuries involving a longshoreman, some of which were of the kind or the type or the apparent lack of seriousness of the cases involved in this appeal.

The additional step taken by Congress, we submit, was to make the right of the longshoreman to sue depend upon that suit being in accordance with Section 33 which we read as indicating that suit can be maintained only if authorized by the six months provision in Section 33 (b) which means, we submit, that no suit brought by a longshoreman after six months can be maintained since the six months provision is a constituent element of his course of action.

In the congressional documents, there is an indication in the Port of Philadelphia that the compensation insurance rate for these accidents, including the cost of compensation and the stevedore’s third party, Ryan indemnity liability was approximately $40 a payroll hundred.

According to the New York State Rating Board, in New York today, for Workmen’s Compensation alone, in the category stevedoring, not otherwise classified, the manual rate for stevedores is $87 and change the payroll hundred.

That is to say that the cost of the stevedores both for compensation and third party Ryan indemnity liability in 1972 was approximately half of what it is today.

And these figures are not figures that are the product of inflation.

It’s $40 per hundred and $87 per hundred and it represents a doubling of costs in real terms as a direct result of the vast increase in benefits achieved by the 1972 amendments.

It means in effect that the maritime industry and since the stevedore has one customer, the shipowner, since the stevedore is in effect an agency of the shipowner but the shipowner pays this costs directly, usually as soon as the ship sails.

It means the cost of these claims before the first complaint is filed has doubled.

It also means that if there is not relief from litigation, that the purposes of the Act to achieve a reduction of litigation will not be achieved and that in effect, there will be no so-called quid pro quo extended to the maritime industry in exchange for a benefit structure which is of unprecedented generosity.

Joseph T. Stearns:

It is vital to the interest of the maritime community that there’d be in one appropriate form or other curb on litigation involving cases like these, involving contused aversions, aberrations and fractured bones, resulting in six and seven weeks of alleged period of disability where compensation benefits of three, four, five, six and seven thousand are routinely paid based on the earnings and benefit structure existing in 1973 which have been vastly increased.

It is essential to the vitality of the maritime industry that cases of this kind — I mean, the cases of this kind where — where and whenever appropriate to be handled as compensation matters.

As a result of this Court’s recent decision in Bloomer, a longshoreman who receives for example $5,000 in Workmen’s Compensation, benefits as a result of his third party suit only when his verdict exceeds $7500.

As a result of this Court’s recent decision in the Norfolk and Western against the Liepelt case, the compensation liability or rather the tax liability of an injured employee must be reduced in calculating his lost wages and lost future wages as a typical matter.

In longshoreman’s personal injury cases, the total course of action that is presented in the guise of a longshoreman suit against the stevedore is the claim of the stevedore to recover its so-called lien.

In one case after another —

Byron R. White:

Can you say that again?

Joseph T. Stearns:

That the entire course of action which is presented to a jury as a claim by a longshoreman against a shipowner.

Byron R. White:

A shipowner.

Potter Stewart:

A third party.

Byron R. White:

You said the stevedore.

Potter Stewart:

You had said stevedore.

Joseph T. Stearns:

I’m sorry.

Is — is in effect that case, in that form is in effect a claim by the stevedore to recover its compensation expenses, is a case in New York, a case in which Judge Meskill — Judge Friendly dissented, Cannizzo against Farrell Lines report in a 579 F. 2d which is an excellent illustration of the point I’m attempting to make.

The case involved a man in his 50s who had sustained a knee injury and as a result of the knee injury, he had surgery.

He had a heart condition and he was found to be by a District Court judge permanently disabled.

There was a dispute about a reduction in the award to him after the bench trial on the basis of whether or not he was just industrially disabled or whether in fact he was totally disabled.

In any event, there was a calculation of damages with this reduction which the Court of Appeals found to be inappropriate of damages in range of $110,000 and the case after a clear clash between Judge Friendly and Judge Meskill with respect to when and what circumstances a — a shipowner should be liable to a longshoreman.

The case was remanded for a retrial on damages.

The case was settled.

It was settled a little bit less than seven years after the injury at which point the lien was $63,900.

It was settled for $90,000 so-called fresh money in addition to the lien.

The stevedore waived its lien and $90,000 was advanced by the shipowner to be disposed of and settle the case.

Next, the gross settlement of $153,000.

From that $153,000 as a result of Bloomer, the attorney for plaintiff takes according to what we assume to be or what I assume to be a third contingency retainer fee, the sum of $51,000 for a trial and a appeal to the Court of Appeals to assume that $2000 was consumed in litigating — litigation expenses I think is reasonable, reducing the recovery to a $100,000 from which of course must come the $63,900 lien in round figures, the recovery by the plaintiff is $36,000.

But — but of course that’s not his recovery because he’s entitled under Section 33 (f) and (g) to so-called deficiency compensation and he goes back on compensation when the net to him is exhausted.

If he was receiving Workmen’s Compensation at the rate of $9,000 a year, the net of $36,000 would mean that the stevedore’s compensation exposure would be that — would suspended for a period of four years.

It means that the benefit of the third party suit where a lawyer got a fee of $51,000, his interest on $36,000 figured under the declining balance at $9000 a year at bank interest rates, the figure which might be a range of $2500 or $3000.

That interest is a double recovery because he’s entitled to his damages or his compensation whichever is larger.

Thurgood Marshall:

Counsel, I think that all of us here know of negligence cases, they’re just the same —

Joseph T. Stearns:

Judge —

Thurgood Marshall:

— but you wouldn’t (Inaudible) would you?

Joseph T. Stearns:

Judge, it’s not a —

Thurgood Marshall:

What I’m trying to say, what has it got to do with this case?

Joseph T. Stearns:

Well, what I’m trying to show is this.

Thurgood Marshall:

Is this — is this law (Inaudible)

Joseph T. Stearns:

No sir, he’s not.

What I’m — what I’m trying to do is —

Thurgood Marshall:


Joseph T. Stearns:

What I’m trying to do for background is to — is to —

Thurgood Marshall:

Could that case be brought here?

Joseph T. Stearns:

Well it — it can’t now, no, it’s (Inaudible)

Thurgood Marshall:


Joseph T. Stearns:

It was not, that’s great.

Thurgood Marshall:

For what good is it (Inaudible)

Joseph T. Stearns:

Well it’s good for an illustration of what the value of the third party case, the longshoreman is.

And in view of the fact that it is the position of the respondents in this case that there is a — as we’ve said constitutive element of suit within six months and since that may involve policy decisions as to what —

Thurgood Marshall:

Well on the Jones Act, it was a case where a man fell through a bunk up in Time Square and it found that the ship was unseaworthy, isn’t it?

We didn’t (Inaudible) seaworthy?

Joseph T. Stearns:


That’s true.

What I was trying to — to illustrate is at some point about the value of the third party case to longshoreman and to suggest that the accordance with provision of Section 5 be interpreted literally and (b) a basis for bar of longshoreman suit, six months, after six months from the time that they receive their award and there’s an additional point made with respect to the safety of longshoreman which is not by any means certainly guaranteed or even advanced by the bringing of longshoreman personal injury cases.

It is basically our position that this matter of six months to sue is not a matter of Rule 17, it’s a matter of section 33 and Section 5 (b).

It’s a time bar.

It prevents absolutely the bringing of a suit by longshoreman unless there is compliance with the statute which authorizes his suit.

William H. Rehnquist:

Mr. Stearns, do you agree with Mr. Lassoff that the Rodriguez case is precisely on the same footing as the other two for purposes of our decision here?

Joseph T. Stearns:

Judge, it’s — it’s the Perez case where a formal order is involved and there were four questions posed in the application for a writ.

One of them had to do with whether or not there had been a sufficient procedural step taking by the office of Workmens’ Compensation Programs in order to trigger the Section 33 assignment.

Now, that was not that question, the procedural sufficiency question was not the subject of the writ.

So, it’s irrelevant I think for — for this case.

Joseph T. Stearns:

Thank you.

Warren E. Burger:

Mr. Byrn.

Francis X. Byrn:

Mr. Chief Justice, may it please the Court.

Twenty five years ago, I was admitted to the bar of this Court to work on the brief in the Czaplicki case and I find it rather fascinating that I have returned here now 25 years later to talk to the Court about the interpretation of Czaplicki which makes me I think the historian on this particular argument.

And if we could return for the moment to 1956 when the Congress decided to respond to the Ryan decision and they did so very expeditiously following the decision of this Court in early 1956.

There were extensive hearings held, the conflict of interest argument was explored fully.

The Czaplicki case was discussed.

And at that time while the hearings were going on, it was between the argument and the decision in the Czaplicki case and the attorneys for Mr. Czaplicki testified in 1956 and they testified rather optimistically about the —

Potter Stewart:

As they testified before the congressional committees?

Francis X. Byrn:

That’s correct, in 1956, in May and June.

And in June, this Court decided Czaplicki and as I said they were optimistic about the result and it was warranted from their point of view.

The Court or the Congress then responded and began drafting this six-month provision rule from the time of the award.

Now, we’ve talked about six months here but frequently as in these cases before us, the time runs anywhere from a year and a half to two years that the man himself has the right to sue.

He has the full opportunity to bring suit anytime during that period and that’s the thrust of the Rodriguez case.

Now in those hearings, there was a comment by I think the representative of the Association of the Bar, the City of New York, who said that these congressional adjustments were the complete answer to Mr. Justice Black’s objections in his dissent in the Ryan case that the stevedore when in effect the suing itself.

So this was all hashed over way back when in 1956.

And then we move forward, Mr. Stearns has covered the 1972 amendments, but we move forward to a number of the cases that this Court has had.

And in two recent decisions of this Court, Edmonds and Bloomer, the Court itself has read this particular Section 933 (b) in accordance with its plain meaning, that is that the course of action is assigned after six months to the employer.

And in the 1972 amendments when they added Section 905, the Court incorporated Section 933 into that section and said he may sue in accordance with the provisions of 933 (b).

Then we ran into a consistent line of cases in recent years by this Court where if a court follows the plain language of the Act, I cite the Caputo case, I cite the Rasmussen case where they discussed the plain language and legislative history, the examination of the congressional record, the reports of Congress.

The Edmonds case also discusses that point.

We go on to the Pfeiffer case against Ford where the point of rest question was considered and the Court said it was inconsistent congressional intent.

So all throughout these cases right down to the Bloomer case and the most recent case on December 15, the Potomac Electric case where again, the Court defers to Congress to the plain language of the Act, to the unambiguous provisions, even where they — they may reach an anomalous result and I think that case involved a question of whether schedule awards applied or the man could take his — his wages.

And the Court said, “We might have done otherwise perhaps, but Congress has said this and this is the way we have to rule.”

Harry A. Blackmun:

But do you think the result was anomalous?

Francis X. Byrn:

I think the Court of Appeals said so and I think perhaps this Court and yourself said so, Your Honor.

I return again to the Czaplicki case and there, the Court in discussing the conflict said, “Under the peculiar circumstances, the peculiar facts of this case, we find the conflict.”

Now as opposed to that, we have the Caldwell case which I think misinterprets Czaplicki, and says on page 1046, “The fundamental point in Czaplicki is that notwithstanding a statutory assignment of the longshoreman’s right of action, the right of action maybe revested in the longshoreman when it becomes manifest that the assignee with knowledge of its exclusive right to control and prosecute the claim nevertheless declines to do so for any reason not because of a conflict but for any reason.”

And then it goes on to legislate certain procedures that are followed, again taking over the congressional role here.

Now I think Congress has spoken and the man has his season in which to sue.

Francis X. Byrn:

Thereafter, Congress really intended I think that the course of action will then be assigned and if the assignee didn’t do anything about it, that’s the end of the case, two intentions not to sue.

One man — manifested by the man himself and one by the employer.

Thank you very much.

Warren E. Burger:

Very well Mr. Byrn.

Do you have anything more, Mr. Lassoff?

Martin Lassoff:

Just a couple of minutes, Mr. Chief Justice.

May I point out to the Court that in Edmonds which is a decision of this Court in March of 1979, the Court cautioned that this change in the statute was striking a delicate balance between the lore as it was, as created by the judiciary and Congress, and as amended by Congress taking away certain rights.

Nowhere in the 1972 bill does it mention the six months statute as being intended to take anything away from the rights of the longshoreman and Mr. Justice White who wrote the opinion said very clearly that where Congress has been silent in this delicate balance, it is not up to us to act.

Congress said not word — one word in either the Senate or House about this section and this section was not changed in the 1972 amendments.

One thing that isn’t too vile, but as Mr. Justice Marshall noted, Mr. Stearns likes to roam far afield.

I had a recent situation with Mr. Stearns in New York before a federal judge, Judge Piers where Mr. Stearns —

Thurgood Marshall:

Are you going to wander further than he did?

Martin Lassoff:

No, I — I just wanted —

Thurgood Marshall:

Well, I was just —

Martin Lassoff:

I’ll stop.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.