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					                                   No. 05-421


                                     In the

                    Supreme Court of the United States
                      ______________________________

                              HARLAN BLACK,
                                                     Petitioner,
                                       v.

                          VULCAN WELDING, INC.,

                                              Respondent.
                      ______________________________

On writ of Certiorari in the United States Court of Appeals for the Fifth Circuit
                       ______________________________

                          BRIEF OF PETITIONER
                      ______________________________




                                                              Team RO

                                                              Counsel for Petitioner
                                         ii


                           QUESTIONS PRESENTED

1.   Whether a worker going from a utility vessel to an offshore platform over

     navigable waters is engaged in maritime employment under the Longshore and

     Harbor Workers’ Compensation Act.

2.   Whether the Pennsylvania rule is applicable to a personal injury claim brought by

     a worker engaged in maritime employment under the Longshore and Harbor

     Workers’ Compensation Act.
                            iii


                    TABLE OF CONTENTS

QUESTIONS PRESENTED……………………………………………………………...ii

TABLE OF CONTENTS………………………………………………………………...iii

TABLE OF AUTHORITIES……………………………………………………………..vi

JURISDICTION……………………………………………………………..……………1

STANDARD OF REVIEW………………………………………………..………...........1

STATEMENT OF CASE…………………………………………………..……………..1

    A.   PROCEEDINGS…………………………………………………………..1

    B.   FACTS…………………………………………………………………….2

SUMMARY OF ARGUMENT…………………………………………………………...3

ARGUMENT……………………………………………………………………………...5

    I.   THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION
         ACT HAS A BROAD SCOPE AND APPLIES TO
         BLACK……………………………………………………………………5

         A.   PETITIONER WOULD BE COVERED UNDER BOTH
              VERSONS OF THE LONGSHORE AND HARBOR WORKERS’
              COMPENSATION ACT………………………………………….5

              1.   THE ORIGINAL, NARROW LONGSHORE AND
                   HARBOR WORKERS’ COMPENSATION ACT
                   COVERS BLACK……………………………………...…5

              2.   THE AMENDED LHWCA APPLIES TO BLACK……...7

              3.   THE LHWCA SHOULD APPLY TO BLACK BASED
                   ON THE COURT’S DECISION IN PERINI……………..9

         B.   THE FIFTH CIRCUIT MISAPPLIED THE “TRANSIENT OR
              FORTUITOUS” EXCEPTION…………………………………..11

              1.   THE “TRANSIENT OR FORTUITOUS” EXCEPTION IS
                   DICTA, AMBIGUOUS, AND THUS NOT BINDING
                   PRECEDENT……………………………………………12
                                           iv

               2.        THE EXCEPTION, IF IT EXISTS, BECKONS
                         MULTIPLE INTERPRETATIONS……………………...15

               3.        THE BIENVENU ESTABLISHES A MINIMUM
                         THRESHOLD………………………………………........17

               4.        HERB’S WELDING OUTER CONTINENTAL SHELF
                         LANDS ACT ANALYSIS DOES NOT BAR BLACK’S
                         RECOVERY……………………………………………..18

      C.       AS A MATTER OF POLICY, HERB’S WELDING PRODUCES
               AN INEQUITABLE AND HARSH
               RESULT……………………………............................................19

II.   THE PENNSYVLANIA RULE IS APPLICABLE TO THE PRESENT
      CASE AND RESPONDENT CANNOT MEET ITS BURDEN OF
      PROVING THAT ITS VIOLATION OF THE LIGHTED-LIFEBUOY
      REGULATION COULD NOT HAVE BEEN A CAUSE OF BLACK’S
      INJURIES, THUS RESPONDENT MUST BE HELD
      LIABLE………….....................................................................................21

A.    THE PENNSYLVANIA RULE IS APPLICABLE TO THE PRESENT
      CASE…………………………………………………………………….22

      1.       IT IS UNDISPUTED THAT THE FERDINAND VIOLATED
               THE LIGHTED-LIFEBUOY REGULATION…………………..22

      2.       THE LIGHTED-LIFEBUOY REGULATION INVOLVES
               MARINE SAFETY………………………………………………23

      3.       THE LIGHTED-LIFEBUOY REGULATION WAS INTENDED
               TO PREVENT THE TYPE OF INJURY BLACK
               SUFFERED……………………………………………...............24

B.    THE PENNSYLVANIA RULE IS APPLICABLE TO PERSONAL
      INJURY CASES…………………………………………………………26

C.    APPYLING THE PENNSYLVANIA RULE TO THE PRESENT CASE,
      RESPONDENT CANNOT MEET ITS BURDEN OF ESTABLISHING
      THAT ITS VIOLATION OF THE LIGHTED-LIFEBUOY
      REGULATION COULD NOT HAVE BEEN A CAUSE IN FACT OF
      BLACK’S INJURIES……………………………………………………28

      1.       RESPONDENT BEARS THE BURDEN OF PROVING THAT
               ITS VIOLATION OF THE LIGHTED-LIFEBUOY
                            v

             REGULATION COULD NOT HAVE BEEN A CAUSE IN FACT
             OF BLACK’S INJURIES………………………………………..29

        2.   RESPONDENT MUST DEMONSTRATE THAT THE
             DISTRICT COURT’S FINDINGS OF FACT WERE CLEARLY
             ERRONEOUS…………………………………………………...30

        3.   RESPONDENT CANNOT SATISFY ITS BURDEN OF
             SHOWING THAT ITS VIOLATION OF THE LIGHTED-
             LIFEBUOY REGULATION COULD NOT HAVE BEEN A
             CAUSE IN FACT OF BLACK’S
             INJURIES……………………………………………………..…30

        4.   THE AUTHORITY MOST FAVORABLE TO RESPONDENT IS
             INAPPOSITE TO THE PRESENT
             CASE…………………………………………………………….36

   D.   THE PENNSYLVANIA RULE IS APPLICABLE TO THE PRESENT
        CASE AND RESPONDENT CANNOT SATISFY THE BURDEN OF
        PROVING THAT ITS VIOLATION OF THE LIGHTED-LIFEBUOY
        REGULATION COULD NOT HAVE BEEN A CAUSE OF BLACK’S
        INJURIES, THUS RESPONDENT MUST BE HELD LIABLE………39

CONCLUSION…………………………………………………………………………40
                                        vi



                           TABLE OF AUTHORITIES

                                FEDERAL CASES

Allied Chemical Corporation v. Hess Tankship Company of Delaware,
661 F.2d 1044, 1982 AMC 1271 (5th Cir. 1981)……………………………………..…30

Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003)……………………………...9, 10, 11

Bienvenu v. Texaco, Inc., 164 F.3d 90, 1999 AMC 1255 (5th Cir.
1999)…………………………………………………………………13, 14, 15, 16, 17, 18

Calbeck v. Traveler’s Ins. Co., 370 U.S. 114 (1962)…………………………………...5, 6

Candies Towing Co. v. M/V B & C Eserman, 673 F.2d 91, 1983 AMC 2033
(5th Cir. 1982)……………………………..…………………………………………27, 30

Chevron U.S.A. Inc. v. Echazabel, 536 U.S. 73 (2002)………………………………9, 13

Director General of India Supply Mission v. S.S. Maru, 459 F.2d 1370, 1972 AMC
1694 (2nd Cir. 1972)…………………………………………………………………25, 27

Director, OWCP v. Perini North River Associates, 459 U.S. 297, 1983 AMC 609
(1983)…………………………………………………….7, 8, 9, 10, 11, 12, 14, 15, 16, 18

Ezell v. Direct Labor, Inc., 2003 WL 1827068* 1 (DOL Ben.Rev.Bd. 2003)…..15, 16, 17

Fontenot v. AWI, Inc., 923 F.2d 1127, 1994 AMC 296 (5th Cir. 1991)...………13, 14, 19

Folkstone Maritime v. CSX Corporation, 64 F.3d 1037, 1995 AMC 2705 (7th Cir.
1995)…………………………………………………………………………………21, 23

Graziano v. General Dynamics Corp., 663 F.2d 340, 1982 AMC 1680
(1st Cir. 1981)…………..…………………………………………………………..…9, 11

Green v. Vermillion Corp., 144 F.3d 332, 1998 AMC 2328 (5th Cir. 1998)………..10, 17

Harmon v. Baltimore & Ohio R.R., 741 F.2d 1398, (D.C. Cir.1984)……………………9

Herb’s Welding Inc. v. Gray, 470 U.S. 414, 1985 AMC 1700
(1985)………………………………………………………………...12, 13, 15, 16, 18, 19

Hullinghorst Industries, Inc. v. Carroll, 650 F.2d 750, 1982 AMC 2926 (5th Cir.
1981)………………………………………………………………………………9, 18, 20
                                            vii

In re Complaint of Nautilus Motor Tanker Co., 85 F.3d 105, 1996 AMC 2309 (3rd Cir.
1996)…………………………………………………………………21, 23, 27, 37, 38, 39

In re Seaboard Shipping Corp., 449 F.2d 132, 1971 AMC 2145 (2nd Cir. 1971), cert.
denied, 406 U.S. 949 (1972)…………………………………………21, 22, 23, 24, 29, 33

Kernan v. American Dredging Co., 355 U.S. 426 (1958)……………….24, 28, 31, 39, 40

McAllister v. United States, 348 U.S. 19 (1954)…………………...................................30

Nacirema Operating Co. Johnson, 396 U.S. 212 (1969)………………….........................5

Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 1977 AMC 1037
(1977)……………………………………………………………………………………...7

Parker v. Motor Boat Sales, 314 U.S. 244 (1942)……………………………………...6, 7

Pennsylvania v. O’Rourke, 344 U.S. 334 (1953)………………………………..6, 7, 8, 14

P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 1979 AMC 2319 (1979)…………………….8, 10

Pippen v. Shell Oil Co., 661 F.2d 378 (5th Cir.1981)…………………………...15, 19, 20

Price v. Norfolk & Western Railway Co., 618 F.2d 1059 (4th Cir.1980)…………………9

The Pennsylvania, 86 U.S. (19 Wall.) 125, 1998 AMC 1506 (1874)……………… 21, 29

Randall v. Chevron U.S.A., Inc., 13 F.3d 888, 1994 AMC 1217 (5th Cir. 1994)……….13

Reyes v. Vantage Steamship Co., 609 F.2d 140, 1981 AMC 1255 (5th Cir.
1980)……………………………………………..21, 22, 23, 25, 26, 27, 28, 32, 33, 36, 39

Southern Pac. Co. v. Jensen, 244 U.S. 205, 1996 AMC 2076 (1917)…………………….5

Sun Ship Inc. v. Pennsylvania, 447 U.S. 715, 1980 AMC 1930 (1980)………………7, 14

Transcontinental Gas Pipe Line Corp. v. Mobile Drilling Barge, 424 F.2d 684, 1970
AMC 1147 (5th Cir. 1970)…………………………………………………………...19, 20

Trotti & Thompson v. Crawford, 631 F.2d 1214, 1981 AMC 1967 (5th Cir. 1980)……20

United States v. Nassau Marine Corp., 778 F.2d 1111
(5th Cir. 1985)………………………………………………..21, 22, 23, 25, 26, 27, 33, 34

Wills v. Amerada Hess Corp., 379 F.3d 32, 2004 AMC 2082 (2nd Cir.
2004)……………………………………………………………………..22, 25, 29, 36, 37
                                                 viii



                                    FEDERAL STATUTES

28 U.S.C. § 1254 (1)………………………………………………………………………1

LHWCA, 33 U.S.C. § 905(b)………………………………………………………….1-21

33 U.S.C. § 902………………………………………………………..7, 10, 11, 16, 17, 19

46 C.F.R. 199.70……………………………………………………………..22, 23, 24, 32

                                   OTHER AUTHORITIES

Alan and Kenneth Johnson, Survey: Recent Maritime Law Decisions Within the Ninth
Circuit, 12 U.S.F. Mar. L.J. 395 (2000)………………………………………………….20

Apryl Hand, The Role of State Law In the Outer Continental Shelf Lands Act,
72 Tul. L. Rev. 2139 (1998)…………………..................................................................19

David Robertson, Injuries to Marine Petroleum Workers: A Plea for Radical
Simplification, 55 Tex. L. Rev. 973 (1977)…………………………………...................20

Elizabeth Alston, Admiralty Jurisdiction Simplification, 28 Loy. L. Rev. 379
(1982)…………………………………………………………………………………….20

Jeffrey Peters, Attempting to Make Sense of the LHWCA: Bienvenue v. Texaco,
24 Tul. Mar. L.J. 929 (2000)…………..……………………………………………..14, 16

Kenneth Engerrand, Recent Developments in Admiralty Law in the United States
Supreme Court, The Fifth Circuit, and The Eleventh Circuit,
24 Tul. Mar. L.J. 741 (2000)……………………………………………………………. 12

1 Schoenbaum, Admiralty and Maritime Law, (4th ed. 2001)............................................5
                                             -1-


                                          JURISDICTION

       The court of appeals entered judgment on May 20, 2005. Cert.Pet.App. 12a.

Petitioner filed a petition for rehearing with suggestion for rehearing en banc on May 31,

2005, and the United States Court of Appeals for the Fifth Circuit denied this petition on

August 8, 2005. Id. at 13a. Petitioner filed a petition for writ of certiorari on October 5,

2005, and this Court granted the petition on December 12, 2005. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

                                    STANDARD OF REVIEW

       There are no factual issues in dispute in this matter. Only the legal application of

undisputed facts is at issue with respect to the application of the Longshoreman’s and

Harbor Workers’ Compensation Act (LHWCA). The LHWCA issue is a mixed question

of both fact and law, which is reviewed
                                            -2-


Compensation Act (LHWCA), 33 U.S.C. § 905(b). Id. at 1a. Respondent moved for

summary judgment maintaining that, as a matter of law, Black was not a person covered

under the LHWCA. Id. at 4a. The district court denied respondent’s motion.

Cert.Pet.App. 15a. After a jury trial, the court ruled for Black in the amount of almost

$28,000,000. Id. at 14a.

       On appeal, Respondent asserted that Black was not covered under the LHWCA.

Respondent also argued that the Pennsylvania rule – an element relied on by the district

court – was inapplicable to Black’s case. Id. at 1a-2a. The United States Fifth Circuit

Court of Appeals, in an opinion by Justice Justinian, overturned the district court’s

decision. Id. The Fifth Circuit found that Black was not a person engaged in maritime

employment, and therefore the LHWCA did not apply to his injury. Id. at 6a. Because

Black’s decision was rejected on the basis of the LHWCA, the court found it unnecessary

to reach the Pennsylvania rule issue. Id. Black timely appealed and, on December 12,

2005, this Court granted certiorari on both issues.

B.     FACTS

       Harlan Black was employed by Vulcan as a shop foreman and welder.

Cert.Pet.App. 2a. In February 2002, respondent sent a crew of welders, including Black,

to build and replace pipelines on a fixed oil-and-gas platform in territorial waters. Id.

Black did not typically work offshore. Id. Agreeing to replace an injured colleague,

Black served as foreman. Id. Among the men that Vulcan sent with Black were workers

engaged in maritime employment. Id. at 15a.

       While Black was attempting to go from the M/V FERDINAND, a utility vessel,

to the platform by a “Tarzan rope” transfer, he fell into the Gulf of Mexico. Cert.Pet.App.
                                            -3-


1a. His injury occurred on the navigable waters of the United States. Id. at 15a. Black

lost his grip of the rope, struck his head on the vessel’s rail, and plummeted into the

water. Id. at 3a. Black sank immediately and did not resurface. Id. A member of the

FERDINAND’s crew threw a lifebuoy to where Black fell. Id. The lifebuoy was not

equipped with a light in violation of a Coast Guard regulation regulating utility vessel

lifebuoys. Cert.Pet.App. 3a. Without the light, no one could see the lifebuoy or Black.

About ten minutes later, a crew member found Black face down in the water. Id. When

Black was lifted back into the FERDINAND, he was not breathing and did not have a

pulse. Id. CPR was necessary to revive him. Id. As a result of the accident, Black

suffered irreparable brain damage due to prolonged oxygen deprivation. Id. The

FERDINAND’s non-lightened buoy exacerbated Black’s injury and indirectly caused his

irreparable brain damage.

                          SUMMARY OF THE ARGUMENT

       Harlan Black must first establish that he falls under the coverage of the

LHWCA’s status requirement. Black would have been covered under the pre-1972

LHWCA. In 1972 Congress amended the 1927 LHWCA to provide broader coverage for

injured workers to help facilitate maritime commerce. Thus, it follows that since

coverage was expanded and Black was covered prior to 1972, he would be covered after

the Congressional amendments. Black must also establish that he satisfies the status

requirement under the LHWCA. Black’s injury occurred on navigable waters, he also

satisfies the LHWCA situs requirement. Furthermore, the Fifth Circuit misapplied the

“transient or fortuitous” exception to the LHWCA’s status requirement. The fact that

meager authority exists supporting the “transient and fortuitous” exception - in addition
                                            -4-


to the LHWCA’s 1972 extension in coverage - suggests strongly that its application to the

present case is precluded. Finally, the world of maritime commerce demands that Black

not be denied LHWCA coverage as a matter of public policy.

       For respondent to be held liable, Black must establish that respondent’s

negligence was a cause in fact of his injuries. Due to the FERDINAND’s violation of the

lighted-lifebuoy regulation, there arises a presumption that the statutory violation caused

Black’s injuries under the Pennsylvania rule. In order to rebut this presumption,

respondent must show not merely that its fault might not have been one of the causes, or

that it probably was not, but that it could not have been. For the Pennsylvania rule to be

applied, there must be (1) proof by a preponderance of evidence of violation of a statute

or regulation that imposes a mandatory duty; (2) the statute or regulation must involve

marine safety or navigation; and (3) the injury suffered must be of a nature that the statute

or regulation intended to prevent.

       First, the undisputed facts in the record demonstrate that respondent violated the

lighted-lifebuoy regulation. Secondly, the lighted-lifebuoy regulation involves marine

safety and personal lifesaving equipment. Finally, the injuries that Black suffered as a

man overboard were of a nature that the lighted-lifebuoy regulation was intended to

prevent. Furthermore, there is significant authority which suggests the Pennsylvania rule

is applicable to personal injury cases. Indeed, both the United States Supreme Court and

several federal circuit courts have applied the rule to personal injury cases. Thus, the

district court was correct in applying the Pennsylvania rule and instructing the jury that it

was respondent’s burden to show that the lack of a self-lighting lifebuoy could not have

been a cause in fact of Black’s injuries. Therefore, the jury’s verdict finding respondent
                                           -5-


liable because it could not satisfy this burden must be upheld, along with the appropriate

damage reward.

                                      ARGUMENT

I.     THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT
       HAS A BROAD SCOPE AND APPLIES TO BLACK.

A.     PETITIONER WOULD BE COVERED UNDER BOTH VERSONS OF
       THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT.

       1.      THE ORIGINAL, NARROW LONGSHORE AND HARBOR
               WORKERS’ COMPENSATION ACT COVERS BLACK.

       Congress enacted the Longshore and Harbor Workers’ Compensation Act

(“LHWCA”) in 1927 to provide broad federal compensation for claimants injured in

admiralty territory. 1 Schoenbaum, Admiralty and Maritime Law, 400-01 (4th ed. 2001).

The federal law supplemented already existing state worker compensation systems. Id.

The pre-1972 LHWCA provide broad coverage, extending benefits to any worker (other

than a seaman) injured on navigable waters in the course of his employment. Id.; see also

H.R. Rep 92-1441.

       Under the original LHWCA, an employee only needed to meet a situs

requirement - in other words, that his injuries occurred on navigable waters. Calbeck v

Travelers Insurance Co., 370 U.S. 114, 117-124 (1962). The original Act also stopped at

the water’s edge — a boundary known as the Jensen line. See Southern Pacific Co. v.

Jensen, 244 U.S. 205 (1917)(superceded by the 1927 LHWCA); Nacirema Operating Co.

v. Johnson, 396 U.S. 212, 219 (1969). In Nacirema Operating Co., the United States

Supreme Court held that longshore workers whose injuries occurred on a pier fell outside

the LHWCA. Id. at 219-20.
                                           -6-


       Despite somewhat restrictive language, the Court has construed the LHWCA to

provide coverage to a broad array of employees. Calbeck, 370 U.S. at 124. In Calbeck,

for example, a welder was injured while working on a just launched and floating, but

uncompleted, drilling barge. Id. at 115, n.2. The Court held for the welder under the

LHWCA. Id. at 131. The Court reasoned, “It appears that the Longshoremen's Act was

designed to ensure that a compensation remedy existed for all injuries sustained by

employees on navigable waters, and to avoid uncertainty as to the source, state or federal,

of that remedy.” Id. at 124.

       Calbeck’s decision rested on two prior Supreme Court decisions broadly

construing the original LHWCA to extend to traditionally land-based employees injured

in navigable waters. Parker v. Motor Boat Sales, 314 U.S. 244 (1942); Pennsylvania v.

O’Rourke, 344 U.S. 334 (1953). In Parker the Court held the pre-1972 LHWCA covered

a janitor who died when a motor boat he was riding, while accompanying a salesman

during a demonstration of a motor boat, capsized in a muddy river. 314 U.S. at 248-49.

The janitor regularly performed his duties on land. Id. He was not serving in his normal

janitorial capacity on the motor boat. Id. Nevertheless the janitor’s family recovered

under the LHWCA because the accident arose out of an activity involving marine

employment. Id.

       In O’Rouke, the Court rejected a “duties test” as a means to limit coverage when

to employees performing inherently maritime duties. 344 U.S. at 341. In O’Rouke, a

railroad brakeman was injured when releasing a defective handbreak on a freight car

aboard a float in navigable waters. Id. at 336. The Court held that the LHWCA covered

the injured brakeman – even though he did not have maritime employment. Id. The
                                            -7-


Court thought the injury fell exclusively in admiralty jurisdiction and not a more tort

related law like the Federal Employees Liability Act (“FELA”). Id.

       Applying the precedent, the LHWCA should apply to Black. Like the injured

party in Parker and O’Rourke, Black’s injury occurred over navigable waters.

Cert.Pet.App. 3a. His injury occurred over the water when he fell from the tarzan rope.

Id. Because the location of Black’s injury is analogous to Parker and O’Rourke, the

LHWCA should apply.

       2.      THE AMENDED LHWCA APPLIES TO BLACK.

       In 1972, Congress amended the LHWCA to add the status requirement of § 2(3),

33 U.S.C. 902(3) (West 2006). Congress also expanded the sites covered under §3(a)

landward. Director, OWCP v. Perini North River Associates, 459 U.S. 297, 315-316

1983 AMC 609, 623-624 (1983). Rather than restrict coverage, Congress wanted to

delineate the LHWCA to ensure a more uniform system of compensation to injured

longshoreman that no longer depended on “the fortuitous circumstance of whether the

injury occurred on land or over water.” S. Rep. 92-1125 92d Cong., 2d Sess. 12 (1972);

see also Sun Ship Inc. v. Pennsylvania, 447 U.S. 715, 725-26 (1980). It surely did not

intend to withdraw LHWCA coverage for workers injured on navigable waters who

would have been covered by under the original law. Perini, 459 U.S. at 316; Northeast

Marine Terminal Co. v. Caputo, 432 U.S. 249, 261 (1977), 1977 A.M.C 1037, 1046.

       In Perini, a construction worker was injured on a barge while working on a

sewage treatment plant’s foundation. 459 U.S. at 300, 1983 AMC at 611. The sewage

plant lay alongside the Hudson River. Id. The United States Court of Appeals for the

Second Circuit found that the LHWCA did not apply because the construction worker’s
                                            -8-


duties lacked a significant tie to maritime employment or navigable waters. Id. at 325,

1983 AMC at 632. The Court disagreed. Id. The LHWCA applied because the worker

was injured on a barge on navigable waters. Perini, 459 U.S. at 325, 1983 AMC at 632.

The Court went on to say that because Congress not only did not intend to reduce

LHWCA coverage in 1972 but also increased compensation, the LHWCA covered the

employee. Perini, 459 U.S. at 315, 1983 AMC at 623. The Court further reasoned that

Congress did not intend to exclude employees, like the construction worker, who were

injured on navigable waters. Id.

       After Perini, the Supreme Court consistently construed LHWCA coverage

expansively in order to achieve Congress’s goal of uniform coverage for employees

whose job requires them to move between land and water. P.C. Pfeiffer Co. v. Ford, 444

U.S. 69, 83-84 (1979), 1979 AMC 2319, 2329-30. In this spirit, the Court held that an

employee will satisfy the status test as long as that employee is involved in maritime

employment at least “some portion” of the activity. Id. at 82-83, at 2328-29. It also

rejected the use of a stringent “duties test” to qualify under the LHWCA. O’Rourke, 344

U.S. at 341.

       The revised LHWCA was not limited to employees working or potentially

assigned to work over the water. See, e.g. Pfeiffer, 444 U.S. at 75, 1979 AMC at 2323.

In Pfeiffer, an employee injured his hand fastening military vehicles onto railroad flatcars

while working on a public dock. Id. Although the Court recognized that the employee

would not have recovered under the original law because he was not literally working on

navigable waters, the employee could recover under the new amendments because he was

injured in the process of unloading cargo. Id. at 82-83, 1979 AMC at 2329-30.
                                             -9-


       Courts have interpreted the post-1972 amendments broadly to include activities

related to longshore work - even if not seemingly maritime. These include: 1) a

maintenance mason in a shipyard, Graziano v. General Dynamics Corp., 663 F.2d 340

(1st Cir. 1981), 1982 A.M.C 1680; 2) a painter of equipment used to load vessels, Price v.

Norfolk & Western Railway Co., 618 F.2d 1059 (4th Cir. 1980); 3) a carpenter employed

to erect a scaffold to build a pier, Hullinghorst Industries, Inc. v. Carroll, 650 F.2d 750

(5th Cir. 1981), 1982 AMC 2926; and 4) a worker engaged in repairing equipment used

to load ships, Harmon v. Baltimore & Ohio Railroad, 741 F.2d 1398 (D.C.Cir.1984).

Broad judicial interpretations of the LHWCA, in addition to congressional intent, indicate

that the revised LHWCA should apply to Black’s injury.

       3.      THE LHWCA SHOULD APPLY TO BLACK BASED ON THE
               COURT’S DECISION IN PERINI.

       In Perini, the Court held that whenever a worker is injured on navigable waters in

the course of his employment, he is a maritime employee under LHWCA § 2(3). Perini,

459 U.S. at 316. The Court also adopted the term “actual navigable waters” to describe

the situs as it existed in the 1927 LHWCA, 44 Stat. 1424. See Perini, 459 U.S. at 299,

1983 AMC at 617.

        Regardless of the nature of the work being performed, an injured worker satisfies

the amended LHWCA unless he is specifically excluded from coverage by another

statutory provision. Id. at 323-24. Congress expressly excluded certain categories of

employees from LHWCA coverage. Therefore all unmentioned categories of employees

must necessarily be included – a statutory interpretive device referred to as expressio

unius est exclusio alterius. Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003);

Chevron U.S.A. Inc. v. Echazabel, 536 U.S. 73, 81 (2002). The canon has force
                                             - 10 -


primarily where the list of terms are closely associated. Barnhart, 537 U.S. at 168. The

inference is that if a term was left out, that was the intention. Id.

        Courts have denied LHWCA coverage using the excluded categories. See, e.g.

Green v. Vermillion Corp., 144 F.3d 332 (5th Cir. 1998), 1998 AMC 2328. In Green, a

watchman and cook used a boat to commute from a duck hunting camp. Id. at 333, at

2329. While mooring a vessel to help unload supplies, the plaintiff was injured. Id. The

United States Fifth Circuit Court of Appeals denied coverage because the employee fell

within the camp/club exception of the LHWCA. Id. at 335, 1998 AMC at 2331.

        Unlike Green, Black does not fall within any of the exceptions. Similar to the

construction worker in Perini, Petitioner Black meets the § 2(3) “maritime employment”

requirement. Black was engaged in maritime employment when swinging by rope from

the M/V FERDINAND to the platform. Cert.Pet.App. 3a. The term “maritime

employment” is not limited to an exclusive list of occupations in section 902(3)(A). See,

e.g., H.R. Rep. 92-1441, 10-11; S. Rep. 92-1125 at 13, 16. Black’s primary duties were

as a platform foreman – not as marine worker. This is not determinative, because Pfeiffer

found LHWCA coverage for an individual strapping military vehicles onto a railroad flat

track. Cert.Pet.App. 2a; Pfeiffer, 444 U.S. at 82-83, 1979 AMC at 2328-29. Black was in

the course of employment when he was injured; he was literally on navigable waters.

Respondent even meets the statutory requirements of an employer under the LHWCA. It

provides services to the owners of offshore drilling platforms. Cert.Pet.App. 2a.

        Respondent may argue that, unlike the employee in Perini or Pfeifer, Black did

not perform any function integrally related to longshore activity. The LHWCA, however,

requires only a minimal connection to longshore activity, such as the employees in
                                            - 11 -


Pfeiffer, Graziano, Norfolk, Hullinghorst. Our case, however, does resemble Perini. The

employee in Perini worked as a construction worker – not a longshoreman. Perini, 459

U.S. at 300, 1983 AMC at 611. His injury occurred while he was supervising the loading

of construction equipment onto a barge. Id. Like Perini, Black was a construction

worker. Cert.Pet.App. 2a. Barring injury, Black would have supervised the unloading of

equipment necessary to complete his job. .

       Second, the statutory exclusions under 902(3)(A) through 902(3)(H), provide a

specific list of those jobs excluded from the long reach of the otherwise tenuous

longshore requirement. The list does not include a welding foreman. Thus, we can infer

that Congress intended to include employees such as Black. Barnhart, 537 U.S. at 168.

       Black falls within the statutory definition of an injured employee engaged in

maritime employment. He was in the course of his employment when he swung on the

rope from the vessel onto the platform. Cert.Pet.App. 1a. It does not matter that Black

had never previously performed any offshore duties nor worked offshore. Cert.Pet.App.

2a. To establish status under the LHWCA, Black only needed to spend some of his time

engaged in maritime employment. Pfeiffer, 444 U.S. at 82-83, 1979 AMC at 2328-29.

       Black would have been covered under the original law. See Perini, 459 US at 325,

1983 AMC at 631. Black is the type of employee Congress had in mind even after its

amendments. Perini acknowledges that Congress’s goals in the 1972 amendments were

not to reduce or eliminate coverage for those who would have qualified prior to 1972.

Therefore, the Court’s holding in Perini supports our argument that the LHWCA should

apply to Black.

B.     THE FIFTH CIRCUIT MISAPPLIED THE “TRANSIENT OR
       FORTUITOUS” EXCEPTION.
                                          - 12 -



       1.      THE “TRANSIENT OR FORTUITOUS” EXCEPTION IS DICTA,
               AMBIGUOUS, AND THUS NOT BINDING PRECEDENT.

       The Court in Perini expressed “no opinion” whether the amended LHWCA

extends to employees either “transiently or fortuitously” on navigable waters when

injured. Perini, 459 U.S. at 324 n. 34, 1983 AMC at 631. Other than that isolated

mention, the Court did not provide any guidance on how to apply the “transient or

fortuitous” exception. Perini used the 1972 amendments and relevant legislative history

to show that Congress did not intended to limit coverage of employees injured on

navigable waters. Id. at 325, 1983 AMC at 630-1.

       In a 5-4 decision, the Court in Herb’s Welding Inc. v. Gray, 470 U.S. 414, 427

(1985), 1985 AMC 1700, 1710, created the “transient of fortuitous” exception as a

judicial device for limiting statutory coverage of employees under the LHWCA. In

creating this exception, the Court relied on Congressional silence in the 1972

amendments and the small footnote from Perini. Id.; see also Jones, Edith H. and Kenneth

Engerrand, Recent Developments in Admiralty Law in the United States Supreme Court,

The Fifth Circuit, and The Eleventh Circuit, 24 Tul. Mar. L.J. 741, 760 (2000).

       Only in Pfeiffer, however, did the Court provide some guidance to LHWCA’s

limitations:

               [The LHWCA] does not extend coverage to all workers in
               the situs area. There is no doubt for example, that neither
               the driver of the truck carrying cotton to Galveston nor the
               locomotive engineer transporting military vehicles from
               Beaumont was engaged in maritime employment even
               though he was working on the marine situs. Such a person's
               “responsibility is only to pick up stored cargo for further
               trans-shipment.”
                                           - 13 -


444 U.S at 83, 1979 AMC at 2330 (citing S.Rep. No. 92-1125, 13). Perhaps the

limitation promulgated in footnote 34 only encompassed land-based delivery employees

injured after leaving the pier. See id.

        The Fifth Circuit relied on Herb’s Welding when it created a “greater than

modicum” standard for determining whether an employee [falls] inside the “transient or

fortuitous” exception. Bienvenu v. Texaco, Inc., 164 F.3d 901, 908 (5th Cir. 1999), 1999

AMC 1255, 1287. In Bienvenu, the court held that the LHWCA covered a land-based

electrical wiring employee who spent most of his time either on land or traveling back

and forth from work. Id. at 910, at 1289. The only reason for allowing the LHWCA to

apply was that the Bienvenu employee spent 8.3% of his time onboard fixing his

equipment, and thereby overcame the “transient or fortuitous” exception. Id.

        Bienvenu effectively overruled a prior Fifth Circuit decision, Randall v. Chevron

U.S.A., Inc., 13 F.3d 888 (5th Cir. 1994), 1994 AMC 1217. 164 F.2d at 909, 1999 AMC

at 1266. In Randall, a mechanic who performed all his duties on a fixed platform,

construed to constitute land in Herb’s Welding, 470 U.S. at 425, n.11, 1985 AMC at

1708-09, injured himself when swinging from a fixed platform onto a vessel. Id. at 897.

Basing its holding on Fontenot v. AWI, Inc., 923 F.2d 1127 (5th Cir. 1991), 1994 AMC

296, the Randall court held that the employee was covered under the LHWCA. Id. at 897,

at 1227-28.

        In Fontenot, the employee spent less than a third of his time on production

vessels. Id. at 1128, at 297. Nevertheless, the court held that the LHWCA applied

because the injury was on navigable waters. Id. at 1130, at 299-300. Bienvenu reasoned

that its overruling of Randall would not contradict Fontenot because, unlike Randall, both
                                            - 14 -


the Fontenot and Bienvenu employees performed their “substantial duties” on navigable

waters. Bienvenu,164 F.3d at 909, 1999 AMC at 1288.

       Despite the Fifth Circuit’s good intention in Bienvenu of limiting LHWCA

coverage, such an exception may prove just as unworkable in trying to define the

LHWCA. Jeffrey W. Peters, Note, Attempting to Make Sense of the LHWCA: Bienvenu

v. Texaco, 24 Tul. Mar. L.J. 929, 937-38 (2000). First, Bienvenu’s bright-line rule

regarding substantial duties contradicts long-standing precedent rejecting any duties test.

See, e.g. O’Rourke, 344 U.S. at 341. Second, Bienvenu contradicts Congressional intent

to extend, rather than contract the scope of employees covered. Perini, 459 U.S. at 325,

1983 AMC at 630-31. Third, Bienvenu contradicts Congressional intent and Supreme

Court precedent seeking to eliminate coverage based only on the fortuitous circumstance

of whether the employee was on water. Bienvenu,164 F.3d at 909, 919, 1999 AMC at

1265, 1298 (DeMoss, J., dissenting); See also Sun Ship Inc, 447 U.S. at 725-26. By

establishing a “substantial duties” test differentially extending coverage based on whether

an employee decided to perform work while traveling on navigable waters. Id.

       It makes little sense that the exception as articulated in Bienvenu can suffice as

anything more than persuasive authority. Peters, supra, 24 Tul. Mar. L.J. at 937. Beyond

one solitary footnote in Perini, very little Congressional or judicial text supports the

Bienvenu court’s newly crafted “transient or fortuitous” exception. Id. Extending 1972

LHWCA coverage would establish a bright-line test that an employee, only on navigable

waters to travel to work, could meet § 2(3) merely by spending less than ten percent of

his time on the vessel working on equipment. Bienvenu, 164 F.3d at 908. Because the
                                            - 15 -


“transient or fortuitous” exception is found only in dicta, it is only persuasive authority

and due to its ambiguity should not apply to Black’s LHWCA action.

        2.      THE EXCEPTION, IF IT EXISTS, BECKONS MULTIPLE
                INTERPRETATIONS.

        Herb’s Welding did not pick up where Perini left off; it failed to provide any

bright-line test or substantive guidance as to how future courts could apply the “transient

or fortuitous” exception. Herb’s Welding, 470 U.S. at 427, 1985 AMC at 1710. In

addition to merely reiterating the footnote left in Perini, the Court failed to overrule

Pippen. Id. at 418.

        By failing to overrule Pippen v. Shell Oil Co., 661 F.2d 378 (5th Cir. 1981), the

Court in Herb’s Welding provided an opportunity for varying interpretations of the

“transient or fortuitous” exception. In Pippen, the Fifth Circuit extended LHWCA

coverage to a wireline operator. 661 F.2d at 385-86. Even though the employee was not

performing longshoreman duties at the time of this injury, the court found that he met the

“maritime employment” requirement of the LHWCA. Id. at 385. The court held that the

LHWCA was not limited to longshoremen. Id. Even though they made up the bulk of

LHWCA claims, the court noted that it was not the only group covered. Id.

        Whereas the Benefits Review Board (“Board”) failed to render a timely decision

in Bienvenu, 164 F.3d at 903, the Board distinguished itself from Bienvenu in Ezell v.

Direct Labor, Inc., 2003 WL 1827068 * 1 (DOL Ben.Rev.Bd. 2003). In Ezell, the

claimant worked as a rigger on an oil production facility in the Bayou Penchant Oilfield.

The oil field was surrounded by water and marsh and accessible only by boat via various

canals. Id. On a return trip from the platform, the employee was injured when the boat

took a swift turn. Id.
                                           - 16 -


       Consistent with Perini, the administrative law judge determined that claimant’s

injury occurred on navigable waters in the course of his employment thus extending

LHWCA coverage. Id. at *2. On appeal, the Board vacated the administrative law

judge’s decision and remanded the case to see if the claimant was “transiently and

fortuitously” on navigable waters at the time of his injury. Ezell, 2003 WL 1827068 * 2.

The administrative law judge determined that the claimant did not satisfy the status

element of the LHWCA. Id. *3. The Board then overturned the administrative law judge,

holding that commuting to work on navigable waters circumvented the “transient or

fortuitous” exception. Id. at *5.

       By discussing the “transient or fortuitous” exception without promulgating a

bright-line test or other substantive guidelines, Herb’s Welding left lower courts to their

own devices in applying the exception. See, e.g. Ezell 2003 WL 1827068 * 1; Peters,

supra, 24 Tul. Mar. L.J. at 937-38. Otherwise, an administrative benefits review board

would not perceive the autonomy necessary to distinguish itself from Bienvenu and

define “transient or fortuitous” as encompassing time commuting to work on navigable

waters. Ezell *5. As the Board in Ezell noted, “We cannot affirm the administrative law

judge’s finding that claimant is not covered under [LHWCA].” Id.

       The uncertain meaning of “transient or fortuitous” exception should not preclude

coverage under LHWCA. Examining the exclusionary portion of section 2(3), it is

evident that Congress intended to exclude a class of employees, such as clerical workers,

distinct from welders working on an offshore platform. 33 U.S.C. 902(3). As Judge

Hammurabi suggested in this case, the “transient or fortuitous” exception, if it exists, was

meant to exclude persons making a deliver or performing accounting work who just
                                            - 17 -


happened to be on navigable waters when injured. Cert.Pet.App.10a. See, e.g. Green, 144

F.3d 332, 1998 A.MC.2328 (finding that a camp worker could not receive LHWCA

under statutory exception). Because the “transient or fortuitous” exception is subject to

multiple interpretations, it should not be given weight. The LHWCA should apply.

       3.      THE BIENVENU EXCEPTION ESTABLISHES A MINIMUM
               THRESHOLD.

       The review board in Ezell noted that the Fifth Circuit in Bienvenu failed to

specify whether the time a claimant spends aboard a vessel being shuttled to offshore

platforms should be used to determine LHWCA coverage. Ezell, at *4. Despite what was

stated in Ezell, the Fifth Circuit attempted to interpret the exception by stating that there

is a threshold of maritime activity to overcome the “transient or fortuitous” exception.

Bienvenu, 164 F.3d at 908.

       In Bienvenu, the employee’s injury occurred when he was moving his tool box

from the dock of a fixed production platform to the boat. Id. at 902, at 1256. As a

pumper specialist, the employee’s job involved maintaining and calibrating automated

equipment located on fixed production platforms in a production field. Id. He used a boat

to get from one platform to another spending about three quarters of his time on fixed

production platforms. The court held that the employee fit section 2(3) of the LHWCA

because the he was on navigable waters when the injury occurred and in the course of his

employment. Id. at 903, at 1256. The court further recognized that a claimant need not

show that he was specifically ordered to be working on a vessel when injured. Id. at 907,

at 1276.

       Much like the employee in Bienvenu, Black was required to travel on navigable

waters in the course of his employment. Cert.Pet.App. 3a. Pursuant to Bienvenu’s
                                           - 18 -


holding, Black only needed to meet a low threshold of activity to meet the LHWCA. See

Bienvenu, 164 F.3d at 913, at 1999 AMC at 1288. Black has met that minimal threshold.

Therefore LHWCA should apply.

       4.      HERB’S WELDING OUTER CONTINENTAL SHELF LANDS ACT
               ANALYSIS DOES NOT BAR BLACK’S RECOVERY.

       Herb’s Welding ruled that workers on platforms in state waters do not qualify for

the Outer Continental Shelf Lands Act Analysis (OCS) Land Act. 470 U.S. at 421-22,

1985 AMC at 1708-09. In that case, the welding employee lived and worked on a fixed

offshore platform located in Louisiana waters, where he lived and worked, after an

explosion erupted. Id. at 416, at 1702. There was an explosion, and the employee was

injured. Id. The Court rejected the employee’s LHWCA claim because working on fixed

platforms did not constitute employment on navigable waters. Id. at 425-27.

       Herb’s Welding directly contradicts Congressional intent in extending LHWCA

coverage. Perini, 459 U.S. at 315, 1983 AMC at 623-24. Congress extended coverage

not only to employees injured on navigable waters and on any dry dock, but also to those

employed on “any adjoining pier, wharf, terminal, building way, marine railway, or any

other adjoining area used in loading, unloading…a vessel.” H.R. Rep 92-1441 (emphasis

added). An offshore oil rig, even if fixed, constitutes an area where a vessel may be

loaded or unloaded. See id. An offshore oil platform, much like a pier, receives goods

from sea. See Pfeiffer, 444 U.S. 69, 1979 AMC 2319; Hullinghorst Industries, 650 F.2d

750, 1982 AMC 2926. Rather than actual Congressional debate, to buttress its holding,

the Court cited testimony from the likely partial International Association of Drilling

Contractors. Herb’s Welding, 470 U.S. at 425, n.11, 1985 AMC at 1708-09.
                                           - 19 -


       By distinguishing between fixed platforms and floating platforms, Herb’s

Welding creates a judicial device contradicting Congressional intent to provide a uniform

coverage system, to cases where “the fortuitous circumstance of whether the injury

occurred on land or over water.” S. Rep. 92-1125; see also Sun Ship, 447 U.S. at 725-26,

1980 AMC at 1938. (stating, “The legislative policy animating the LHWCA’s landward

shift was remedial…out of solicitude for the workers”)(citation omitted).

       Even if fixed offshore platforms do not meet the requirements of LHWCA §

902(3) and Black had been assigned to work on a fixed oil rig, he still is not precluded

from coverage since his injury occurred not on the platform but over navigable waters.

Cert.Pet.App. 1a, 3a. Herb’s Welding never addressed whether oil-drilling employees

injured in transit on navigable waters were covered. Fontenot, 923 F.2d at 1129, 1994

AMC at 298-99. Black’s case is therefore distinguishable from the employee in Herb’s

Welding, whose injury occurred on a fixed platform. 470 U.S. at 416-17. Therefore

Herb’s Welding should not apply to Black’s case, and this Court should apply the

LHWCA.

C.     AS A MATTER OF POLICY, HERB’S WELDING PRODUCES AN
       INEQUITABLE AND HARSH RESULT.

       Finally, as a matter of policy, the Court in Herb’s Welding wrongfully held that

employees with primary duties on fixed offshore drilling rigs are not engaged in maritime

employment. See Pippen 661 F.2d at 383-84. Offshore drilling, including pipe

maintenance for oil intake, is essential to maritime commerce. Id.; see also Apryl Hand,

The Role Of State Law In The Outer Continental Shelf Lands Act, 72 Tul. L. Rev. 2139,

2153 (1998)(citing Transcontinental Gas Pipe Line Corp. v. Mobile Drilling Barge, 424

F.2d 684, 691 (5th Cir. 1970), 1970 AMC 1147). Offshore oil exploration and production
                                            - 20 -


involve extensive facilities and operations on navigable waters. See Pippen, 661 F.2d at

383; Transcontinental, 424 F.2d at 686-88. People who work who construct and maintain

maritime equipment in facilities such as piers and wharves have consistently been found

to perform maritime employment. See Hullinghorst Industries, 650 F.2d 750, 1982 AMC

2926 (involving pier repair); Trotti & Thompson v. Crawford, 631 F.2d 1214 (5th Cir.

1980) (involving pier construction), 1981 AMC 1967; Johnston, Alan and Kenneth

Johnson, Survey: Recent Maritime Law Decisions Within the Ninth Circuit, 12 U.S.F.

Mar. L.J. 395, 467 (2000). Vessels frequent not only piers but also offshore platforms to

load and unload cargo. Therefore, it seems strange that employees working alongside the

former receive coverage but those on the latter are out of luck.

          Like the Court in Herb’s Welding, the Fifth Circuit delivers a needlessly harsh

result. The Fifth Circuit denies LHWCA coverage to employees on an offshore platform

whose jobs carry the same – if not increased – hazards as those who work on a pier or

even a dry dock manufacturing plant. David Robertson, Injuries to Marine Petroleum

Workers: A Plea for Radical Simplification, 55 Tex. L. Rev. 973, 994-96 (1977);

Elizabeth Alston, Admiralty Jurisdiction Simplification, 28 Loy. L. Rev. 379, 402-03

(1982).

          Black’s duties as a welding foreman are integral to the offshore operation. As a

foreman of the welding crew, he supervised the building and replacement of pipelines

and also performed general maintenance work on the platform. Cert.Pet.App. 2a.

Because Black’s duties deal with offshore, maritime activity and his injury occurred on

navigable waters, it would be harsh and unfair from a policy perspective to apply the

“transient or fortuitous” exception of Herb’s Welding. Therefore, the Court should apply
                                            - 21 -


the LHWCA to Black’s case and should reject respondent’s argument and the appellate

court’s use of the “transient or fortuitous” exception.

II.    THE PENNSYVLANIA RULE IS APPLICABLE TO THE PRESENT
       CASE AND RESPONDENT CANNOT MEET ITS BURDEN OF PROVING
       THAT ITS VIOLATION OF THE LIGHTED-LIFEBUOY REGULATION
       COULD NOT HAVE BEEN A CAUSE OF BLACK’S INJURIES, THUS
       RESPONDENT MUST BE HELD LIABLE.

       The Pennsylvania rule has been applied to personal injury cases in both the Fifth

Circuit as well as other circuit courts. See Reyes v. Vantage Steamship Co., 609 F.2d

140, 1981 AMC 1255 (5th Cir. 1980); In re Seaboard Shipping Corp., 449 F.2d 132, 1971

AMC 2145 (2nd Cir. 1971), cert. denied, 406 U.S. 949 (1972). Courts employ a three-

step test in order to determine whether or not the Pennsylvania rule is applicable to a

specific case: (1) there must be proof by a preponderance of the evidence of violation of a

statute or regulation that imposes a mandatory duty; (2) the statute or regulation must

involve marine safety or navigation; and (3) the injury suffered must be of a nature that

the statute or regulation intended to prevent. In re Complaint of Nautilus Motor Tanker

Co., 85 F.3d 105, 114, 1996 AMC 2309, 2317-2318 (3rd Cir. 1996) (citing United States

v. Nassau Marine Corp., 778 F.2d 1111 (5th Cir. 1985); Folkstone Maritime v. CSX

Corporation, 64 F.3d 1037, 1047, 1995 AMC 2705, 2716 (7th Cir. 1995)). Black can

establish all three of these elements.

       Since the Pennsylvania rule is applicable to the present case, the burden of proof

shifts to respondent. While the original language of The Pennsylvania was specific only

to collision cases, its burden shifting rule can be applied in other contexts. Respondent

bears the burden of “showing not merely that [FERDINAND’s] fault might not have been

one of the causes, or that it probably was not, but that it could not have been.” The
                                            - 22 -


Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 1998 AMC 1506, 1512 (1874). Thus,

respondent has the burden of showing that its violation of the lighted-lifebuoy regulation

could not have been a cause of Black’s injuries. Respondent cannot meet this demanding

burden, and thus it cannot avoid liability for Black’s injuries.

A.     THE PENNSYLVANIA RULE IS APPLICABLE TO THE PRESENT
       CASE.

       1.      IT IS UNDISPUTED THAT THE FERDINAND VIOLATED THE
               LIGHTED-LIFEBUOY REGULATION.

       In order to apply the Pennsylvania rule, Black must first establish by a

preponderance of the evidence that a violation of a statute or regulation occurred. Wills v.

Amerada Hess Corp., 379 F.3d 32, 42-44, 2004 AMC 2082, 2091-2094 (2nd Cir. 2004);

United States v. Nassau Marine Corp., 778 F.2d 1111, 1116-1117 (5th Cir. 1985). In

Reyes, a vessel failed to have on board a rocket powered line-throwing device which

might have been used to rescue man thrown overboard. Reyes, 609 F.2d at 143, 1981

AMC at 1259. The Fifth Circuit held the vessel’s failure to have the device aboard, a

violation of 46 C.F.R. § 94.45, established negligence per se. Id. Indeed, the court noted

that the failure to follow any Coast Guard regulation which causes injury establishes

negligence per se. Id. In Seaboard Shipping, two seamen died when a ship violated

certain life raft stowage and overloading provisions in 46 C.F.R. §§ 33.20-15 and 33.25-

20. In re Seaboard Shipping Corp., 449 F.2d 132, 136, 1971 AMC 2145, 2152 (2nd Cir.

1971), cert. denied, 406 U.S. 949 (1972). The Second Circuit held the statutory

violations were sufficient to shift the burden to the ship in violation of safety statutes

under the Pennsylvania rule. Id.
                                            - 23 -


       The undisputed record is clear that the FERDINAND was in violation of a Coast

Guard regulation having the force of statute. See Cert.Pet.App. 3a, 5a. The trial judge

noted that “Respondent has commendably not denied its violation of the regulation

requiring the FERDINAND to have half its lifebuoys equipped with self-igniting lights.”

See Cert.Pet.App. 5a. Similar to the violations in Reyes and Seaboard Shipping, the

Coast Guard regulations in the present case were codified under the Code of Federal

Regulations. See id. at 3a. The FERDINAND did not have at least half its lifebuoys

fitted with self-igniting lights as required by 46 C.F.R. § 199.70(a)(3)(ii). See id.

Furthermore, the lifebuoy thrown to Black after he fell into the water was not equipped

with a light, even though it had grown dark at the time. See id. Therefore, Black has

satisfied his burden of proving that respondent violated a Coast Guard regulation that

imposed a statutory duty on respondent.

       2.      THE LIGHTED-LIFEBUOY REGULATION INVOLVES MARINE
               SAFETY.

       Black must also establish that the lighted-lifebuoy regulation involves marine

safety or navigation. In order to apply the Pennsylvania rule, the court must find that the

statute or regulation at issue must involve marine safety or navigation. In re Complaint of

Nautilus Motor Tanker Co., 85 F.3d 105, 114, 1996 AMC 2308, 2317 (3rd Cir. 1996)

(citing United States v. Nassau Marine, 778 F.2d 1111 (5th Cir. 1985); Folkstone

Maritime v. CSX Corporation, 64 F.3d 1037, 1047, 1995 AMC 2705, 2716 (7th Cir.

1995)). Courts have previously applied the Pennsylvania rule based on violations of

Coast Guard regulations such as the lighted-lifebuoy regulation in question. For

example, the Second Circuit applied the Pennsylvania rule in a case where a barge failed

to follow certain Coast Guard regulations concerning life raft stowage and overloading.
                                           - 24 -


Seaboard Shipping Corp., 449 F.2d at 136, 1971 AMC at 2152. The Supreme Court also

applied the Pennsylvania rule in spirit where the violation of a Coast Guard promulgated

regulation led directly to a fire that killed a seaman. Kernan v. American Dredging Co.,

355 U.S. 426 (1958).

       Like the regulations in Kernan and Seaboard, the lighted-lifebuoy regulation is

also a Coast Guard regulation that has the force of statute and is codified in the Code of

Federal Regulations. See Cert.Pet.App. 3a. It is well established that the violation of

Coast Guard safety regulations, such as those in Kernan and Seaboard, is sufficient to

trigger application of the Pennsylvania rule and its burden-shifting standard.

Furthermore, the lighted-lifebuoy regulation clearly concerns marine safety. The record

demonstrates that the lighted-lifebuoy requirement serves two purposes: “[(1)] to assist

ships in searching for persons floating on lifebuoys[;] and [(2)] to help persons who fall

overboard find lifebuoys that are sought to be thrown to them in low-visibility

conditions.” See id. at 4a. Indeed, the entire § 199.70 under title 46 of the Code of

Federal Regulations where the lighted-lifebuoy regulation appears pertains to “[p]ersonal

lifesaving appliances.” 46 C.F.R. §199.70. The lighted-lifebuoy regulation in this case

expressly regards marine safety - namely, the safety of seamen in the event of a man

overboard situation. To suggest otherwise would contradict the plain language of the

statute and defy reason.

       3.      THE LIGHTED-LIFEBUOY REGULATION WAS INTENDED TO
               PREVENT THE TYPE OF INJURY BLACK SUFFERED.

       Black must further establish that the lighted-lifebuoy regulation under 46 C.F.R. §

199.70(a)(3)(ii) was a statute intended to prevent the type of injury he suffered. The Fifth

Circuit has held that, before applying the Pennsylvania rule, the statute violated must
                                            - 25 -


have been one intended to prevent the injury that actually occurred. Nassau Marine Corp.,

778 F.2d at 1116 (citing Director General of India Supply Mission v. S.S. Maru, 459 F.2d

1370, 1375, 1972 AMC 1694, 1700-1701 (2nd Cir. 1972)). More applicable to the

present case, application of the Pennsylvania rule is “limited to the violation of a statute

intended to prevent the catastrophe which actually transpired.” Wills v. Amerada Hess

Corp., 379 F.3d 32, 43, 2004 AMC 2082, 2092 (2nd Cir. 2004) (quoting Director General

of India Supply Mission v. S.S. Maru, 459 F.2d 1370, 1375, 1972 AMC 1694, 1700-1701

(2nd Cir. 1972)). In a man overboard case where the crew violated a Coast Guard

regulation that required the ship to have a line-throwing appliance on hand, the court

found the violation to be negligent as a matter of law. Reyes, 609 F.2d at 143, 1981 AMC

at 1259. The court found that part of the reason for having the statutorily-mandated line-

throwing device was to rescue men in the water. Id. Furthermore, it found that the

appliance could have been used to deliver a line to the man overboard. Id. In Nassau, the

court observed that statutorily mandated Coast Guard inspections were intended to

review certain repairs made to a barge that ultimately sank in fair weather. Nassau

Marine Corp., 778 F.2d at 1116-1117. The court determined that the defendant’s failure

to have required Coast Guard supervision and inspection of the repairs could have

contributed to the sinking because the inspection was intended to determine whether

additional repairs were needed. Id. at 1117. Thus, the very defects and infirmities which

could have led to the sinking would likely have been revealed had there been a Coast

Guard inspection as required by statute. Nassau Marine Corp., 778 F.2d at 1117.

       Both Reyes and Nassau involve Coast Guard regulations intended to prevent the

harm that actually occurred in those cases. The violated statute in Reyes was intended to
                                           - 26 -


save men overboard and the ignored regulation in Nassau was meant to ensure that a ship

did not require additional repairs – violations which ultimately led to the harms those

regulations were meant to prevent. Reyes, 609 F.2d at 143, 1981 AMC at 1258-1259;

Nassau Marine Corp., 778 F.2d at 1116-1117. Similarly, the lighted-lifebuoy regulation

in the present case was intended specifically to aid men overboard such as Black from

suffering injuries. The undisputed evidence shows that the lighted-lifebuoy requirement

has two purposes: “[(1)] to assist ships in searching for persons floating on lifebuoys; and

[(2)] to help persons who fall overboard find lifebuoys that are sought to be thrown to

them in low-visibility conditions.” See Cert.Pet.App. 4a. Thus, the purpose of the

regulation at issue here was to assist men overboard in low-visibility conditions – the

very situation in which Black found himself. See id. at 3a. The injuries that Black

sustained were a direct result of his falling overboard while the FERDINAND was in

direct violation of a regulation intended to save men overboard. See id. at 3a-4a.

       There is no doubt that the injuries Black suffered resulted from being overboard.

Indeed, the irreparable brain damage Black suffered was a result of the prolonged oxygen

deprivation of being underwater for more than ten minutes. See Cert.Pet.App. 3a. The

lighted-lifebuoy regulation was intended to help men in Black’s situation and to prevent

the type of harm that usually occurs in such situations. Unfortunately for Black, it was the

very regulation intended to protect him that respondent failed to follow.

B.     THE PENNSYLVANIA RULE IS APPLICABLE TO PERSONAL INJURY
       CASES.

       The Pennsylvania rule has previously been applied in non-collision cases. The

United Stated Third Circuit Court of Appeals has acknowledged the broad applicability

of the Pennsylvania rule, observing that although historically the rule only applied to
                                            - 27 -


collisions between ships, “it has been reformulated to apply to any statutory violator who

is a party to a maritime accident.” In re Complaint of Nautilus Motor Tanker Co., 85 F.3d

105, 113, 1996 AMC 2308, 2317 (3rd Cir. 1996). Further support for the application of

the Pennsylvania rule in non-collision cases involving statutory violations was provided

by the court in United States v. Nassau Marine Corp. with the caveat that the application

of the rule should be limited in non-collision or non-allision cases to violations of statutes

intended to prevent the injury that actually occurred. United States v. Nassau Marine

Corp., 778 F.2d 1111, 1116 (5th Cir. 1985) (citing Director General of India Supply

Mission v. S.S. Maru, 459 F.2d 1370, 1375, 1972 AMC 1694, 1700-1701 (2nd Cir.

1972)). Furthermore, the Fifth Circuit has stated unequivocally that “the rule of THE

PENNSYLVANIA does apply in non-collision cases.” Candies Towing Co. v. M/V B &

C Eserman, 673 F.2d 91, 95, 1983 AMC 2033, 2038 (5th Cir. 1982). Both Candies and

Nassau are non-collision cases involving sunken barges where the court applied the

Pennsylvania rule due to certain statutory violations. It is thus well-entrenched that the

Pennsylvania rule can be applied to non-collision and non-allision maritime cases.

       Most relevant to the present case, however, is the judicial application of the

Pennsylvania rule to personal injury cases. The Fifth Circuit has previously applied the

Pennsylvania rule in a wrongful death action in which the crew failed to follow Coast

Guard regulations under the Code of Federal Regulations. Reyes v. Vantage Steamship

Co., 609 F.2d 140, 143-146, 1981 AMC 1255, 1257-1263 (5th Cir. 1980). Reyes

specifically involved a wrongful death action brought under the Jones Act by the plaintiff

widow of a deceased seaman who fell overboard the defendant’s vessel. Reyes, 609 F.2d

at 140, 1981 AMC at 1255. After holding the Pennsylvania rule applicable, the court
                                            - 28 -


remanded the case to the district court and charged the ship-owner with the burden of

demonstrating that the vessel’s regulatory violations could not have been even a

contributing cause of the seaman’s death. Reyes, 609 F.2d at 146, 1981 AMC at 1263.

Similarly, the present case is a personal injury action involving a man overboard where

the vessel was in direct violation of a Coast Guard regulation – a violation the district

court jury found could have been a cause in fact of the man’s injuries. See Cert.Pet.App.

5a. The facts in the present case closely mirror the circumstances in Reyes. Thus, the

court’s decision to apply the Pennsylvania rule in Reyes confirms that it is applicable to

this case as well as personal injury actions in general.

       Furthermore, the Supreme Court in Kernan v. American Dredging Co. also

applied the Pennsylvania rule in spirit to a wrongful death action without citing the rule

by name. Kernan v. American Dredging Co., 355 U.S. 426 (1958). Kernan involved an

open-kerosene lamp on the deck of a scow that ignited some vapors during the towing of

the scow, which led to a fire that cost a seaman his life. Kernan, 355 U.S at 427-428. The

fact that the lamp was not at the height statutorily required by Coast Guard regulations

led to the igniting of the vapors, which led to the fire, which ultimately led to the

seaman’s tragic death. Id. The Court held that recovery for the death of a seaman from a

violation of a statutory duty is permitted absent any showing of negligence. Kernan, 355

U.S. at 431. The Court’s decision in Kernan is consistent with Reyes and confirms that

the Pennsylvania rule is indeed applicable to personal injury actions.

C.     APPYLING THE PENNSYLVANIA RULE TO THE PRESENT CASE,
       RESPONDENT CANNOT MEET ITS BURDEN OF ESTABLISHING
       THAT ITS VIOLATION OF THE LIGHTED-LIFEBUOY REGULATION
       COULD NOT HAVE BEEN A CAUSE IN FACT OF BLACK’S INJURIES.
                                           - 29 -


       1.      RESPONDENT BEARS THE BURDEN OF PROVING THAT ITS
               VIOLATION OF THE LIGHTED-LIFEBUOY REGULATION
               COULD NOT HAVE BEEN A CAUSE IN FACT OF BLACK’S
               INJURIES.

       Having established that the Pennsylvania rule applies both to the present case as

well as to other personal injury cases, the burden now must shift to respondent to prove

that its violation of the lighted-lifebuoy regulation could not have been a cause of Black’s

injuries. The Pennsylvania rule shifts the burden of proving causation from plaintiffs to

defendants to “’show not merely that [their] fault might not have been one of the causes

[of the injury], or that it probably was not, but that it could not have been.’” Wills v.

Amerada Hess Corp., 379 F.3d 32, 42, 2004 AMC 2082, 2091 (2nd Cir. 2004) (quoting

The Pennsylvania, 86 U.S. (19 Wall.) 125, 136 (1874)) (emphasis added). Echoing the

Second Circuit’s interpretation of the Pennsylvania rule in Wills, the Fifth Circuit in

Seaboard Shipping made it clear that the burden is on a ship in violation of a safety

statute to show that her fault could not have been one of the causes of the injury. In re

Seaboard Shipping Corp., 449 F.2d 132, 136, 1971 AMC 2145, 2152 (2nd Cir. 1971),

cert. denied, 406 U.S. 949 (1972) (quoting The Pennsylvania, 86 U.S. (19 Wall.) 125,

136 (1874)) (emphasis added).

       As Judge Solomon points out in his dissenting opinion, the burden is on

respondent, in breach of a maritime safety statute, to prove that its breach could not have

been a cause in fact of the injury, even if it seems probable that the FERDINAND’s

compliance with the statute would probably not have prevented the injury. See

Cert.Pet.App. 10a-11a. This is a very demanding standard and an almost impossible

burden for respondent to satisfy.
                                             - 30 -


        2.      RESPONDENT MUST DEMONSTRATE THAT THE DISTRICT
                COURT’S FINDINGS OF FACT WERE CLEARLY ERRONEOUS.

        Concerning the standard of review in maritime actions, as in most federal cases,

the factual findings of the district court must be upheld unless they are shown to be

“clearly erroneous” or “demonstrably incorrect.” Candies Towing Co. v. M/V B & C

Eserman, 673 F.2d 91, 93 1983 AMC 2033, 2036 (5th Cir. 1982) (quoting Fed. R. Civ. P.

52(a); citing McAllister v. United States, 348 U.S. 19 (1954); Allied Chemical

Corporation v. Hess Tankship Company of Delaware, 661 F.2d 1044, 1982 AMC 1271

(5th Cir. 1981)). The district court jury found that respondent did not satisfy its burden of

proving that the violation of the lighted-lifebuoy regulation could not have been a cause

in fact of Black’s injuries. See Cert.Pet.App. 5a. Those factual findings must be affirmed

unless found to be clearly erroneous.

        Since the Court of Appeals did not reach the Pennsylvania rule issue, the factual

findings of the district court must be reviewed under the clearly erroneous standard. Even

the most searching examination of the evidence in the record, along with the application

of the relevant law in the area, leads to the conclusion that the district court’s findings

must be upheld.

        3.      RESPONDENT CANNOT SATISFY ITS BURDEN OF SHOWING
                THAT ITS VIOLATION OF THE LIGHTED-LIFEBUOY
                REGULATION COULD NOT HAVE BEEN A CAUSE IN FACT OF
                BLACK’S INJURIES.

        Taking into account the almost impossible standard of proof it faces, as well as

the district court’s factual findings and the relevant standard of review, it is clear that

respondent cannot establish that its violation of the lighted-lifebuoy regulation could not

have been a cause of Black’s injuries. In an action involving the loss of a seaman’s life
                                           - 31 -


due to a fire caused by the violation of a Coast Guard regulation, the Supreme Court

applied the Pennsylvania rule in spirit if not in name. Kernan v. American Dredging Co.,

355 U.S. 426, 431-432 (1958). The Court found that the fire that took the seaman’s life

resulted from the fact that an open-flame kerosene lamp on deck was not more than three

feet above the water, which violated a Coast Guard navigation regulation. Id. at 427-428.

The Court noted that the trial court determined the vapors that the kerosene lamp ignited

would not have in fact caught fire had the lamp been carried at the required height. Id.

After holding that recovery is permitted for the death of a seaman resulting from a

violation of statutory duty, the Court found that the non-compliant lamp caused the

seaman’s death. Kernan, 355 U.S. at 433.

       The string of causation between statutory violation and injury is almost as strong

in the present case. Just as the lamp in Kernan would not have ignited the vapors had it

been at the required height, it would be ludicrous to suggest that there is no way that, had

its lifebuoys been properly equipped with self-igniting lights, Black’s injuries might not

have been prevented. Respondent will likely highlight the testimony of one of Black’s

expert witnesses on cross-examination, specifically where the witness suggests that the

lighted lifebuoy “[p]robably” would not have done Black any good considering he was

underwater and unconscious. See Cert.Pet.App. 4a. The law demands that respondent

show affirmatively that the lighted lifebuoy could in no way have helped Black, not

simply that it “probably” would not have done him any good.

       There is no evidence that Black was unconscious as soon as he hit the water. Had

the lifebuoy been properly equipped with a light maybe he would have seen it before

losing consciousness. Maybe the self-igniting light would have roused Black from falling
                                            - 32 -


unconscious in the first place; thereby enabling him to reach it and prevent sinking. Part

of the function of the light was to aid ships searching for men overboard. See

Cert.Pet.App. 4a. Certainly, a self-igniting light would have aided the crew in finding

Black’s body before any serious oxygen deprivation occurred. The sheer calculus of

possibilities in which a properly equipped lifebuoy might have saved Black is infinite.

The lighted-lifebuoy regulation was intended to aid men overboard such as Black, and the

fact that this regulation was not followed cannot be ruled out as a cause of his injuries.

       In a wrongful death action involving a man overboard, including numerous

statutory violations by the ship in question, the Fifth Circuit remanded to the district court

to determine whether the ship could rebut the presumption that its regulatory violations

caused the death of the seaman. Reyes v. Vantage Steamship Co., 690 F.2d 140, 146,

1981 AMC 1255, 1263 (5th Cir. 1980). The ship did not have equipment, specifically a

line-throwing appliance, that was required by Coast Guard regulations under 46 C.F.R. §

94.45. Id. at 143, at 1258. Conceding that line-throwing appliances are not usually used

to rescue men in the water, the court still points out that it is not unheard of for such

equipment to be used to rescue men overboard. Id. at 143 & n.5, at 1258. In order for the

ship to avoid liability in Reyes its burden on remand was to overcome the presumption

that the regulatory violations led to the seaman’s death. Id. at 146, at 1263. Its burden

was to show that the absence of the equipment could not have even been a contributing

cause of the seaman’s death. Id.

       Applying this standard to the present case, respondent’s task at the trial court was

to show its violation of the lighted-lifebuoy regulation could not have even been a

contributing cause of Black’s injuries – a burden it failed to establish. See Cert.Pet.App.
                                           - 33 -


5a. The court in Reyes partly relied on a Second Circuit case involving the death of two

seamen on a barge during a storm. Reyes, 609 F.2d at 145, 1981 AMC at 1261. Despite

the fact that there was no evidence that the barge’s statutory violations involving

overloading and life raft stowage actually contributed to the deaths of the seamen aboard,

the Second Circuit found in favor of the seamen due simply to the shift in the burden of

proof. Id. at 145, at 1261 (quoting In re Seaboard Shipping Corp., 449 F.2d 132, 136,

1971 AMC 2145, 2152 (2nd Cir. 1971), cert. denied, 406 U.S. 949 (1972)). Indeed, the

court went no further than to say that given the statutory violations alone, the barge

owner “was not entitled to exoneration.” In re Seaboard Shipping Corp., 449 F.2d 132,

136, 1971 AMC 2145, 2152 (2nd Cir. 1971), cert. denied, 406 U.S. 949 (1972)). The shift

in burden here onto respondent is just as strong. In addition, there is stronger evidence

establishing a link of causation between the violation of the lighted-lifebuoy rule and

Black’s injuries. It flows logically that respondent cannot meet its burden of overcoming

the presumption that its statutory violation caused Black’s injuries.

       The most persuasive authority in favor of Black’s position hails from the familiar

Fifth Circuit. In a case involving a barge which sank in fair weather the barge owners did

not comply with regulations that required notification and Coast Guard inspection of

certain repairs made on the barge prior to the voyage. United States v. Nassau Marine

Corp., 778 F.2d 1111, 1116-1117 (2nd Cir. 1985). After applying the Pennsylvania rule,

the court found that the defendant barge owner did not carry the burden of showing that

the regulatory violations could not have contributed to the loss. Nassau Marine Corp.,

778 F.2d at 1117. Specifically, the evidence showed that the required inspection might

have revealed pertinent damages as well as whether the damage already found could have
                                           - 34 -


been caused at the same time as other potential damages. Nassau Marine Corp., 778 F.2d

at 1117. The court speculates that a Coast Guard inspector “might” have revealed certain

structural infirmities that led to the sinking. Id. Furthermore, the evidence suggested that

a structural defect amidship was a contributory cause of the sinking; a defect that would

have come to light had the required inspection been conducted. Id.

       Just as the barge owner in Nassau was unable to meet his burden of proving the

lack of inspection could not have contributed to the loss, respondent cannot prove that the

FERDINAND’s violation of the lighted lifebuoy regulation could not have contributed to

Black’s injuries. The court speaks in almost hypothetical terms in its discussion of the

causation issue: the inspector “might” have conducted a certain manner of search; an

inspection “might” reveal certain structural infirmities. Id. The court’s discussion speaks

to how demanding the burden of proof is that respondent must satisfy.

       Even assuming there is no proof or any indication that Black would have been

saved had a lighted lifebuoy been thrown, it strains reason to argue that it could not have

saved him. Perhaps if the FERDINAND had had the required number of lighted

lifebuoys, and indeed had been able to throw one to Black, he would have seen it. The

lifebuoy was thrown into the water right after Black fell in. Again, there is no evidence

that he became unconscious immediately after falling into the water. See Cert.Pet.App.

3a. Even though Black sunk, it is entirely possible that he would have seen the flash of a

self-igniting lifebuoy thrown in the vicinity of where he fell and would have swum

toward it. See id. If he had reached the lifebuoy he probably would have been able to

stay above water longer - which would have prevented the oxygen deprivation and
                                             - 35 -


eventual brain damage. It is possible that even if he failed to reach the lifebuoy, the crew

would have been able to observe his movement in the water and rescue him earlier.

       Certainly the lighted lifebuoy would have aided the crew in locating Black more

expediently. The evidence shows that one of the main purposes of the regulation was to

assist ships in searching for men overboard. See Cert.Pet.App. 4a. The lifebuoy was

thrown in the vicinity of where Black fell – meaning it is entirely plausible to think that

had the area been lighted more adequately it would have taken far less than ten minutes to

locate his body. See id. at 3a. That precious time could have easily made the difference in

saving Black from the irreparable brain damage he suffered due to prolonged oxygen

deprivation underwater.

       Respondent will likely point out that the lighted-lifebuoy regulation at issue

mandated only that half the lifebuoys on the FERDINAND be fitted with self-igniting

lights, not that men overboard be thrown a lighted lifebuoy. See id. at 3a. However, this

argument must fail because the failure to have the statutorily required ratio of lighting-

equipped lifebuoys increased the probability that a man overboard would be thrown a

lifebuoy without a self-igniting light. Indeed, it is entirely possible that the

FERDINAND did not even have one lighted lifebuoy. Due to its failure to follow the

regulation, the FERDINAND did not have on hand the necessary number of lighted

lifebuoys to use in the event of a man overboard situation. See Cert.Pet.App. 3a. Not

having the required number of lighted lifebuoys increased the likelihood of a man

overboard such as Black being thrown an unlit lifebuoy, a fact that respondent cannot

rule out as contributing to Black’s injuries.
                                            - 36 -


       The court in Reyes addressed this issue specifically. The court observed that

while a line-throwing device may not normally be used to rescue men overboard, the very

fact that it could have been used to effect a rescue indicates that its absence (in violation

of Coast Guard regulations) constitutes negligence per se. Reyes v. Vantage Steamship

Co., 609 F.2d 140, 143 1981 AMC 1255, 1259 (5th Cir. 1980). Similarly, it is possible

that Black still could have been thrown an unlit lifebuoy had the FERDINAND been in

compliance with the lighted-lifebuoy regulation. However, the violation increased the

likelihood of his being thrown an unlit lifebuoy, and conversely, compliance would have

increased the likelihood that the crew would have thrown a lighted lifebuoy. Compliance

with the regulation would thus have increased the likelihood that Black’s injuries would

not have occurred. This presents an even stronger case than Reyes, since it is clear that

not only could compliance have saved Black, it would have increased his chances of

avoiding injury. This fact is crippling to respondent’s position.

       4.      THE AUTHORITY MOST FAVORABLE TO RESPONDENT IS
               INAPPOSITE TO THE PRESENT CASE.

       Respondent will surely cite authority where courts have found that parties

successfully rebutted the Pennsylvania rule presumption. However, that authority will

ultimately prove to be inapposite. One case from the Second Circuit involved a seaman

who contracted cancer who argued that the defendants’ vessels violated Coast Guard

regulations that were enacted for the purpose of preventing seamen from developing

cancer from exposure to certain emissions. Wills v. Amerada Hess Corp., 379 F.3d at 43,

2004 AMC at 2093. The court failed to find it reasonably probable that the defendants’

non-compliance and the seaman’s cancer were casually related. Id. at 44, at 2094.

Furthermore, the court reasons that no authority with wide experience in maritime
                                           - 37 -


navigation supports the conclusion that the defendants’ failure to follow regulations

concerning benzene monitoring led to the seaman’s cancer. Wills, 379 F.3d at 45, 2004

AMC at 2094-2095. In sum, there was no indication that the seaman’s cancer would not

have occurred had the defendants complied with Coast Guard regulations. Id.

       Wills can be easily distinguished from Black’s situation. Cancer can be

contracted in an almost infinite number of ways, and the court is correct in finding no

causal link between the statutory violations and the seaman’s injury. Additionally, it is

entirely possible that the seaman could have contracted cancer in any number of ways

unrelated to his exposure to chemicals at sea. In the present case, the causal relationship

is significantly stronger. There is an undeniable likelihood that Black’s injuries came as

a result of the FERDINAND’s failure to follow Coast Guard regulations intended to

prevent the very harm that occurred. If the FERDINAND had been in compliance the

crew could have spotted Black earlier due to
                                            - 38 -


berth in question it struck one of these navigational obstructions, ultimately causing the

grounding. Nautilus, 85 F.3d at 114-115, 1996 AMC at 2318-2319. However, the court

found the trial court’s determination that the point of impact of the tanker was too distant

from the ship berth where the illegal dredging operation occurred was not clearly

erroneous. Nautilus, 85 F.3d at 115, 1996 AMC at 2320. As a result, the court found that

even if it had chosen to apply the Pennsylvania rule, the berth owner would have

effectively rebutted the presumption of causation. Id. The evidence that the illegal

dredging could not have been a cause of the grounding, since the grounding occurred

outside the berth, would have been dispositive. Id. Indeed, the effects of the statutory

violation were limited to an area 125 feet away from the only point of grounding impact.

Nautilus, 85 F.3d at 115, 1996 AMC at 2320.

       The string of causation in Nautilus was too remote to establish a connection

between the over-dredging and the grounding. Nautilus is distinguishable from the

present case because the connection between the statutory violation and the harm is far

less attenuated in this case. In the present case there is no such separation either in time

or distance from the consequences of the violated regulation and the injury suffered as in

Nautilus. The lifebuoy thrown to Black, in an area of low-visibility conditions and poor

lighting, did not have a self-igniting light. See Cert.Pet.App. 3a. This is not a matter of

navigational obstructions being 125 feet away from the point of the grounding which they

were alleged to have caused. The crew on the FERDINAND threw the unlit lifebuoy

directly in the vicinity of Black immediately after he fell in. See id. The FERDINAND

did not have the requisite number of light-equipped lifebuoys to assist men overboard,

and Black suffered as a result of this statutory violation. See id. Had the berth owner in
                                           - 39 -


Nautilus complied with the dredging regulations, the tanker would have grounded

regardless. Had the FERDINAND complied with the lighted-lifebuoy regulation, it very

well could have prevented Black from being disabled for the rest of his life. That stark

contrast must hold Nautilus inapposite to the present case.

       Two of the most favorable cases that respondent might put forth in support of its

position are distinguishable from the present case. The string of causation in both cases

between the statutory violation and the ultimate harm is flawed. By contrast, the

evidence in the present case is probative of a strong causative relationship between the

FERDINAND’s violation of the lighted-lifebuoy regulation and Black’s injuries.

D.     THE PENNSYLVANIA RULE IS APPLICABLE TO THE PRESENT
       CASE AND RESPONDENT CANNOT SATISFY THE BURDEN OF
       PROVING THAT ITS VIOLATION OF THE LIGHTED-LIFEBUOY
       REGULATION COULD NOT HAVE BEEN A CAUSE OF BLACK’S
       INJURIES, THUS RESPONDENT MUST BE HELD LIABLE.

       The present case satisfies the three-factor test long recognized in admiralty

jurisprudence as a condition of applying the Pennsylvania rule. Moreover, numerous

courts have held the Pennsylvania rule specifically applicable to personal injury cases,

including the United States Supreme Court in spirit. Reyes v. Vantage Steamship Co.,

609 F.2d 140, 1981 AMC 1255 (5th Cir. 1980); Kernan v. American Dredging Co., 355

U.S. 426 (1958). Applying the rule to the present case means that respondent must

satisfy a demanding burden under the law. Indeed, respondent must prove that the

FERDINAND’s violation of the lighted-lifebuoy regulation could not have been a cause

in fact of Black’s injuries. The district court jury found that respondent did not meet this

lofty burden. See Cert.Pet.App. 5a. Based on the available evidence in the record this
                                            - 40 -


verdict must be upheld. Respondent cannot prove that the violation of the lighted-

lifebuoy regulation could not have been a cause of Black’s injuries.

       The Supreme Court in Kernan noted that over time the industrial employer

developed “a special responsibility toward his workers, who were daily exposed to the

risks of the business and who were largely helpless to provide adequately for their own

safety.” Kernan, 355 U.S. 426 at 431. Black was similarly helpless as he lay unconscious

in the water while the crew of the FERDINAND searched in vain for his body in the

darkness. Respondent had a special responsibility to Black and all its employees to

follow Coast Guard regulations and marine safety statutes. Respondent shirked this

special responsibility, and as a result Harlan Black must live with the effects of

irreparable brain damage for the rest of whatever life he is able to lead after this

unfortunate incident. Respondent must be held liable for its violation of the lighted-

lifebuoy regulation.

                                          CONCLUSION

       Due to the foregoing reasons, the Court should reverse the decision of the court of

appeals and reinstitute the district court’s damage reward of $27,914,898 against

respondent.

                                                               Respectfully submitted,



                                                               Team RO

                                                               Counsel for Petitioner

				
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