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the elimination of longshore third party cases against the shipowner and stevedore.
I am enclosing a copy of this decision for your review. You will note that, among other things, the Court pointed out that:
1. As of June 30, 1967, there were 3,227 longshore maritime personal injury cases pending in the various District Courts of the United States. Of that number, more than one-third-1,141 cases were pending in Philadelphia. Our Court said that:
"There are more longshoremen personal injury cases pending in our District than in any other United States District Court in the nation" (p. 7).
2. There are two law firms in Philadelphia which have more than ninety-five per cent of the plaintiff's longshoremen's cases and there are two law firms, representing the defendant shipowners which have more than ninety-five per cent of the longshoremen cases.
3. That it has been recognized by the Administrative Office of the United States District Courts that the backlog of longshoremen's cases are rising at an "alarming" rate.
4. With respect to this backlog, the Court stated that:
". . . candor requires that we publicly note our recognition that in the near future a more basic policy decision will have to be made by the Congress of the United States to answer the long range problems-that is either (1) the Longshoremen's and Harbor Workers' Act, 44 Stat. 426, Title 36 U.S.C. §§ 901, et seq. must be amended to eliminate longshoreman cases from the United States District Courts, or (2) our resources must be significantly expanded including the addition of more Judges, supporting personnel, court rooms, and other related facilities if we are to cope with the ascending tide of longshoreman litigation in our Court and in approximately four other United States District Courts." (pages 13 and 14)
5. The Court also stated that:
"Perhaps it is not without significance that many of the Courts which now have the longest median time interval for termination of trials are the Courts which have a high percentage of longshoreman cases. Cf., Records of Administrative Office of the United States Courts as to Southern District of New York, Eastern District of Pennsylvania, Eastern District of Louisiana." (page 15)
6. The Court concluded that:
"There is complete unanimity among the Judges of our Court in that we would welcome an inquiry by Congress for a re-evaluation of the issue as to whether the Longshoremen and Harbor Workers' Act should be amended so that the latter would be the exclusive remedy and thus bar actions between the longshoremen and shipowners; and if there can be no congressional relief for this historical anachronism, whereby longshoremen who are not seamen nevertheless get rights as if they were seamen, then there must be additional judges and facilities for those "longshoremen federal courts” which are struggling to diminish the delays in civil trials." (page 15 italics in decision)
Frank A. Scanlan.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
WILLIAM TURNER v. TRANSPORTATION MARITIMA MEXICANA S.A.
(No. 373 of 1965)
TRANSPORTATION MARITIMA MEXICANA S.A. v. J. A. MCCARTHY, INC.
LEE MCNAIR v. SVENSKA OSTASIATISKA KOMPANIET
(No. 405 of 1965)
SVENSKA OSTASIATISKA KOMPANIET v. ATLANTIC & GULF STEVEDORES, INC.
This opinion is a companion opinion to that written by this Court in Close v. Calmar Steamship Co., C.A. No. 37320, and Calmar v. Jarka Corp. of Phila., Adm. No. 425 of 1966 Opinion filed February 15, 1968; all of these cases have been heard before a panel of this Court. Both opinions deal with cases which have arisen out of similar factual settings, i.e., a suit by a longshoreman to recover for injuries sustained as a result of the alleged negligence of the owner of the ship upon which the longshoreman was employed. In both instances the accident has resulted in the filing of two separate actions. The longshoreman brought the original civil action against the shipowner in federal court as a matter of diversity jurisdiction under Title 28 U.S.S. § 1332. Subsequently the shipowner brought a separate admiralty action for indemnity from the stevedore under Title 28 U.S.C. § 1333 which grants the federal courts exclusive and original jurisdiction of admiralty actions.
1 The panel consisted of Judges A. Leon Higginbotham, Jr., Charles R. Weiner, Thomas A. Masterson, and E. Mac Troutman. The Court appointed this panel to consider the problems raised both here and in the companion case of Close v. Calmar, supra, for the purpose of establishing a uniformity of action within this District pending a definitive ruling by the United States Court of Appeals for the Third Circuit. For the same reason, the Court appointed a panel to decide a series of cases involving similar jurisdictional issues. See, Olivieri v. Clifford Adams, et al., C.A. No. 41217, Opinion filed January 23, 1968, page 3. The use of this panel procedure does not actually bind the other judges of this District to follow the decision either here or in Turner, but, like application of the doctrine of intracourt comity, this practice does help provide for a uniform interpretation of the law within any one District. See generally, White v. Baltic Conveyor Co., 209 F. Supp. 716, 722 (D.C. N.J., 1962), E. W. Bliss Co. v. Cold Metal Process Co., 174 F. Supp. 99, 121 (N.D. Ohio, Eastern Division, 1959), and Cepo v. Brownell, 147 F. Supp. 517, 521 (N.D. Calif., Southern Division, 1956), for a description of the policies served by intra-court comity. In the interest of these salutary policies none of the Judges of this Court has indicated an intention to depart from the decision here or in Close pending a later determination by the Court of Appeals.
The cases involved, both here and in Close, are representative of more than 1100 cases currently pending in this Court in which longshoremen have brought civil actions against shipowners. Nearly all of these cases involve in some way the legal problems dealt with in these two opinions, and essentially these cases can be categorized as coming within two groups:
A. Those cases in which the shipowners have made a motion for consolidation and the stevedores have made a timely motion for jury trial pursuant to Rule 38 of the Federal Rules of Civil Procedure; and
B. Those cases in which the shipowners have made a motion for consolidation, but in which there was either an untimely motion for jury trial or no such motion.
In Close v. Calmar, supra, the Court dealt with the cases included in the first group and granted both the shipowners' motions for consolidation and the stevedores' motions for jury trial of the factual issues in the indemnity action. The issue of the stevedores' liability for shipowners' counsel fees in the indemnity action was severed for later trial pursuant to Rule 42(b) of the Federal Rules. This opinion deals with the cases included in the second group and holds that the motions for consolidation will be denied unless all parties to the litigation agree that all factual issues, excepting that of shipowners' counsel fees, be tried to the same jury.
The Court decided to follow this procedure because of the large number of cases involving the same issues. By designating a few test cases in Close v. Calmar, supra, in which the Court would grant the stevedores' motions for jury trial on all factual issues in the consolidated trial (except that of counsel fees in the indemnity action), and conditioning consolidation in the remaining cases upon agreement of all parties to a jury trial, the Court has avoided two unwieldly situations which might have resulted from a consideration of all cases together:
1. If the shipowners' motions for consolidation were granted here, without at the same time directing a complete jury trial, the resulting procedure might subsequently be found to be fundamental error in light of the Supreme Court's opinion in Fitzgerald v. U.S. Lines, 374 U.S. 16 (1963). See also, Close v. Calmar, supra.
2. If the shipowners' motions for consolidation were granted here and all the factual issues in the consolidated trial submitted to the jury, as in Close, this procedure in and of itself might constitute reversible error invalidating the results in innumerable cases and requiring massive relitigation at some future date.2
The Court's decision to deny the motions to consolidate here is based not only upon such practical considerations, however, but also upon substantive considerations which indicate that consolidation without a complete jury trial would be improper.
The power of this Court to order a consolidation pursuant to Rule 42 of the Federal Rules is purely discretionary. See Moore, Federal Practice, Volume 5, ¶42.02, p. 1203. The power is generally exercised when it is clear that consolidation will serve policies such as judicial economy and expedition of litigation. See Close v. Calmar, supra, page 2, and Ellerman v. Atlantic and Gulf, 339 F. 2d 673, 675 (C.A. 3, 1964). However, these interests must always be balanced against the prejudice to any party which might result from conducting the trial in a consolidated proceeding. Where there is such prejudice consolidation is improper. See generally, Mays v. Liberty Mutual Insurance Co., 35 F.R.D. 234, 235 (E.D. Pa., 1964); Bascom Launder Corp. v. Telecoin Corp., 15 F.R.D. 277 (S.D. N.Y., 1953); Moore, supra, page 1207.
It is clear that in these cases any favorable policy interests served by consolidation would be outweighed by the prejudicial effect which a consolidated trial involving a bifurcated fact-finding tribunal would have. Such a procedure would be particularly prejudicial to the interests of the injured longshoremen. See Close, supra, page 13. The procedure would create unnecessary and confusing problems which would cloud the essential concern of the litigation, i.e.,
2 If an appeal is taken from Close and if the holding is affirmed by the Court of Appeals, thereafter we will order consolidation of the civil and admiralty claims, sever the issue of counsel fees in the indemnity action, and direct that all other factual issues in the consolidated action be tried to the same jury where a timely motion has been filed and provided there is no other compelling reason to deny consolidation in the interest of justice.
determination of the right of the longshoreman to recover for injuries resulting from the alleged negligence of another party. Among these problems would be the difficult one of determining what the actual jury findings were in the parent negligence action. See, Close, supra.
Moreover, in view of the problems which would be caused by proceeding with the shipowners' proposed bifurcated consolidated trial, which would not be a total jury trial on all of the major issues,' it is also likely that the type of consolidation requested would not in fact favor either judicial economy or expedite litigation. In fact, because of the large number of cases in which the consolidated procedure would be employed and the time consumed by using the procedure in any one case, this practice would actually adversely affect the prompt adjudication of all other civil actions in this District.
While of course the Court is obligated to give individual justice in each case, nevertheless at some point a Court is obligated to evaluate the method by which it handles the bulk of its trial cases to ascertain whether the consolidation and calendar process has become so cumbersome that without justification it deters early trials. The maxim "justice delayed is justice denied" compels this Court to consider its process of calendaring to ascertain whether the process unnecessarily delays prompt trial, and therefore within such a context denies justice. We are obligated to evaluate our backlog and calendar statistical data and make a projection as to what would be the consequences of accepting the shipowners' present consolidation proposal which may involve hundreds of cases on this Court's docket.
Judge, now Chief Judge, Hastie has pointedly emphasized that "Rule 42(a), Federal Rules of Civil Procedure, confers upon a district court broad power, whether at the request of a party or upon its own initiative, to consolidate cases for trial as may facilitate the administration of justice." Ellerman v. Atlantic Gulf Stevedores, Inc., supra, 339 F. 2d at p. 675. (Emphasis added.) Within that concept of "facilitat[ing] the administration of justice," we must first recognize the tragic fact that the trial calendar of this Court has expanded with an everincreasing blacklog and that one of the most significant components of the backlog has been the longshoremen cases. As has been recognized in the most recent Annual Report of the Administrative Office of the United States Courts, the Judges of this Court have exerted extraordinary efforts to diminish the backlog. Despite these herculean efforts we have been able only to reduce the median time for "civil cases terminated by trial" from 42 months to 41 months. This 41 month median time still unfortunately places us in "last" place in that this Court has longest median time interval for termination of trials of any federal court in the nation.
Chief Judge Clary described the magnitude of the problem as it affects this District in a statement published by the Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, United States Senate, in their document captioned "Crisis In The Federal Courts-1967". Chief Judge Clary described the problem in this District as follows:
"... While in 1961 the longshoremen cases constituted only 8% of the total tort actions . . . they constituted more than 23% of the total tort actions in June of 1966. Had that trend continued in its same progressive growth for another five years, the longshoremen cases could have constituted almost 60% of the total tort actions in our Court. We then compared and charted the proportionate increase of maritime cases (longshoremen and Jones Act) with the termination rate of maritime cases. The termination rate was shockingly low. We found that there were no more longshoremen jury cases tried in 1966 than there were in 1961, and that during some intervening years, there had been less longshoremen and Jones Act cases tried than had been tried in 1961. Yet, during the same five year period, there had been a 340% build-up in the pending longshoremen cases. We then made an analysis of the reason why the trial disposition had not increased proportionately and it was evident that the major factor was the concentration of maritime cases with a relatively small number of active trial lawyers. It was then extremely clear that even if we had sought the easy answer that our problem was solely the unavailability of Judges, that the maritime backlog would not have been significantly diminished; for one of the major problems was congestion in the law firms among maritime
* We recognize that under our proposed order of consolidation there will not be a simultaneous jury trial on counsel fees. However, such a simultaneous jury trial on counsel fees is impractical if not impossible. See, Close, supra, pp. 19 and 20.
practitioners." See, Hearing before the Sub-Committee on Improvement in Judicial Machinery of the Committee on the Judiciary, United States Senate, "Crisis In the Federal Court-1967", p. 460.
As of June 30, 1967 there were 3.227 longshoremen marine personal injury cases pending in the United States District Courts. Of that number, more than one-third-1,141, were pending in our Court. There are more longshoremen personal injury cases pending in our District than in any other United States District Court in the nation.*
Perhaps a portion of this Court's backlog is attributable to counsel in the maritime field failing to expeditiously move on discovery and in the negotiations for settlements. As an example, we have examined the dockets of the very cases for which present counsel have moved for consolidation on the Part I trial calendar list. Despite the fact that most of these cases are to be tried within the next several weeks, we found, upon examination of each case in which discovery had been requested by interrogatories, that none of the discovery had been completed and that in not one instance had the interrogatories been answered as of the time of the argument though in most cases interrogatories had been outstanding for more than a year. (See brief of Krusen, Evans & Byrne analyzing the case which their firm is involved in their Memorandum Sur Motions To Consolidate, pages 10 to 21).
During the last two years, we have repeatedly called to the attention of those law firms practicing in the maritime field the impact of the concentration of these cases in the hands of so few law firms. As an example, one firm which specializes in longshoreman personal injury cases had approximately 35% of all of the cases on our Part I list, and another firm, also specializing in such cases, has more than 13% of the total cases on our trial list. These two firms have more than 95% of the plaintiffs' longshoremen cases in our court. There is an equivalent concentration of cases among those firms representing the defendant-shipowners. One firm has approximately 35% of all of the cases on our Part I list, and another firm has approximately 18% of all of the cases on our Part I list. Together these two firms are involved in more than 95% of the longshoremen cases on our Part I list.
This data is not cited to express a value judgment about what is obviously an oligopolistic concentration within this field by four law firms. The data, however, does reflect one of the practical problems which this Court must
The Administrative Office classified the longshoremen cases as "diversity of citizenship marine personal injury cases", and, while there may be a few such cases which are not longshoreman cases, more than 99.5% are longshoreman cases. Thus, for purposes of this opinion we have identified these cases as longshoreman cases.
The above statement about belatedness in answering interrogatories pertains only to those cases which were on Part I of our civil jury trial calendar-approximately the first one thousand civil jury cases on the trial calendar. However, the shipowners have also requested consolidation for cases on Part II of the civil jury calendar, the second thousand cases on our civil jury trial calendar. On September 12, 1967, the following letter was sent by Judge Higginbotham to the chief counsel for most of the shipowners who filed the instant motions to consolidate :
"At the call of the list for Part II, it was agreed that it was not necessary to provide the facts as to the status of discovery on the Part II cases; upon further evaluation of the problems, we would like to have detailed statements on the Part II cases similar to those on the Part I cases; thus it is imperative that there be noted whether any type of discovery has been commenced and if so, when; if interrogatories have been filed noting the date ther were answered, or if they have not been answered to date, and any other relevant statements pertaining to the status of discovery of these cases particularly noting dates of formal requests for information, and the compliance therewith.
Since you are the moving party on the motions to consolidate, we are requesting that you alone file this supplemental memorandum within the next few days. "Thanking you for your cooperation, I am,'
Despite the fact that on September 12, 1967, we requested counsel to file the supplemental memorandum "within the next few days." as of January 29, 1968-four months later, we had not even received the courtesy of a reply; on January 29, 1968, the preliminary draft was available for circulation to all of the Judges of this Court, counsel was phoned noting the four-month delay and only then did counsel reply by forwarding a rough draft memorandum. The reply indicates that of the 42 civil actions and 43 admiralty actions which the parties desired to have consolidated on Part II, that there was also for Part II cases a serious delinquency by both shipowners and stevedores in answering interrogatories many of which had been outstanding for more than a year.
Out of the 1,066 cases on our Part I Automated Calendar Control System, 342 are longshoremen cases and 144 Jones Act cases. Of the 342 longshoremen cases, Firm "A" has 201 of the plaintiffs' claims, and Firm "B" has 123; thus, 324 of the total 342. On the defendant shipowners' side, Firm "C" has 213 and Firm "D" has in excess of 115 cases.
Our Court is grateful to the Administrative Office of the United States Courts, and particularly to Joseph F. Spaniol, Jr., Chief of the Division of Procedural Studies and Statistics, and Russell Garman, who along with our Clerk of Court, have initiated an extraordinary project of putting cases on our trial lists on a computer and developing a system of calendar management and analysis known as Automated Calendar Control System.