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candidly recognize before granting the shipowners' motions in the manner in which they request them. For it has become increasingly apparent during the last year that longshoremen cases often were not reached by lawyers in these four firms not because of the unavailability of Judges, but sometimes because of the unavailability of lawyers in those firms to reach those cases which could be called for trial. This unavailability primarily was due to the fact that lawyers in those firms often had a very heavy individual case load.
Granting the shipowners' present motions would not only compound this Court's current problems of congestion, noted supra, but would also, within the context of each individual case, present this Court with what Mr. Justice Brennan, facing a different problem, described as a “grisly choice." * The grisly choice would be between two methods of trial management, neither of which would favor the expeditious disposition of longshoremen cases.
One alternative would be to grant the shipowners' motions and permit consolidation with a bifurcated trial. This alternative would result in having the civil phase of the trial before the jury and the admiralty phase before the Judge alone. Clearly this procedure would unduly prolong the length of each trial, and, because of the cumulative impact of the longer trial time consumed by hundreds of individual longshoremen cases, the prolongation of each individual case necessarily will have the deleterious effect of extending generally the backlog.
One of the representative trial problems which would result from granting the consolidation as requested would involve the treatment of evidence which is admissible only in the admiralty claim for indemnification and not admissible in the longshoreman's claim against the shipowner. The Court would be obligated to hear such evidence in the absence of the jury since it would not be relevant within the limited scope of the longshoreman's civil action against the shipowner. The occurrence of such instances, whether as to a fact or expert liability witness, would present the Court with two choices:
A. The Court could first permit the witness to testify solely on those phases relevant to the longshoreman's action against the shipowner. After the witness would finish his testimony on that phase the jury would be excused temporarily to permit the Judge to hear testimony from the same witness which was relevant solely in the admiralty action between the shipowner and the stevedore. This procedure would transform the jury box into a carousel with the jury moving in and ont as each witness' testimony was fragmented to insure that the witness would not be able to testify before the jury as to that evidence which was solely admissible in the admiralty action. The jury would wait in the jury room until such time as the Court had finished hearing the direct and cross-examination of the witness who would be testifying on the admiralty phase. Upon the completion of that witness' testimony, which in some instances could take considerable time, the jury would return to hear the fragmented portion of testimony presented by the next witness.
B. The Court could avoid the carousel effect, by which each witness testimony would be fragmented and the jury required to parade in and out of the jury box, by first hearing the longshoreman's case in its entirety. Of course the jury would hear only that testimony which was relevant to the longshoreman's claim against the shipowner. Thereafter, if there was a verdict against the shipowner, the Court would hear from many of the same liability witnesses, many of whom could be employees of the shipowner, in a completely separate trial involving the admiralty claim for indemnification.
This second method of handling the trial, were this Court to grant the shipowners' motions, would be substantially similar to the second alternative of the "grisly choice” with which the shipowners have confronted us, i.e., to simply deny the motions to consolidate and have two totally separate trials. Both of these procedures obviously would require more judicial time and, accordingly, would result in an extension of our trial backlog.
From the standpoint of managing our judicial calendar it is therefore clear that either of the above alternatives is saturated with total inefficiency. As we see it, no one benefits in the long run from the prolongation of these cases and the related effects of duplication of litigation costs and extra consumption of court time. Indeed, all litigants before this Court will suffer. This fact has already been recognized by the Administrative Office of the United States Courts which has succinctly described the backlog of longshoremen cases in our District as “alarming." By adopting the shipowners' present proposal the backlog could become totally unmanageable.
* Fay v. Noia, 372 U.S. 391, 440, 83 S. Ct. 822, 849 (1963).
*We recognize that in a few instances this procedure may be required where there is consolidation of civil claims with federal tort claims where the Government is a defendant. As a practical matter, however, such instances are rare. Of the 1.066 cases on this Court's present Part I trial docket the Government is a defendant in only four, whereas longshoremen cases account for 342 of the total.
To explain the policy considerations for our ruling on the consoldation re quest, we felt that it was particularly essential to note that the shipowners' present motions would expand significantly our present backlog and calendaring problems; yet candor requires that we publicily 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 and Harbor Workers' Act, 44 Stat. 426, Title 36 U.S.C. 88 901, 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,
To understand these long range alternatives which must ultimately be faced, one must have some historical perspective from at least 1946 when there occurred the first breach in the dike which made possible the subsequent flood of longshoreman litigation. Last term, the United States Supreme Court described the origin by noting that in 1946 Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L.Ed. 1099, “. extended the doctrine of unseaworthiness to longshoremen, even though the longshoreman was not a member of the crew, and in spite of the fact that the longshoreman was entitled to compensation benefits under the Longshoremen's and Harbor Workers' Act.” Jackson v. Lykes Bros. Steamship Co., 386 U.S. 731, 733, 87 S. Ct. 1419, 1421, n. 3. The Supreme Court further noted that:
“Subsequent decisions in line with the general concepts put forth by this Court have read Sieracki expansively, and a wide range of maritime employees have been granted the benefits of the unseaworthiness doctrine. Carpenters (Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L.Ed. 143); electricians (Feinman v. A. H. Bull S. S. Co., 3 Cir., 216 F. 2d 303); shipcleaners (Torres v. The Kastor, 2 Cir. 227 F. 2d 664 and Crawford v. Pope & Talbot, Inc., 3 Cir., 206 F. 2d 784); repairmen (Read v. United States, 3 Cir., 201 F. 2d 758); and riggers (Amerocean 8. S. Co. v. Copp, 9 Cir., 245 F. 2d 291), who performed jobs formerly done by Seamen, have recovered from shipowners on the unseaworthiness doctrine.” See 75 Yale L.J. 1174, 1183, 87 S. Ct. at 1421-22, n. 4.
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 Adminis trative Office of the United States Courts as to Southern District of New York, Eastern District of Pennsylvania, Eastern District of Louisiana.
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 right: 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. If there is such an inquiry, several questions should be asked: (1) Do longshoremen (in contrast to their lawyers) generally come out with better financial results by reason of this duality of litigation than they would if they had somewhat increased benefits and the statute was truly exclusive? (2) Is there any reason why there could not be broad samplings of many of the past longshoreman cases filed in our courts and compare those results with the results which would accrue under alternative systems? Certainly physical and social scientists have developed the skills to take random samplings of data and make careful assessments of past results and with such results make recommendations for future courses of action. There is probably no more conjecture in such an inquiry than that which we hear daily when the medical experts of longshoremen and shipping companies make prognoses for the back injuries which occur incessantly on the waterfront. (3) Of course if such an amendment were passed, unfortunately it would decrease a substantial source of revenue for, relatively few, lawyers. But is there merit in first making an evaluation as to whether the litigants indeed benefit if we are to have the court house door open for such an abundance of litigation which takes such a heavy proportion of the Court's time and resources?"
The statistical considerations outlined above thus make clear that the bringing of separate admiralty actions for indemnity by the shipowners, a practice only recently sanctioned in this Circuit in Ellerman v. Atlantic and Gulf, supra, and a practice which is concededly merely a tactical device of the shipowners, intended to avoid a jury trial of the indemnity issues, see Close, supra, p. 17, can contribute substantially to the backlog of litigation in this Court. Accordingly, to grant the shipowners' motions for consolidation here, without requiring a jury trial, would not only have the prejudicial effects upon the individual party-litigants noted supra, pp. 3-4, but would also encourage a practice which unnecessarily contributes to the calendar problems of this Court.
Finally, it must be re-emphasized that our decision means that in all future similar actions where there is a motion for consolidation, by either party, it will be denied unless all parties agree that in the consolidated action all of the factual issues, except that of the shipowners' counsel fees, will be tried to the same jury. Of course, if there is a timely motion for jury trial the Court will follow the procedure outlined in Close. See f.n. 2, supra.
A. LEON HIGGINBOTHAM, Jr.
ORDER The Motion for Consolidation in each action will be denied unless all parties to such action agree that as to that action all factual issues, excepting that of the amount of the shipowners' counsel fees be tried to the same jury. By the court:
A. LEON HIGGINBOTHAM, Jr., J. Dated: February 15, 1968.
Mr. GIESEN. Mr. Chairman, I have a prepared statement on behalf of the Maritime Association of the Port of New York which I represent. The statement parallels the statement of the other witness.
May I at this time submit this for the record ?
Senator MORSE. Your statement will be included in the record at this time, and I express my appreciation to you for it.
For the record, this statement was submitted by Mr. William F. Giesen, general manager and counsel of the Maritime Association of the Port of New York. It will be inserted at this point.
(The prepared statement of Mr. Giesen follows:) PREPARED STATEMENT OF WILLIAM F. GIESEN, GENERAL MANAGER AND COUNSEL,
MARITIME ASSOCIATION OF THE PORT OF NEW YORK The Maritime Association of the Port of New York is a 100-year-old trade organization representing all phases of the maritime industry located at the Port of New York. Included within our membership are virtually every stevedoring concern, shipowner and operator, shipbuilder and repairer, miscellaneous concerns which employ harbor workers and the major insurance underwriters, all of whom have a direct interest in the legislation being considered.
As explained in a "Statement of Explanation", transmitted by the Honorable Secretary of Labor to the Speaker of the House and President of the Senate, “the Bill seeks to overcome the 'major deficiency of the act by increasing the limits of maximum and minimum disability compensation and death benefits. The maximum weekly compensation for total disability would be increased from
The Administrative Office has estimated that exclusive of courtroom and office facilities the cost for adding each additional Judge is approximately $100,000 the first year and $80,000 thereafter, and in addition there is the heavy cost incurred for the compensation of large jury panels so that there will be adequate jurors for jury selection in each case.
$70.00 to $105.00, and the minimum weekly compensation for total disability would be increased from $18.00 to $35.00.
The death benefits would be increased accordingly with the benefits for total disability.”
"In addition to increasing the benefits payable to disabled employees or to the beneficiaries in fatal cases, to bring the payments more in line with earnings, the Bill proposes to provide for the payment of expenses of administration of compensation payments and of the safety program under the act by insurance carriers and self-insurers."
In further explanation, it is stated that the most recent revisions dealing with the amount of payment were in 1956 and 1961 respectively, and that in the interim, the average weekly wage in shipbuilding and repair and longshore work has materially increased.
Our Association is not opposed to the concept of a compensation law keeping abreast of the times and it must be recognized that periodic changes in compensation rates are necessary in order to keep abreast of wage changes.
We do, however, take issue with the amounts that would now be provided and submit that the new schedule of payment is not designed to catch up with wage increases but to go far ahead of anything that has happened by virtue of increased wages since the last amendments in the schedule of compensation payments. In our opinion the schedule of payments that are provided for are so high, that they would be conducive to innumerable feigned and malingering illnesses and injuries. One reads of all of the efforts of the Federal Government to halt the march of inflation. The people of the nation are being told every day by the leaders of our government from the President down through the Government's top economic advisors, that unless inflation is halted by increased taxes and by a halt in Government spending that the very roots of our economic structure are endangered. The excessive cost which would be imposed on our industry, which ultimately must be passed on to the public would constitute a major advance in the disease of inflation.
In addition to the excessive rate of compensation proposed, which in itself would force major adjustments in the cost of the nation's handling of commerce and shipbuilding, the proposal would compound the economic burden of the entire "administration costs" on the employers of harbor workers. These employers are not the sole beneficiary of the compensation law and the safety program. The employees are also beneficiaries and the public-at-large is a beneficiary. We maintain that the administration of a compensation law is a governmental function because the existence of a compensation law rests in a basic concept of a socially good and necessary act. Therefore, the taxpayers-at-large should pay for the administration of compensation and safety.
We respectfully submit that the compounding of additional costs brought about by the proposed increases in payment and a levy of administration costs will sound the economic death of many of the nation's stevedoring concerns, shipbuilders, ship carpenters and other employers of longshoremen and harbor workers. The economic destruction of a major portion of employers in this category would go right to the heart of the welfare of the nation's commerce. Most certainly, when we are engaged in a trade war with nations on the face of the earth eagerly awaiting the economic strangulation of the United States, the interests of the Commerce of the nation is paramount to other considerations pending in this proposed measure.
Finally—and most importantly, it is particularly significant that the proposed legislation which has been requested by the Department of Labor in an atmosphere of intending to correct gross inequities, neglects to deal with the worst inequity of all. “Compensation" which requires payment without proof of any wrong on anyone's part was conceived to be in lieu of any and all other legal remedies. This basic concept, insofar as this compensation law is concerned, has been completely distorted by a line of decisions rendered by the Supreme Court which in almost every major injury case opens the door to a substantive jury award for injuries sustained. Under this line of cases, not only do the harbor workers have the right to pursue a law suit seeking a substantive award against a so-called "third party" but, in addition, the "third party" is permitted to recover over against the employer of the injured employee. When the law was originally enacted the employer was told that by payment of compensation (payment withont regard to fault) all other suits would be barred. If the time is now ripe to make sanctimonious adjustments in the compensation act, we submit that the first amendment that should be made is to guarantee this very basic concept of compensation law and to legislatively reverse the court's decisions which have negated this basic concept. In this connection there was a full hearing of a measure, H.R. 207, in 1962. A record of the proceedings before Congressman Bonner's committee on Merchant Marine & Fisheries is available, along with the report of the Committee which came to the conclusion that the legislation proposed to restore the fundamental idea of a compensation law was meritorious and desirable legislation.
Mr. Casey. Mr. Chairman, I would just like to add that my association is composed of 32 of the large shipping companies here in the United States, and as you well know, this is a heavily burdened industry.
We have troubles of labor costs and old ships, but by and large, this is one issue upon which the management in this industry is completely united. We feel that this is an unwarranted expense that deserves the attention that this committee is giving to it, and I am very grateful that this committee has undertaken to interest itself in this particular issue.
Thank you very much, sir.
Senator MORSE. Mr. Casey, I am glad to have your statement. I will say to you and Mr. Giesen, and Mr. Scanlan, as I said to Mr. Vickery, we may call upon you for supplementary memorandums as we work on the bill. If you let us know, you will have an opportunity, if you want to exercise it, to submit rebuttal statements before we close the record in this case. It is as good a time as any for the Chair to announce that although this is the last day of hearings before the adjournment, we will be working on this bill after the Congress adjourns. It is the present recommendation of this acting chairman, and I think it will find favor with the full subcommittee, that when we reconvene, in order to accommodate the parties, we may hold final hearings, particularly allowing the opportunity for rebuttal evidence, in the field, on the west coast and the east coast, prior to the time that the Congress reconvenes.
As the transcript of the record of these hearings to date shows, we propse to complete our hearings, and be working on the markup of the bill before the House takes up the bill.
We are advised that the House will take up the bill in February, and we intend to get our work completed in the early part of January.
Mr. SCANLAN. Senator Morse, I would like to say that I appreciate your offer, and we will certainly accept it, to file any supplemental statement, and a rebuttal statement, as this progresses, and once more I would like to express our deep appreciation to you for the attention which you have given us here this morning.
Senator MORSE. If other witnesses don't mind, I would like to proceed and finish our hearings before we adjourn. Is that all right with you, Mr. Kalmykow?
Mr. KALMYKOW. Yes, sir; I would be very happy to do that. It would be a pleasure.
Senator MORSE. You may proceed.
STATEMENT OF ANDREW KALMYKOW, COUNSEL, AMERICAN
INSURANCE ASSOCIATION, NEW YORK, N.Y.
Senator MORSE. Mr. Kalmykow is counsel for the American Insurance Association. We are glad to hear counsel at this time.
Mr. KALMYKOW. Mr. Chairman, because of the lateness of the hour,