Warren E. Burger: We’ll hear arguments next in number 759, United States against Armour. Mr. Springer, you may proceed whenever you’re ready.
James Van R. Springer: Mr. Chief Justice, may it please the Court. This case which comes here on direct appeal from the District Court for the Northern District of Illinois is a reincarnation of the case, United States against Armour and General Host Corporation that was here a year ago, but became moot before the Court, but decided. Like that case, it raises a question as to the impact of the structural prohibitions of the great Meat Packers Antitrust Decree of 1920 to which Armour, one of the appellees here nominally, is one of the four meat packer parties. The Decree prohibits Armour from having any involvement in certain forbidden food lines other than meat packing, and the question in both of these cases essentially the same has been whether there is a remedy under that Decree for a take over of Armour by a company that is itself in the forbidden food line, as there would be incontestably a remedy if Armour were to acquire such a forbidden food company. The General Host case began in the beginning of 1969 when General Host acquired control of Armour. Since General Host was in the forbidden food lines, the Government took the position and that the Decree was offended by General Host's takeover of Armour, just as it would have been by the converse situation. So, we filed a petition then against General Host in the beginning of 1969 in the District Court which has had continuing jurisdiction over the Meat Packers Decree for the last 10 or 12 years, by a transfer from the District of Columbia where the Decree was initially entered. At that time, we asked the court to enter an order supplemental to the Decree against General Host which would make General Host a party to the Decree and then prohibit its acquisition of Armour. But Judge Hoffman, the district judge, who is also the district judge in the present, declined to entertain the petition, saying that the Decree was aimed only at affirmative action by Armour or another named defendant, and that therefore, the relationship between Armour and General Host was perfectly consistent with the Decree as long is it was created by somebody other than Armour, and as long as Armour avoided actively dealing in the forbidden food lines. The Government appealed the case here and it was argued in March of 1970. In mid May last year before this Court could reach a decision in the General Host case, General Host sold its controlling stock interest in Armour to Greyhound Corporation, which is the appellee in the present case. Over our objection, this Court then held that the case had become moot and ordered that the Government’s petition against General Host be dismissed. The papers that were filed in connection with that mootness issue are set forth in the separate supplemental appendix in this case and we’ve recited some of the related facts in our brief and I will not repeat them again here. Following that action by this Court last June, the Government promptly filed the present petition against Greyhound, since in our view of Greyhound like General Host has food interests that the Meat Packers Decree forbids Armour to have. Judge Hoffman promptly dismissed this petition as well at the end of June after hearing argument by the Government and off the record by counsel for Greyhound. As in the General Host case, Judge Hoffman again held that he was powerless to issue any order against Greyhound unless and until Greyhound actually caused Armour to deal in forbidden food lines. And so, he held that the Government’s petition failed to state a claim upon which relief could be granted. Again, we appealed, this Court noted probable jurisdiction and here we are again. The question in this case as in the General Host case is whether an Antitrust Decree can affectively keep a party to that Decree from becoming involved in another line of business where its involvement would, in the view of the initial Decree, create a recipe competition. Judge Hoffman held in each case that all the court can do in entering an Antitrust Decree is to tell the party not to do anything itself that would have the effect of involving it in the forbidden business. And incidentally to that, can punish anyone who actively aids or abets that party in doing what the Decree tells it not to do. We say on the other hand that a structural Antitrust Decree can be somewhat more than that, but a court can affectively decree an absolute prophylactic separation between a particular named party’s business and another line of business. And we say this Meat Packers Decree has done that, and that the court having for jurisdiction over the decree can enter a supplemental order fashioning a remedy against an outsider like Greyhound which comes in to destroy the structural separation that we say is the heart of the decree. Just as in the school desegregation cases that we have referred to in our brief, we think an anti-trust court has the power to issue a narrow order directed at a particular third party involved in a particular situation after a hearing that will prohibit that party’s interference with the effectuation of the specific purpose at the heart of the Decree in question. With that introduction, let me turn now to a description of the corporate relationship that Greyhound has created between Armour and Greyhound’s forbidden food operations, and then point once again as I did last year to the explicit language of the Decree that we think is designed specifically to prohibit such relationship from coming into existence. Some of these details have developed since the hearing -- the argument, as there really was, in the District Court last June, though there has not been any drastic change that materially affects our theory of the case. These more recent occurrences are set forth either in our brief or in Greyhound’s brief or in some instances in Greyhound’s annual report for 1970 which has just recently come out. We think, they’re undisputed and it will be helpful to the Court to have the current corporate situation. Greyhound at the time when General Host first became involved with Armour, Greyhound also was trying to get control of Armour in competition with the General Host, but General Host went out, winding up in early 1969 with about 57% of the stock, but leaving Greyhound with something of the order of the third of the stock. In the May 1970 transactions that I’ve referred to, Greyhound then bought out General Host, acquiring all of the stock that General Host had had, giving it then a total of about 86% of all of the stock of Armour.
Potter Stewart: Did that -- did that acquisition require approval of the Interstate Commerce Commission?
James Van R. Springer: Yes, it did Mr. Justice. As we have set forth in our pleadings last term and refer to in one our brief, Greyhound filed an application with the Interstate Commerce Commission. The Government was not a party there, filed a pleading in which we suggested that the Commission withhold its action of approving the issuance of the Greyhound stock involved in the General Host transaction until this Court could decide the Antitrust case which will determine whether that acquisition was legal or not. But the Commission took the point of view that since the Court had not yet reached the decision, there was not yet anything suggesting that the transaction was illegal and then permit -- the ICC is rather narrow focused which of course did not deal -- the ICC’s order does not deal with Antitrust questions at all, and of course, it has no power to immunize this kind of transaction. The only really question there was whether the issuance of this additional stock by Greyhound would be harmful to Greyhound’s basic business as a common carrier. So, the Commission did approve it and would then, a couple of hours after notice was given of that approval, this transaction had been closed and Greyhound was the owner of Armour. Greyhound has made no secret of the fact. In fact, it’s stated again in its current annual report that it went into Armour initially in 1969 with the encouragement of Armour’s then that is pre General Host management. As we understand that the --
Thurgood Marshall: You don’t say that they did actually participate with that Armour or anybody else, do you?
James Van R. Springer: No Mr. Justice, we are not making the argument in terms of Rule 65 (d) of the Civil Rules that Greyhound is -- has been in active participation in Armour with Armour in doing something in violation of the Decree.
Thurgood Marshall: Well, how do you escape that?
James Van R. Springer: I’m not sure that we might not have charged that. The case has not been handled along those lines. I think, it’s -- it has been perfectly open to the Government to proceed that way in a sense of course, it’s easier on Greyhound than calling Greyhound before the court and suggesting that that it itself was in contempt. The Government has regarded this perfectly adequate remedy to have an order against Greyhound telling Greyhound to divest itself, and then and only then would the Government proceed to --
Thurgood Marshall: That’s easier way you’ve done, but then going direct against Greyhound?
James Van R. Springer: Yes, and certainly there are I think fewer questions to be argued about in that approach and --
Thurgood Marshall: Well --
James Van R. Springer: -- under that approach and I think it is, as I say, easier on Greyhound.
Thurgood Marshall: I’m sure that’s easier for the Government, but doesn’t make it legal, does it?
James Van R. Springer: No Mr. Justice, though I think -- I think it if the Government could precede directly against Greyhound, I think it would follow that it could proceed indirectly in this way. I think assuming the Court agreed with that, the Government could say “Even though we could seek contempt punishment against Greyhound, now, we will give Greyhound another chance and we would like the Court to make clear what Greyhound’s obligations are, and then and only then we proceed against them.” As we understand that the Armour stock was initially owned by Greyhound’s subsidiary. Subsequently at the end of 1970, Greyhound arranged a series of transactions which resulted first of all, in the acquisition of all of the rest of the -- all of the minority interest in Greyhound -- in Armour, giving Greyhound a 100% ownership, and then a reorganization of the corporate structure so that Armour is now a direct wholly-owned subsidiary of the Greyhound Corporation which we’re told is the holding company which owns Greyhound’s greatest interest, including its bus lines, Armour, the food businesses that we find offensive to the Decree and various other lesser interests. And Greyhound has moved with some rapidity to integrate Armour into its corporate family. For example, the current annual report of Greyhound states “The various activities had been coordinated, computer operations, communications, insurance and banking arrangements for instance.” What Greyhound is deemed to be marginal or unproductive assets of Armour have been sold, and several unprofitable Armour operations have been closed. In fact, our information is that something -- Armour facilities accounting for something like 10%, perhaps more of its annual sales have been disposed off by Greyhound during the period that its had that kind of control over Armour. The report further says that a consolidation of headquarter staffs is planned. A Chairman and Chief Executive Officer of Greyhound is now the Chairman and Chief Executive Officer of Armour, seven of the 11 Armour directors or officers are directors of Greyhound, including the entire executive committee of Armour. The three top officers of Armour are in Greyhound’s Board of Directors and so on. So obviously, Greyhound’s relationship to Armour is a good deal more than that of a mere investor or an ordinary stock holder as Greyhound suggests in its brief. Armour is run by Greyhound people obviously for the benefit of Greyhound and its shareholders. And of course, Greyhound has created this situation with full knowledge throughout, both of the Meat Packers Decree and of the Government’s interpretation of that Decree. Side by side as I indicated in the Greyhound corporate complex is another wholly-owned subsidiary called Greyhound Food Management Incorporated, which manages Greyhound’s forbidden food interests as we call them. These are basically of two kinds, one Post Houses which operates a chain of restaurants and two, the larger element of this something called Prophet Foods which is an industrial catering business which sells prepared meals in schools and industrial plants and hospitals and various others establishments. Food management is also a very substantial part of the Greyhound complex. Taking -- leaving Armour out, it has an averaged something of the order 15% of Greyhound’s total sales, or something like a $110 million to a $120 million a year.
Potter Stewart: Is this is an auxiliary -- is any part of these activities in auxiliary service to Greyhound’s transportation service? I mean, do their buses stop, in other words at the Post Houses?
James Van R. Springer: I think -- I think, it can be said to some extent of Post Houses --
Potter Stewart: And Post Houses.
James Van R. Springer: -- which I believe of runs restaurants in bus stations. I think it also runs other restaurants. I don’t think that can be said in anyway of Prophet Foods which is the larger element to this, which is basically --
Potter Stewart: Pre-prepared meals?
James Van R. Springer: Pre-prepared meals.
Potter Stewart: Are they sold to airlines or what?
James Van R. Springer: Greyhound’s counsel could tell you a bit more about that. I don’t believe airlines. I haven’t seen any reference to that. I think its plants and then institutions of various counties. Among other things, the same person is the Chairman of food management which operates these other food businesses. Vice Chairman of Armour and the Vice President for food of Greyhound is one individual, and food management of course sells in prepared form a great many of the commodities in very large amounts that are specified in the paragraphs of the Meat Packers Decree telling Armour what it can’t be involved in. Now, let us look at the specific language of the Decree. Paragraph four says that the meat packer defendants, including Armour, are perpetually enjoined and restrained from either directly or indirectly, engaging in or carrying on the manufacturing, jobbing, selling, transporting, distributing or otherwise, dealing in these forbidden food products. And that same paragraph goes on to say that the corporation defendants are further perpetually enjoined and restrained from owning either directly or indirectly any capital stock or other interest whatsoever in any corporation engaged in those forbidden businesses. Paragraph six prohibits Armour from directly or indirectly operating retail meat markets and paragraph eight of the Decree has prohibitions on dealing in fresh milk and cream which are comparable to the other prohibitions in paragraph four. As we show in our brief, this Meat Packers Decree, of course, is no mere historical relic. The packers have twice asked the courts, this Court each time to lower these prophylactic structural barriers between the meat packing business and the other food businesses, and each time the courts, including this Court has rejected their arguments the changed conditions, replacement of the original officers and directors who got Armour and the other packers into this in the first place and so forth, have justified changes in the Decree. So the Decree has remained intact through all these years and it was only 11 years ago -- 10 years ago that this Court last considered the modification question. Armour still the second largest member of the meat packing industry? And that is still a quite highly concentrated industry, though somewhat less so than it was in 1920. As Justice Cardozo said in 1932 in the earlier modification attempt, such great size carries with it, an opportunity for abuse and not to be ignored when the opportunity is proved to have been utilized in the past. And it was for that reason he said that the Decree absolutely prohibited the forbidden food lines from being added to the meat packing business. And the underlying purpose of the structural barrier was again in Justice Cardozo’s words “to avoid the difficultly of parading out particular impeditive evils and requesting them to undiscovered.” In other words, I think a classic case would be prophylactic kind of structural insulation of the parties to the Decree from other businesses where it was considered that their involvement would risk anti competitive effects. I think then it’s as clear as it could be that the specific and primary purpose of the Decree, both based on its own language and on what this Court and the District Court has said over the years in interpreting it, but Armour was to be kept in perpetuity out of the food lines in which Greyhound through its sister subsidiary of Armour food management is involved. And this specific prohibition is what we say the acquisition of Armour by Greyhound has interfered with. As I indicated, they are now sister subsidiary of the single holding company with interlocking managements and boards of directors and common banking arrangements and so forth. They're obviously, the common servants of a single owner, Greyhound or if you will, but the stockholders of Greyhound. Every bit as much we think in practical terms as if Armour had acquired food management or if Greyhound now as it obviously could were to merge the two of them, and perhaps operate them as divisions of a single corporation. I think it’s uncontested that both of those particular situations would be literally prohibited by the Decree. Moreover, I think it’s clear that Armour could not have created a holding company itself which would own its stock and then would have acquired company such as food management. But of course, that corporate relationship is the precise corporate relationship that now exists by virtue of Greyhound’s acquisition and rearrangement of these corporate structures. So, the same -- again, the same economic unit, the same corporate family is in the two businesses, and we say that the Decree was plainly specifically design to prevent that exact situation as to Armour from coming into being without regard we say to who is active and who is passive in creating the situation. In fact, we think it can be said that situation created by Greyhound with respect to Armour puts Amour in a position where it can be said to be in literal violation of the Decree. As I indicated paragraph four of the Decree, not only prohibits Amour from directly or indirectly engaging in the business in which food management is involved, it also prohibits Armour from owning any interest whatsoever in any company that is engaged in -- in such a business as food management, we think plainly is -- we think that the situation, well, this interlocking situation, the common ownership is a situation where in realistic appreciation of modern incorporate realities it has to be said that Amour does own an interest of a kind, any interest whatsoever in the business of its sister subsidiary. Any other approach, we think tends to confuse modern corporate realities with more traditional notions of ownership by real individual people of real individual things. But given the power that a holding company like Greyhound has over the various corporate structures that it has chosen to put within a system, we think that realistically, this has to be regarded as a situation where --
Byron R. White: Mr. Springer, what would be the major problems in the Government's Section 7 suit against Armour and Greyhound?
James Van R. Springer: Oh! I can’t speak very authoritatively on that Mr. Justice White because I -- I’m not aware that specific analysis has been done. I think that -- this is a conglomerate problem which of course the department has moved into another areas. We have not contended that that this would be a Section 7 violation. The very premise of this case is that we don’t need to show that it would be one. I think perhaps the nature of the dealings between the two companies and the magnitude of the markets might not be sufficient to make it a very easy Section 7 case. In any event, we say we don’t need to cross that bridge because there’s already a Decree entered specifically against Armour saying Armour can’t be in this kind of business, and that’s the very purpose of this kind of prophylactic relief in a Decree to make it unnecessary for the Government to enter the particular facts and prove a particular violation of the Antitrust laws de novo. The only question then as we see it is one of relief for what we think is in incontestively an interference by Greyhound with the substantive structural relief that this whole Decree was designed to create or if you will, an actual situation where Greyhound has put Armour into violation of the literal terms of Decree. Of course, it’s plain that only Greyhound and not Armour, its pawn, can remedy this situation because the title to the stock that has to be divested to give the Government the relief that it wants is in Greyhound and Armour of course in the remedial sense is the only one of these entities that’s party to the Decree. As I indicated, we have not suggested, we’ve not proceeded on the theory that Greyhound is in active participation with Armour in making Armour violate the Decree. What we have said is that as in the civil rights cases, which I think are quite analogous where the courts have found the power to issue a supplemental order creating a remedy against interference with school desegregation interference by a third party and not a party to the initial Decree, because of course, the basic party and the defendant -- party defendant in these cases has been the school board. The courts have had found no trouble in creating a remedy for independent actions by third parties, not in concert with the school board and we think, this is a very analogous situation. Of course, Section 5 of the Sherman Act gave the District Court the power to bring Greyhound in we think as a party on the theory that that was required to infatuate the ends of justice and paragraph 18 of the Decree, again, specifically provided that the court retain jurisdiction to enter appropriate supplemental orders to carry it out, and we think that the order requested in the Government’s petition would have been such a appropriate order. I’d like to reserve the rest of my time.
Warren E. Burger: Thank you Mr. Springer. Mr. Foote, you may proceed.
Edward L. Foote: Mr. Chief Justice and may it please the Court. As Greyhound sees the issue, the question is one of application of traditional and acceptable principles that apply to injunctions under Rule 65 (d), and whether the accepted law that applies to such injunctions is going to be observed in this case under the attack of a justice department that in this case, structural Antitrust Decrees will be circumvented. The basis question in this case starts with Rule 65 (d), and the District Court is very familiar with the packers Decree because he is the judge who handled the modification proceedings in Chicago in a 14-week trial back in 1958. This District Court reviewed the petition and dismissed it. Now, he’s familiar intimately with the terms of this Decree. Judge Hoffman, the basis of Judge Hoffman’s decision is that Rule 65 (d) simply does not apply to situations unless someone is actually participating in violation of an injunction. He observed and I think the record is unmistakably clear that Armour’s conduct in this case is not at issue. Armour has never violated the Decree. There’s no suggestion that Armour did. Amour’s conduct is impeccable. There’s no suggestion that in this instance, Greyhound is actively participating with Armour in violating the Decree. And as the District Court says, Rule 65 (d) of the federal rules of civil procedure provides that every order, granting an injunction is binding only upon the parties to the action, their officers, etcetera, and upon those persons in active concert or participation. There’s no part of this Decree that relates to the conduct that the Government is talking about. I think it might be of interest to the Court. The Court probably knows that three years after this Decree was entered back in 1925, one of the original signatories to the Decree, Morris Packing Company, was acquired by Armour. Here, you have supposed prophylactic and structural Antitrust issues that were supposedly decided for all purposes in 1920 in this Decree, and yet three years later, one of the original signatories was acquired by Armour. Now, the fact of the matter is that this Decree does preclude some conduct and it does not apply to other conducts. All of the stock of Morris, all of the business of Morris was acquired by Armour. There’s no attack on that. As a matter of fact, the Government over the last 50 years has interpreted this Decree completely inconsistent with their current interpretation. What you have as Greyhound sees the matter is the same situation that this Court decided in May of 1969 in the Hazeltine Zenos litigation. Now to be sure, there are -- there’s no analogy that’s perfect, but what did the Court do in the Hazelton litigation? Here are the similarities. Both cases involved Antitrust Decrees. Both cases involved an Antitrust Decree on a subsidiary. Both cases involved the parent and the parent obviously owned the subsidiary. Now in the Hazelton litigation, this Court said and reversed the District Court that you could not apply the injunction, the injunction that was entered against the subsidiary to buying the parent, and the case was reversed on that ground. This Court at that time again referred to Rule 65 (d). Neither the judgment of damages nor the injunction against Hazeltine was proper. Although injunctions issued by federal courts by and not only the parties defendant in a suit, they cannot -- the court goes on to quote Rule 65 (d) apply to the parent in that case Hazeltine, since Hazeltine was not a party to the litigation. Now, what is the difference between that case and this? Why does the Government not apply the traditional law that applies to normal injunctions under Rule 65 (d) to this case? Isn’t really the issue in this case whether the injunction entered in 1920 against Armour buy-ins Armour’s stockholders, in this instance; Greyhound. That’s really what the Government is asking for. They want the injunction to run up stream, and isn’t that contrary to the theory of the Hazeltine litigation where in that instance, the Court refused to support the District Court that had done just that. Over the years, the packer’s Decree has been interpreted. The Court of course well knows Justice Cardozo’s decision back in 1932 and it was again reviewed in the 50’s by the District Judge Hoffman. Those proceedings involved modifications of a Decree. In those situations, parties went into Court and asked that a Decree be modified. The same thing happened in the United Shoe case, and in that case, Justice Fortas for the Supreme Court set down the rules that govern modifications of Decrees, but I think it’s very important to observe that in this case, the Department of Justice, that the Government is not seeking a modification of the Decree. They are not going into court under the United Shoe theory and asking for modification. What other kind of cases then has this Court considered interpreting Decrees and trying to extend them? Well, I suggest for the Court Justice Black’s decision in the Atlantic Refining case in 1959. That case is very similar to this case in several respects. Both cases started out with the complaint alleging illegal conduct. In the Atlantic Refining case, a trial actually started and later on, a Consent Decree was entered. The Consent Decree prohibited various shippers and owners from certain discriminatory arrangements with one exception that a 7% payment was permitted under the Consent Decree. The Government having consented to that Decree operated under it with the parties for approximately 16 years. And then in 1957, the Government did in that case, what they have done here. They did not seek modification. They went into Court and simply said the language of the Consent Decree applies to this situation, meaning a situation that was actually the subject of the original Decree, and they wanted interpretation of the language. They didn’t want a remand. They didn’t want any modification hearing. They wanted the language of the Decree itself stretched to include the conduct that they quarrel about in the second proceeding in 1957. Now in that case --
Byron R. White: I gather that you think that under this Decree, if Armour went out and was in the process of purchasing the assets of a company in a forbidden line that the court would be limited to enjoining Armour from doing that. It couldn’t issue a supplemental order against the putative seller. It couldn’t also -- could it enjoin both Armour and the seller?
Edward L. Foote: Well in an original action --
Byron R. White: I didn’t ask about an original action. I just -- under the Decree, Amour is forbidden from acquiring some company of a -- of certain kind?
Edward L. Foote: That’s correct.
Byron R. White: And if it’s in the process of acquiring one of those forbidden companies, could the court issue an order against Armour and also the possible seller?
Edward L. Foote: Well, Your Honor, I believe in terms of what would happen in that case, Judge Hoffman discussed that and he indicated that he would certainly enter an order against Armour, if Armour’s conduct ever appeared to violate the Decree. I believe that he would also ask that the party who is being acquired be brought in, but it's -- if that answers your question, I believe he could do --
Byron R. White: Well, I want know what your opinion was, whether the order could run against the seller too?
Edward L. Foote: Oh! I don’t know whether the order would run against the seller Mr. Justice, but the court would issue an order against Armour and if the court issued a summons against the third party, presumably if the third party were -- under Rule 65 (d), if the third party were actively participating in it, it comes within Rule 65 (d).
Byron R. White: So in that sense, the Decree wouldn’t be limited only to Armour?
Edward L. Foote: Mr. Justice, we have never contended that the Decree is simply limited to the packers. We would like to apply to this case the traditional law that is applied in any injunctive case; meaning Rule 65 (d). What has happened in this case, it seems to us is that because of the purpose that the Government sees in this Decree, they want to circumvent the normal rules that apply to injunctions. They have cited no cases that are parallel to this. The Forbus (ph) case is not an analogies situation --
Byron R. White: But Armour, I suppose under this Decree couldn’t acquire Greyhound, could it?
Edward L. Foote: That is correct.
Byron R. White: But if Armour said “Well, I can acquire you, but you can acquire me, why don’t you do that?” Then 65 (d) would be -- would come into play, I suppose?
Edward L. Foote: That is correct. This petition does not allege any such facts. As a matter of fact, before the District Court in the briefs of this case, the United States has abandoned that position. They do not want to urge that position. They have never alleged any active concert or participation.
Byron R. White: In that circumstance, though you would say that in order to grant against Greyhound --
Edward L. Foote: Yes.
Byron R. White: But as far as long as Armour is passive and doesn’t take it up in the first place, an order may not run against Greyhound?
Edward L. Foote: I believe Mr. Justice, that’s what Rule 65 (d) says.
Byron R. White: That’s what this case is all about?
Edward L. Foote: This case is in part about that. There are other issues. Under the Atlantic Refining case as Justice Black observed, the purpose of the Decree even if the purpose of the Decree would be better served by the proceeding that the Government brought, you cannot modify without a modification hearing the language of the Decree particularly since the Government in that case and in this has consistently over the years had a completely different interpretation. It seems to us that the problem of the interpretation of the Government in this Decree over the last 50 years is not estopping the Government in this instance. But as in the Atlantic Refining case as Justice Black said in that case, for 17 years, the Government had interpreted the Decree consistent with his interpretation in the opinion in that case, and the new interpretation, which was a new interpretation by the Government, he suggested that perhaps modification proceedings were in order. Based upon that consistent interpretation over the 17 years, you can read into the Decree its actual purpose. Now in this instance as the court knows, the Government has interpreted this Decree completely different from the suggestion made to this Court. In the LTV litigation on March 10, 1970, while this case -- that is the General Host case, it was in this Court, the Department of Justice was filing papers in Pittsburgh on this very Decree in the sense that Wilson and Co., which is original signatory to the Packers Decree was a party as a subsidiary of LTV in the Pittsburgh litigation. Now in that case, the Government suggested to the court that LTV could own 86 or some percent of Wilson and Co., and also own Jones and Laughlin. Jones and Laughlin has products which are expressly included in the Decree. Now, what is the difference between those two situations? In both situations, you have a form of conglomerate, a holding company LTV or the Greyhound Corporation. In both situations, each of the holding companies had a major transportation company, the Greyhound Bus Company, contrast to the Braniff Airlines, one of LTV’s subsidiaries. In both situations, the holding company, Greyhound or LTV had a substantial interest in a packer, Wilson & Company, or in this instance Armour and in both situations, they were alleged to be Decree products in another subsidiary. Now --
Byron R. White: Was it then appropriate as a remedy in this case if the -- for the trial court in 1920 to have said Armour shall not acquire anyone -- this forbidden lines and neither shall Armour be acquired by anybody in the -- those forbidden lines?
Edward L. Foote: Mr. Justice, it’s our view that no such order could be binding.
Byron R. White: Well, it wouldn’t be binding until somebody -- but let’s assume what happen. Somebody acquired Armour like this, like in this case, would you think that court would be entitled then to enter an order against the acquirer?
Edward L. Foote: It is our view that injunction such as that cannot run against the world. You could perhaps enjoin the transfer of stock. You could enter an order that the transfer agent could not transfer the stock. You could put people on notice, but under Rule 65 (d), even after actual notice on a party, you must have active participation. It seems to us the question here is what traditional law is as it applies to injunctions on non parties? If that is not the proper law, and if we’re going to accept the Government’s view that injunctions once entered buy-in parents, even corporations that acquire the stock at the later time, how can we justify the court’s decision in the Hazeltine litigation, whereas 65 (d) was used very specifically to reverse the District Court for entering an injunction against Hazeltine Corporation. This is the traditional law as we see it. We think it’s the traditional laws this Court has seen it over the years. Now here for some reason, the Government takes the position that this traditional law applying to an injunctions should be extended, and it should be extended according to the Government because if that is not done, Structural Antitrust Decrees will be circumvented. But if there is any need to look to an illustration of how to circumvent Structural Antitrust Decrees; we can look at the Government’s own conduct in the LTV litigation. There isn’t a particle of difference between what the Government did in LTV and this case, and yet in LTV, the Government suggested to a federal court in Pittsburgh that it was perfectly proper for LTV to own a company, Jones and Laughlin, the deals in prohibited products and also own 86% of Wilson and Co. Now, the apology for that let’s call it “different point of view” was stated in the briefs filed in this Court last year in the Host litigation as follows. A proposal of settlement, this is the LTV litigation, does not make law, especially in light of the serious anti-competitive factors involved in the underlying case; meaning this case. Moreover, the prohibition under the Meat Packers Decree to which Greyhound points comes under the heading of miscellaneous articles. But if we are really in this case not trying an anti-trust lawsuit, and we think this is exactly what the Government is doing, are circumventing the requirements of Section 7 and trying to extend this Decree well beyond this Court’s decisions both in the Hughes case and at Atlantic Refining. In both those cases, this Court pointedly said, it might well serve the purpose of the Government and might well serve the prophylactic effect of the Decree to have the release entered. But, we can’t look to those purposes because the Government over the years has interpreted the Decree inconsistent with that. In the Hughes litigation and in both the Atlantic Refining litigation, the Government tried to do exactly what their trying to do here and this Court did not accept those arguments. Now, it seems to us that the law is a little different in modification proceedings. There as Justice Cardozo indicated the 1932 if someone goes into court and actually seeks a modification of a Decree, then, you have to analyze the background of the Decree. You have to analyze its purposes in order to determine the extent and breadth of the modification, but this is not a modification proceeding. This is a proceeding brought under the Decree to extent its terms well beyond any language in the Decree. The Decree merely forbids Armour from doing various things. It prohibits Armour from owning any companies that actually are in Decree products. There isn’t a slightest suggestion in this case that Armour is violating that Decree. We have an attempt to apply the Decree to a parent or stockholder contrary to the decisions of this Court. As Justice Black said in the Atlantic Refining case which is a case like this, not a modification proceeding, you must look to the experience and the conduct to the parties over the years to determine the extent of the application of the Decree to this new situation and what has been the experience over the years. In 1925, Armour was permitted to acquire a packer, Morris. LTV in recent times is permitted to have exactly this same relationship with -- that they are now complaining about with Wilson and Co., another packer. How can we possibly distinguish those two situations? How can the Government on March 10, 1970 file papers in the federal court asking that that relationship be approved and at the same time, file papers in this Court asking as to another packer that that relationship be stopped. Over the years, there has been a consistent interpretation by the Government that this does -- this Decree does not apply to upstairs activity by the packers. Meaning for example, let’s take FH Prince and Co. Inc. FH Prince and Co. Inc. owned 100% of the stock of the USYNT, the Union Stock Yard and Transit Company in Chicago; one of the direct prophylactic provisions of this Decree was that Armour would have no relationship with a Stock Yard. There’s a specific provision asking for divestiture and divestiture occurred, but in between 1958 and 1960, FH Prince and Co. Inc had controlling interest through a variety of Prince interests of Armour, and also own 100% of the stock of the USYNT. The USYNT operates restaurants. All these facts were known to the Government and acquiesced in because they were trying the modification proceeding in Chicago during the same period. So, you have a Decree which has never been applied in 50 years to investments in a packer. It wasn’t applied when Morris was acquired, a signatory. It wasn’t applied when FH Prince and Co. Inc owned both USYNT and Armour. It wasn’t applied in the LTV litigation in which LTV owns both a packer and a corporation that deals in Decree products. With 50 years of experience, interpreting the Decree in that way, under the Atlantic Refining case, this Court’s latest decision that we know on this subject, this case should be affirmed. As Justice Black suggested in that case, perhaps modification is appropriate, but this is not a modification proceeding. This is a proceeding in which the Government contends that the purposes they see in this Decree, purposes that go back to 1920, control the anti-trust issues of today. We have, not in our briefs, attempted to answer it, but many references outside of the record concerning meat and other food facts that supposedly control the anti competitive facts in the meat industry today. We don’t think it is appropriate to put in briefs in this Court a lot of references to how much control Armour does or doesn’t have. We would like to dispute them. We don’t think that the meat industry has anywhere near the control that used to have, but it seems to us that that’s an irrelevant point. What we really have in this case is a simple issue of interpreting the Decree under Rule 65 (d). Why does the Government not proceed under Rule 65 (d)? They admittedly have not. They admittedly want to challenge this Court’s decision like in Atlantic Refining, and they admittedly want to take a different position in this case than they have in other cases. What was the purpose of the Decree? The Government seems to be able to read out of the Decree a variety of purposes which we can’t find. The Decree itself which was entered in 1920 contains an express provision in the beginning of it that the packers, first of all, deny all the charges. This is a settlement of a lawsuit and the settlement of the lawsuit contains in it an express provision that says that the entry of a settlement Decree is no admission on their part that they’ve ever violated the laws or have monopolies. This Decree does not stand for the proposition of the monopoly ever existed. As a matter of fact, if the prophylactic nature of this Decree is such that accretions of power among the packers are included in its prohibitions, then how could the Government, three years after the ink was dry on this Decree, permit Armour to acquire Morris? And if that is so, how can the Government contend against Greyhound that we cannot through different subsidiaries own a packer and a company that has some Decree products when they permit other companies too? What is the difference between the board of directors of LTV and the board of directors of Greyhound? We’re not saying the Government is estopped. If they want to let LTV conduct their affairs that way, obviously, that’s their right, but in interpreting the Decree over the years in that way, under this Court’s decided authority, those facts are material in determining the purposes of the Decree. I have one last point. The real issue in this case is not Armour, its Prophet Foods. Greyhound has another subsidiary. It operates in the food business. It’s in the catering business. It also has another small subsidiary that sells food as an accommodation to people who want to buy food when they stop at the bus line out in Omaha or some place. This is a small business. It’s part of an adjunct to their bus business. Now, if the Court is going to except the Government’s arguments, we respectfully suggest that the real issue in this case as we stated in the relief paragraph of the appeal brief is that we divest ourselves, that is we get rid of say Prophet Foods. This is not an antitrust case, there’s no finding here that Greyhound has violated any law.
Warren E. Burger: Do we have any information in, anywhere in the record that would indicate how much of Armour’s products are used by Greyhound in its food dispensing aspects?
Edward L. Foote: No, Your Honor. We have --
Warren E. Burger: That’s because we have no record?
Edward L. Foote: We have no record. I believe we have furnished such information to the Department of Justice in their investigation of this case, starting out as a Section 7 investigation, but it’s never been made a party -- part of this record, but more than that Mr. Chief Justice, the problem here is not one of an anti-trust violation. There are references in this appeal to reciprocity, the possible control of prices by a combination between Armour and Greyhound. All of these statements are not in the record. At this juncture all we have is a petition filed which merely states that they want a subpoena or summons issued against Greyhound under Section 5 of the Sherman Act, and that requires a finding that the action be pending, and when a District Judge who’s had a lot of experience in this matters, repeatedly asked counsel for the Government, to give me some authority on this; they cited the Byre (ph) case. The Byre case the only one we know off, but in that case, this third party was permitted to litigate the merits of the original Decree. That can’t perceivably be what the Government is asking for in this case and yet, it’s the only case that could be cited and the reason is, it’s at Section 5 of the Sherman Act requires a finding that the action is pending before summon is issued. We think this whole business of possible circumvention of Antitrust Decree is a rouse. The Government is trying to create a noble public interest objective to get around the basic rules of injunctions that apply in case after case and a careful reading of this record in the hearings before Judge Hoffman. Judge Hoffman is a seasoned experienced judge; one of many and all the District Judges have problems of injunctions. And it’s just Judge Hoffman said “What am I to do in the next injunction case? I have all kinds of injunctions over my experience on the bench. I have many injunctions. Are we going to apply these rules to that kind of a case?” The Government in this case is actually seeking to have the rules that normally apply in injunctions and the rules that they have permitted to apply to the Packers Decree to be amended in this proceeding. Thank you.
Warren E. Burger: Mr. Foote, thank you. Mr. Springer?
James Van R. Springer: Thank you Mr. Chief Justice. I think to try to put this case back in focus, perhaps I should say that this is not primarily an anti-trust case here at all. It is an equity case. We are not as we have said many times, seeking to modify this Decree. We do not rely upon some general notion of what’s good for competition and what is bad for competition. We take this Decree as we find that. We think there are in this Decree prohibitions against a certain kind of structural situation. We think the Decree did everything it could to try to create such a prophylactic separation. We think Antitrust Decrees should be able to do that, and the only question here as I hope I’ve indicated is whether there is a remedy for such an interference or violation, whatever you want to call it, with a structural separation which an Antitrust Decree, whether it’s a consent Decree or litigating Decree has tried to establish. We acknowledge of course that this is as far as we know, the case of first impression in this Court, and perhaps in any of the Courts, but that’s of course why we brought it here. We say frankly that our case does depend upon the proposition that in a Decree, specifically in an Antitrust Decree, there are two aspects; there’s the substantive aspect and the remedial aspect. We think a distinction can be drawn between them. This Decree had the specific substantive aim of decreeing a separation. That separation has been broken down. Admittedly, the Decree as written does not provide a remedy for that, and it’s for that reason that we went to the court seeking a very limited additional remedial order which we had thought was necessary to remedy this breaking down of the substantive separation which the Decree was designed to create. This case we think, there’s nothing like Atlantic Refining or Hughes for the simple reason again as I’ve said that we think this Decree does specifically prohibit the situation.
Potter Stewart: How about LTV --?
James Van R. Springer: Several things can be said about LTV. First as this Mr. Foote is admitted, there’s no element of estoppel here. LTV came up long after the Government had told Greyhound that it objected to this situation. Second, and again, this is a distinction from Atlantic Refining, the Government has never approved LTV’s simultaneous ownership of Jones and Laughlin and Wilson and Company in any specific way. The Government -- the situation is this and this is also true, the Prince case. The Government has not taken any action against those situations of the Pittsburgh case to which Mr. Foote refers. Of course, it’s a Section 7 case trying to initially brought to get LTV to divest itself of Jones and Laughlin. As far as I know, Wilson and Company has never been mentioned in the proceedings of that case. And one further point on that if I may, the prohibition of the Decree to which Mr. Foote refers is one of a number of miscellaneous articles listed in the end of the paragraph four of the Decree which includes structural steel and babbitt and a lot of incidental products which are not mentioned for one thing in this Government’s petition, and I think plainly, they’re not central to the Decree in the sense in which we think the separation between meat packing and the other food lines is central to that Decree. So in light of that, I think it’s just perhaps appropriate for the -- and the Government should not be bound in this case by the fact that it has not taken steps against that one particular situation.
Warren E. Burger: Thank you Mr. Springer, thank you Mr. Foote. The case is submitted.


Earl Warren: Number 62, Jacob Senko versus La Crosse Dredging Corporation. Mr. Moran.
George J. Moran: May it please the Court. This suit was brought pursuant to Title 46, Section 68 -- 688 of the United States Code annotated which provided or provides that any seaman who shall suffer personal injuries in the course of his employment shall have a remedy therefore if there's negligence on his employer or his fellow servants and all of the rights that railroad employees have shall extend to the seaman. Now, Jacob Senko files suit in the City Court of Granite City, Illinois alleging that the defendant was the owner and the operator of a dredge called the James Wilkinson and that he was a member of the crew and a deckhand on that dredge. He further alleged that the dredge was plying on navigable waters of the United States on the 5th day of November in the year 1951 and that was he was injured through the negligence of the defendant. The case was tried on res ipsa loquitur theory and trial was had and the jury rendered the verdict in the City Court in the amount of $30,000 which was reduced by remittitur to $20,000 and then judgement was entered by the Court on the verdict of the jury. Now, after that judgement was entered, the case was appealed to the appellate court for the Fourth District on several grounds but mainly the fact that Senko being a land lover could not be a member of the crew of a vessel and therefore as a matter of law, the jury had no right to bring in a verdict in his favor, and the appellate court reversed the judgement outright on the ground that the facts being undisputed that there was only one conclusion to draw from the facts and that was that Senko could not recover because he didn't bring himself within the definition of a member of a crew of a vessel operating on navigable waters. Now, the James Wilkinson operated with a crew of four.
Earl Warren: Was that finding because he wasn't a member of the crew or because it was in navigable waters or both?
George J. Moran: I am not able to determine whether the finding was based upon facts particularly that he was not a member of the crew nor the fact that it was in navigable waters or that the ship was in navigation. I mean the appellate court went in and I was going to get that, I can explain it now, Your Honor, if you want that I --
Earl Warren: No, take your time.
George J. Moran: All right.
Earl Warren: Do it your own way.
George J. Moran: The -- the vessel operated with a crew of four. There was an engineer who operated the dredge -- who took care of the machinery on the dredge, there was an operator who operated the levers that ran the spuds and the -- and the anchors which moved the dredge above. And then there was an oiler who oiled the machinery and then there was Senko, the petitioner in this case. Now, all of the work that was done on the dredge and the evidence clearly shows that, which was not connected with the machinery, was done by Senko.
William J. Brennan, Jr.: Incidentally, is that the kind of crew, a standard set of -- type of crew for the dredge in this character?
George J. Moran: Well, I believe that's true, Your Honor. I mean the -- generally the -- I imagine some dredges might have a larger crew, they all carry what we call -- what the respondent calls a laborer and we call a deckhand. Now, all the elements necessary to determine whether his status was submitted to the jury by instructions tendered by the defendant. The defendant tendered an instruction on -- and a definition of navigable water. The -- and that was given by the trial court. The trial court also gave a -- gave a definition of -- of a member of a crew and told the jury that he had to be a member of a crew of a vessel operating on navigable waters in order for -- in order to recover. So, this case, after it was reversed, we filed a petition for leave to appeal with the Illinois Supreme Court, the petition for leave to appeal was denied and thereafter, we filed a petition for writ of certiorari with this Court and the certiorari was granted on May the 28th, 1956. Now, the evidence in this case showed that for about year prior to the time of this incident that Senko was attached to the dredge, James Wilkinson, exclusively that he was a deckhand and they termed him so as a deckhand, that is his witnesses did, some of the witnesses and that the only time that he went ashore was on duties for the ship. In other words, he had certain duties on the ship but sometimes when they were dredge -- when they had this dredging operation, he would have to go to a shore to deliver lanterns or to get supplies or do those sort of things. And in addition to that, he operated the small motor, the rowboat back and forth to the shore. And while he was doing that, he had to wear to a lifejacket, that was government regulations. He's filled the water cooler under -- on there and he took on the supplies, took off the supplies and he cleaned up the dredge. He kept the dredge shipshape and he also -- there's some testimony in there about him splicing rope. And two witnesses who are in the record testified clearly that his duties were confined to the dredge and that's all the work that he did was on the dredge except when he was going off the dredge on dredge business. Now, the James Wilkinson had been dredging in the canal south of Block 27 for about a year prior to the accident, in a place called Gabaret Chute or Gabaret Slough.
Harold Burton: He hadn't moved away for a year?
George J. Moran: Yes, he was operating right in that particular area. It was a place of about a mile from the south mouth of that canal up there and this -- it was a part of an army engineer plan to make the Mississippi river more navigable as a whole.
Harold Burton: And the barge would move a little from time to time but stay the same area for a year?
George J. Moran: Well, it could -- the -- the water was 300 feet wide at that space and from the south edge of the lock down to the mouth of the -- of the channel was a mile and it was dredging out, making deeper this channel so that the -- that this area could be made more navigable. The idea was that the army engineers wanted to avoid the Chain of Rocks Bridge of the Mississippi River which at certain times of the year became low and the vessels couldn't navigate up and down the river because of that. Now, Senko at the time he testified, testified that as among his duties were taking soundings and when he took these soundings, he took soundings prior to November of 1951 and that the depth of the water when he took the soundings were from between 18 to 22 to 24 feet or right around there. Another witness, William Trojan testified that at the time this happened and prior thereto he was assistant lock master and that he took soundings in August prior to the time of this happening and that from the south mouth of the canal all the way up the south gate of this lock that was almost completed, that the depth, the minimum depth was 10 feet and he also said that the water was deeper in November than it was in August. So -- and there was some testimony that prior to 1951, from 1946 to 1951 that boats moved in and out of this canal up to where the dredge was and in and out of the south mouth of this canal, government boats, the supply boats, they move the concrete plant in and out of there. They had built a supply dock in there in 1946 and ships and supplies in and out and that the locks, although not open to the public at that time, the locks that were being built in this Gabaret Chute or Gabaret Slough had been operated prior to November with temporary controls for a period of a week and on -- on different occasions and that they operated these when they brought some bulkheads in, they were 200 feet long with tenders to do that. And that the Wilkinson itself was floated through the south mouth of this canal when it first started this dredging operation at the south mouth of Gabaret Chute, we might say, what they were dredging out. It was floated through a dredge tender. Now, prior to the time that the army engineers ever came in here in 1946 --
Stanley Reed: I did hear some word there, floated through with some kind of timber?
George J. Moran: Dredge tender.
Stanley Reed: Oh, tender.
George J. Moran: A dredge tender, yes, sir. And prior to 1946, this slough had been used by public for years and years and years. The slough was about four or five feet long and then practically parallel with the Mississippi River and the -- it -- it entered in -- in came into the -- left the Mississippi River at one point and joined it again at another point, it ran generally north and south. And there was evidence in the record that one -- one witness, Saunders, testified that when he was a boy, 25 years ago or so, that he used to use this particular slough or chute as a shortcut in returning to home from Saint Louis. There's also testimony that there was a ferry operated across there from the mainland over to the -- over to the Gabaret Island and that they hauled horses and mules and things like that. And also that folks went across back and forth across this slough. In fact, as I pointed out in my reply brief, this particular slough was made the subject of litigation over 20 years ago where a couple of horses or mules fell in there and the Court at that time, all it wanted was the navigability was involved, pointed out that the record showed that it was 300 feet wide at that time and 20 feet deep in places. And another thing I think we should remember particularly in this case, we're talking about the navigability. This record is replete with evidence that as the slough rose, so with the Mississippi and vice versa. That the water in the Mississippi and the water in the Gabaret Slough were interchangeable and that when water in the Mississippi -- when the Mississippi was low, the slough would be row -- low or when the Mississippi was high, the slough would be high. Now, the dredge was a 136 feet long, 36 feet wide, carried its own power equipment and it operated by the use of two spuds and anchors. And it was on these set of facts and it's out of this evidence before them that the appellate court for the Fourth District reversed the jury's finding of fact and found that the plaintiff was not under the Jones Act. The Court said, "This Court therefore holds as a general proposition, an employee whose principal duty is to load supplies on a vessel at anchor and to perform incidental tasks of a common laborer character and who is not primarily at work to aid in navigation cannot maintain an action under the Jones Act." The Court again says further as to this particular case, it being undisputed that plaintiff lived and boarded ashore, worked the hours of a laborer, only was -- was paid only by the hour, had the primary duty of loading supplies and material on and of -- and of performing various other common labor task and who is not employed in moving the vessel from place to place and was not aboard except when the vessel was anchored that he cannot maintain an action under the Jones Act. Further, that the provision of law making the Compensation Act the exclusively remedy of employees on vessels other than masters and members of the crew, cannot be evaded by asserting that a jury's notion of what law should be applied nullifies that provision where there is no substantial dispute as to the facts. The reasoning used by the appellate court therefore makes it clear that what was behind this decision was a basic disagreement with the law that a dredge when dredging is in navigation and under maritime law. For example, the Court said that the dredge had to use arms or poles or spuds to make its position more secure as the primary anchorage and it used anchorage there in a term of a ship being anchored of any other type of ship and but not in -- in terms of when its anchored that the dredge is actually doing its work. They also referred to the petitioner as being a person who is only aboard when the ship is anchored. Now, under this reasoning, no dredge when doing its job could be engaged in navigation and no person aboard a dredge, such as this appellate court describes, could be a seaman because under this reasoning, the dredge being in -- in anchor could not be in navigation. As we contended when we filed our petition to leave -- for relief to appeal with the Supreme Court of Illinois that this case flew into the faces of the federal law on this subject and the federal cases.
Speaker: Isn't the test under the Jones Act not whether he's a seaman but whether he's a member of the crew?
George J. Moran: Yes, Your Honor, that is true. That is the -- and that --
Speaker: Maybe a seaman and subject to the Longshoreman's Act but not a member of the crew subject to the Jones Act, isn't that right?
George J. Moran: That's true for those temporary employees, he can be -- who -- who load and unload vessels and the test is whether he's a seaman or a member of the crew and -- and that test, if there's any evidence upon which a jury can base its verdict, is a question of fact for the jury as I understand the law.
Speaker: And this Court said that be a member of a crew, you have to be the kind of a crewmember that aides the navigation of a vessel?
George J. Moran: Yes, but they've also said that a dredge boat when operating and performing its function of dredging is navigating. In other words, a dredge was designed to operate with two anchors and two spuds. The spuds are large, about 55 foot metal round objects which go down under the bed of the stream where they're navigating and the two anchors go on to the starboard and one to the port out and with these two anchors they put -- they put pressure on one anchor and one spot and they maneuver the dredge all over the stream wherever they may be dredging and in -- and -- and do that and they perform the very function for which the dredge was operated or was designed. Now, in the event that we say that that is not navigation, then we must say that when a dredge is performing the work for which the vessel was designed, it is not in navigation and as a far as work and as -- as far as the law is concerned, it wouldn't be a vessel such as it's contemplated to be in navigation under the -- under the maritime law.
Speaker: Isn't the real thing that was going on here, not that they were on navigable waters but that they were trying to make them navigable cuts so that people could use it, boats could use it.
George J. Moran: No, Your Honor, I don't believe that's true. That -- we -- we say this that if the -- if the water was available for navigation and susceptible to navigation in the future, it could have made navigable by reasonable expense and effort that it would still be navigable. But we maintain that for a number of years prior to this that boats went in and out of there and when those boats went in and out of there, the first one, when the dredge tender floated through there that that became navigable as a matter of fact and according to even their own definition in their brief, the Daniel Ball case, if a -- if a stream water is navigable, in fact it is navigable in law. In the Appalachian Power case, it extends the -- the definition of navigability to say that reasonable effort can be expended, then a stream is a navigable.In addition to that, we say that this water had become navigable by usage in the past and that there was and incidentally, Your Honor, this also, in our opinion, is a question of fact to the jury. But it had been -- yet it's been -- had become navigable in the past by long usage and by this very reason, things have went back and forth, but this man using and people using it go back upstream. It's historically a navigable stream, it's a tributary -- tributary to the Mississippi River which had been used in the past.And once being navigable, once it is navigable, it's presumed to be navigable in the future -- long -- as I understand the law, long continued disuse of the stream would not make it become unnavigable. So, we say that under the cases, Gianfala case and the cases cited therein and under the South Chicago Coal & Dock case which the appellate court used to reverse this case, that this case was a question of fact for the jury that the navigability was a question of fact for the jury, that the question whether the ship was navigating was a question of fact to jury, that the question whether the man was a member or crew was a question of fact to the jury. And if there was an evidentiary basis for this judgement, it should stand. We feel that the evidence in this case was so strong that there was hardly an evidentiary basis for not holding him a member of a crew.
Earl Warren: Mr. Bradley.
Stuart B. Bradley: May it please the Court. This matter comes from the country of Mark Twain whose life on the Mississippi, you all know, wherein it is described the arduous training, the esprit de corps and the small select company of personnel that make up the member of a crew of a vessel and that is true, the principle of what is a member of a crew applies on the Mississippi River, the same as it would on any vessel applying in the Atlantic Ocean or anywhere else. There is a group, a company of men under the command of a master that worked together that have this as esprit de corps and who are subject to the orders of -- at anytime of day or night in order to operate and navigate the vessel. The principles as to whether or not the Jones Act is applicable to a workman are decided by the cases and contained three essential elements. Those are that the vessel be in navigation, that the worker, his duties will be are -- to be primarily in the aid of navigation and that the man must have a permanent connection with the vessel. Those principles are recited in the South Chicago Coal & Dock Company versus Bassett and in all of the other cases. I do not believe there's any dispute as a matter of law that those are the principles which apply to determine whether or not a man is a seaman and member of the crew of a vessel.
William J. Brennan, Jr.: Was there any question here that -- whether the dredge was a vessel?
Stuart B. Bradley: Under the definition of vessel contained in federal statutes, a dredge is a vessel but it was not in navigation. And in this case, the -- not only was this man not a seaman, a member of the crew, but it was not on navigable waters. That is our position and that was the decision of the appellate court in reversing the decision of the lower court and finding as a matter and ultimate conclusion which was correct as we say that those were matters of law or ultimate conclusions to be determined by the -- by the Court rather than by being conclusive as a matter decided by the jury. Now, with those --
Earl Warren: I understood Mr. Moran to say that it had been held that a -- that a dredge in these circumstances was in navigation. I understood you to say that it isn't, is there authority one way or the other?
Stuart B. Bradley: I -- there is no authority that says that the situations such as we have here is in navigation, no, sir, Your Honor.
Stanley Reed: What about the Gianfala case?
Stuart B. Bradley: The Gianfala case is distinguishable from this case on several grounds. In the first place, in our case now before Your Honors, the injury occurred on land when this man was entering a building. The waters involved here are not navigable as I will point out when I get to the facts. In the Gianfala case, the accident occurred on the Gulf of Mexico where the men worked so many days on, so many days off, subject to call 12 hours a day. They were kept in a camp or site, more or less equivalent to the operation of crews of vessels as distinguished from the facts of our case which I will turn to in a minute. I think those are all -- some of the distinguishing features of the Gianfala case in which all of the five cases cited also were accidents on navigable waters whereas we have here before Your Honors an accident on land.
William J. Brennan, Jr.: Well, let's see --
Stuart B. Bradley: Is that --
William J. Brennan, Jr.: -- do I get then that even if it was proper to say that this dredge was in navigation, yet the fact that this injury occurred on land would bar a recovery, is that it?
Stuart B. Bradley: That is not the whole answer.
William J. Brennan, Jr.: Well, I suppose a finding that this dredge was in navigation was testified on the record, would you nevertheless claim that the petitioner was barred from recovery because the accident happened on land?
Stuart B. Bradley: If this man -- if this man were a seaman and his duties pertained to navigation, then if he happened to be injured on land, he would be entitled to recover under the doctrine of Great Lakes Dredge & Dock Company-O'Donnell case, where -- but in that case where the man was injured on, the Court pointed out carefully that if he was entitled to recover because he was a seaman and his duties pertained to navigation and he was temporarily on the shore handling a line, aiding the ship in docking or something of that type when he was injured, that's the distinction.
William J. Brennan, Jr.: Well, then is the -- in your view is the real -- is the controlling issue here whether the -- this dredge was in navigation?
Stuart B. Bradley: The control -- that is one. The most important issue here is whether this man was a seaman member of the crew.
William J. Brennan, Jr.: That's what I'm trying to get at. Then if the vessel was in navigation and he was doing something connected with that navigation, nevertheless, you have an argument that he would not be entitled to recover because he was not a seaman?
Stuart B. Bradley: That's correct, Your Honor.
William J. Brennan, Jr.: That the fact that he was doing something in navigation would not of itself make himself -- make him a seaman, is that it?
Stuart B. Bradley: That -- that is quite wrong.
Harold Burton: On the point as to wether the vessel is in navigation, do you distinguish in the Gianfala case and this case?
Stuart B. Bradley: Yes, Your Honor, I do. May I -- would I -- I would like to have you enlarged on that.
Harold Burton: I'd like to hear that.
Stuart B. Bradley: The waters with which we are concerned are a slough. One of the little backwaters along the Mississippi River which at high water, flood stage boats, small crafts such as rowboats can go through. At certain times as shown in the record in this case and there's no dispute whatever about the facts of the condition of this particular area, at certain times of the year wagons can drive across, there is a dike that has crossed it and has been in there for many years since one of the older man who testified in the case said in his recollection was somewhere around 1892. It is true that at certain points in this slough, water was at certain stages, 20 feet deep.But at other times, according to several witness, it would be so low that you could not go through with a rowboat. Now, the -- this particular slough was near a point known as Chain of Rocks on the Mississippi River where there were certain obstructions to navigation of the channel of the Mississippi River itself. So that the U.S. engineers undertook to build a new channel and to build a lot utilizing in part the course of this slough and the dredge and the first work that was done was to go in and build this -- build this lock. And when this lock was built in a different -- certain times when the water was high, there were barges that were able to go in there, shallow draft barges to bring equipment for the use in building that lock on several occasions. But the testimony in the record is that at certain -- there are many times in the year you couldn't get in at all and that was true even in November 5, 1951 at the time of this accident. So, that we -- it is our contention that this work which was being done by the dredge permanently, solidly affixed to the shore by spuds and also by cables attached to anchors and when say I say anchors, Your Honors, I do not mean anchors such as a vessel would use but something that's put up on the shore attached to a cable to hold this earth-moving equipment. Furthermore, the vessel --
Harold Burton: (Voice Overlap) permanently attached when they're moving it around?
Stuart B. Bradley: They could shifted around by the use of pulling on the cables or like -- or by the movement of the spuds. These four spuds that were driven solidly down into the -- to the ground, then they use a cutter head to cut away the dirt and send them -- pump it through a pipeline which ran from this dredge up over on to the bank.
Harold Burton: And you wouldn't call that navigation?
Stuart B. Bradley: We do not call that navigation, no, sir. That is a permanent structure fastened there, shifted around on these spuds and it has a pipeline going to the shore and that is solidly affixed and it's quite an operation to move that.
Earl Warren: If a waterway is navigable sometime -- sometime of the year and -- and is used for that purpose and another -- other times of the year, it is absolutely not navigable, as a matter of law does that deprive it of its navigable character?
Stuart B. Bradley: Not within the principle of the New River case. Not for the purpose of saying that the Federal Power Commission for instance would have control to prevent its being obstructed as it might be needed in the future for navigation purposes. But here, we have something different. We have the question of whether this man's duties pertain to navigation, whether he is a seaman member of the crew on navigable waters and while it might be that a -- a stream or a slough if it were the only channel going through a certain area and at certain times of the year you could go through it with rowboats, might be preserved for navigation purposes. We contend that that would not apply to this slough where you have the Mississippi River right along side navigable and our issue is whether this man's duties pertain to navigation, not whether the Federal Government has authority under the Commerce Clause to preserve this water way, such as was done in the Appalachian Power case, I believe. Now, the -- some of the facts I think need to be enlarged on a little more. The petitioner in this case, lived at Mt. Olive, Illinois which were some 40 miles from the worksite. He travelled to and from his place of work by automobile. He went home at night. He was paid a daily wage and overtime for any extra work in excess of eight hours in the day or more than 40 hours in a week. He was sent to this employer, the respondent, by the Laborers' Union which supplied men not only for the dredge but for all the rest of the work that was being done by this contractor. And we must bear in mind that the dredging part was only one phase of shaping the bank, use of tractors, hand tools and other things going on the bank. The Laborers' Union supplied these men, some either nine men to this particular job The union representative on the job, who was called a pusher, assigned one man to go and work, one laborer to go and work on the dredge, other men to do work in other places in the entire operation. So that you must regard this as being a large earth moving job where the duties were partly on land and partly on this dredge which was -- had dug its way in and actually did have to dig its way in and plow its way in to get to the place where it was working. Now --
Earl Warren: Mr. Bradley --
Stuart B. Bradley: -- that's why --
Earl Warren: -- while you're on that point may I ask, suppose this -- this work had been done, was being done on the shoreline of the Mississippi River itself and this man worked under the identical conditions that he -- he works under here. Would he be -- would he be subject to the Jones Act?
Stuart B. Bradley: No, Your Honor. We are --
Earl Warren: That's your position?
Stuart B. Bradley: Our position is that this man could not possibly be considered a member of a crew.One of the man -- laborers that worked one of three shifts who go home, who have a few incidental duties related to water, but so purely incidental that it doesn't make him into a man who aids in the navigation of a vessel. He had no skills whatever relating to navigation, had no training of any kind in that regard and the evidence is undisputed in this record as to what the duties of seaman in the Mississippi area are and there is quite a distinction and I would like to point those out. For example, the navigation on the Mississippi River consists of use of towboats and barges for the most part. The duties, as shown in the record, undisputed in this record of seaman as distinguished from the petitioner here include these things that he -- he must have knowledge of navigation lights and of navigation routes, how to handle ratchets, cables for the purpose of making up and breaking up the towboats of barges. He must know how to recognize buoys and lights and a great many other things. He also -- the man that worked on the towboats and on the vessels on these rivers belong to one or another of the maritime unions, for instance the officers to the master made some (Inaudible) and the -- the personnel or deckhands, the seaman belong to one of the other unions, principally in the National Maritime Union.
William J. Brennan, Jr.: Well, can any of the members of these four men crew qualify as seaman under that --
Stuart B. Bradley: Definitely not. Under the evidence in this case, this man cannot possibly qualify.
William J. Brennan, Jr.: I'm speaking only of him. Are the other three members of the crew --
Stuart B. Bradley: No, they would not either.
William J. Brennan, Jr.: So that your answer to the Chief Justice's question then is that when he put this dredge on the Mississippi instead of where it was, is that under no circumstances could any member of that crew of the dredge qualify in the Act as seaman?
Stuart B. Bradley: I've -- that is correct. I didn't --
Earl Warren: Then it's a character of the -- of the work and of the dredge itself and its relationship to the river that -- that makes those men ineligible.
Stuart B. Bradley: That is -- that is our position and that is borne out by the state -- by these cases which is that --
William J. Brennan, Jr.: Well, how is that consistent then with this being a vessel?
Stuart B. Bradley: Only in the fact that there happens to be a statute of certain purposes, at least says that any description of water perhaps can be a vessel. Now, there are definitions under the shipping acts, under the connection of the Maritime Administration which say that -- to give other definitions and one of them is that it must be engaged in -- in an actual navigation.
William J. Brennan, Jr.: Well, I thought you've said, when I asked you earlier, that there's no question that this dredge is a vessel for the purposes of the statute or did I misunderstand you?
Stuart B. Bradley: No, you did not, Your Honor, Mr. Justice --
William J. Brennan, Jr.: Well, what --
Stuart B. Bradley: -- Brennan, I said that within the definition in -- but it takes more than that in order for a man to come within the Jones Act (Voice Overlap) --
William J. Brennan, Jr.: Well, it may be but as I -- as I now understand you, there never could be an employee on one of these dredges, notwithstanding the fact that the Act makes a dredge a vessel who could qualify under the Act because none of them cannot make -- can never be a seaman.
Stuart B. Bradley: Not on this kind of a dredge in this kind of work --
William J. Brennan, Jr.: Well --
Stuart B. Bradley: -- but there are --
William J. Brennan, Jr.: It makes it rather futile for the Congress to have said this will be a vessel, doesn't it?
Stuart B. Bradley: I think so because after all what -- in determining whether a man is a seaman, it's the nature of his work that counts. That is that he actually be in navigation and although this dredge is within that federal or statutory definition, a vessel, it does not navigate and that is the distinction. Now, there are dredges which do navigate, there are dredges that can cross the North Atlantic and just like merchant vessels and are -- they have this compliment of officers and crew just as I described. I've -- we've -- I've seen them, they have been sent to dredge out channels in -- in the -- in connection to the war, but those are -- that's entirely different. Now, their -- the dredge describe in -- in one of the First Circuit cases cited by the petitioner here is such a dredge it may -- it made a trip from New York to Boston with regular crew. So that -- it is possible to have a dredge that will have personnel that can qualify a seaman but our position is that this man, in this kind of an operation, could not be, as a matter of law, a seaman subject to the Jones Act.
Hugo L. Black: Well, what is the line between a dredge that is engaged in navigation and one that is not? What line do you draw?
Stuart B. Bradley: The line --
Hugo L. Black: I'm not talking there about the man but the number of the crew or anything like that. I'm talking about the dredge.
Stuart B. Bradley: The dredge itself, they are built with a -- with a haul that's suitable for -- for navigating in storms or withstanding open sea work or -- but of course the principal distinction is the fact that if you have a ship's company, a crew of men that work steadily for a time and then may be off, you do have the elements of seamanship and navigation when this vessel is moving from one place to another.
Hugo L. Black: Would you have a vessel that -- a dredge towards -- between Alexander and Virginia and District of Columbia, a very short distant and very slowly stops that could set down, works and then moves for a few feet and does that day by day. You're contention is that would not be -- that it would not be engaged in navigation within the meaning of the Jones Act?
Stuart B. Bradley: I believe so and particularly if the man were, as Mr. Senko in this case, a laborer who lived at home, came to work, worked eight hour shifts and who were not -- we're not trained in navigating, it must have something to do with the actual operation and navigation of the ship.
Hugo L. Black: But suppose there -- suppose there are some who are trained moving that vessel that it actually -- that dredge that it actually moved during that -- in that short space between D.C. and Alexandria, Virginia. Maybe let's say a man works there all the time, day by day, week by week, month by month, just moving a little at a time and the men there do the moving either with -- by one force or another.
Stuart B. Bradley: I would say that that type of bridging operation is so different than the normal and legal concepts of navigation that they would not qualify on that basis.
Hugo L. Black: Well, that's what I'm --
Stuart B. Bradley: Either --
Hugo L. Black: -- trying to find out, what you --
Stuart B. Bradley: Yes, Your Honor. Either as a question of navigating or as a question of the duties which the man himself performs which is what the courts must look to. Now, we believe that it's very important for the question of interpretation of a statute such as the Jones Act to rest in the hands of the justices and judges of the Court that are learned in the law and that the application of this law should not be left as purely a question which can be decided by a jury because those questions of the extent of that law should be decided by the -- by the Court.
Speaker: Do you say -- pardon me.
Stuart B. Bradley: Go on.
Speaker: I'm just going to ask you, do you make -- do you say that it's not a question for the jury at all as to whether he comes -- whether a particular individual comes in down there, it's a matter of law for the Court?
Stuart B. Bradley: Whether the facts are as this creates undisputed, taking all the facts most favorable to the petitioner. All of these activities and examining them with care. This man could not possibly be a seaman. It comes then to an interpretation and application of this Act.
Speaker: That's simply saying that although the questions -- the jury question, there wasn't sufficient evidence to justify the jury review.
Stuart B. Bradley: That's right --
Speaker: Or that --
Stuart B. Bradley: -- but the Court --
Speaker: Or that there wasn't enough evidence to submit it to the jury, is that your --
Stuart B. Bradley: It should have directed a verdict.
Speaker: But you -- you don't go so far as to say that the question of status as a crew member is not a question for the jury at all but a question for the Court?
Stuart B. Bradley: I do say that the question of status is for the Court where the -- except this --
Speaker: Now, but you put in the qualification --
Stuart B. Bradley: -- if there were -- yes, I do.If there were a dispute as to whether or not this man -- whether everyone aboard the boat or not, some question of fact as to what he did. I think that of course would be left to the jury. Just as in the line of F. E. L. A. cases which we have cited in our brief, the question of the ultimate decision of the application of the law rests with this Court just as has been decided very recently in the -- the case of the Gileo case and Reed versus Pennsylvania Railroad Company, where those question of the application of the amended F. E. L. A. is decided by this Court. I think those same principles apply to -- to the Jones Act, the application of the Jones Act, Mr. Justice Harlan.
Felix Frankfurter: Mr. Bradley, I'm left in some doubt by -- over the answers you gave to the questions of the Court. What I -- I got the impression -- doubt miserroneously that you admitted, that you conceded that a vehicle may be a vessel under the statute -- under the federal statute but none of the operating members of that vessel would be members of a crew, did I understand you to say that?
Stuart B. Bradley: Because despite --
Felix Frankfurter: Did I understand you to say that?
Stuart B. Bradley: You did, Your Honor.
Felix Frankfurter: Now, what I want to know before you explain it, what makes -- and therefore the next thing that this particular vehicle, this particular bridge is a vessel under the statute. Now, what I want to know is under what statute, what makes this a vessel under what statute? What is the statute? Would you mind referring me to --
Stuart B. Bradley: Not at all. It is not part of the Jones Act by the way.
Felix Frankfurter: Pardon me?
Stuart B. Bradley: And I think it's quite immaterial to the conclusion that this man is --
Felix Frankfurter: I'm not -- I'm not drawing the conclusion, I just wanted to get clear in my mind.
Stuart B. Bradley: In -- in the very first volume, it's one United States Code annotated Section 3.
Felix Frankfurter: And you've got the words? What did it say? What --
Speaker: (Inaudible)
Stuart B. Bradley: The term vessel shall be understood to comprehend every description of vessel navigating on any sea or channel, lake or river.
Felix Frankfurter: Now, for what purpose -- to what situation is that definition applicable? I can well understand that a thing may be a vessel for one purpose and not for another. Now, to what does that definition apply? You say it doesn't apply to the Jones Act, is that right? So what does it apply?
Stuart B. Bradley: I say that whether -- whether it applies, I don't believe it applies myself. But whether it applies or not, this vessel, though it be defined as a vessel and we have to admit the dredge is a vessel under that definition, it is not --
Felix Frankfurter: Why --
Stuart B. Bradley: -- navigating.
Felix Frankfurter: Why is it a vessel under that --
Stuart B. Bradley: Purely because the statute said so.
Felix Frankfurter: Well, what does it say, is it something that navigates? Well, if it navigates then the people who -- who operate the navigation, why aren't they members of the crew? That's where I get trouble -- the trouble. I don't understand that it's something satisfied description of being an instrument that navigates, that those who navigate -- those who navigate it aren't navigating and therefore members of the crew. I still -- I still understand your position that that doesn't necessarily make them liable or beneficiaries under the Jones Act, but -- but I -- I'd like to have that cleared up if you can.
Stuart B. Bradley: The best explanation which I can give of that is that the cases dealing with the Jones Act say that it is not necessary -- it is not conclusive that a man be aboard a vessel but that the vessel must be in navigation and that the man's duties must pertain to the navigation and management of the vessel. That is the distinction. Now --
Felix Frankfurter: I understand that a man meaning be aboard in order to become a member of a crew, but what I take from you unless you clarify me more than you have is how a thing can be a navigating thing without the people who bring about the navigation, being members of a crew. I don't understand that.
Stuart B. Bradley: You're quite right. But this dredge does not navigate.
Felix Frankfurter: Well, then it isn't a vessel within that definition.
Stuart B. Bradley: Well, that may be but there is that --
Felix Frankfurter: (Voice Overlap) all mixed up, how a thing can be a navigating thing and not as though (Voice Overlap) --
Stuart B. Bradley: No, it --
Felix Frankfurter: -- navigating.
Stuart B. Bradley: This is not navigating, this vessel --
Felix Frankfurter: Then it isn't -- then it doesn't come within the definition.
Stuart B. Bradley: That may be so. I did have to cite the statute though as it was read --
Felix Frankfurter: Well --
Stuart B. Bradley: -- and I was asked that whether there was anything in the federal law which defined vessel. But that is not part of (Voice Overlap) --
Felix Frankfurter: But can you tell me what a vessel is? Can you tell me what the characteristics?
Stuart B. Bradley: Any description of water --
Felix Frankfurter: In order to constitute a vessel, isn't that right? Just merely give the characteristics of what constitutes a vessel.
Stuart B. Bradley: Yes.
Felix Frankfurter: It doesn't follow therefrom that this thing was a vessel.
Stuart B. Bradley: That's correct. That is right.
Stanley Reed: Why -- why does the -- why do you use the word "member of the crew" or the phrase?
Stuart B. Bradley: Oh, I didn't get that, Your Honor.
Stanley Reed: Why -- why do you use the phrase "a member of the crew?"
Stuart B. Bradley: Because the decisions dealing with the Jones Act say that the man must not only be a seaman but thus must be a member of a crew and that comes about from the history which grew out of the Longshoreman and Harbor Workers' Compensation Act. At one time, the --
Stanley Reed: But all -- all that is required by the statute, the Jones Act is that he be a seaman?
Stuart B. Bradley: And -- oh, no. Else, also a member of the crew, both are required.
Stanley Reed: Both are required.
Stuart B. Bradley: Both are required. The old Haverty case decided that longshoreman were seaman. That is -- that was long before the Longshoreman Act was adopted and then after the Longshoreman Act provided workman's compensation for the class of workers such as the petitioner here who work partly on land and partly on shore and may discharge cargo or were ships carpenters or ships keepers and so on, all that class of miscellaneous workers who are not crew members were provided with a federal compensation, then the decisions of -- established of this court -- have established that that takes out of the classes --
Stanley Reed: But that -- doesn't that come in the Longshoreman's Act, the member of the crew rather than in the Jones Act?
Stuart B. Bradley: That's right. But it does cut out formally --
Stanley Reed: Well, that's -- the -- the Longshoreman's Act cuts out.
Stuart B. Bradley: That's right.
Stanley Reed: The members of the crew.
Stuart B. Bradley: That's -- that's correct.
Stanley Reed: But the Jones Act only -- only just to a seaman the right.
Stuart B. Bradley: No, also -- this cases like the Swanson versus Marra Bros.say that the effect of the Longshoreman Act is that in order for the Jones Act to apply, the man must be both a member of a seaman and a member of the crew that is --
Stanley Reed: Does it have something to do with the off navigation?
Stuart B. Bradley: That -- that is quite so. We have cited --
Stanley Reed: Well, then -- then a member of the -- a person who goes across of the Queen Mary and acts as a waiter wouldn't have anything to do with it?
Stuart B. Bradley: Oh, yes, he would, Your Honor. Where -- they are a part of that whole ship's company and are subject to those same regulations and the discipline of the ship and they are part of a crew even though he might only be a cook. But here, in our case before this Court, this man had worked -- for instance he'd worked as a minor, he worked as a laborer in construction industry --
Stanley Reed: He has nothing to do --
Stuart B. Bradley: He had nothing to do with a ship's company.
Stanley Reed: (Voice Overlap) to do with navigation?
Stuart B. Bradley: And nothing whatever to do with navigation and he never had anything to do with navigation.
Stanley Reed: Well, neither -- neither would a waiter?
Stuart B. Bradley: A waiter on a merchant ship, on a vessel, it's in navigation, I would agree should be subject to the Jones Act.
Stanley Reed: Should be?
Stuart B. Bradley: Yes. Oh, yes, Your Honor, because he is --
Stanley Reed: Because he's a seaman?
Stuart B. Bradley: Well, yes, because he is part of that ship's company and that whole operating mechanism, but this laboring -- labor operations such as we have now before the Court, that is quite different from a merchant vessel.
Hugo L. Black: Have you --
Stanley Reed: (Voice Overlap) here in the Gianfala case that a man who did nothing as I recall it except to work on drilling for oil.
Stuart B. Bradley: He was --
Stanley Reed: Was held to be, able to sue under the Jones Act.
Stuart B. Bradley: In the Gianfala case, there were a good many distinctions --
Stanley Reed: Well --
Stuart B. Bradley: -- he was hurt on land --
Stanley Reed: -- you've already distinguished it for us.
Stuart B. Bradley: I believe in part, yes. There are some others, but I see my time is up.
Earl Warren: Well, Justice Black --
Hugo L. Black: (Voice Overlap) --
Earl Warren: -- I think he has a question he wanted to --
Hugo L. Black: Would you refer me in your brief to the case as you have cited which called that a dredge is not a vessel?
Stuart B. Bradley: That a dredge is not?
Hugo L. Black: A dredge is not a vessel.
Stuart B. Bradley: No, I did not say --
Hugo L. Black: Well, have you -- has any case ever held that a dredge is not a vessel?
Stuart B. Bradley: Not that I know off, no.
Hugo L. Black: Has any case ever held that a dredge merely because it was a dredge is not a vessel within the meaning of the Jones Act?
Stuart B. Bradley: Yes.
Hugo L. Black: What case is that?
Stuart B. Bradley: Well, there are -- there are many cases that -- through the (Voice Overlap) --
Hugo L. Black: I'm not talking now about the other things you mentioned. I'm talking about on the basis that it's not a vessel. I'm asking you because I had supposed that -- settle without any diversity of opinion at all that a dredge is a vessel, like other vessels on the ocean, on the water, wherever they are and if you look to other things to see whether or not a man working on it is covered by the Jones Act.
Stuart B. Bradley: Now, you have to look to see whether this vessel, it is, is in navigation and is crewed and if the personnel have these duties that relate to navigation, there -- therein lies the test.