Bernard Chazen: Before -- before the recess, the question was asked as to the relationship of Judge Frank's opinion, a quotation, and the Ryan Stevedoring case. Now, I -- I hope I'm not confusing my own argument when I speak of these two cases. They are analogous but the situation is different factually in each. In the Ryan case, your problem arises because of the alleged indemnity or because of an alleged indemnity by the shipowner against the employer. So that even if the employer does not insure the shipowner for liability, he has an interest which will be adverse to his own employee and if he gets an award or his insurer gets an award and pays compensation, they are put in a position that if they sue the shipowner, the shipowner may turn around and say, “Well, we want you to pay for this on the theory of indemnity." And that's regardless of whether they actually are the liability insurers for the shipowner. This case doesn't involve the problem that you have in the Ryan case, but the effect is the same of anything that is stronger. Because here, we have a situation where the insurance carrier for the employer of the compensation carrier of Travelers here, also, is the liability insurer for the third party and it is in that situation where there is this conflict of interest that we say that the -- the insurance carrier cannot fulfill an obligation as a trustee that -- that the -- the Act creates a species of trustee relationship between the employer or the insurance carrier and the injured employee and that Congress has entrusted to the employer in that situation the duty to go ahead, if against the third party. But where you have this type of situation where there is a conflict of interest, then traditionally, the courts have interfered. The courts have, under equitable principles, made whatever arrangements when necessary to protect the interests of all the parties. Because, obviously, the insurance company, having an adverse interest with relation to the cause of action of the third party is not in a position in good faith to go ahead and prosecute that cause of action against the third party. Now, there is a case, which the Court cited below, which is the case of Hunt versus Bank Line. I think I have to mention that case in passing because that case is directly in point in this issue. And that case is held in an identical situation that the employer or that his insurance carrier can't take the cause of action even though he has this inconsistent position and the employer -- and the employee can't do anything about it. And that's Hunt versus Bank Line, its 35 F.2d, 136 and it's a 1929 case. Now in my brief, I had given the reasons why I think that this case is not sound law. First of all, the reasoning of the case is in conflict with the reasoning of Judge Learned Hand and Judge Frank insofar as they find that the Act creates a trustee relationship. In the Hunt case, that trustee relationship is specifically rejected. Secondly, the Hunt case came before the assignment provision of -- of Section 933 was amended. At the time of the Hunt case, if the employee took any kind of benefit, whatsoever, even if he got medical benefits, without an award, without any formal action, that automatically operated to assign his cause of action to the employer. Now, since that time, the Act has been amended but it was in 1938. And now, the Act requires that in order for an assignment to be affected, there must be an award by a deputy commissioner. Now, normally, I should explain, as a matter of practice, much of the workers handled by claims examiners and any order which has entered by claims examiner is not such an award as would cause a transfer of the cause of action. So that when the Act was amended, Congress showed that it did not intend to make the rights of the employee exclusive, one or the other, because it is quite possible and it happens quite often that the employee will be paid on an informal basis. And as long as he is paid on an informal basis, there is no assignment he can, at anytime, file a notice of election to sue preserve his rights for the balance of his compensation and can sue the third party. Even if he is successful in the third party action, the employer has a lien for the money that he's paid out. If he's unsuccessful, the employee can always come back and ask for more. So that the assumption that's in the Hunt case, that these two remedies are exclusive, I think the Court referred to it as choosing between joint tortfeasor as the spoken in those terms. It's not analogous. Congress did not intend to have that type of situation. The -- the relationship which arises in the employer-employee relationship is a contractual one and it's not analogous to a choice between two joint tortfeasors. The only thing that Congress intended from a plain reading of the statue to give the employer was the right to proceed on his own, to collect fact the money that he has paid. I think that is all it that can be fairly read --
Speaker: Could I --
Bernard Chazen: -- from the Act itself.
Speaker: -- take the facts for a moment to the other point that you left and ask you a question. Assuming the trust theory of the assignee of the cause of action, supposing you had a case where the compensation award was very large and where the assignees had well, I don't believe that, as a practical matter, I'm ever going to recover that kind of a verdict. Would he have to sue?
Bernard Chazen: Well if -- may -- may I just to clarify, are we referring to this type of situation or where there is no question of --
Speaker: I'm leaving out the conflict of interest because I think my question has a bearing upon whether or not, this -- you're in the right -- pursuit of the right remedy as you got a clear conflict of interest, there's no question.
Bernard Chazen: Yes. Well --
Speaker: I have a question in my own mind as to whether you can translate that into requiring a joinder or reassignment of this cause of action as distinguished of an independent suit against the trustee for breach of trust.
Bernard Chazen: Well, as I understand the cases that we've had up to now and I, often, I can't recall any case decided by this Court, but that -- certainly, the Circuit Courts have held that so far as there is no conflict of interest, the employer or the insurance carrier has absolute discretion. There is some language in the cases that if there was some fraud shown in connection with it that the Court might then intervene. But as along as it -- it's completely discretionary, he can sue, he can refuse to sue, he can do whatever he wishes. That's left entirely in the hands of the employer and that had -- that I think is the gist of the decisions which I've read up to now. So that in that type of situation under the Act, I would say, that Congress has made a choice. Congress has said, in most situations, that the employer may use his discretion. Now, and they -- they haven't indicated that there would be an -- any interference with it but when the conflict of interest comes in, I don't think Congress intended to permit the employer to use this device to avoid liability on the other end. I think that Congress, as a matter of judicial discretion, decided that the employer would have enough interest in recoupment to act in good faith for himself and the injured employee.
Speaker: This case was disposed of on the pleadings that I take with this.
Bernard Chazen: This case was disposed of on the pleadings except that at the final hearing, before Judge Ryan, which was supposed to be the full hearing, he limited the issue solely to the question of whether this assignment was an effective defense because it was brought to his attention the two judges have already ruled on the question and he felt, apparently, that it was unnecessary to have a full trial since that issue seemed to be determined at least so far as the trial court level was concerned. Now, I think that, also, I would -- should call the Court's attention to the fact that the Hunt case was left up in the air by a subsequent decision of this Court. In the case of Aetna Life Insurance Company versus Moses which was at 1933, there was a question about whether or not the carrier could join the administratrix of an injured employee of his estate in a suit against the third party and the Court said it could. Now, in the opinion by Chief Justice Stone, one of the remarks that was made was, nor do we consider what would be the rights of the person entitled to compensation or the personal representative compare Hunt versus Bank Line or the insurer in a case where the employer refused to cooperate in the prosecution of the action. So that, so far as I can find, and as I read the cases, in the last opinion of this Court on the subject, the question was left open and Hunt Line versus -- Hunt versus Bank Line was left up in the air neither approved or disapproved. So that, I think, it's fair to say that so far as this Court is concerned, the question is still an open one. Now, there's one other point that I'd like to take up and that is the question of what is an award. In 1938, the Act was amended to provide that you -- that it was required that there be an award by a Deputy Commissioner. Now, any -- the -- the cases have said, any informal memorandum by claims examiner or etcetera is not such an award as to operate as an assignment. Now, in this case, the intent apparently was to enter an award. We can gather that from the proceedings that went on. The employee wanted to force the man to take whatever money he was entitled to under an award. Now, the argument that I've made up to now has been based on the assumption that there was an award and that the Court, under its acquittal powers, would interfere to protect the man even though there was an award. I now come to the question, was there an award within the meaning of this assignment provision? Now, the only proceeding that I can find, which is described in the Act, which terminates in an award, is contained in Section 919. And there is a -- a -- a whole procedure set forth and there's only one part of the procedure set forth that was not complied with here. And the question is, isn't the award which would be effective, the -- only the award that would be made pursuant to this particular section, and I think it would, and is the defect of such quality as to vitiate or negated this award being such an award as to operate as an assignment. Now, the Commissioner, the provisions here are for the Commissioner to give notice to the employer of the claim being made, etcetera. And then, in paragraph C, the last sentence, after it says that the Commissioner can order a hearing, he says," If no hearing is ordered within 20 days after notice has given, as provided in subdivision (b), the Deputy Commissioner shall, by order, reject the claim or make an award." Now, the award was entered the same day. There was no time for hearing. Now if the purpose or one of the purposes for the amendment requiring an award as to give the man a chance to think, then, this becomes an important provision for the purpose of assignment. If that is just a directory provision, then, of course, it's immaterial and the award is good. Now, respondents in their briefs have raised the question that we are making the collateral attack on the determination of the Deputy Commissioner. We're not making a -- a collateral attack. So far as his order is concerned, and insofar as it purports to do what it did, it was valid. We -- we don't question. The -- the only question we raise is, is it such an award as operates to make an assignment. That would have to be determined in the lower court or in the court of admiralty because they are now raising the question of assignment as a matter of defense. And we are saying that there was no such award as to operate as an assignment so that the question now must be determined on the admiralty side, on the legal side. And there's no basis for us, there was no basis for us to go back and to attempt to have the wording change on the order. The question of characterizing this document is something that should -- that has to be determined on this side of defense, not on that. So, we feel that we are not making any collateral attack on this order or award. On the question of -- of laches, I think I could limit my argument basically to this one point. This Court has said, again, and again, and again that the question of laches is a question for the trial court after all the facts are entered. The trial court deliberately here did not pass on the question. The --
Speaker: It was pleaded, wasn't it?
Bernard Chazen: It was pleaded, yes, Your Honor, and no question about it. It was pleaded. But there were no hearings held on the question of laches, no evidence taken, no opportunity given to a man if amendment was deemed advisable or necessary. In the -- in the Circuit Court, the question of laches was -- was treated without any new findings of fact -- fact that all made by the Circuit Court known for the hearing. We feel that, under those circumstances, that question should be remanded for hearing and development in the normal cause of trial procedure.
Felix Frankfurter: Isn't that -- isn't that issue the only one that the Court refused --
Bernard Chazen: Yes.
Felix Frankfurter: -- and passed on?
Bernard Chazen: Yes and I --
Felix Frankfurter: Even all beyond those question, if you were to discuss, it was not reviewed by the Court of Appeals.
Bernard Chazen: Well, they were reviewed but the Court --
Felix Frankfurter: I mean, they were not -- they were not adjudicated other than that.
Bernard Chazen: They -- they were not adjudicated, Judge Frank, specifically, after indicating that he thought we were right on the question of the trustee relationship theory, said but we don't have to go into that question.
Felix Frankfurter: Now, assuming -- assume one of the three review that the question of laches could not have been determined in part of the deal. It required the determination of the District Court then we'll try to abuse as to what and assume we agreed with you if you understand. I would like to have your view but other issues should be adjudicated here.
Bernard Chazen: I -- I think that the only issues are those the question of the trusteeship theory and -- and the question of laches because actually --
Felix Frankfurter: Well, doesn't that Judge Frank and the Court of Appeals didn't reject the trusteeship theory, did it?
Bernard Chazen: No, as a matter of fact, as I --
Felix Frankfurter: Assume that that is on the assumption of this, that to a proper understanding there.
Bernard Chazen: As I read the Judge Frank's opinion, I think he agreed with us.
Felix Frankfurter: Yes. But, at least he assumed it to be -- it'd be for the purpose of determination.
Bernard Chazen: I think --
Felix Frankfurter: So I ask that assume we -- we don't agree with part of the theories on laches, is there anything else we hope to hear?
Bernard Chazen: No, your --
Felix Frankfurter: Is there anything else that he'd passed on or determine for this Court.
Bernard Chazen: I don't think so, unless it is the question of procedure and I think that the rules of the federal courts and of admiralty are so broad that certainly the procedure for bringing in travelers or for working out the problem could be worked out within the framework of the -- of existing decisions and I don't think that --
Felix Frankfurter: That -- that were not contending for a hard and fast movement, any of that on that point (Inaudible)
Bernard Chazen: No -- no, Your Honor.
Felix Frankfurter: There isn't a hard and fast rule as I understand it, is there?
Bernard Chazen: There is no hard and fast --
Felix Frankfurter: We couldn't -- and you now suggest that we couldn't do anymore than in the a that the -- that part of discretion is of course true, is there anything else?
Bernard Chazen: No Your Honor, I -- I think, as a matter of fact, that with that I've -- I've exhausted the points that I feel are important. I -- I --
Felix Frankfurter: I don't mean to contend your entire report on that. All I wanted is whether -- whether if we do not go with the -- if you go with the Court on that, that's the end of the matter.
Bernard Chazen: If -- if you -- if this Court finds, and I think it would be making a new doctrine if it did or something which it has never done before, that as a matter of law, there was laches in this case at his point with -- with the record in the state of this at the present time. Then, of course, that is the end of the matter and the --
Felix Frankfurter: I'm suggesting you to reverse. This Court finds the opposite and didn't have demand as the matter too. It does go backward.
Bernard Chazen: Then it should go back to the District Court for the determination of --
Speaker: Well, I wonder if that so, the Court of Appeals didn't pass on the question of laws above on your standing to sue.
Bernard Chazen: Yes, Your Honor.
Speaker: Now is it your suggestion that assuming that we -- assuming that we go with you on the question of laches, we have to send it back to the Court of Appeals to determine the question of the law?
Bernard Chazen: I -- I don't -- well, let me say this. That would be a matter for the Court to decide. I think it would be most expeditious for the Court to decide both issues --
Speaker: Unless it occurred with me.
Bernard Chazen: -- and have the matter go back to the District Court if that's the end result and let the District Court develop the case in accordance with the directions of the Court. I -- I don't see that any purpose would be served by sending the case back to the Court of Appeals and then perhaps having to come up here again.
Speaker: As we came to the conclusion, for example, that you had no standing to sue, what will be the point towards sending a fact to the Court of Appeals and laches that would be in.
Bernard Chazen: There wouldn't be any point. On -- on either ground, if -- if we lose on either ground, as I see it, we're out.
Speaker: That's what I would think.
Bernard Chazen: I -- I think I've concluded my argument. I just would like to say briefly as my final argument that this is a situation where the court of admiralty should use its broad equitable powers and this is a situation where the liberal intent for the Longshoremen's and Harbor Workers' Act should be put in effect. Thank You.
James M. Estabrook: May it please the Court.
Earl Warren: Mr. Estabrook.
James M. Estabrook: I am the counsel for two of the three respondents, Kerr Steamship Company, a local corporation of an office in New York, and I'm for the party of records, Oivind Lorentzen, as Director of Shipping and Curator of the Royal Norwegian Government doing business under the name and style of the Norwegian Shipping and Trade Mission. In fact, I now represent the Norwegian Government. Mr. Lorentzen has long since gone back in the private practice and the Norwegian Shipping and Trade Mission was -- which was the wartime agency similar to our War Shipping Administration has been dissolved. But the Royal Norwegian Government did, through Mr. Lorentzen, owned and operate the Heogh Silvercloud in September of 1945. The vessel itself has never been seized and there has been no claim filed for it. To review the legal pleadings, when libelant filed his libel in 1952 for an accident in 1945, we, first of all, filed exceptions and accepted allegations for the defendant, Kerr. A -- answering affidavit was filed by Mr. Baker representing Mr. Czaplicki. On our exceptions and verified accepted allegations, the libel was dismissed as to Kerr. A decree was entered dismissing the libel as to Kerr and notice of appeal was duly filed and then the libelants time to appeal was extended by stipulation. After that, a motion was made by the defendant, Hamilton, which had answered. No, I beg -- but -- I beg your pardon, most was made for the libelant to strike a defense from the answer of the defendant, Hamilton. We were given notice of the motion but we did not participate in the argument. That motion followed -- decision of that motion followed the decision of Judge Sugarman, who granted our exceptions. In behalf of Kerr, he dismissed the liable and sustained the special defense. We also filed exceptions and exceptive allegations on behalf of the owners of the vessel. But the hearing on these exceptions and exceptive allegations was adjourned from time to time until the matter came on for trial. We had not answered. At the trial, the trial judge, on receiving any evidence, certain papers submitted by the libelant and on hearing libelants counsel, and on the issue of whether libelant was the proper party to sue, dismissed the libel before we put any -- in any evidence on behalf of Norwegian Shipping and Trade Mission and before the respondent putting any evidence on behalf of Hamilton. It is true as Mr. Chazen states that there was no evidence by the defendant on the part of laches and there was no evidence put in by the plaintiff, by the libelant, rather, to explain his delay of seven years in filing a libel and no evidence as to extenuating circumstances. Our pleadings plead the defense of laches and our Kerr exceptions. Judge Sugarman did not pass on the issue merely decided the assignment was valid, libelant was the wrong party to sue. Our exceptions on behalf of the Norwegian Shipping and Trade Mission referred to the Kerr opinion, and we annexed as part of the exceptive allegations to our pleadings. Despite this fact, laches wasn't mentioned by Judge Ryan on the appeal, the Court of Appeals and we brief the question of the assignment primarily on the appeal. The Court of Appeals decided the case on the question of laches. Now, our view on laches, the Norwegian Government is this, since the District Court decided the libelant was -- did not have the power to sue, having assigned this cause of action, anything he did, without having a cause of action, can't help him or hurt him. If it should be found that he is the proper party libelant, then in our answer, we would plea laches, we would state that the New York statute of limitation should be applied by analogy, absent to any extenuating circumstances and after aid is three years. But we don't really see how it makes much difference on the laches issue now because, Mr. Justice, if I sue without any right to sue for pledges of Czaplicki's injuries. Whatever I did could have no effect on his rights and whatever he did could have no effect on the rights to recover which are base that we claim in Hamilton Marine due to the effective award.
Speaker: Well we held that he had sent him to sue --
James M. Estabrook: Well it's --
Speaker: -- and we do where the laches end.
James M. Estabrook: If -- if you, then, you would have to decide, if he had standing to sue for ab initio, Your Honor?
Speaker: Yes.
James M. Estabrook: Then you would have to decide whether he had, one, under the doctrine of Gardner against Panama Railroad pleaded and proved them extenuating circumstances explaining his delay.
Speaker: He never had a chance.
James M. Estabrook: And two, whether he had a chance to do so.
Speaker: Well, the answer is he didn't have a chance --
James M. Estabrook: Well --
Speaker: The District Court didn't asked on --
James M. Estabrook: Well, the -- he was asked whether he had anything further -- I mean, excuse me sir, counsel was asked whether counsel had any further proof, counsel wish to submit and counsel said no. Now to cover the question of the award --
Sherman Minton: Was ever any demand made upon this employer to bring suit?
James M. Estabrook: Not, as far as we know, Your Honor. I've seen no copies of any letters or any such demand. You see we have no -- I have no connection with the employer or with Travelers or with the Hamilton Marine. Our position is --
Earl Warren: Wait oh, oh, had you finish answering that question?
James M. Estabrook: Yes, I had, Your Honor.
Earl Warren: Where do we find in the record where counsel was asked if he had anything further to prove and he said no.
James M. Estabrook: It's on page 9 -- but as you're -- Justice Harlan is right on that point because there was a swirl of the question. I underlined one part and not the other. The Court, "Libelant has no further proof to offer." Mr. Baker, "On this?" The Court, "On the special trial which we are conducting first of the issues raised for the separate offense." Mr. Baker, "That isn't all in that issue."
Earl Warren: That's entirely different, isn't it?
James M. Estabrook: Yes. I apologize, Your Honors, I'd underlined nothing further to offer and I hadn't quoted down below. Now, on the question of the award, the Royal Norwegian Government has no particular interest in the construction of the Longshoremen's and Harbor Workers' Act. We state that -- I believe that's primarily a matter for Congress and for this Court to determine. But our problem is this, upon the record, it appears that Mr. Czaplicki was injured earlier in September and an award by a Deputy Commissioner was entered late in that month. Under the terms of the Act, he had 30 days from that period within which to sue the Deputy Commissioner to enjoin the enforcement of the award. He apparently did not, although, that was explained to him by a letter sent by the compensation authorities through him which is -- was in evidence before Judge Sugarman when we subpoenaed the entire file in support of our motion. Then after that and the real nub of this case as it's shown by his -- the libelant's affidavit in our position to our motion on behalf of Kerr, he did not recover as quickly as he thought he would. He had accepted compensation believing he had a minor injury and he had underwent an operation in August of 1946, which he attributes to the injury. Meanwhile, in April of 1946, the libelant had consulted an attorney who had started suit in New Jersey. The libelant's affidavit, however, while he attributed the operation in this consequent disability to the accident, did not have annexed any medical certificates or any doctors affidavit, nor did the doctors submit his bill to the compensation people the way he was authorized to do. And under the Act, the libelant, with his attorney, had one year from the final payment of compensation or well, oh -- after this time of the operation to reopen this compensation case. Had he done that? Then if he decided finally not to take compensation or suit, he could have opposed the issuance of an award of the -- or if the award was modified within a year, he could then sue within 30 days claiming the conflict of interest. Our position on the conflict of interest is that there is no proof or fraud in this record. That question came up three times, came up before Judge Goddard in the Hamilton motion. It came up before Judge Ryan in both cases at the trial. Libelant's counsel said he did not wish to allege and not -- did not wish to attempt to prove fraud. And that statement is also included in the Court of Appeals introduction on the facts. We, and the Norwegian Government, would not definitely not be interested in being involved in any sort of a fraud proceeding. We did look into the matter as best that we could check the record and there is no proof whatsoever in the record or in all the papers we could dig out that at the time the award was made, and at the time libelant was discussing his case with the insurance company that anybody in the New York office of the insurance company knew of any conflict of interest.
Felix Frankfurter: The conflict of interest doesn't imply fraud, does it? The conflict of interest is not a difficulty as the law faces, it has nothing to do with it, nothing, but it's -- apart from fraud, it comes from the difficulty of (Inaudible) is not.
James M. Estabrook: Well it would seem to me, Your Honor, that if you are advising a man on his rights who doesn't have counsel and you don't tell the man something which you know that indicates that you have some other interest besides the compensation that you would then might well have a question of fraud. I don't think an insurance company man, with his knowledge of the law, with his knowledge of the claims could conscientiously tell the man your question here is to take compensation and whether -- and your -- either take compensation under an award or sue if he knew at the time he said that.
Felix Frankfurter: No but the law may count upon a situation in which there is, in fact, or was in fact the conflict of issues in this sense that the insurance company did represent in both sides without a particular or efficient in the ware at the time having -- except to find out and that rule was imperfectly stated with the general -- the situation in which it does operate -- as form would operate, as efficiently important for the law that constituted with the general decision of the state (Inaudible) important. Even though -- even though it would be (Inaudible)
James M. Estabrook: Your Honor on that --
Felix Frankfurter: But otherwise, it's a specific situation.
James M. Estabrook: On that point, the Royal Norwegian government had its situation arise involving a compensation act passed in 1927 with no provision for conflict of interest in connection with the assignment of third party rights. In 1929, the case came up for the first time in Hunt against Bank Line which it was decided that even though there is a conflict of interests, the employer and his underwriter had no obligation to bring suit. The Act was then amended and especially Section 33, providing for assignments, was amended in 1938. Yet this decision of Hunt and Bank Line, another decision stemming from it were in no way taken into account in the amendment. The amendments of 1938, provided only that the injured man, instead of assigning his rights upon the acceptance of compensation, did not assign any rights and the employer did not have any right to bring a suit until an award had been entered. They made the award the criteria. They didn't make absence of conflict to enter strict criterion. Now, as I gathered from Mr. Chazen's argument, he is seeking to have this Court amend the statute by judicial process to make conflict of interest, another criteria in the assignment of rights of the person injured from his title to compensation. It's a little difficult for the Royal Norwegian Government to see how it -- an Act could be amended nunc pro tunc to go back to 1945. We state the matter should be decided by Congress. And, in fact, the Bill has been introduced in this session of the House to cover this particular point. And I've annexed the copy to my brief. And if thus that Bill does provide that even under an award, there is no assignment, and the man does -- does retain the right to sue. My -- I have not gone in to any of the details or the difficulties that might be incumbent on modifying the plane meaning of the statute because we're not too concerned with that.
Jusitce Clark: May I ask you a question?
James M. Estabrook: Surely.
Hugo L. Black: You said something about what the record contained or did not contain. Does the record show whether the insurance company here would, in reality, have to pay any judgment that was rendered if this petitioner should file a suit on a third party action?
James M. Estabrook: I believe, Your Honors, subject to correction that the record does show that if this petition should recover judgment against the Hamilton Marine Company, the correspondent here, not an impede respondent, but a correspondent that then he -- the Hamilton Marine would look to the Travelers Insurance Company to pay the damages. I don't know the extent of the -- the amount of the policy. I don't know if the coverage is complete. I don't know he visited the doctor. But I do know there is a liability policy as shown on the record that covered both Hamilton Marine on their liability which would include this accident and covered the employer, Northern Dock on their compensation.
Hugo L. Black: And under your argument, it should come within -- would have control of where the suit was found?
James M. Estabrook: Under my argument, under the -- I'll say under the law and the statute --
Hugo L. Black: Under the -- under the argument.
James M. Estabrook: Under the statute --
Hugo L. Black: Yes.
James M. Estabrook: -- and under the decisions that have not been disturbed by Congress in amending the assignment provision, though -- but my principal concern is not with the details of the construction of the Act, Your Honor. We believe that we follow the Act as best as we could when the situation arose by looking at the Act, looking at the plain terms thereof and seeing it hadn't been amended or changed despite the Bank Line decision. And if the Act should be amended, we express no opinion on that one way or the other, then, we think it should be done by statute.
Hugo L. Black: I understand your position of how would you think the law is. I'd understand if I would see the facts on it. Does the record show that this insurance company would have charged to a suit that a judgment, if rendered, would have to be paid by the insurance company.
James M. Estabrook: Yes, Your Honor. At least the large part depending on the extent of their coverage which doesn't appear on the record.
Arthur J. Phelan: May it please the Court.
Earl Warren: Mr. Phelan.
Arthur J. Phelan: May it please the Court. I represent the Hamilton Marine Contracting Company and I suppose also Travelers Insurance Company so that it is conceded in this case and was conceded earlier that the Travelers Insurance Company did have, not only the compensation insurance on the Northern Dock Company who was the Stevedore but they also had the liability coverage on the Hamilton Marine Contracting Company. May I answer Mr. Justice Black's question --
Jusitce Clark: You mean by that -- there was a -- the judgment rendered, the insurance company would have to pay it.
Arthur J. Phelan: May it please --
Jusitce Clark: The duty of the insurance company filed a suit that was filed under your argument.
Arthur J. Phelan: At least -- they would have to pay, at least, to the extent of the coverage on the policy and I think --
Jusitce Clark: This is all, they didn't have to pay.
Arthur J. Phelan: That's all. I understood and I don't know that and I think that gets to Justice Harlan's original -- one of his questions earlier and our liability there, of course, would be limited by the -- to the extent of our coverage under the policy. My answer to questions raised by Mr. Justice Minton, no demand of any kind was ever made in this case since so far as this record is concerned or the allegations are concerned that if ever the insurance company or the Northern Dock Company institute suit or proceed in any way against the third party. I think under the circumstances, in order to bring this case into its proper prospective as to what is -- what the facts are and also what the allegations are, I think it might be helpful if I run over the facts a little more in detail as they are disclosed by the record. As indicated, this man was injured September 6, 1945. On September 11, 1945, the Travelers Insurance Company received from the employer what is called a first notice of injury, that is the employer reports to the insurance carrier, the injury. That indicated that the injuries were rather tribunal and that they were bruises, whereupon, the record shows that on September 17, 1945, this claimant appeared in the office of the Traveler's Insurance Company in North New Jersey. He lived in Jersey City, made the trip down to New York and had an interview with one of the investigators of the Travelers Insurance Company. At that time, it developed according to the record, I'm reading -- looking at page 78, that his description of the accident was that he slipped on some steps, that he was going over to get in to the catwalk. The steps had been made by an outside contractor and were put in place by somebody, either employees of the outside contractor or members of the crew, not known. The accident happened sometime between 12 o'clock and 1' clock in the Longshoremen route for lunch and neither the ship, the S.S. Silvercloud, nor the outside contractor are now as up here, so further investigation could not be made. I think that isn't rather a significant thing. Following that, there was a discussion about the employee or with the employee. It was developed that he owned his own home and he had a married daughter who lived on the upper floor of the home. The employee is undecided at the present time whether to sue the third party or to accept compensation but his daughter is very much in favor of bringing suit. Then, there was an unsigned statement attached to that. The record then shows at that very day, following that interview, the same investigator submitted to the Compensation Commission a -- what is known as a controversion, controversion on the ground that the employee had not has yet made up his mind on what he wanted to do, whether to sue the third party or not, therefore, the cases controverted. Now that was the procedure that was outlined by this Court, not by any regulations of the Commission but by a suggestion of this Court in the Porello case but that's the way you protect yourself, if you are an insurance company and there is a possibility of a third party claim involved. So that was done on the same day. There's no suggestion that this investigator called up Brooklyn. The Hamilton Company incidentally is -- has offices in Brooklyn where this is the New York office. There's no suggestion that on that day, he called up Hamilton Marine to find out who Hamilton's coverage was and incidentally that's the first time that was ever suggested to anybody that Hamilton Marine was involved in this case because that is the original notice to the insurance company, it didn't mention Hamilton Marine when I order. So that I submit that it's unlikely to assume that an investigator investigating a (Inaudible) case would call up Brooklyn and I certainly think -- don't think there was any duty on his part to call up part for Connecticut, the home office and have them checked their records to determine whether or not the Hamilton Marine Insurance Company also was covered by a Travelers Insurance policy. I think you've got to look at these things to some extent in a practical way. That -- that's on September 17, 1945. The next thing that happens, Travelers does nothing else. It does no coercing. The next thing that occurred that on September 25th, the claims examiner for the Workmen's Compensation Commission writes a letter to the claimant and said, “Your claim has been controverted, you -- on the ground that you don't -- you haven't made up your mind as to what you want to do with respect to compensation." That letter appears incidentally in Mr. Estabrook's brief. In that letter, the substance of Section 33 (b) of the Act is pointed out in writing to this claimant. Acceptance of such compensation honored an award and the compensation order filed by the Deputy Commissioner shall operate it as an assignment to the employer of all rights of the person entitled to compensation to recover damages against such that person. The letter goes on, if on the other hand, you elect to sue the third party, you should file an election to sue on the enclosed form in order to protect your future interest in the event you should be unable to recover from the third party, the amount that you would be entitled to under the Compensation Act. That letter was written obviously received by the claimant because two days later, on September 27th, he went to New York and visited the office of the Compensation Commission. There again, according to the record, -- the -- his rights, under the Act, were explained to him not by the Travelers but by a representative of the Compensation Commission. At that time, on September 27th, he said he wanted to take his compensation and he wasn't interested in any -- any third party action and he didn't want the counsel, and therefore, the following day, on September 28th, an award was entered. And you think it followed its normal cause until December 1, the -- that Travelers' doctors -- the doctors for the Compensation Commission reported that he was no longer injured, no longer disabled, and was not entitled to any further compensation. On December 5, 1945, he is notified to that effect and compensation is stopped. So, insofar as this record is concerned, there is no allegation that Travelers Insurance Company knew anything more about this case until suit was filed in 1952. Certainly, there was no obligation, as I see it, on the part of the Travelers Insurance Company to find out, whether or not, this man was still injured following around the -- the next year to determine what his condition was. Certainly, this Court, I feel, reasonably and certainly is not going to rule the whole, that it's the duty of the Travelers Insurance Company to file suit any case involving what $160.72 in workmen's compensation and that's what's involved in this case insofar as the record shows Travelers Insurance Company had any obligation. So that's what the decision of Travelers found itself in, when in 1952, the suit is filed. Two, Travelers then, under its obligations and under its contract has to file and defend the Hamilton Marine Contractors Company. But up to that point I can see nothing that Travelers could have or should have done with any reason to either protect itself, or to protect or do anything for this injured employee.
Stanley Reed: Well did the -- did the assignment of claim against the third party Group of Travelers?
Arthur J. Phelan: Yes.
Stanley Reed: Under the statute?
Arthur J. Phelan: Under the statute because Travelers had paid the compensation. And so that, that's automatically under the statute and certainly the language in the statute is perfectly clear that the assignment for operation of law went to the Travelers Insurance Company. Now, I don't know that --
Harold Burton: The statute says it goes to the employers, doesn't it?
Arthur J. Phelan: Next section given to the insurance company. So that's the position that -- that Travelers was in, in 1946. All right, what happened in 1946 --
Earl Warren: Isn't it that something -- isn't that something Mr. Ryan that the trial court should find on?
Arthur J. Phelan: What do I mean?
Earl Warren: That that was the position of the Travelers and that it had no -- no knowledge and it had no adverse interest and so forth (Voice Overlap)
Arthur J. Phelan: I think it -- I think it should not, it should not go into that unless and until the pleadings indicate something. I'm reciting what this record discloses If they had any information contrary to that, certainly, it was their obligation to plead it or set it up in affidavit form at the time they made a motion. But I am giving you just what this record discloses the picture to be. Then I certainly think we're within -- 100% within the realm of facts, it was -- it wouldn't affect to what I'm saying. Some of this has to be inferred because it's not pleaded, the other facts are pleaded or proven in the record which bear out the story. Now on April 19 -- in April of 1946, this employee got in the hands of the lawyer in New Jersey. That's fairly as far this record shows first time it consulted counsel.
Felix Frankfurter: What's the date?
Arthur J. Phelan: April, 1946. In April of 1946, that attorney filed a suit in the state court of New Jersey against the Kerr Steamship Company, the agent for the vessel.
Earl Warren: Why do you say he got into the hands of the lawyer? To meet the employed lawyer?
Arthur J. Phelan: I think you're -- your suggested is that that case was filed in April of 19 -- in April 1946 and continued on and was finally dismissed for lack of proper service in November of 1946. The -- in the meantime, in August of 1946, this claimant was operated on. And the allegation now is that -- that was as the result of those injuries, but injuries received in our accident. But the record shows nothing was been known by the claimant at that time, Hamilton Marine was not put on any notice of these injuries or the -- the fact that these injuries were, in some way, connect to with the accident or allegedly so, nor was the Travelers Insurance Company advised, in anyway, that this man was now asserting that he was injured more seriously than was originally expected. However, the Workmen's Compensation Act takes care of that. If he had until December 5, 1946, in order to come in, and as for this compensation award be reopened. If this man had been seriously disabled, his compensation, of course, would have continued and if upon a proper showing, of course, where relationship and if -- as it is more -- was hidden in the record, he is still disabled. The compensation would do continue until today and so on until he dies assuming that he's totally and permanently or totally disabled. So that's the position the insurance company finds itself. Until 1952, the only information it had was that there was a subrogation claimed involving $160.72. Certainly, the statute does not contemplate and Congress never intended that in a situation of that kind, Congress of an -- an insurance carrier had to file this obligation suit or else forevermore be open to a claim of fraud or constructive fraud or liability for breach of trust. Now, my concept of this case of the lawyers that since the Hunt case, which was in 1929, two years after the statute was passed, Congress has had an opportunity to amend this statute. The English language is quite clear and this statute's about as complete, gives about as to complete an assignment as anything could give. And there's a reason for that. It was a sound basis for it. But if the Act is to be changed to cover a situation such as this, certainly, there should be congressional hearings, some limitations should be put on the trust rule if it is to be applied by Congress. Certain control over the action should probably give -- be given to the Workmen's Compensation Commissioner with respect to the right to sue or the need to sue. There are any number of ways that Congress could protect the workmen against a situation such as this.
Earl Warren: Mr. Ryan, suppose the -- the Travelers Insurance Company have known that it carried both the compensation and the liability insurance in this case, you say it did in the record.
Arthur J. Phelan: It did not.
Earl Warren: The record doesn't show that. Suppose it had known, would that have changed the situation?
Arthur J. Phelan: It might well have changed it to this extent. I think the statute is clear enough. I think the statute gives an absolute assignment onto any circumstances and I think Judge Harlan had it -- the very outset of Mr. Chazen's argument. I think the remedy there for the employer -- for the employee would be some claim that the employer or the insurance carrier or both were violating their trust. That --
Hugo L. Black: How did they do that in the court of admiralty which is the court of chancery of filing the suit in his name and setting up the facts that we have filed again because of an adverse interest from the part of the other man.
Arthur J. Phelan: I think that might possibly be one way to get out of it. I -- I think, however, that a better procedure would have be -- would be to proceed separately against the insurance carrier probably by way of an injunction.
Hugo L. Black: But that -- that would require us to go through an injunction proceeding which has probably come all the way up here before he drive lawsuits.
Arthur J. Phelan: He might not get all of -- he might not get all the way up here.
Hugo L. Black: I think it, as to here.
Arthur J. Phelan: Might not get all the way up here. But my point -- my thought on that is that if there's going to be this trust relationship, it should be up to Congress to establish it specifically with proper safeguards to the employer, proper safeguards to the employee, proper control by the Commission. You certainly would open up on its nest through a Pandora's box if the -- by judicial decision, you say there is a trust relationship under these circumstances. I can visualize any number of tremendous problems that will develop as a result of it. One may could well be that in every $160 case, the employer immediately goes into the admiralty court and files a suit in order to protect themselves. And --
Hugo L. Black: You wouldn't have (Voice Overlap) --
Speaker: (Voice Overlap) --
Hugo L. Black: -- to that, would he, unless he had adverse efforts and (Inaudible)
Arthur J. Phelan: Well I'm speaking of the cases, these cases where this dual interest appears. There are -- there any number of thing -- questions that can be involved.
Hugo L. Black: That might not be a better idea, might it?
Arthur J. Phelan: Well --
Hugo L. Black: If they had an adverse interest, (Voice Overlap) --
Arthur J. Phelan: It might held that --
Hugo L. Black: -- that that's filed if they go into Court and let them know that they have an adverse interest and they should put to the --
Arthur J. Phelan: By help of the admiralty lawyers, and not then with the lawyers. They wouldn't help me, these fellows, I think, would appreciate it.
Stanley Reed: But the petitioner has an -- has an interest to disrupt that the insurance company has to bring a suit passed on it.
Arthur J. Phelan: I -- I didn't catch that.
Stanley Reed: The petitioner here has an interest whether a suit is filed or not.
Arthur J. Phelan: Well that's just the question.
Stanley Reed: You mean -- meaning that he -- if it's -- anymore is covered than the amount paid out in the compensation.
Arthur J. Phelan: Congress -- Congress hasn't said so, Mr. Justice Reed, because Congress has said that the employer has the absolute right to settle, sue, or not sue as he sees fit and in the absence of any showing that it would have been in someway to this petitioner's interest or some allegation or fraud or some allegation have reached the trust. It's my position that he doesn't have an interest. Now when --
Stanley Reed: Even though the statute says that he gets whatever old (Inaudible) there is.
Arthur J. Phelan: It says that in every case whether -- whether there's the dual interest or not. His interest --
Stanley Reed: And in every case?
Arthur J. Phelan: Every case.
Stanley Reed: Not serving the (Inaudible)
Arthur J. Phelan: On, no. It's in any case where there's a third party and --
Stanley Reed: Suppose the dual interest would take away that interest and would be adjacent here as --
Arthur J. Phelan: I think it's a significant thing, if Your Honors please, that this Act has been in effect since 1927. This is the first time that the -- any dual interest case has come up here which I think indicates pretty clearly that the insurance companies overall are administering this Act and their dual capacity which has occurred many, many times in a pretty fair and reasonable basis. The -- in order to change this, certainly, it's congressional, enactment should be made after hearings in order to determine how to set up the proper machinery to handle a situation of this kind. I think that the language of the statute is perfectly clear. We go back to the Hunt case, which in 1929, there, there was a dual capacity. The insurance carrier also had the liability insurance. There Justice Minton, a request was made. A demand was made that suit be filed and failing in the suit -- failure to file a suit, the injured employee undertook to file a suit himself. The Court said you can't do it because the assignment is absolute and that has been the law and that was the law that was followed by Justice -- Goddard in this case by Judge Sugarman in this case, by Judge Ryan in this case and certainly --
Earl Warren: Does the Court follow it in the Aetna case in your opinion?
Arthur J. Phelan: I don't think the question was before us, this Court in the Aetna case. I think that this Court certainly did not disturb that doctrine, it said we don't pass on it.
Earl Warren: It left it open.
Arthur J. Phelan: Left it open. I agree. But that I think, if the Court pleases, pretty well summarizes the position of the employer and the insurance carrier and acceptance so far as laches is concerned. I certainly think that where you have a situation where the man had a year in which to bring to the attention of the insurance carrier or the employer effect that he wasn't satisfied with the compensation picture.
Felix Frankfurter: And how much a year?
Arthur J. Phelan: A year from December -- a year from December.
Felix Frankfurter: Like the statute (Inaudible)
Arthur J. Phelan: Yes, sir, from the date of the last payment of compensation here.
Felix Frankfurter: What -- what is it, what situation of statute (Inaudible)
Arthur J. Phelan: Nine.
Felix Frankfurter: Now, what -- what is the company's (Inaudible)
Arthur J. Phelan: Within a year from the date of the last payment of compensation, you may come in and ask that the -- would be opened up to make any additional claims that you feel like making. That -- that -- the time would have run in this case, so in this man's case from December 1945 so that he had long after his operation to come in and make known as complaints to either the insurance carrier, the employer or the Workmen's Compensation Commission. Following that, he filed a suit in New Jersey or rather during that interim period, he filed a suit in New Jersey. The next year, he filed a suit in New York against the Northern Shipping Company. And this record shows that this man's case or he retained his present counsel in 1948, yet this suit was not filed until 1952, June of 1952, about three-and-a-half years after he retained his present counsel, that no explanation, no attempted explanation in this case as to why three-and-a-half years elapsed without the suit having been filed that time or why no demand was made upon Travelers or the employer in that time to do something about the third party action. Certainly, I think, it's a matter of law and without any explanation if Mr. Justice Frank was right in holding that this case should be dismissed on the ground of laches. I believe that's my rebuttal.
Earl Warren: I believe you have two minutes left, just to finish your -- if you're trying -- just finish (Inaudible)
Bernard Chazen: Yes Your Honor. I would like to call the Court's attention to some of the facts. First of all, they must -- counsel asked the Court to assume a great deal about the lack of knowledge on the part of Travelers. We attempted to take the deposition of the Travelers Insurance Company and we did under a very limited order by Judge Dimock and I'd like to call the Court's attention to the record at page 73 where there were three documents which we were able to fill out of that file. Now, I don't think that from that deposition, it can be assumed that the whole story appears in the record. The second thing that I'd like to call the Court's attention to is that in one of their reports, they do mention the Hamilton Marine Company. They did know at an early stage in the game that the Hamilton Marine Contracting Company was the third party defendant. At page 80, reading from the first notice of accident form, the very last line reading, an outside contractor, Hamilton Marine Contracting Company, so they knew from the very beginning it was the Hamilton Marine.
Earl Warren: Where is that Mr. --
Bernard Chazen: Record at page 80 it's in this -- it's the section that was added.
Earl Warren: Oh yes.
Bernard Chazen: The very last line.
Hugo L. Black: I've just read the Hunt case in this, representing the --
Bernard Chazen: This one?
Hugo L. Black: I do not find where the employers there had an adverse interest, did they?
Bernard Chazen: I believe -- I believe that so, otherwise, I've been -- I have just read this case all the way through from the trial court. I've always assumed that -- that was so I -- I can't recall where -- where was --
Hugo L. Black: Do you assume what is so?
Bernard Chazen: That -- that the insurance carrier in the Hunt case had an -- had an adverse interest to the employee --
Hugo L. Black: You may have I just read the case, isn't it?
Bernard Chazen: Well, I -- I believe it's somewhere in the opinion there.
Hugo L. Black: What it referred to, there is no -- maybe in that.
Bernard Chazen: I've always assume, that was one of my hurdles, Your Honor. I'd be very happy to hear I misread the case.
Hugo L. Black: Well, you -- maybe you didn't.
Bernard Chazen: I -- I believe it -- it's in there.
Hugo L. Black: He was working for this (Inaudible) shipping company, injured while unloading the steamship owned and operated by the Bank Line's (Inaudible)
Bernard Chazen: I believe in the body of the opinion, the Court somewhere averts this fact that he raised the question that the employer or the insurance carrier also was responsible for the third party negligence.
Hugo L. Black: Maybe, I just read it there.
Bernard Chazen: I think that's in the body of the opinion, Your Honor, because I -- that's one of the contentions that's in there. Now I'd also like to call the Court's attention to --
Earl Warren: Well, what is the significance of that testimony you just pointed to -- Mr. Chazen?
Bernard Chazen: I believe that less counsel indicated that Travelers did not know in the beginning that Hamilton marine was one of the -- was the third party responsible here. Now, here in this testimony, which is taken from one of -- from their file, from an accident report in their file, the first accident report, we see that from the very beginning, they did know that on this one document, there is a statement that the Hamilton Marine Contracting Company was involved in this accident.
Earl Warren: And how early was this --
Bernard Chazen: Well, there -- there is no date on -- and unfortunately, here, there is no statement of it, but since it was the first notice of accident form, it would be -- certainly, it would -- the very first papers they have on the file. And the prior papers are dated September 17th. Now, I'd also quote --
Harold Burton: The insurance company insure Hamilton.
Bernard Chazen: Yes, yes sir. That's where the adverse interest --
Harold Burton: That they insured -- that they insured the -- the party to this petitioner work form.
Bernard Chazen: Both, that -- that's precisely the point. They -- they insured for liability, the Hamilton Marine Contracting Company. They also insured for compensation, the Northern Dock Company who was this man's employer, so that they were in -- on both sides of the defense. If they sue the Hamilton Marine and obtained the recovery, they'd be taking their money out of one pocket putting in the other and giving the difference to the -- to the injured man.
Harold Burton: Then how come Mr. Phelan's wasn't that the New York office didn't know what the Connecticut office is doing and didn't know the coverage of dual interest.
Bernard Chazen: I think Mr. Phelan assumes more regiments on there but -- then, perhaps it justified. I do note that there was great haste in insisting at an early stage in the game that there'd be a formal award entered. There was no necessity for it.
Speaker: Why do you wait four years to bring your suit?
Bernard Chazen: I cannot fully state why because, frankly, I was not in the office at the time and I can't give it from my personal knowledge. I think there were negotiations during this period. There were statements, demands were made and I meant before my time was up to show that they filed an --
Earl Warren: You have five minutes more.
Bernard Chazen: Oh, I'm sorry.
Earl Warren: When the white light goes on and the red light is dead.
Bernard Chazen: That there were negotiations that went on after we got in the case. Now, just exactly when and how, I don't know, it doesn't appear in the record. I think that the reason for this delay to be perfectly frank was the problem that we face in the office and working out the procedure for going ahead with this thing in view of the situation that had been created. Demands were made. I don't know what kind of discussions went on. I cannot represent to the Court what happened in the interim. But the problem -- we live with the problem a long time before the suit had started. I would like to call the Court's attention also to one other fact here. There were some statement about notice being given to Traveler, Traveler having consented. At page 50 of the record, there is an affidavit by Mr. (Inaudible) who filed an affidavit on behalf of the Hamilton Marine. And after discussing, making allegations on behalf of Hamilton Marine, the very last paragraph, on this motion, I also appear for the Travelers Insurance Company, that was on our motion to imply with them. The Travelers Insurance Company does not consent to be made a party for this litigation. Now, that's only specific reference I can call the Court's attention to as to their refusal to precede. Now, I know that there were other conversations prior thereto but there is nothing in the record, which I could call the Court's attention to. I think with that, I call the Court's attention to the matters which I thought needed correction. Thank you.


Earl Warren: Number 615, Escobedo, Petitioner, versus Illinois. Mr. Kroll.
Barry L. Kroll: Mr. Chief Justice, may it please the Court. This is a writ of certiorari to the Supreme Court of Illinois. Once again, it posses the problem of the rights of the individual who has been accused by the police of participation in a criminal offense and who has been taken by the police to the station, the rights of the individual to the consultation or to the effective assistance of counsel as opposed to the right, claimed right of the State to interrogate him for the purpose of obtaining judicial or non-judicial admissions to be used as evidence against him in the event of a trial.
Speaker: This is before indictment.
Barry L. Kroll: That's right, Your Honor.
Speaker: For -- for a charge (Inaudible)
Barry L. Kroll: That's right, Your Honor. The facts of the case may be stated briefly. They are not too difficult. On the evening of January 19th, the petitioner's brother-in-law was shot in the garage behind his home. This happened about midnight. Approximately 2:30 in the morning, the petitioner, a 22-year-old young man of Mexican extraction, a married man whose wife was pregnant, was arrested by the police with a boyfriend, Bobby Chan, while they were in the home of another sister. They were babysitting. They were taken by eight or nine policemen to the Fillmore Avenue District Station about 3 o'clock in the morning and they were questioned by the police for a period of about 14 or 15 hours. At that time, Danny denied any knowledge whatsoever of the offense. About 5 o'clock that evening, Attorney Warren Wolfson, who had been retained by Danny and Bobby Chan in connection with a personal injury action against the Chicago Transit Authority of some six months earlier, appeared at the police station and pursuant to a writ of habeas corpus, obtained their release. On January 30th --
Earl Warren: Obtained their release, did you say?
Barry L. Kroll: That's right, Your Honor, pursuant to a writ of habeas corpus. On January 30th, a Saturday evening, about 8 o'clock, Danny was at his sister's home, his -- the widow of the deceased. At that time, several police officers came with warrants for the arrest of Danny and his sister. They took them in the police car, whether he was handcuffed or not is a disputed question and took him to the police headquarters at (Inaudible). While they were taking Danny to police headquarters, one of the officers said, "We've got evidence that you did the killing or somebody says that you shot your brother-in-law." And Danny denies this. He states either, "I don't know what you were talking about," is Danny's statement or the officer's statement is, "Well, I'd better let that person tell me that. About 9 o'clock or so or 9:30, the testimony of the police officers is in conflict, they arrived at the police station. Danny was then taken to one room, Bobby Chan taken to another. By the way, Bobby Chan had been rearrested separately and was placed in a room adjacent to Danny. Bobby Chan and Danny, both requested to be allowed to consult with Mr. Wolfson. Now, Mr. Wolfson was at the police station. He had been informed, the record is silent as to how, that Danny and Bobby had been taken there but nonetheless, he came to the police station. He asked to see his clients. He was told, "Well, they haven't been here very long. You can't see them. ”He was told by one police officer that "You'll have to see somebody else," and he was shunted around from one detective to another in the Homicide Division. Ultimately, he got to Captain Flynn. He wasn't really the captain, he was the acting captain, but all the officers referred to him as “captain,” sometimes “lieutenant” and this might clear up some question as to his rank, he was the officer-in-charge.
Arthur J. Goldberg: (Inaudible)
Barry L. Kroll: The Detective Bureau of the Homicide Section. Captain Flynn testifies that about a quarter to 10 or 10 o'clock, he was told that there was an attorney there representing Escobedo and at this time, Captain Flynn testified he had no knowledge that Escobedo was in the station and he had no knowledge of really anything that had happened before, but the attorney came up to Captain Flynn and cited the Illinois statutes asking -- allowing him a privilege to consult with his client and Captain Flynn said, “Well, they've been only interrogating him for a short time. You can't see him now. You can see him when they're finished with him," words to this effect. In this -- another police officer who heard this corroborates Captain Flynn's testimony and there really is no question but that the Captain refused Mr. Wolfson's request to consult with Danny and Bobby. Mr. Wolfson was not content with this rebuff and wanted to see his clients as he felt properly so, we believe, that he had a right to. And he went down to a desk, which fortunately or perhaps, unfortunately, was adjacent to the room in which Danny was being kept and he started asking the desk's Sergeant there for permission to see Danny and they, through happenstance, were overheard by Danny who was sitting in the adjacent room and the door was ajar. Danny saw that his attorney was there trying to see him.
Potter Stewart: On the night of January the 30th?
Barry L. Kroll: That's right, Your Honor.
Potter Stewart: 10 days after his original arrest?
Barry L. Kroll: 10 days after his original arrest and release on habeas corpus petition.
Potter Stewart: Right.
Barry L. Kroll: By the way, Danny had been arrested, but had not been charged with anything. This is somewhat similar to the black book practice which was held to be questionable in the Haynes case.
Hugo L. Black: This was before the confrontation?
Barry L. Kroll: This was all before the confrontation, Your Honor. Danny had requested to see his attorney. He was told, one, the attorney didn't want to see him and Danny heard his attorney out there at the desk asking to see him. Danny heard the officers tell the attorney, "You can't see him until we're done. "He heard that no time limit was set and in fact, the police officer stated that there was no time limit set to this interrogation and the attorney would be prevented from talking to Danny until the interrogation had been terminated. Now, Bobby Chan --
Arthur J. Goldberg: (Inaudible)
Barry L. Kroll: Well, there seems to be some question, Mr. Justice Goldberg, in that we presented these statutes to the Illinois Supreme Court and the Illinois Supreme Court construed these statutes, which on their face appear, to give the man the right, unless there's escape or some other possibility like that. The Illinois Court said that these statutes do not evidence an intention to insulate the state from the questioning. They said they -- there is no right to immediate access despite the language of the statute. This is one of the holdings of the case below that the statutes do not actually grant the rights that this Court previously referring to them in footnotes in the Guam case and the Crooker case, this Court thought that Illinois had granted, under their statutes, this right, but apparently, the Supreme Court of Illinois has held that the right is not absolute.
Arthur J. Goldberg: That is (Inaudible)
Barry L. Kroll: Well, the -- there as only one appeal, Your Honor. The case was first argued and thereafter, about four months later, an opinion was published in which they reversed the conviction apparently on the grounds that the State did not prove the voluntariness. Thereafter, the State filed a petition for rehearing which was granted. It was heard solely on briefs and the ultimate opinion was promulgated in which the Court held, one, that they did not find a voluntariness question sufficient to reverse and two, that the denial of counsel was insufficient to -- to render this. This superseded the first opinion and under Illinois --
Tom C. Clark: Justice House opinion?
Barry L. Kroll: Pardon?
Tom C. Clark: Justice House wrote the final opinion.
Barry L. Kroll: Justice House wrote the final opinion and this superseded the original opinion and under Illinois law, that opinion is merely one that apparently never has any efficacy, there having been granted a rehearing.
Tom C. Clark: House is (Inaudible)
Barry L. Kroll: He had indicated that he would file a dissent, but when the rehearing was granted, whatever his dissent was, apparently, it became the opinion of the entire court.
Tom C. Clark: No dissents?
Barry L. Kroll: No dissents, Your Honor. And we could speculate as to the reasons but that would be beyond our province. Now --
Earl Warren: We'll recess now, Mr. --


Warren E. Burger: We will hear arguments next in Mobil Oil against Higginbotham. Mr. Schumacher you may proceed whenever you are ready.
Carl J. Schumacher, Jr.: Thank you, Mr. Chief Justice and may it please the Court. I appear for Mobil Oil Corporation, the petitioner. The facts that bring us to this point in this suit are really simple. Indeed I do not believe that any facts are in dispute at this stage of these proceedings. On August 15, 1967 four men were killed when a helicopter in which they were riding crashed into the Gulf of Mexico after leaving a fixed platform not official island, and returning toward the shoreline. The crash occurred some 100 miles off the Louisiana Coast. The case was tried in the District Court on three theories by the plaintiffs seeking a remedy for death damages based upon Death on the High Seas Act, damages under the Jones Act, and damages under the General Maritime Law. The issue before this Court and the sole issue is whether or not this Court in Moragne to use Judge Brown's language consigned the Death on the High Seas Act to the briney deep. Did this Court by Moragne reduce the Death on the High Seas Act to the scrappy or reduce it to the level of a nonstatutory restatement as Professors Gilmore and Black have said, suggested a question. Our submission is that clearly Justice Harlan in the opinion in Moragne did not intend to do so. We submit that it is clear beyond any possibility or doubt that this Court in Moragne did not decide more than it had to. And when Justice Harlan wrote we conclude that the Death on the High Seas Act was not intended to preclude the availability of a remedy for wrongful death under General Maritime Law in situations not covered by the Act. We specifically decline or this Court specifically decline to, by Moragne, repeal or nullify a circumvent DOHSA. The case comes before Your Honors because of the conflict in the opinions of the First Circuit in Barbe versus Drummond and of the Fifth Circuit in Law versus Sea Drilling. Question arises because the Fifth Circuit in the instant case, the Panel of the Fifth Circuit that heard Higginbotham et al. decided that it was precluded from deciding for itself whether or not Moragne nullified the Death on the High Seas Act. It said it was precluded by its own rules that required it to follow the decision of an earlier panel in the Law case. In Law, Judge Brown speaking for the Fifth Circuit says no longer does one need a state remedy. No longer does one need a State Court or the admiralty as a Court or DOHSA as a remedy. There is a federal maritime cause of action but death on navigable waters -- any navigable waters -- and it can be enforced in any court.
Warren E. Burger: By any navigable waters he was, of course, including the three mile --
Carl J. Schumacher, Jr.: He was including Your Honor the three mile limit which clearly there was good authority for him to do so, but the facts in Law involve deaths beyond the three mile limit as did the facts in Barbe versus Drummond. The First Circuit addressing itself to the identical question, came to just the opposite conclusion. The Court in Barbe said, "Since DOHSA clearly provides a cause of action for wrongful death in this case, we fail to see how Moragne applies. We hold that the major of damage for wrongful death provided by DOHSA, namely pecuniary loss, controls in the instant case." Both the petitioner and the respondent, in the briefs before the Court, have addressed themselves to the intention of the Congress in passing the Death on the High Seas Act. I submit to Court that the statute itself demonstrates that the Congress intended that the Death on the High Seas Act be the exclusive remedy for death actions occurring or where death occurs more than three miles out of the territorial waters of the State. It reached whenever the death of a person shall because by wrongful act neglect the default occurring on the high seas beyond the Marine League from shore, the personal representatives of the decedent may maintain a suit for damages. But the damages provision which is the provision which bars directly on the Higginbotham case provides the recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained, and whether our reading of the congressional record in 1920 is correct and we properly understand the intention of the Congress, or whether that suggested by the respondents is may be debatable, but the language of the statute certainly cannot be debated and the statute says that the major of damages shall be the pecuniary loss. There is no exception to that command. I suppose Your Honors that the petitioner's argument really reduces itself to this. We feel that in Moragne the Court correctly limited itself to consideration of deaths occurring within the three mile limit. We feel that it did not signal or suggest as the Fifth Circuit in Law guessed that the Moragne decision applied beyond the three mile limit. On the contrary, we believe that the statute itself mandates that it apply exclusively to Death on the High Seas Act. But the Moragne Gaudet remedy is to be applied beyond the three mile limit would be to totally emasculate the act of a Congress. Your Honors that is what I have come here to say if any member of the Court has question of course I would be glad to try to speak to.
John Paul Stevens: I have one question counsel. You have not talked a great deal about the Gaudet case, as I remmeber the name of it, understandably, when one reads that opinion it seems to read -- it does not seem to be limited in its language to the territorial waters although the whole I know the facts there roles within the territorial waters. Do you have anything to say about Gaudet before you go home?
Carl J. Schumacher, Jr.: Your Honor I believe in Footnote 22 of Gaudet, this Court, speaking through Mr. Justice Brennan, committed error. I believe the construction placed by the majority in Gaudet on the Death on the High Seas Act was in error. I do not think that really germane to our case because I think Gaudet should have been limited by rules of interpretation to the facts of Gaudet.
John Paul Stevens: I am assuming it is wrongly decided. It may be in assuming that it is not in fact in its terms limited. What am I supposed to do? I was not here when Gaudet was decided. Should I -- am I to follow as to my (Inaudible) to this regard.
Byron R. White: Was not the footnote just addressed to whether Death on the High Seas Act foreclosed this extra item of damages within the State's water.
Carl J. Schumacher, Jr.: I think not Your Honor. I think that particular footnote -- it was, and that the case was only limited to the State's water.
Byron R. White: That is right. Those are the facts.
Warren E. Burger: Are you suggesting this was dictum them?
Carl J. Schumacher, Jr.: Such you do not like, certainly Your Honor. Your Honors, I should say I come from a state where the very first article of Civil Code defines the word 'law' and it defines law as a solemn expression of legislative will. Coming with -- it was the very first court article I read when I went to the law school. So coming from that background and reading the Death on the High Seas Act I am knowing that this case involved the deaths that indeed occurred on the high seas as defined by the legislature. I suppose that, I would say QED, but in effect I do not believe the Gaudet footnote or the Gaudet decision itself is necessary for the decision in this case.
Thurgood Marshall: And the difference as to whehter it is ratio decidendi opinion or dictum as whether it is engaging.
Carl J. Schumacher, Jr.: Your Honor. Mr. Justice Marshall in my para said whose ox is being gored, but it is the same mode of law. Yes, but the facts again in the Gaudet do not require the Court to decide anything more than territorial water death.
John Paul Stevens: Let me pursue it just a little more in a serious level too. What part Justice Harlan's rationale in the Moragne case was a desire for uniformity throughout and both parts of the high seas? Now are we possibly in the position where in order to achieve uniformity we must read Gaudet literally and apply it in the same area that the Death on the High Seas had applied. But how do we --
Carl J. Schumacher, Jr.: Your Honor, certainly if there were to be complete uniformity and all things, there would be no need for courts or lawyers or any administrative process. aAs I understand it, that is not with the Admiralty and Maritime Laws mean when it speaks of uniformity. It means uniformity in the matters of liability leading to the decision as set out by the Fifth Circuit in -- quoted at page 20 of our brief. "The uniformity that is fundamental in Maritime Law has to deal with the basis of liability not with deferring elements of damages that may be recoverable in different circumstances with different classes of beneficiaries." That comes from the Dennis (ph) case. Thank you Your Honor.
Warren E. Burger: Very Well. Mr. Benjamin.
Jack C. Benjamin: Mr. Chief Justice and may it please the Court. I wanted to point out to the Court in the very beginning that my client Mrs. Shinn one of the respondents, her decedent was entitled to the benefits of the Jones Act, the Death on the High Seas Act, and the General Maritime Law as found by the District Court and affirmed by the Fifth Circuit, as distinguished from Mrs. Higginbotham whose decedent was not found to be a seaman. So with regard to the issue presented upon review by this Court and I read, if I may take the time, certiorari was granted on the question, whether the maritime cause of action for death occurring within a State's territorial waters, created by this Court in Moragne, completely replaces the statutory cause of action for death, mandated by Congress with respect to deaths occurring within the geographical scope of the Death on the High Seas Act, may not dispose of the Shinn matter. What may dispose of the Higginbotham matter. Now I think it was the intention of the petitioner to ask the Court to consider both the Death on the High Seas Act and the Jones Act in relation to the Moragne cause of action for wrongful death and we have so treated that in our brief, but I really worried to make reference to that to the Court.
Potter Stewart: A case can be -- it says a death occurring within the geographical scope with the Death on the High Seas Act, might or might not be also covered by the Jones Act depending upon whether the decedent was a seaman, right?
Warren E. Burger: That is correct.
Potter Stewart: Both would be within the geographical scope on of the Death on the High Seas Act.
Jack C. Benjamin: But petitioner if you read the question presented literally it says the statutory cause of action. It does not say statutory causes of action, and the petitioner, no doubt about it, is addressing itself to Death on the High Seas Act. (Inaudible) as if may we are not urging this Court not to consider the Jones Act in relation to the Moragne cause of action. Counsel for the petitioner pointed out and this Court has accepted the question of review as to whether or not the Moragne cause of action replaces completely the Death on the High Seas Act, or whether or not it is necessary to relegate it to the briney deep. We believe that the real issue is not whether that the Moragne cause of action replaces a statutory Act of Congress but whether or not it can recognize as the Court we think did in Moragne case. The existence of a cause of action for wrongful death under the General Maritime Law which can augment, complement, and supplement the existing federal statutes, and we ask the Court to consider that its decision in Moragne did just that. In overruling the Harrisburg, the Court must reflect back. The Harrisburg a case in the late 80's and 80's was cited for the proposition that there was no cause of action for wrongful death under the General Maritime Law wherever the wrongful death occurred so long as the death occurred within waters under federal jurisdiction, both within and without the three mile limit.
William H. Rehnquist: The Harrisburg was not based on act of Congress.
Jack C. Benjamin: No sir, it was not that Mr. Justice Rehnquist. The Harrisburg involved, as I recall it, a collision which occurred off the Coast of Massachusetts, somewhere between the Coast of Massachusetts and Martha's Vineyard. The question as to whether or not it really was territorial waters on the high seas, but in any event over the years the courts and this Court has held that the Harrisburg has prohibited or had prohibited a cause of action for wrongful death under the Maritime Law.
William H. Rehnquist: Aren't we freer to overrule a judicially created doctrine like the Harrisburg which what you say, was held the prohibited cause of action for wrongful death than we are to overrule a damaged limitation in an act of Congress?
Jack C. Benjamin: Precisely, I think the petitioner has overstated the problem when petitioner suggested in its brief that this Court has not the right to relegate an act of Congress to the scrappy, petitioner overlooks the fact that this Honorable Court has the right if not the duty to reverse prior decisions of this Honorable Court which it feels are wrong or inappropriate or for whatever reason, and that is all we are asking the Court to do.
Byron R. White: What if that never had been necessary to overrule Harrisburg, suppose that all had been in a wrongful death action on the high seas, and then Congress pass Death on the High Seas Act? Saying that the Death on the High Seas an act for the death on the high seas shall lie and following damages shall be recoverable?
Jack C. Benjamin: I think there Mr. Justice White that there would have been a jurisprudential disaster.
Byron R. White: Well, it may be but could the Court go on then say, well, nevertheless we are going to allow recovery of more than pecuniary damages?
Jack C. Benjamin: Well, Congress certainly has the right to do that by statute, but I would like to address myself to one of the provisions of the Death on the High Seas Act itself because we differ very greatly from the petitioner's interpretation of what Congress intended to do. Now this Court combed the legislative history of the Death on the High Seas Act in Moragne case, and I do not think it would be appropriate for me to go through all of the ramification, but I really point to what was noted in Section 7 of the Act. When the petitioner read to you the provisions of the Act, petitioner omitted this portion of the statute which says that the provisions of any state statute giving or regulating rights of action or remedies for death shall not be affected by this chapter and this language resulted after great debate on the floor of the House, where there was some language in this amendment which restricted the state statutes to territorial limits and that language was excluded. So we believe this Act was passed by Congress. It was really to confer a jurisdiction in Federal Court which had not existed before 1920. It was not a grade of exclusive jurisdiction because those statutes, which had been passed by the state which could have applied to the High Seas were still permitted to by the very language in the statute that I just read to the Court. Now if Your Honors inquired of me which states had such statutes I am afraid I could not answer the question obviously. There must have been some whic did because there would not have been necessity for the discussion in the House when the legislation was debated.
Potter Stewart: But no state would have had the power, would it,  to enact the laws creating liability for injuries of death that occurred outside that state's territory including its territorial waters?
Jack C. Benjamin: Well, I do not know that that issue had ever been presented to this Court Your Honor, but I am under the impression that some states did have statutes which permitted --
Potter Stewart: Which purported to (Inaudible) of the court as a matter of constitutional power. Sovereignty only can enact laws applicable within its territorial jurisdiction and the high seas are not within the jurisdiction of anyone of our domestic states.
Jack C. Benjamin: Well, Mr. Justice Stewart, we know that now I am not so sure the Congress over the years has recognized --
Potter Stewart: We know that, yes.
Speaker: But the Death on the High Seas Act does expressly limit recovered to pecuniary loss.
Jack C. Benjamin: So Death on the High Seas Act does limit recovery to pecuniary loss.
Speaker: So that just is not a judicial limitation on damages.
Jack C. Benjamin: No, that is a statutory limitation of the Act itself and the Jones Act limitation on damages is limited to pecuniary loss, but the two statutes have never been held to be exclusive. They have been implementing one another and the Courts have used them to implement one another over the years. A Jones Act seaman had called upon the provisions of the Death on the High Seas Act when appropriate for a remedy for on sea worthiness.
Byron R. White: Well, the congressional statutes are usually given as much place each of them can, but we are talking here about a judicial rule. These are the congressional statutes.
Jack C. Benjamin: Well, Mr. Justice White as we attempted to point up to the Court in our brief. Fortunately, the maritime law has involved with an interrelationship between statutory law and decisional law, and it has been implemented over the years and delicately sometimes not so delicately woven into a flexible fabric to cover an --
Warren E. Burger: We will resume there at 10 o'clock in the morning.
Jack C. Benjamin: Thank you sir.