982368OR.P

FILED: June 1, 2000
DISSENT FILED: June 2, 2000
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-2368
(CA-98-382-2)
CELESTINE GARRIS, Administratrix of the estate
of Christopher Garris, deceased,
Plaintiff - Appellant,
versus
NORFOLK SHIPBUILDING & DRYDOCK CORPORATION,
Defendant - Appellee,
and
E. T. GRESHAM, INCORPORATED,
Defendant.
ON PETITION FOR REHEARING EN BANC
Appellees filed a petition for rehearing en banc.
A member of the Court requested a poll on the petition for
rehearing en banc. The poll failed to produce a majority of judges
in active service in favor of rehearing en banc. Judges Widener
and Niemeyer voted to rehear the case en banc. Chief Judge

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Wilkinson and Judges Murnaghan, Wilkins, Luttig, Williams, Michael,
Motz, Traxler, and King voted against rehearing en banc.
The Court denies the petition for rehearing en banc.
Entered at the direction of Judge Williams for the Court.
For the Court
/s/ Patricia S. Connor
Clerk

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WIDENER, Circuit Judge, dissenting:
I respectfully dissent to the denial of rehearing en banc in
this case. I would grant rehearing en banc in this case of first
impression.
The panel opinion relies almost exclusively on the opinion in
Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970). In
Moragne, the Court addressed discrepancies “between the remedies
for deaths covered by the Death on the High Seas Act and for deaths
that happen to fall within a state wrongful death statute not
encompassing unseaworthiness . . . .” 398 U.S. at 399. Finding
that Congress could not have foreseen these discrepancies, the
Court concluded that the Death on the High Seas Act did not
foreclose any nonstatutory federal remedies that would effectuate
the policies of general maritime law. Moragne, 398 U.S. at 399-
400.
With respect to longshoremen and other harbor workers, the
Moragne Court found that a claim for wrongful death based upon the
unseaworthiness of a vessel was viable because the unseaworthiness
doctrine had been extended to longshoremen as the principal vehicle
for recovery of injury or death while performing work on a vessel,
Moragne, 398 U.S. at 399, on the authority of Seas Shipping Co. v.
Sieracki, 328 U.S. 85 (1946). Sieracki extended to land-based
stevedores the right given by maritime law to seamen to recover
against the ship owner, without the need of proving negligence, for
injuries caused by the unseaworthiness of the vessel. Following

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Sieracki, courts made awards to longshoremen on the basis of
unseaworthiness. And, as noted, the Moragne Court specifically
relied on the Sieracki decision to extend the coverage of a
wrongful death cause of action based on unseaworthiness to a
longshoreman.
In 1972, Congress enacted various amendments to the Longshore
and Harbor Workers’ Compensation Act. As part of these amendments,
Congress added 33 U.S.C. § 905(b), which specifically eliminates
the right of longshoremen and harbor workers to recover against the
vessel on the basis of unseaworthiness. See Scindia Steam
Navigation Co. v. De Los Santos, 451 U.S. 156, 165 (1981)
(longshoreman’s right to recover for unseaworthiness abolished);
Herbert R. Baer, Admiralty Law of the Supreme Court § 6-17 at 90-91
(2d ed. Supp. 1977). The legislative history mentions Sieracki by
name and rejects the holding of that case to the extent that it
created an absolute duty of seaworthiness to “longshoreman and
others who performed work on the vessel.” H.R. Robert E. Payne.
No. 92-1441 (1972), reprinted in 1972 U.S.C.C.A.N. 4698, 4702.
Thus, because Moragne relies on Sieracki to extend a wrongful death
action based on unseaworthiness to longshoremen and harbor workers,
to the extent of that reliance Moragne was superceded and reversed
by the 1972 amendments to the act. Thus, the panel opinion’s
reliance on this portion of Moragne is misplaced.
The legislative history of the 1972 amendments to the Act are
particularly relevant to our decision in this case. It is clear

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* As Scindia points out both the Senate and House Committee
Reports agree on this language. Scindia, 451 U.S. at 165-166 n.13.
from this history that Congress intended to “place an employee
injured aboard a vessel in the same position he would be if he were
injured in non-maritime employment ashore, insofar as bringing a
third party damage action is concerned, and not to endow him with
any special maritime theory of liability or cause of action under
whatever judicial nomenclature it may be called, such as
‘unseaworthiness’, non-delegable duty’, or the like.” 1972
U.S.C.C.A.N 4698, 4703. *
In spite of this explicit expression of Congressional intent,
the panel opinion creates a new cause of action which is exactly
the opposite of that which Congress intended. First, the decision
creates a “special maritime theory of liability” - one for wrongful
death based on negligence. Second, the decision gives an employee
injured aboard a vessel a cause of action that a Virginia worker on
shore would not have.
In a case such as this in which Congress has made its
intention explicit, I suggest it is beyond our warrant to
substitute our notions of public policy for that of Congress.
Local 1976, United Bhd. of Carpenters and Joiners v. N.L.R.B., 357
U.S. 93, 100 (1958) (“[I]t is the business of Congress to declare
policy and not this Court's. The judicial function is confined to
applying what Congress has enacted after ascertaining what it is
that Congress has enacted.”). “Whether the federal policy is a

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wise one is for the Congress and the Chief Executive to determine.
Once they have spoken, it is our function to enforce their will.”
United States v. Georgia Pub. Serv. Comm’n, 371 U.S. 285, 293
(1965).

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