Mitchell v. Trawler Racer, Inc.

Mr. Justice Frankfurter,

whom Mr. Justice Harlan and Mr. Justice Whittaker join,

dissenting.

No area of federal law is judge-made at its source to such an extent as is the law of admiralty. The evolution of judge-made law is a process of accretion and erosion. We are told by a great master that law is civilized to the *551 extent that it is purposefully conscious. Conversely, if law just “grow’d” like Topsy, unreflectively and without conscious design, it is irrational. When it appears that a challenged doctrine has been uncritically accepted as a matter of course by the inertia of repetition — has just “grow’d” like Topsy — the Court owes it to the demands of reason, on which judicial law-making power ultimately rests for its authority, to examine its foundations and validity in order appropriately to assess claims for its extension.

Our law of the sea has an ancient history. While it has not been static, the needs and interests of the interrelated world-wide seaborne trade which it reflects are very deeply rooted in the past. For the most part it has not undergone the great changes attributable to the emergence and growth of industrialized society on land. In the law of the sea, the continuity and persistence of a doctrine, particularly one with international title-deeds, has special significance.

The birth of the current doctrine of unseaworthiness, now impressively challenged by Chief Judge Magruder’s opinion under review, can be stated precisely: it occurred on May 29, 1922, in Carlisle Packing Co. v. Sandanger, 259 U. S. 255 . The action was brought in the Washington state courts by Sandanger, an employee of Carlisle, who was injured while working on its motorboat on a six- or eight-hour trip. The-injury.occurred when he lighted fuel from a can on board marked “coal oil” in order to start a cookstove, and it exploded. It appeared thereafter that the can had mistakenly been filled with gasoline. In a suit based on a claim of negligence, Sandanger won a verdict on a finding of negligence, which was challenged in the Supreme Court of Washington on the ground that the exclusively applicable maritime law did not afford relief by way of compensation for negligent injury of an employee. The Washington court held that an *552 injury caused by a negligently created unseaworthy condition was compensable, even when, under the rule laid down in The Osceola, 189 U. S. 158 , negligent injury without unseaworthiness would not be. 112 Wash. 480 , 192 P.1005.

The matter was dealt with in this Court in the few lines innovating the rule of absolute liability: “we think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock . . . and that if . . . one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages.” 259 U. S., at 259 . (The full text is quoted in the margin. 1 ) No explication accompanied this dogmatic pronouncement on an issue not presented by an issue of the affirmed judgment. It was strangely deemed sufficient to rely on the unelaborated citation of two cases in this Court (The Silvia, 171 U. S. 462, 464 , and The Southwark, 191 U. S. 1, 8 ) which were concerned not with the rights of seamen but with the shipowner’s liability for cargo damage. The abrupt, unreasoned conclusion was reached without benefit of argument: the parties had presented the case solely on the basis on which the action was instituted and in the terms in which it had been decided by the Supreme Court of Washington — liability founded on negligence. Neither our own investigation nor that of the parties here has disclosed a single case in an English or an American court prior to Sandanger in which the absolute duty to *553 provide a seaworthy vessel for cargo carriage and marine insurance contracts was applied to a seaman’s suit for personal injury. Sandanger was an unillumined departure in the law of the sea. Reasoned decision of the case before us, in which extension is sought of a rule so dubiously initiated, 2 requires that its rational, historical and social basis be scrutinized and not merely accepted as unquestionable dogma.

We must take it as established that the petitioner, a seaman employed on the Racer, fell from her rail while using it as a customary stepping place in leaving the vessel; that the resulting injury was caused by the presence of fish spawn on the rail rendering it slippery; that it was not negligent for respondent to allow the spawn to get on and remain on the rail. 3 It further appears that the spawn was deposited on the rail shortly before the injury, when bags of it were handed across the rail in the course of the unloading of the vessel.

The claim now before the Court rested on the alleged unseaworthiness of the vessel. Petitioner asserts that if the presence of spawn on the rail rendered it not reasonably fit for its function, then, without more — and particularly without regard to the length of time the spawn had remained on the rail — respondent was liable to compensate him for his consequent injuries. He asserts that these conclusions flow from the rule of Sandanger, supra, that the owner’s liability to compensate *554 seamen for injuries caused by the unseaworthiness of his vessel is “absolute.”

Respondent contends, and the lower courts held, that the fact that spawn on the rail caused petitioner’s injury is not, of itself, sufficient to establish respondent’s liability. It urges two related propositions in the alternative in support of its judgment. The first of these — the express ground of Judge Magruder’s decision and the primary ground urged here in its support — is that since this unsea-worthy condition concededly did not arise until after the commencement of the voyage it did not create liability unless it persisted so long before the injury as to have afforded the owner notice of its existence. This view makes liability for an unseaworthy condition created without negligence after the start of the voyage turn on the existence of negligence in permitting the condition to persist. Respondent also urges that, even if negligently caused or allowed to persist, this transitory hazard arising after the start of the voyage in equipment otherwise sound was not an unseaworthy condition.

We are thus confronted with two questions of the nature and scope of the duty of a shipowner to seamen to provide a seaworthy ship. The decision in Sandanger, supra, in light of the facts from which its generalization was drawn, certainly did not foreshadow the result urged by petitioner, a result characterized by Judge Magruder as “startlingly opposed to principle.” 265 F. 2d, at 432. There was in that case no such analysis of the reasons upon which the rule announced was rested as to govern or even suggest the present decision. The Court does not deny force to the distinctions urged by respondent, but regards the questions now presented as foreclosed by Alaska S. S. Co. v. Petterson, 347 U. S. 396 . In fact, today’s decision rests on an unrevealing per curiam opinion, itself founded on prior decisions affording no justification for the result here.

*555 As the opinion of the Court of Appeals shows, 205 F. 2d 478 , that case held a shipowner liable for injuries to a longshoreman caused by defective equipment brought on board his vessel by a contract stevedore for use in loading operations. The owner gave the stevedore permission at his option to substitute his own equipment for that of the vessel, and the equipment which caused the injury was a snatch-block, standard ships’ equipment, supplied pursuant to that permission. Following Seas Shipping Co. v. Sieracki, 328 U. S. 85 , and Pope & Talbot v. Hawn, 346 U. S. 406 , which had held that the owner’s duty to provide a seaworthy ship runs to non-seamen engaged in seamen’s work, Petterson at best added to this doctrine the rule that that duty could not be delegated by giving the stevedore control over loading operations and an option to substitute its own equipment for that of the vessel. The parties did not raise or argue either (1) that the vessel was seaworthy at the start of her voyage and no absolute liability attached to subsequently arising conditions, or (2) that because the condition was temporary, in the sense pertinent here, there was no unseaworthiness. There is therefore no foundation, either in what the per curiam revealed or in the history of the case, to warrant the inference that the Court was conscious of the distinctions now squarely pressed upon us, much less that it rejected them. Such a conclusion is the more fanciful because, even had the Court considered and accepted the contentions now urged, it might well have found them insufficient to avoid liability and have held that, by giving permission to have substitution made for warranted ships’ equipment, the owner adopted the substitute as his own.

In view of the insubstantial foundation in authority of what is today decided, I deem it incumbent upon me to examine the history of the evolution of the doctrine of *556 absolute liability in injury cases upon which petitioner rests his claim.

Although it was reasonably well established by the middle of the nineteenth century that the maritime carrier of goods, in the absence of express provisions to the contrary, warranted their safe delivery against all hazards save acts of God or the public enemy, see, e. g., The Propeller Niagara v. Cordes, 21 How. 7, 23 , the origins of such strict liability are not entirely clear. The English admiralty courts apparently confined the shipowner’s liability to losses resulting from his fault or that of his servants. See Fletcher, The Carrier’s Liability, 51-79. The imposition of stricter liability appears to have begun not in the admiralty at -all, but in the common-law courts as the jurisdiction of the admiral gradually declined. See Mears, The History of the Admiralty Jurisdiction, in 2 Select Essays in Anglo-American Legal History, p. 312 et seq. (originally published in Roscoe, Admiralty Jurisdiction and Practice, pp. 1-61). They increasingly regarded the carrier by sea as a common carrier, whether or not he fitted the traditional concept, see Patón, Bailment in the Common Law, 233-236, and it does not appear that they predicated his strict liability to redeliver cargo on any peculiarly maritime aspects of the carriage.

In any event, with the sanction of the English — and, to a lesser extent, the American — courts it early became possible for the maritime carrier to use the contract of carriage by way of limiting this extraordinary liability, and the significance of a carrier’s liability as such shrank. See Pope v. Nickerson, 3 Story 465 . Disclaimers of any duty beyond the exercise of diligence were valid and common, and, in England, disclaimers of liability even for negligent damage were sustained. See I Parsons, Maritime Law, 177-179, n. 1; compare, In re Missouri S. S. Co., 42 Ch. D. 321 (1889), with Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 438-439 (1889).

*557 It was against the background of such limitations of the carrier’s strict duty to redeliver cargo, and in derogation of them, that the more limited, though absolute, duty to furnish a seaworthy vessel emerged. Unlike the strict duty imposed on carriers in general to redeliver cargo, it was a concept rooted in the peculiarly maritime hazards of carriage by sea. It expressed, and became the focus of, American judicial resistance to broad disclaimers, and was implied despite relatively specific limitations in the contract of carriage. See, e. g., The Caledonia, 157 U. S. 124, 137 . The reasons for the development are evident. The hazards of the sea were great even in vessels properly maintained and outfitted; in imperfect ships they became intolerable. Since at the start of a voyage the familiar facilities of the home port were ordinarily available to the owner to permit him to reduce the risk, it was not unreasonable to require him at the peril of extensive liability to make the vessel seaworthy — reasonably fit for the intended voyage, see The Silvia, 171 U. S. 462, 464 ; The Southwark, 191 U. S. 1 , 9 — and thereby remove a profitable temptation to add to the hazards of the sea. Though the fact that the duty was absolute is in some measure indicative of an unstated determination that the carrier’s ability to distribute the risk justified regarding him as an insurer, cf. Seas Shipping Co. v. Sieracki, 328 U. S. 85, 94 , the dominant reason appears to have been that under the conditions existing before the start of a voyage it was fair to demand the increment of additional safety which could be obtained by barring the defense of due care. The instances of defects in fact undiscoverable under the comparatively ideal pre-voyage circumstances would be predictably low, and the extraordinary character of the risk, coupled with the exclusive. knowledge and control of the owner and his ability to contract away the risk in his *558 dealings with suppliers and service companies, justified imposing the burden on him.

This judicial evolution was doubtless influenced as well by the similarly absolute implied warranty in contracts of marine insurance by which the assured, whether shipowner, charterer, or shipper, warranted the seaworthiness of the vessel at the start of its voyage as a condition upon the attaching of the policy. The origin of this rule has been attributed to the customary understanding of the risks actually undertaken by the insurer. See, e. g., Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381, 395. But whatever role custom may have played, the implied warranty appears to have sprung, at least in part, from considerations of policy unrelated to the insurer’s understanding. “I have endeavoured, both with a view to the benefit of commerce and the preservation of human life, to enforce that doctrine [of the implied warranty of initial seaworthiness] as far as, in the exercise of a sound discretion, I have been enabled to do so. . . .” Lord Eldon, in Douglas v. Scougall, 4 Dow 269, 276 [1816]; cf. The Caledonia, 157 U. S. 124 .

Toward the end of the nineteenth century these different considerations, which had given rise to a single duty, became imperceptibly fused. This Court held that the warranty of assured to insurer was identical to that of carrier to shipper, even explaining the carrier’s implied promise in terms of the undertaking of the shipper. The Caledonia, 157 U. S. 124 .

The divergence of attitude between American and English courts which appeared in the scope of the contractual disclaimers of liability each would recognize, was more sharply exemplified by the scope they respectively attributed to the warranty of seaworthiness in cargo and insurance cases. By 1853 English courts had clearly limited the warranty to the condition of the vessel at the *559 start of the voyage, while recognizing that American courts had just as clearly held the owner liable and the insurer exonerated for losses occasioned by unseaworthy conditions subsequently arising and allowed to persist through the negligence of responsible servants. See, e. g., Baron Parke in Gibson v. Small, 4 H. L. Cas. 353, 398-399; I Parsons, Marine Insurance, 381-383; Union Ins. Co. v. Smith, 124 U. S. 405, 427 . The English courts were strongly influenced by the inherent limitations of the owner’s actual control of a vessel (see, e. g., Gibson v. Small, supra, at 404); while the American so highly esteemed the protection of life and property, presumably to be so gained, as to have held the owner in effect absolutely liable to select master and crew who would in fact diligently see to the continuing seaworthiness of the vessel. In America, the result of the conflicts created by this divergence in the law of two maritime nations was the Harter Act of 1893, 27 Stat. 445 . The carrier was thereby permitted to disclaim any duty other than to exercise due diligence in the preparation of the vessel. If he in fact exercised such diligence, he was freed of liability for losses “resulting from faults or errors in navigation or in the management” of the vessel. The purpose and effect of the Act was to strike a compromise between the English and American standards so as to reduce conflicts between them. 4 See Gilmore and Black, The Law of Admiralty, 122. One collateral effect of the Act was largely to remove from concern of the *560 courts questions of liability for cargo damage caused by unseaworthy conditions arising after the start of the voyage. Cf. The Silvia, 171 U. S. 462 ; May v. Hamburg-Amerikanische, 290 U. S. 333 . After, and probably because of, the Harter Act, the statement frequently appears in cargo-damage cases that the warranty of seaworthiness applies only at the start of the voyage; subsequently arising deficiencies are treated as aspects of “navigation or management.” See, e. g., May v. Hamburg-Amerikanische, supra, at 345 ; The Steel Navigator, 23 F. 2d 590, 591 (C. A. 2d Cir. 1928). However, even that Act did not diminish the tendency of the admiralty courts to find that a contractual disclaimer did not apply to the warranty of seaworthiness at the start of the voyage, and the absolute warranty of initial seaworthiness therefore remained. See, e. g., The Carib Prince, 170 U. S. 655 .

The most striking differences between English and American courts as to the scope of the warranty of seaworthiness occurred in the area of compensation for seamen’s injuries. 5 The law of both nations early recognized unseaworthiness as a condition upon the contract of employment, which, upon the employer’s default, operated to exonerate the seaman from forfeiture of wages if he quit the ship. 1 Parsons, Maritime Law, 455; The Arizona v. Anelich, 298 U. S. 110, 121-122, n. 2 . But *561 though the duty to provide a seaworthy vessel was thus held to run to seamen, the seaman’s remedy was for a considerable time restricted to this limited form of self-help.

In England the question of a seaman’s right to compensatory damages for injuries resulting from the unseaworthiness of the vessel was first presented for decision in Couch v. Steele, [1854] 3 El. & Bl. 402. The plaintiff claimed compensation for damage from illness brought about by the leaky condition of the vessel. The court, apparently assuming that the vessel was unseaworthy, declared that the warranty did not run to seamen, for the reason that it was unknown whether the deficiencies of the vessel were taken into account in the contract for wages. Coleridge, J. (at 408), distinguished the insurance warranty as turning on doctrines which “have no place in any other branch of the law,” and confined the duty of owner to seamen to the scope of master-servant law on land. A similar disposition to analogize maritime to non-maritime activity on the part of the English common-law courts was manifested in Readhead v. Midland R. Co., [1869] L. R., 4 Q. B. 379, where the claim was advanced that a railway passenger injured when a wheel broke was, by analogy to the warranty of seaworthiness as to cargo, entitled to compensation for his injuries. The court disposed of the contention by describing the warranty of seaworthiness as solely responsive to the need, early noted in Coggs v. Bernard, [1703] 2 Ld. Raym. 909, to prevent common carriers generally from colluding with thieves.

Couch v. Steele, supra, was modified by the Merchant Shipping Act of 1876, 39 & 40 Vict., c. 80, sec. 5, by which a duty was imposed on the owner to exercise due care to provide and maintain a seaworthy vessel. For injuries resulting from breach of the duty, a seaman could recover compensatory damages. But even that Act was narrowly *562 construed as to conditions arising after the start of the voyage in the course of operation of the vessel. See Medley v. Pinkney & Sons S. S. Co., [1894] A. C. 222. In the United States, Couch v. Steele, supra, was early disapproved. See, e. g., The Noddleburn, 28 F. 855 (D. C. Ore. 1886); 2 Parsons, Shipping and Admiralty, 78. The' liability which lower courts generally found to exist, however, was not founded upon the absolute warranty rejected in Couch, but upon fault. See, e. g., The Noddleburn, supra; The Flowergate, 31 F. 762 (D. C. E. D. N. Y. 1887); The Lizzie Frank, 31 F. 477, 479 (D. C. S. D. Ala. 1887) (which followed Readhead v. Midland R. Co., supra, in explaining the cargo warranty as stemming only from common-carrier status).

In 1903 this Court decided The Osceola, 189 U. S. 158 , and laid down its oft-cited four propositions (at 175) governing the liability of vessel and owner to injured seamen. As has frequently been noted, the second proposition, a dictum declaring a right to indemnity for injuries “received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship” (at 175) does not appear to have announced a doctrine of liability without fault. No cargo or insurance cases were relied upon, and none of the cases cited had found such liability. The only reliance on English law was on the Act of 1876, supra, which defined the duty as requiring the exercise of due diligence to render the vessel seaworthy. It appears instead that it was the intention of The Osceola to adopt the analysis of Judge Addison Brown in The City of Alexandria, 17 F. 390 (D. C. S. D. N. Y. 1883), which it cited, under which a seaman could recover only for injuries resulting from that limited species of negligence which resulted in an unsea-worthy condition. Such is the tenor of the third and fourth propositions of The Osceola .

*563 After The Osceola a number of decisions denied recovery for negligently caused injury on the ground that unseaworthiness was absent. See, e. g., Tropical Fruit S. S. Co. v. Towle, 222 F. 867 (C. A. 5th Cir. 1915); John A. Roebling’s Sons Co. v. Erickson, 261 F. 986 (C. A. 2d Cir. 1919). After an abortive attempt by Congress, see 38 Stat. 1164 , 1185; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372 , there followed in 1920 the remedial legislation now familiarly known as the Jones Act, extending relief against the owner for all forms of negligent injury to seamen, free of the so-called fellow-servant rule of admiralty.

It was against this background that Carlisle Packing Co. v. Sandanger, 259 U. S. 255 , quite out of the blue, citing cargo cases, declared that the owner’s duty to a seaman to provide a seaworthy vessel was as absolute as that established by the implied warranty as to cargo. 6 In so ruling, the Court gave expression to a policy, long discernible in American admiralty decisions, of implying the warranty not merely because of the customary expectations of the parties to an agreement — the English court’s basis for rejection of the warranty in Couch v. Steele, supra — but as well in order to increase protection to life and property against the hazards of the sea. They had previously manifested this conception of the source of the warranty in the degree to which they departed from the English common-law courts in confining attempted disclaimers of the warranty, and in their willingness to find a duty to maintain the condition of seaworthiness throughout the voyage.

The reasons which justified the implication on grounds of policy as to cargo, justified it as to employed seamen; *564 and there was no countervailing extensive increase in the nature of the duty to give the Court serious pause in extending to the protection of life a policy designed in significant part for the protection of property. Despite the Harter Act, the absolute warranty of initial seaworthiness as to cargo survived; and under the strict rules of shipboard organization and conduct, the safety of the seaman was, in a very real sense, subject to the same hazards.

It was predictable that there would be few, if any, matters with which the owner would have to be concerned under the warranty so extended, that he could reasonably have ignored as creating no threat to the safety of cargo. At the start of the voyage, his opportunity would be ample, as in the case of cargo, to undertake that effective diligence which would in fact avoid all but a very few injuries resulting from unseaworthiness; and he would be able to protect himself from the consequences of most deficiencies undetectable by him by agreement with suppliers, or service companies, and from the rest by the purchase of insurance. The additional burden created by extension of the warranty to seamen was thus not unduly heavy; and the interest to be vindicated had for long been a traditional concern of American admiralty.

If Sandanger now stood alone, it would be plain that the absolute warranty it announced was no greater in scope than the warranty as to cargo which pre-existed the Harter Act of 1893, and the question now presented— whether the warranty is also absolute as to subsequently arising conditions — would clearly present a novel issue for decision. Subsequent decisions in this Court have not deliberately closed the gap.

It was twenty-two years before the question of the existence and scope of absolute liability came before *565 this Court again, and in the interim the lower courts manifested sharp disagreement whether it existed at all. Compare The Rolph, 299 F. 52 (C. A. 9th Cir. 1924), and The Tawmie, 80 F. 2d 792 (C. A. 5th Cir. 1936), with The H. A. Scandrett, 87 F. 2d 708 (C. A. 2d Cir. 1937). (In this case Judge Augustus N. Hand followed Sandanger in relying upon cargo cases.)

In 1944 this Court decided Mahnich v. Southern S. S. Co., 321 U. S. 96 . The suit was brought by a seaman under the general maritime law (the statute of limitations haying run on Jones Act claims) for injuries which he incurred at sea when a rope, with which the staging on which he was working fifteen feet over the deck was rigged, parted and he fell. The mate in charge had taken the rope, which was unused, but at least two years old, from the Lyle Gun (a life-saving device) box. After the accident it appeared that the rope was decayed.

The District Court, 45 F. Supp. 839 , found that the mate’s selection of the rope was negligent but dismissed the libel on the ground that, apart from the Jones Act, negligent injury alone was not compensable and that the vessel, since it had otfier good rope on board sufficient for the job, was not unseaworthy. The Court of Appeals affirmed. 135 F. 2d 602 . It assumed, without deciding, that the rope was negligently selected (a dissenting judge found no negligence, 135 F. 2d, at 605 ), and agreed with the District Court’s conclusion that the vessel was not unseaworthy. Though it reversed, this Court, too, found it unnecessary to decide the contested question of negligence. It gave as its primary reason that “the exercise of due diligence does not relieve the owner of his obligation to the seaman to furnish adequate appliances.” ( 321 U. S., at 100 .) Although this statement was the critical major premise of an opinion which went on to decide that such absolute liability would not be barred by *566 the mate’s intervening negligence, it was rested primarily on Carlisle Packing Co. v. Sandanger, supra, without further explanation.

There is no more disclosure in the opinion or history of this case than there was in Sandanger to warrant attributing to this statement a deliberate or authoritative ruling that liability is absolute for all injuries resulting from unseaworthy conditions. Confined to the facts of the case, the decision that intervening negligence would not constitute a defense to an action for injuries resulting from an unseaworthy condition is consistent with the rule of the cargo and insurance cases, confining the absolute warranty to damage resulting from initial unseaworthiness. The rope, which was new, had decayed from overlong or improper storage, not from use, and was, it is right to assume, defective from the start of the voyage. Cf. The Edwin I. Morrison, 153 U. S. 199, 211 .

Moreover, a claim for extending the scope of the absolute warranty was not raised or argued by the parties. They simply assumed that liability would follow unseaworthiness unless intervening negligence was a defense. Their major concern, and the primary focus of the Court’s attention, was the earlier case of Plamals v. The Pinar Del Rio, 277 U. S. 151 , where it was held, on substantially identical facts, that the mate’s negligence did not create liability for unseaworthiness where there was an adequate supply of sound rope on board. In Mahnich, Plamals was held to have rested on one of two mistaken premises: either (1) that the question of seaworthiness turned solely on the supply of rope and not on the condition of the appliance rigged in the course of the voyage, or (2) that liability for provision of an unseaworthy appliance in the course of a voyage would be barred where the unseaworthiness resulted from the mate’s negligence. The Court in Mahnich was not remotely called upon, in rejecting those premises as it did, to consider whether the absolute war *567 ranty of seaworthiness extends to conditions arising after the commencement of the voyage. Finally, there is evidence that if the Court made any assumption about the scope of the warranty it assumed that, as in the case of cargo until the Harter Act, it was absolute, but only as to conditions existing at the commencement of the voyage. It said:

“It required the Harter Act to relax the exacting obligation to cargo of the owner’s warranty of seaworthiness of ship and tackle. That relaxation has not been extended, either by statute or by decision, to the like obligation of the owner to the seaman” (at 101).

Seas Shipping Co. v. Sieracki, 328 U. S. 85 , is no better authority for petitioner’s contentions here. The action was instituted by a longshoreman who was injured while loading respondent’s vessel, when a forged shackle supporting the vessel’s ten-ton boom gave way because of a latent defect in the forging. The defect had existed from %e time of the construction of the ship. Both parties conceded that the vessel was unseaworthy, and that if a seaman had been injured in the same way he could have recovered compensatory damages. The District Court gave judgment for the owner on the ground that it was not negligent for it to have failed to discover the defect. 57 F. Supp. 724 . The Court of Appeals reversed, on the ground that Sieracki was entitled to recover under the warranty of seaworthiness. 149 F. 2d 98 . The turning-point of the case in this Court was whether the warranty of seaworthiness, concededly absolute on the facts, covered longshoremen doing seamen’s work.

The Court’s extended discussion of the sources and rationale of the warranty is entirely consistent with the history noted above. 328 U. S., at 90-96 . Nothing that *568 was said or implied casts any light whatever on the question whether the initial absolute warranty carried over by Scmdanger from the cargo cases extends to subsequently arising conditions, unless, as in Mahnich , the Court’s equation of the warranty running to seamen with the pre-Harter Act warranty as to cargo bespeaks its assumption that the warranty was absolute only as to the start of the voyage.

No other case in this Court is further enlightening on the question of the scope of the absolute warranty. Alaska S. S. Co. v. Petterson, 347 U. S. 396 , has already been discussed. See also Rogers v. United States Lines, 347 U. S. 984 . Pope & Talbot, Inc., v. Hawn, 346 U. S. 406 , is irrelevant here. The injury occurred in port in the course of loading the vessel; the question of unseaworthiness was not an issue in this Court; and the jury had found the defendant guilty of negligence. Boudoin v. Lykes Bros. S. S. Co., 348 U. S. 336 , concerned unseaworthiness predicated upon the incompetency of a crew member, which, as the Court found, was a traditional aspect of the initial warranty of seaworthiness. Crumady v. The J. H. Fisser, 358 U. S. 423 , found unseaworthiness as a result of the vessel’s failure to use “safe practice,” 358 U. S., at 426 , n., in the preparation of a winch for unloading operations, on its face a negligent act, although its negligent character was not the overt basis of the decision. None of the several parties to the case raised the objections now urged upon us, and no more than in Mahnich were they considered or adjudicated.

Against this background of prior adjudications it assumes what is required to be established to assert that “[tjhere is no suggestion in any of the decisions that the duty is less onerous with respect to an unseaworthy condition arising after the vessel leaves her home port. . . .” In fact, there is no overt suggestion in any of our decisions that the duty is not less onerous, and the origin *569 of the duty in cargo and marine insurance cases strongly suggests that it is. Even the admiralty courts of the nineteenth century, during the growth of American shipping, found no justification in peculiarly maritime concerns for imposing an absolute duty at all times after the start of the voyage to maintain the vessel in seaworthy condition. Once the vessel was made safe, it was thought sufficient to entrust its safe conduct to an appropriate standard of diligence. This view undoubtedly involved the weighing of a number of factors, all of which remain pertinent today: the unavailability of the familiar facilities of the home port, or of any port, to make inspections or repairs; the unfairness of holding the vessel accountable for losses resulting from damage, detectable or otherwise, caused, without fault of the vessel, by perils of the sea; the likelihood that those whose safety depends on the vessel will in any event use every reasonable precaution to preserve it, and that in the circumstances of operation of the vessel no additional care could be exacted by the imposition of absolute liability; and the determination that to impose absolute liability for injuries caused by defects arising without fault in the complex operation of a vessel would be, in all the circumstances, unduly burdensome.

This latter consideration is especially pertinent in cases of so-called “transitory” unseaworthiness such as is before us. For disposition of this case it may be assumed, though with considerable misgiving, that the condition here created wholly without fault after the journey had begun, rendered the vessel unseaworthy. But the unreasonableness of imposing liability on the vessel for injuries occasioned by the unavoidable consequences of its proper operation need not therefore be ignored. No compensating increase in the caution actually to be exercised can be anticipated as a result of the creation of such a duty. Nor can the owner pass along the risk to suppliers or *570 service companies. The only rational justification for its imposition is that the owner is now to be regarded as an insurer who must bear the cost of the insurance. But the Court offers no reason of history or policy why vessel owners, unlike all other employers, should, in circumstances where the only benefit to be gained is the insurance itself, be regarded by law as the insurers of their employees. If there were a sufficient reason for the judicial imposition of such a duty, it would be arbitrary in the extreme to limit it to cases where by chance the injury occurs through the momentary inadequacy of a prudently run vessel. All accidental injury should fall within such a humanitarian policy provided only that it occurs in the service of the ship. It was such a policy which from the earliest times has justified the imposition of the duty to providé maintenance and cure; but nothing in the nature of modern maritime undertakings justifies extending to compensation a form of relief which for more than five centuries has been found sufficient.

I would affirm the judgment below.

“Considering the custom prevailing in those waters and other clearly established facts, in the present cause, we think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock if the can marked ‘coal oil’ contained gasoline; also that she was unseaworthy if no life preservers were then on board; and that if thus unseaworthy and one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages.”

Chief Judge Magruder has appropriately noted that no previous decision in this Court has considered whether liability for unseaworthiness existing at the start of the voyage extends to subsequently arising conditions. 265 F. 2d, at 432; see also Dixon v. United States, 219 F. 2d 10 (C. A. 2d Cir.).

It was not contended that the failure to provide the vessel with a different mode of access, or other means for unloading, rendered it unseaworthy from the start of the voyage. Cf. Poignant v. United States, 225 F. 2d 595 (C. A. 2d Cir.).

The considerations urging harmony of law for international carriage, especially as between the United States and the United Kingdom, led, in 1936, to the enactment of the Carriage of Goods by Sea Act, 49 Stat. 1207 , substantially adopting the recommendations of an international convention on the problem. See Gilmore and Black, The Law of Admiralty, 122-124. Where applicable, the 1936 Act imposes only the duty to use due diligence to provide a seaworthy ship at the start of the voyage.

From the time of the earliest maritime codes seamen injured in the service of the vessel have, to varying extents, been entitled to maintenance and cure at the expense of the ship. See The Osceola, 189 U. S. 158, 169-170 . But the seaman’s right to compensation for injuries is a relatively modern development, probably originating in cases concerning the negligent failure of the vessel to discharge the duty to provide maintenance and cure. See Brown v. Overton, 4 Fed. Cas. 418 (D. C. Mass. 1859); Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381, 385. However, there appears to have been no connection between the elaboration of the duty to provide maintenance and cure and the emergence of the doctrine of absolute liability for unseaworthiness.

It is not irrelevant to note that the spokesman for the Court was the Justice under whose lead the most unhappy admiralty doctrines were promulgated: Southern Pacific Co. v. Jensen, 244 U. S. 205 , and Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 .