Petition for Writ of Certiorari — The Tungus v. Skovgaard
Supreme Court brief1959
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‘LIBRARY | 7 e MAR 2 41958
ee 3
‘The aah MyV TUNGUS, her boilers, etc. “- DEN
. NORSKE AFRIKA-OG -AUSTRALIELINIE, WIL-
_ HELMSENS DAMPSKIBSAKTIESELSKAB, A/S
TONSBERG, A/S TANKFART I, A/S TANKFART
IV, A/S TANKFART V, A/S TANKFART VI, and
BARBER STEAMSHIP. LINES, INC.,
, Petitioners,
‘ : against |
Ftd
Pl
“OLGA SROVGAARD,. Administratrix ad Prosequendum
ero of the Estate of Carl E. Skovgaard, deceased, and ~~
OLGA: SKOVGAARD, Administratrix of the Fistate
of Carl E. nen deceased,
Libellant-Respondent,
and against ‘ }
| EL DORADO OIL WORKS,
_ Respondent-Impleaded.
ent
‘PETITION FOR A WRIT OF CERTIORARI TO THE |
UNITED STATES COURT OF APPEALS FOR THE
_. ‘THIRD CIRCUIT” 8 .
par M. Esrasroox,
Counsel for Petitioners,
80 Broad Street,
Nye ee New York 4, N. Y.
Davin P. H. Wartsoxr, _ . = |
- Of Counsel.
-, ee | PAGE
Opinions of the Courts Below ........ ips et cs -
Jarindictiom 06.0... e eee este sees ees cars tees fe
, ‘Questions Presented vi peeeeeeees Feumeicranelicnk: 2
~* The Statute Involved ..... A te eeees Geass en re a
Statement of Facts .........6....... ake: oe 4
Reasons for Granting the Writ. Pie og se eeee Bes a
Conclusion iocate he MRRP ie. teers ics oe ase
EY Appendix A—Opinion of Modarelli, i Saeeree -S a
Appendix B—Opinion of Staley, C. J. sad Dissent- a
_ ing Opinion of Hastie, C.J......... 10a
_ Judgment ....... path boa sieeceiwes 27a
| HERE C—Opinion of Hand, C. J. in ‘Halecki v.
; : United New York, et al. ..... ieee 29a
Table of Cases Cited |
Boudoin v. rae ene S. S..Co. Inc., 348 U. S. 336, - |
339, 75 S. Ct. 73, 99 L. Ed. 642 (1955) tetanens 8
. Broecker, Admx. v. Armstrong Cork Company, 128
oN, J. :1n 8; 94 A. 2d 196 (1988) 2.0 ok. eee. aS. ae
Byrd v. Napoleon Avenue Ferry Company, 125 F. . bes
Supp. 573 (E. D. La., 1954), aff’d on opinion below,
227 F. 2d 958 (C. A. 5, 1955), cert. den. 351 U. S.
925, 76 S. Ct. 783, 100 L. Ed. 601 (1956) ...-..... 9,12
Chelentis v: Luckenbach 8S. S. Co., 247 U. S. 372, ;
| 5 ee eg Se eer 12 —
Garrett v. Moore-McCormack, 317 U. S. 939, 63 8. ct. 7
: 246, 87 L. Ed. 239 (1942) ..... eA Mey SEU rr eye ‘On.
in Graham v. A. Lusi Ltd., 206 F.2d 223 (C. A. 5, 1953)
: _ 9,12,13
ait v. Central R. R. Co., 31 N. J. L. 349, 350
Baas Pars vent eee eens Nee ciaks Vis nak eerenn 15
Ba s- v. United New York and New Jersey Sandy = —s -_
- Hook Pilots Association, — F. 2d — (C. A. 2), No. |
94, October Term, 1957, decided January 10, 1958..14, 19
_ The Harrisburg,.119'U. 8. 199, 7 8. Ct. 10, 30 L. Ed.
GD GE ikaspancisrichist cio 9,10
* Jest -v, Chambers, 312 U. 8S. 668, 61 8. Ct. 687, 85 a
i RF ev nse erick hen dics crnen's ony 4, 9, 10
_ Kernan v. “American Dredging Co. a | —, No.
34, October Term, 1957, decided February 3, 1958. . 7, 8,9
Knickerbocker Ice-Co. v. Stewart, 253 U. 8. 149,40"
he a Pr er reer ae
Kuzmiak v. Brookchester, Inc., 33 N. J. Sup. 575, 58, |
_. 111 A. 2d 425 (1955)....... SPORE ey pat ry a ae 15
Lee v. Pure Oil Company, 218 F. 2d 711. 0. ‘h.. 6,
OE ea it Ni, ceariaasis ... 9, 12, 13
Levinson v. Deupree, 345 vU: S. 648, 3 S. Ct. 914, 97
_\ Se cE Ti cew lee ce eee Veane na seeveecs 9,11
* . Lindgren v. United States, 281 U.S. ™ 50S. Ct. 207,
FE Ta Te Oe CREE og wic\ cc cdvews eke so dmaeetess «16
- Lokar-v. Church of the Sacred a 4 N.. de. 549, |
ne PB a, RO eee re 7 ere 18
Mergel v. Colgate-Palmolive-Peet Co., 41 N. 7 Super. | ;
372, 125 A. 2d 292 uo. ahve wekiaet tacaee bess ff
Newbury v. American Stores Co., ‘115.N. J. L. 604, i
180 Atl. 875 (1935) ........ ned adie ele heb ew at's Hitless 18
Pope & Talbot, Ine. v. Hawn, 346 U. 8. 406,748. Ct.
S08, 96:1. Fad; 14D (IER) 6s isesdviccscsheecces 7,8
_ Seas Shipping Co. v. Sieracki, 328 U. 8. 85, 66 8. Ct. |
STS, Fe Bi te Oe CRONE) ecu nee hesbeescawéccce 7, 16
Southern Pacific Co. v. Jensen, 244 U. S. 205,378.Ct.
es We ak i I 5 ba) Ga ctw cd Noten Ua doves il
Western Fuel Co. v. Garcia; 957 U. S. 233, 42 8.@t. &§
89, 66 L. Ed. 210 (397k). bide es u's Sh clevnwe be neeee 4;9,10 §
iii en Sa i
‘Statutes Cited |
PAGE
Florida Wrongful Death Act, Title 43, tuapter 768,
Section 1, F. S. A. Section 768.01 ....\°......... 12,13
Jones Act, 46 U. S. Code, Section 688 .....\......... 16
: New Jersey Wrongful Death Act, N. J. S. A\ 2A 31- 1 |
NN B vcccsesocses insceeenvavns evvkndous 3,9, 14
Wrongful Death Act of Tennessee, Title 20 Ten- j
nessee Code, Section 607 ........ Sore sepeceee 12.
Cy
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Supreme Court of the Rated States
The vessel M/V Tuneus, her boilers, ete. and Den Norske
~Arrika-Oc AUSTRALIELINIE, WILHELMSENS DaMPskIBs-
AKTIESELSHAB, A/S Tonsperc, A/S Tanxrart I, A/S
Tanxrart IV; A/S Tanxrart V, A/S. TANKFART VI,
and BaRBER STEAMSHIP Lines, Inc.,
, Petitioners,
against
Orca SKovcaarp, Admirfistratrix ad Prosequendum of the
Estate of Carl -E. Skovgaard, deceased, and Oxea
Sxoveaarp, Administratrix of the Estate of Carl B.
Skovgaard, deceased, ee
le sa _ Libellant-Respondent,
and against
Eu Donapo Om ‘Wenex
: Respondent-Impleaded
ra’
Ww
\
“PETITION FOR A WRIT OF CERTIORARI TO THE
Te STATES COURT OF APPEALS FOR THE
| THIRD CIRCUIT
Fo the Windraite the Chief Justice. of the United States
and the Associate Justices o the Supreme ( Court of the .
United States:
Petitioners pray that a writ of certiorari issue to
review the judgment of-the United States Court of. Appeals -\
_ for the Third Circuit entered’ in the above-entitled case } |
on December 23, 1957. Sic iiee ts cg
/ é
_ Appendix B to
Ere "Opinions of the Courts Below
The opinion of the United States District Court fev
the District, of New Jersey (Alfred E. Modarelli, U. S.
D. J.), dismissing the libel is reported at 141 F. Supp.
"653, is set forth on pages 635a-642a of libelant-appellant’s :
appendix in the Court of Appeals and is also set out, ‘in
Sas a
Appendix | A to this petition at pages la-9a.
The majority opinion of the United States Court of [
Appeals for the Third Cireuit (Chief Judge Biggs and = /
Circuit Judges Goodrich, McLaughlin and Staley) and. §&
ey he minority opinion (Cireuit Judges Maris, Kalodner and
— Hastie) is reported at — F.2d -- and is =. out in
petition (pages ‘10a-26a). /judg-
ment of the United tates Court of Appeals is sls set forth —
in Appendix B to’this petition (pages oe
_ Jurisdiction
CC .
_ The teat of the United States Court of Appeals
for the Third Circuit was entered on December 23, 1957.
The jurisdiction of this Court is. invoked under Title 7
28 U. S. Code, Section 1254(1)." TY hes : at
\
Questions Presented >
4 ¢
. F ‘Whether a federal court, may engraft conisepts of
liability peculiar only to the federal maritime law upon the .
wrongful death act of a state in. the absence of any. state _
statutes or authorities nee such concepts into - §
that act? ee at wit
oer te
2. Whether afederal ands may i to the legis-
_ lature of a state an in futuro intent to incorporate into the
wrongful death act of that state substantive provisions of
the federal maritime law when there. is total lack of evi-
dence of such intent on the part. of that legislature either _
. at the time_of enactment or at any later date?
™
,
aS 3.. Whether, in any event, a shipowner owes a warranty
of
seaworthiness to a repairman, employed by an inde- 3
pendent contractor, as to an obvious condition aboard the
vessel created by a failure of the contractor’s equipment,
. which very syepment | he comes aboard to repair?
64. Whether a shipowner is under ad | duty to provide a
safe place to work to a repairman employed ‘by an inde-
pendent’ contractor with respect to obvious conditions
created aboard the vessel by the failure of the contractor’s
equipment, when the repairman comes abodrd the vessel-to
" repair that equipment with full knowledge of the facts?
5. -Whether the widow of a shoreside. repairman killed
‘aboard. a vessél in state waters may recover for both
unseaworthiness and negligence, whereas the Widow of a
seaman killed under ideritical circumstances would be
limited to a negligence claim only?
Khe Statute Involved
The libellant sued in the United States District Const’
“,°
. for the District of New Jersey to recover damages under °
the New Jersey Wrongful Death Act, N. J. S. As-2A:31-1
through 6, the relevant section of which read as follows:
~ 94:31-1, Wuen Action Liss _
When the; death a person is caused by a
wrongful act, ‘neglect or default, such as would, if
ie death had not ensued, ‘have entitled the person’ ©
injured to maintain an action for damages result-
_ ing from the © injury, the person who would’ have
been liable in damages for the injury if death had
not ensued shall be liable in an action for damages,
- notwithstanding the death of the person injured
and although the death was caused. under circum-
stances amounting in law to a crime.
aes he .
\ . a
& 2
Statement of Facts ; i
“The libelant sued in the United States District. Court
to recover damages under the New Jersey Wrongful Death
Act, N. J. §. A. 2A:31-1, et seq., for the death of her hus-
band, which occurred aboard m/v Tungus on December 6, ._
1952, while that vessel was inoored at a pier in Bayonne,
A New Jersey. The District Court entertained the suitunder =|
the, authority of Western Fuel Co. v. Garcia, 257 U. S. 233, ° |
e 42S. Ct. 89, 66 L. Ed. 210 (1921) and Just v. Chami-. |
“bers, 312 U. S. 668, 61 S. Ct. 687, 85 L. Ed. 903 (1941). :
- Taken chronologically, the facts leading up to: the suit it
oi the District Court were as follows:
In, October, 1952, m/v Tungus, a cargo vessel owned °
by the respondents, was in the Philippine Islands, where
coconut oil in-bulk was loaded by the shipper into two deep-
* tanks located in No. 3 shelter deck. The contract for the
carriage of this coconut oil specified that the oil was to
be discharged at the sole risk and € expense of ‘the consignee,
who was also obligated to provide. all wostamary equipment
for discharge. :
: Upon the arrival of the vessel in-New York in Decem-
ber, 1952, the respondent impleaded, El Dorado Oil Works, |
was instructed by the consignee of the oil to discharge.
the contents of one of ‘the deeptanks into El Dorado’s [
storage facilities in Bayonne, . New Jersey. The vessel
arrived at El Dorado’s pier in Bayonne, New Jersey, in
the late afternoon of December 5, 1952. | ¥
Subsequently an electric discharging pump cwnel by
El Dorado was lowered into the shelter deck and the, El. |
Dorado personnel connected their suction and discharge
- hoses. The El Dorado pump crew started discharging at
‘about 8 P.-M. ‘Shortly after midnight, in the morning of
- December 6, 1952, one of the. officers of the vessel, while |
making a routine tour of the decks, looked down into the
open shelter deck and saw that El Dorado’s pump had burst
/
-and that tons of hot, liquid roconut oil were dian pumped
directly into the shelter deck. None of the El Dorado pump.
crew were then on board the vessel, although the respond-
ent-impleaded, Kl Dorado, admitted that one member of its .
_ pumping crew was required to maintain a constant watch —
on the pump. ~
‘As a result of the barst coconut. oil covered the entire
area of No. 3 shelter deck, including, the top of the two
tank lids. The tank being discharged was partly open,
for its oblong cover had been lifted, rotated 90° and then
‘lowered on top of the tank coaming. This had been neces-
sary in order to permit the pump assembly to be lowered
into the tank itself, once the distance between the pump
~~and the oil level became too much for the pump. Two ~ °
El Dorado employees replaced the broken fitting on the
pump after having cleaned the spilled oil from around the
“immediate working area of the pump, but they were unable
to regain pumping suction.
Carl Skovgaard, the décensed, a maintenance deceit |
employed by El Dorado, was called from his home in the ee
middle of the night by the other El Dorado employees on
the job.” He was: told about what had. happened, and was
_ asked to come aboard the ship to. assist in restarting the
pump. Deceased left his home, and shortly later, boarded —
. the vessel. ‘Deceased first looked down into the open shelter
deck from the main’ deck and shouted instructions to his
pump crew!__After several minutes he went down into No. 3
shelter deck’to supervise the work. |
In.moving from the foot of the ladder leadi from the
. Main deck to the shelter deck deceased walked through the
atea over which the oil had been spilled, and as he attempted
to step up on top of the tank lid to get to the pump ‘he
slipped on the oil spill and fell to - death into We par-
tially ‘opened tank. ~ . |
Skovgaard, the deceased, had checked the ‘pump | on the
morning of December 5 5, 1952, just before the arrival of the
=
vessel and he was “ satistied that she was in good working
condition’’ (507a). The employees ‘of El Dorado agreed .
that the pump had failed due to ‘‘normal vibration’’ (480a ;
562, 3a). No requests had, been made by the deceased or
- any other El Dorado employee to the officers of the vessel
after the oil spill to have the conditions i in the No. 3 shelter
deck altered or remedied in any way.
/ ? The suit came on for trial in the United States District
_ Court for the District of ‘New Jersey before Judge Moda-
relli in November, 1955. On June 11, 1956 Judge Modarelli
filed an opinion holding the respondents not. liable for the.
death of the deceased. After judgment was entered, libel-
ant filed a notice of appeal to the United States Court of -
Appeals for the Third Circuit.
The appeal was: first argued in the United States Court
of Appeals for the Third Circuit on February 8, 1957 before _
Circuit Judges McLaughlin, Staley and Hastie. On June -
br, 1957 the Court of Appeals handed down an order calling
or reargument of the appeal before the Court en banc.
On October 22, 1957 the appeal was ee before the ©
full bench of seven Judges.
.s
\
On December 23, 1957 the opinion of the Court was filed
~ and judgment entered. The majority of four, consisting of
Chief Judge Biggs and Circuit Judges Goodrich, McLaugh-
lin and. Staley called for a reversal of. the judgment of the —
District Court on the. grounds that the respondents owed
a warranty of seaworthiness to the deceased and were in
addition under a duty to provide him with a safe place to
work. The dissenting minority of three, consisting of Cir- ©
cuit Judges Maris, Kalodner and Hastie felt that the
‘majority of the Court had injected into the New Jetsey
‘Wrongful Death Act liability defining concepts peculiar’
only to and borrowed from the federal maritime law, and
that since the federal maritime law: afforded no remedy
(the deceased having died in state waters) such borrowing
was improper. It was also the opinion of the minority.
€
>
that under the New Jersey cases the worthiness ot
the vessel could not have been warranted to the déceased
and there could have béen no breach of duty the respond-
-_- ents to_provide the deceased with a safe place to work, since -
-the danger was obv ‘ious to the deceased and since he ‘came
_.aboard to repair and restore to operation the very pump
~ which had caused the oil eae eee a
| ‘Reasons for Granting the Writ
“1. The decision: of the United States Court of Appeals
~ for the Third Circuit. in the instant case ‘is in conflict with —
_ decisions of the Supreme Court of the United States suth |
- as Seas Shipping Ce. v. Sierackt, 328 U.S. 85, 66 S. Ct. 872,
90 L, Ed. 1099. (1946), Pope & Talbot, Inc. v..Hawn, 346
‘U. S. 406, 74'S. Ct. 202, 98 L. Ed. 143 (1953) and Kernan v.
American Dredging Co., — U. 8: —, No. 34, ‘October Term,
1957, decided ‘February 3, 1958, on the source of a ship-
_owner’s liability in terms of unseaworthiness. |
The United States Court of Appeals for the Third
- Circuit, by the majority opinion of December 23, .1957, has
. held that the right to recover for unseaworthiness is a-right
. conferred by ‘the New Jersey Wrongful ‘Death Act, which -
_ by its terms is liniited to a right to recover for ‘‘wrong-
ful act, neglect or default’’. In so doing the Court of Ap-
- peals, under the guise of interpreting statutory language
of New Jersey, has incorporated and given effect to a right
e having roots only in the federal maritime law. ,.The right
is nowhere mentioned in the legislative history of the
enactment of the Wrongfw, Death’ Act, in the statute or in
.decisions of the courts of that state. es . |
This Court has held that the right to recover. for unsea-
worthiness derives from the federal maritime law. .This
Court has also held that unseaworthiness is neither a negli-
gence nor a fault concept. In Seas Shipping Co. v. Sieracki, .
supra, Mr. Justice Rutledge’ wrote at 328:U: S. 92 that
the idea that the right to recover for unseaworthiness was
a liability founded in negligence ° “was “erroneous” , and
Jater, in further defining the nature of unseaworthiness,,
_ wrete as follows at page 94:
“Tt is " essentially a species of liability without
fault, analogous to other well known instances in our ~
law. ‘Derived from and shaped to meet the hazards
which performing service imposes, the liability is.
neither limited by-conceptions of Were we nor con-
tractyal i in. character’’: }
- In inet v. Lykes Bros. 8.8. Co. Inc., 348 U. S. 336, |
339, 75'S. Ct. 73, 99 L. Ed. 642 (1955) Mr. Fastios Douglas .
> wrote that if his vessel were not seaworthy an owner w
liable ‘‘irrespective of any fault on his part.’’
| In Pope ¢ Talbot, Inc. v. Hawn, supra, an injury case,
_Mr. Justice Black commented ’ upon the origins of the right
to recover for unseaworthiness in the following terms
(346 U. 8. 409):
** His right as recovery ‘for iinipiiiineds and
negligence 1 is rooted in federal maritime law.’’
- in a concurring opinion Mr. ane Frankfurter wrote at
page 415) ee SS
“The right of seamen tor recover for unseaworthi- ;
‘neés is culiarly a cause of ‘admiralty and mari-
. time jurisdiction’, 1 Stat. 73, 77. The right i is in the ©
nature of liability without fault for which contribu-
tory negligence is not a bar to recovery although it
may be relevant in assessing the damages. * * * We
should not commingle federal admiralty and state
common law and should not engraft onto the federally
-ereated right to recover for unseaworthiness a com-
mon-law defense foreign to that right”.
"Most recently in -Kernan v. Américan Hraliine: Co. =
supra, decided by this Court o on Peeryere 3, 1958, =. Jus-.
tice Brennan wrote:
“But. the remedy for sadieaieltihanai derives
from the general maritime law, and that law recog-
8
-nizes ho cause > of action for wrongful death alias
occasioned by unseaworthiness or by negligence. és
: 2. The decision of the United States Court of Appeals
Vor the Third Circuit, in giving libelant a right to recover
based on unseaworthiness, is in conflict with decisions of
this Court, such as The Harrisburg, 119 U.S. 199, 7S. Ct.
140, 30 L: Ed. 358 (1886), Western Fuel Co. v. Garcia, 257
U. S. 233, 42 Ss. ‘Ct. 89, 66 L. Ed. 210 (4921), Just v. Cham- _
bers, 312 U. S. 668, 61 S. Ct. 687,-85 L. Ed. 903 (1941),
Garrett v. Moore-McCormack, 317 U. S. 239, 63 S. Ct. 246,
87 L. Ed. 239 (1942) and Levinson v. Deupree, 345 U. S. 648,
obligation of a federal court to follow the law. of the
state, whose statute supplies the right to recovery.
On the same issue the decision is in conflict with the
decisions of the United States Court of Appeals’ for the
Fifth Cifenit in Graham v. A. Lusi Ltd., 206 F. 2d 223:
(C. A. 5,'1953) and Byrd v. Napoleon Avenue Ferry Com-
- pany, 125 F. Supp. 573 (E. D. La., 1954), aff’d on opinion
below, 227 F..2d 958 (C. A. 5, 1955), cert. den. 351 U. S.
925, 76.8. Ct. 783, 100 L. Ed. 601 (1956), and the decision
of the United States Court of Appeals for the Sixth Cir-
-euit, in Lee vy. Pure Oil Company Yy; ae F. 2d 711 (C. ‘A. 6,
} ae)
‘There is no dispute that the libelant i in the ‘inet mat-
ter seeks redress for the death of her husband solely under
- the New Jersey Wrongful Death Act, N. J. S. A. 2A 31-1,
et seq., Which is New J ersey ’s Lord Campbell’s Act. Nor is
there my dispute that, since the deceased died in navigable
waters 0 Jersey, the New Jersey Wrongful Death
Act provides ‘the sole basis for a recovery by the libelant.
It is an established principle that there is no remedy for _
wrongful death under the general maritime law. The Har- ~
-risburg, supra; Levinson v. Deupree, supra; Kernan ve.
American Dredging Co., supra. 7
Nor does there appear to be any Suiiuieheont the powér
of a United States Court, sitting in admiralty, to ent@r ain
10
-an action under the wrongful death act of a state for a
death, such as occurred in the instant ‘matter. Western
Fuel Co. v. Garcia, supra, Just v. Chambers, supra.
The United States Court of Appeals for the Third Cir-
cuit has, however, departed from standards established
by this Court in that it has applied liability-defining con-
cepts peculiar only to the general maritime’ law ia case:
_ where the sole ‘right is provided by state law. As such it
Y conflicts ‘with numerous‘rulings of this Court. / :
In The Harrisburgh, supra, this Court ruled as i sarily
as 1886 that a United States District Court, im ad-
é miralty, which adopts a state statute as a rule of right to
be administered within its own jurisdiction, must take that
right subject to the limitations which have been established
by the state.
That case formed the keystone for the later pawn of
this Court in Western Fuel Co. v. Garcia, supra, in 1921,
where it was again held that ‘where a libel for damages for
wrongful death was filed in .the-District Court seeking re-
covery under the laws of California, the District Court —
_ was: bound to enforce the' limitations upon the right, which .
- would have been enforced if the suit had been brought in —
the courts of that state (257 U. S. 242). The result ob-
tained in the District Court should rot vary from that.
- which would obtain if the suit under the i eaaed statute had
been litigated in the state Court.
This Cours again touched on the same subjedt in 1941
f in Just v. Chambers, supra, when Mr. Chief Justice Hughes
: recognized ‘the authority of the various states to create
rights and liabilities with respect to conduct within their
own borders as long as the state action did not run coun-
ter to federal-laws or the essential features of any exclu-. |
sive federal jurisdiction. Here again this Court ruled that
» the end result should be the same as though the suit had
been instituted in one of. the courts of the State of Florida
4k
rather than in a United States District Court. The United
States District Court was bound to give effect to the sub-
stantive provisions of the law of Florida.
Both side of the coin were refer red to be this Court in
1942 in Garrett v. Moore-McCormack Co. Inc., supra, when
Mr. Justice Black wrote.as follows at 317 U. 8. 245:
' “The constant objective of legislation pee juris-
prudence is to assure litigants full protection for all
substantive rights intended to be afforded them by
the jurisdiction in which the right itself originates. _
Not so long ago we sought to achieve this result
with respect to enforcement in the federal courts of
rights created or governed by state law. - And ad-
_ Iniralty courts, when invoked to protect rights rooted
in state ‘law, endeavor to determine the issues in
accordance with a substantive law of the State. +
Finally, i in 1952 in Lavisnen v. Deupree, supra, this
Court reiterated the same principle in an action brought
in a United States District Court under the wrongful death
act. of Kentucky. Mr. J ustice Frankfurter wrote at 345 |
U.-S. 651:
“Similarly, when the statute, as it does in this
case, vests the right of action in ‘the personal rep- |
resentative of the decedent,’ it is not for the forum
provided ‘by another jurisdiction to vest. the right
elsewhere: such a forum must look té the local law
to determine the meaning of the parase ‘personal
representative’.”’ ;
The foregoing decisions are tia logical converse of.
“humerous decisions of this —Court-to-the_effect-that-state —
courts, which sit upon actions under the federal maritime — |
law, must achieve uniform results across the country,. un-
effected by local views or -local law. This Court has de-
- clared the necessity for dominance of admiralty principles
_ in actions in vindication of rights arising under the federal _
‘maritime or admiralty law. Garrett v. Moore-McCormack
‘Co., supra, Squthern Pacific Co. v. Jensen, 244 U. S. 205,
12.
37 S. Ct. 524, 61 L. Ed: 1086 ;. Chelentii v. Luckenbach S.S.
. Co., 2AT-U. S. 372; 38.8. Ct. 501, 62 L. did. 1171; Knicker-
ashing Ice Co, v. Stewart, 253° -U. 8. 149, 40 S. Ct. 438, 64
L- Kd. 834.
The diileden | of the United States Court of Appeals for
the Third Circuit is in conflict with all of the foregoing in
that it has applied federal maritime law in a case where
the federal maritime law provides no right to recover. The
result. achieved by. the United States Court of. Appeals .
bears no relation whatsoever to the results achieved by the .
courts of New J ereey- in cases involving the N ew Jersey
_ Wrongful Death Act.
The decision of the Court of Appeals is is in soieflaet with
* the decision of the Fifth Circuit in Graham v. A. Lusi ‘Ltd.,
supra, an action to. recover under the Florida Wrongful
Death Act, Title 43,.Chapter 768,-Section 1, F.S. A. Sec-
‘tion 768. 01, where Judge Borah wrote at 206 F. 2d 225 that:
“The statute must be applied in admiral - just
_ as if the suit had been brought in the state courts,
: and any defenses which are open to the appellee un- °
- der the jurisprudence of ws state, if successfully
- Maintained, will bar recov under the libel:’’
To the same éffect i is the decision of ‘that Court in nee
v. Napoleon Avenue Ferry Co.,.supra.
‘In the same vein is the decision of the United States
pe of Appeals for the Sixth Circuit in Led v. Pure Oil
Company, supra, an action under the Wrongful Death Act —
——— of Tenness¢e; Title 20 Tennessee Code, Section 607, wherein
it has held that the libelant had to take the Tenressee
deathostatute as she found it, irrespective ‘of whether the —
suit were brought i in the District Court or in the state court—
'3. The decision of the Court of “Aywseld which: is the
subject matter of this, petition is: ‘also in conflict with these
decisions of the United. States Courts of Appeals for the
Goo
Fifth and Sixth Circuits (Graham v. A. Lusi Ltd., supra,
and Lee v. Pure Oil Company, supra), on the interpretation
of the liability defining concept known as . Bnscnworthe.
ness’’, ,
In ruling upon wrongful death acts. of other states
having similar language, the United States Courts of
‘Appeals for the Fifth and Sixth Circuits have held-that
no right to recover y for unseaworthiness was given =
those state ‘statutes..
Graham v. A. Lusi Ltd., supra, was a suit brought
to recover under the Florida Wrongful Death Act, Title
43, Chapter 768, § 768.01 F. S. A., where the right to
recover is predicated upon the Curonatal act, negligence,
carelessness or default of any individual .or individuals |
—**'* (or by the wrongful act, negligence, carelessness or /
default of any ship, vessel, boat’ or persons ‘employed |
thereon), * * *’’. \Judge Borah held’ at 206 F. 2d 225
that the trial’ court was correct in holding that. unsea-
worthiness without See would not afford the cane’ ;
a cause of action.
.. ‘In Lee v. Pure Oil Company, supra, the United States -
. Court of Appeals for ‘the Sixth Cireuit passed upon an
action under the Tennessee Death Statute, Title 20, § 607
of the Tennessee Code, which uses the words ‘‘wrongful
act, omission, or killing by another’’. Upon the trial in
the District Court: the plaintiff unsuccessfully attempted
to: amend the complaint so as to allege a‘cause of action
based upon unseaworthiness. The Court of Appeals for the
Sixth Circuit affirmed the Trial Court’s rejection of the
request for a charge on unseaworthiness and held that. the
right conferred by the Tennessee Death Statute was to
recover only i in the event of negligence 218 FE’. 2d. 718.
The majority and dissenting: opinions of the United
States Court of Appeals for the Third Circuit in the instant .
- matter se ateranal the conflict. —
14
The majority opinion of the United States Court of
Appeals for the Second Circuit’s decision in Halecki.v._
. United New York and ‘New Jersey Sandy Hook. Pilots
_- Association, — F72d —, C. A: 2, No. 94,- , October Term, 1957,
_ decided January. 10° 1958, a copy of which opinion is
. annexed to this petition as Appendix ©, recognized the -
conflict, as well, but was ‘‘not persuaded’’.’ The Halecki
case cites Skovgaard as authority for the proposition that
_. unseaworthiness isa basis for recovery under the New |
Jersey- Wrongful Death Act, and then goes even further by
applying the federal maritime law rule of comparative
“negligence, even though the New Jersey. Courts have he
that contributory negligence of the deceased in an action |
under the Wrongful Death sant is a total bar * recovery-—
4. This decision of the United States Court of Appeals -
for the Third Circuit is in conflict with decisions of the
_. Courts of the State of New Jersey, not-only on the ques-
.tion of the scope of the liability under the New Jersey
Wrongful Death Act, but also on ‘the question of the. -
liability of an_owner for conditions on his premises .as
to which the invitee was fully cognizant.
- The .‘‘interpretation’’ of the New Jersey Wrongful’
Death Act, holding that the words ‘‘wrongful act, neglect
or default’? are synonomous’ with ‘‘unseaworthiness’’ is
an exercise of judicial legislation by ‘the federal. court
which finds no basis in the statutes or the decisions of ,
the Courts of the State of New Jersey. No specific
authority “for such an interpretation was found by the
Court. .Signifidantly, the majority bench in the United
States Court of Appeals for the Second Circuit in Halecki
v. United New York and New Jersey Sandy Hook Pilots:
Association, supra, likewise found no authoritative basis
1. Counsel for petitioners has been informed by counsel for the —
defendants in the Halecki case that it is their intention to file a
petition for a Writ of Certiorari in the Supreme Court of the United
' *- States, which petition would be due in the second week of April, 1958.
-: hie
for such a holding in the decisions of the Courts of the
State of New Jersey. The only excuse for.the-interpreia-
tion is the alleged need for a ‘‘liberal construction”’ of the
act, since: the professed aim of the act was ‘‘to abolish
a harsh and technical rule. of the common law’’. No
case in the New Jersey Courts has been found in which
liability under the New Jersey Wrongful Death ‘Act was
predicated upon a warranty or a condition not necessarily
attended by any. act of omission or commission, The
warranty of unseaworthiness is a unique. characteristi¢
of the federal. maritime law. As has been stated by this
| plays no ‘part in the right | to recover > for sinaaneetldueiie: |
In Hagerty v. Central R. R. Co., 31 N. J. L. 349, 350 .
(1865), a leading case in New Jeceey on its Wrongful
Death Act, and one cited in the Skovgaard opinion, ' the
Chief Justice ‘referred. to the ‘‘wrongful act, neglect or —
default’? in the Act as imposing a general liability
for what was described by him as ‘‘misfeasance’’. - In
Kuzmiak v. - Brookchester, Inc., 33 N. J. Sup. 575, 588,
111 A. 2d 425 (1955), the New Jersey venwannad Court, ©
| Appellate Division, stated: that: - ~
"+ ‘active wrongdoing’, ‘affirmative negligence’ nw
‘misfeasance’ have the same essential. connotation;
‘and, in short, may be said to be negligent acts of
_commission. ”
In the face-of a total lack of evidence of intent, the
United States Court of Appeals for the Third Circuit has —
- ascribed to the legislature of the State of New Jersey an
— intention to include the right to recover for unseaworthiness -
in the right to recover for a ‘‘wrongful act, neglect or de- _
fault’’, even though the New Jersey Act with the original ee
. words ‘wrongful act, neglect or default’? was enacted. on
March 3, 1848, when persons in the category of this deceased
were most certainly not entitled, even under the then rulings
of our federal courts, to a warranty of seaw orthiness. :
16 eae
a 1
As suggested by the deanatind opinion of Circuit Jadge
Hastie in the instant. matter, only bedlam will result if we
are to ascribe to a state legislature an intention to incorpo-
rate future interpretations given to federal maritime law by
our admiralty courts: The decision of the United States
\ Court of Appeals for the Third Circuit in the instant matter
\ . is wholly unsupported by the law of the state of New Jersey
; ss ‘in a situation where the laws of the State of New Jersey
\ provide the sole right to recovery. :
wane end result achieved by the Court of Appeals is
ather startling in another respect. Skovgaard, we are told,
uld have been entitled to a warranty of seaworthiness
if he had only been injured, because he was. doing work
Feedba erage ding anche. gly This
as held that the widow of a seaman killed in the
waters of\a state is limited to a negligence cause of action
‘under the Jones Act (46 U. S. Code Section 688), and
cannot recover for unseaworthiness under the federal mari-
time law or even under a state death act. Lindgren v.
- United, States, 281 U. S. 38,\50 S. Ct. 207, 74 L. Ed. 686
o (1930). \ If Skovgaard’s righ to recover for unseaworthi-
ness derives from the rights of seamen, we fail to see why
the rights of his widow should exceed the rights of the
_ widow of a seaman killed under the same circumstances.
5. The holding of the United States Court.of Appeals.
in the instant case flies directly in the teeth of decisions.
of the courts-of New Jersey, which ‘hold that .no duty is
owed by the owner. of the premises ‘to an invitee with
respect to’a dangerous or defective condition when the
invitee has full knowledge of the defect. Furthermore the
_ New Jersey Courts have held that one who | engages an inde-
pendent contractor is under no duty to guard the employees
x \
if
of that ‘independent contractor ‘against the very ; dangers
which arise from the nature of their work.
In Broecker, Admk. v. Armstrong Cork Company, 128
N. J. L. 3, 24 A. 2d 194 (1942) an action was brought to
recover damages for the death of plaintiff’s decedent who
- had been killed as a result of a fall from a defective roof,
which the decedent, as an employee of a roofing company _
was engaged in replacing. Non-suit was granted by the.
presiding Judge in the Supreme Court, and he was affirmed
-by the Court of Errors and Appeals i in acunanimous opinion
delivered by Judge Case.: Judge Case held that defendant
was under no duty to provide the deceased with a safe pase
in which to work. He wrote: :
‘Before recovery may be had’ a duty must exist
in point of law and a failure in that duty must be
proved in point of fact. It is hard to see how ‘the per-
son who engages an independent contractor is under
- any duty to guard the servants of the latter against ~
the very danger that arises from their work.’’ —
-The record shows that the deceased was responsible for
_ checking the condition of the pump before the job was—
- started, the failure of the pump and-the resulting oil spill
were the: responsibility of the deceased. Deceased was a
maintenance man for an oil company. Pumps and oil were
his bread and butter. 4 ee
_ In Mergel v, Colgate-Palmolive-Peet Co., 41. J. Super.
372, 125 A. Qd° 292 (1956),- the. Superior Court cited with
: approval | the foregoing language irom the Broecker opin- ‘
ion, and added at page. ge. 379: LESS siaee acer ea
‘“It has long been the law of the State that an
employee assumes all those risks which are ordinarily
incidental to his employment as well as those dangers
which are plain or obvious to a person of ordinary
understanding and judgment [citations }”’.
In the.instant matter the record shows heydad question
&.
Tle
that the oil spill ¢reated by El Dorado’s pump in the ’tween -
.
pr of m/¥ ‘Tungus was apparent and obvious and known ©
to the decedent. Under such conditions the Courts of New
Jersey would deny recovery to this libelant. No different
result should obtain because the forum was a federal court
and not one of the courts of the State of New Jersey.
In further support of the stand taken by the Courts of
. the State of New Jersey on this point we refer to the deci-
sion of the Supreme Court of the State of New Jersey in
Lokar v. Church of the Satred Heart, 24 N. J. 549, 133 A. 2d-
12 | (Ra. At page 553 the Court held:
‘The possessor of land i is not liable to one right-
fully’ on the premises for injuries attributable. to
dangers that are obvious or as well known to the
‘user of the lands a, to the possessor.”’
- Again, we have the case of Newbury v. American Stores
- Co., 115 N. J..L. 604, 180 Atl. 875. (1935), a decision of the
Court of Errors and. Appeals of the State of New J ersey .
referred to: by Judge Hastie in his dissenting opinion in
_. the instant matter. In ruling on the obligation of the owner |
_ of premises to invitees for defective conditions of the prem-
ises the Court of Errors and Appeals wrote:
‘It is axiomatic that the rule that one who enters
a store premises by invitation may lawfully assume
that the proprietor has performed hia duty to render —
the premises reasonably safe, is not applicable where -
the invitee knows the contrary to be the case.”’
_ The foregoing decisions should be binding in this case.
Under. the facts of this case it is an anomaly to say
that the owner of m/v Tungus warranted the seaworthi-
ness of the ’tween deck of m/v Tungus with respect to the
oil spill to the deceased, when the deceased himself was .
fully aware of-the oil spill. The responsibility for the
maintenance of that pump rested with the deceased him-
self. It defies logic to ‘say that under the circumstances of |
‘this case the shipowner was under a duty to provide the
. deceased with a safe place to work, when the very reason
\
o
for the. _prespnee of the deceased Pome the vessel was
that his pump had failed and in failing had created the
| oil spill which paused his death.
6, The decision of the U nited States Court of pn
‘for the Third Circuit in the instant case has raised ques-
tions of importance as to the extent to which a United
States Court, sitting on-a case where recovery can be had
only under state statute, may ignore the specifie rulings
‘of the courts of that state on the issues, and as to the ex-
_tent to which that court may incorporate into the state’s
“ wrongful death act concepts which‘are alien to the state
act and state authorities. |
_ This decision of: the United States Court of ‘Kuguale of
the © a has aready led one of our Courts of
Appeals go. even further astray in ‘‘borrowing”’
general maritime law concepts in passing upon an action
- under the Wrongful Death Act of New Jersey. The United
‘States Court-of Appeals. for the Second Circuit in Halecki
v. United New York and New Jersey Sandy Hook
_ Pilots Association, supra, has held in a similar case
tried in. the District Court under the New Jersey Wrong- -
ful Death Act, that the contributory negligence of the
deceased resulted only in a mitigation of the damages, in:
aceordance with the substantive provisions. of the general
maritime law, whereas the New Jersey Courts have held
that contributory negligence. of the deceased under that
Wrongful Death Act constitutes a total bar.2 We have here
flagrant examples of United States Court. deciding cases _
2 As noted in this petition, it is the intention of counsel tor the
- defendants in the Halecki case to file a petition for a Writ of Certio-
rari in this Court, which petition we understand is due in the second
week in April, 1958. Since the points at issue are so similar, and
since the. samé counsel represents the libelant-respondent and the
plaintiff-respondent i in the Skovgaard and Halecki cases, respectively,
we suggest that it might be appropriate to defer a ruling on the
instant petition pending receipt of the petition and the opposing brief |
in the Halecki matter.
4 :
; ww
‘eiisidiail by state law ina way completely at odds with
the way they would have been decided in the state courts.
Such a trend frustrates the continued efforts of this
Court to bring about uniformity of result in our state and
federal courts. If the right is established by the federal
maritime law, then the results should be the Same whether
tried in the state court or\the federal court. To the same
extent, where the sole right is under state law, the end
result and the standards applied should be the same ir-
respective of the forum, and the federal courts must be
prépared to follow relevant state decisions.
This decision of the majority of the United States Court
of Appeals for the Third Circuit, which is the subject of
this petition, constitutes a-dangerous departure from the
principles which have guided ‘our Courts in the handling“ of
cases in our federal courts, where the right. derives solely
from a state statute, and in which, heretofore, our federal —
courts have been admonished to apply the substantive law
just as though the action had been preaght in one of the
; courts of that state.
_ CONCLUSION Bsc) Ws
_~ A writ of certiorari should be granted i in n accord:
ance with the prayer of this: petition.
Dated, New York, N. Y., Mareh 21, 1958. Se
| Respectfully submitted, :
J AMES M. Becinacos:
‘Counsel for Petitioners,
80 Broad Street,
New York 4, © Y.
Davin P..H. Watson, | a all
of Counsel. ;
__ Appendix A
‘(Opinion of Modarelli, D. J.)
UNITED STATES DISTRICT COURT
District or New JERSEY
Civil Action No. 12-55
ra
Vv
Ouea Sxoveaarn, A‘dministratrix. ad Prosequendum of the
| Estate of Cari E. SkovcaarpD, deceased,
Libelant,
—_
The vessel m/v Tuncus, her boilers, etc., and Den Norske
- Arerka-Oc AUSTRALIELINIE | flan “eaysipmeees “DaMPsKIBSAK-
TIESELSKAB, et al., =
Respondents,
and
Eu Denno On Works,
: Respondent-Impleaded. s
Appearances:
Baxsr, GaRBER & CHAZEN, Sean. Proctors for Libelant ;
By: Natya Baker, Esq. - PE ses
\,, McAuEER, ' ConneLi: & Comnibax, Boca S Proctors for
Respondents. ©
Haren, GARDNER, Poor & Havens, Kins. (N. ‘Y. Bar); ° |
By: J. Warp, O’Nem1, Esq. and Daw P: H. Wateos, |
Esq. ., Of Counsel. ~
Winsur .A. STEVENS, Esq. rors ‘for Respondent
Impleaded.
Kirin, CampBELL & Ruivisc: Esas. (N. Y. Bar); By:
_ Josep M. CUNNINGHAM, Esq., Of: Counsel.
Maboinuza District Judge: SS
-In October, 1952, at.a foreign. port, coconut oil was—
loaded into the two = tanks of No. 3 shelter deck of the
4a
Appendix A’
_ Yrespondent cargo vessel m/v Tungus. On December 5,.
1952, at 5:30 p.m., she docked at a Bayonne, New Jersey,
‘ pier. The owner of the oil in the port deep tank having .
arranged with respondent-impleaded, El Dorado Oil Works
to discharge and ‘store the oil, cargo. surveyors and El
Dorado workers went aboard to prepare for the discharge
of the.oil from the port tank.
Under the -supervision of the El Dorado workers, two
of the ship’s crew operated winches; they were aided by
one officer of the ship; the port deep tank lid ‘Was: lifted,
‘ rotated 90°, and lowered to a position across the top of its
coamings so that the after-third of the tank was. . open. The .
El Dorado workers were satisfied with the position of the
tank lid. A pump, owned by El Dorado, was lifted by the.
ship’s winches and lowered into No. 3 shelter deck and .
placed on top ‘of the port deep tank lid under directions of
an El Dorado worker; he also directed the rigging of the
suction and discharge hoses. Two hatch beams were lying
side by side between the port ‘and starboard deep tank °
coamings ; the beams were used when dry cargo was carried.
in the tanks. The location of the beams .was the normal |
‘storage place during the hauling of liquid cargo. The =
testimony of Wagner, who was employed by El Dorado as
a maintenance machinist. describes the condition of the
pump prior to its use: :
MALT received—that morning I received orders
from my supervisor, Mr. Skovgaard, [his death is |
the basis of this action] to repair the pump, check
it, because the ship is coming in later that day. I .
went down to.where it was, in the milli building below ..
the machine shop, and I went. through my routine
inspection, re-aligned the gears, and I told Carl
[Skovgaard] what. else I can do.
He told me it would be a: good idea to go ahead. -
I put four pins in the legs of the pump to secure it to
a
Appendix A
the base so she don’t shift on us. I also put, new
packing in, in ‘the glands and. new fins inside the
pump. :
'-" Q. New what? A. Fins, blades that wee up 09
oil.
Q. After you were finished with this ikisiiiline 5
and repair of the pump, what, did you do? A. I
called it to the attention of Mr. Skovgaard. We both
_ went over it: We turned it by hand to make sure it
_ ‘is workable, and everything, and we were both satis-
- fied that she was in good working condition. g
: ; : oe. *» * SF eee
': Q. But when you and Carl Skovgaard were fin-
ished inspecting the. pump, and you were both con-
vinced that it was. working properly? <A. Yes, sir.
Q. —what did you do with it then, did you put,
it on the pier to await the drrival of the ship? A.
. Yes. They took it on what they call a stringpiece,
or something, on the side of the pier. and put it
there.”’ (Transcript, pp. 542-543.) :
At 8:05 p.m., December 5, 1952, El Dorado’s whchere:
began to discharge the oil from the tank of the m/v Tungus.
Attached to the pump was an air injection nipple, which |
was not an integral part of the pump but was made by El
‘Dorado workers out of parts:in stock and then‘attached to
the pump. The ship’s log beok entry for December 6 de-
scribes the next event, which occurred at 12:15 a.m.:
‘At 0015 the oil connection burst where thc steam
pipeline is screwed on to same, becoming leaky. The
leakage was detected by the ship’s 3rd Officer who
~~ was on watch. The 3rd Officer tried immediately to
call men-from the pump crew, but it was found that
none of the pump crew was on board. Before the
3rd Officer had succeeded 1 in getting hold of aa men
‘ -
: 4a :
% Appendix A
“ which were down on the dock the connection was
broken off and the coconut oi! gushed out into the
»- starboard side of the shelter deck and down through
the hatch covers in the forward part of the tank into
the No. 3 lower hold. ‘The pump was stopped imme- .
diately as the men came on.board. The oil, however,
continued to pass through the leaky place as the oil
was running back through the oil hose. However,
. one succeeded in, stopping the leakage by inserting f
a plug, but not before several tons of oil had run * Ff
into the deck and lower hold..
The oil stained about 50 paper: bags ‘doslemsted ae
nut bound for: Boston stowed in the starboard side
of the shelter deck.
The oil ran eterength ahousiiy lumber ‘stitah was -
stowed in the after part of the shelter deck in No. 3.
It continued through the shelter deck into No. 4 under
bales of rugs which were stowed there. In the lower ..
hold No. 3 are stowed steel plates, scrap brass metal.
ee and mahogany lumber.”’ .
As a result of the oil spill, liquid coconut oil covered ©
. the entiré area surrounding the pumping operation, inelud-
ing the top of both tank lids, the area forward of the tank
_ -coamings and between the port and starboard tank coam?
ings. After the pump had been stopped the chief officer of
‘the ship\and the cargo surveyors wentiihto the shelter deck
to ascertain the extent of the cargo damage. Donohue and
Russo, El Dorado employees, then replaced the broken fit- |
ting on the pump after ‘‘squeegeeing’? bg the spilled oil §
from a working area sufficient to repair the pump. The §
_ deceased Skovgaard, a@ maintenance foreman employed by §
El Derade, was. called from his aden to assist in repairing a
+: the ‘ly the use of a onmai s mop.
\,
ge ;
oa oe G ao
Appendic A - ——y:
‘the pump and restori ing it to operation. At 1:25 a.m., he
boarded the vessel. Since Donohue. and Russo still were
working. on the disabled pump, he went down into No. 3
shelter deck to assist them. In moving from the foot of
the ladder leading down from the main deck to the shelter °
deck, Skovgaatd walked through the area over which the
oil had spilled. As he walked aft of the port tank, he
stepped on either one or both of the hatch beams; then as
he attempted to step onto the top of the tank he slipped
on the spilled oil and fell to his death into 8 feet of hot oil-
contained in the hatch opening of the port tank.-
Libelant argues that she has two separate causes of
action: One, under the New Jersey Wrongful Death Act,
N. J. S. A. 2A:31-1 et seq.,- for negligence and the other
under the general maritime law of unseaworthiness. The
question already | has been decided. In Levinson v. Deupree,
345 U. S. 648, 650. (1953), the Court held that-‘'The mari- |
time law does not allow recovery for wrongful death. The
Harrisburg, 119 U. S. 199; Butler v. Boston & Savannah
Steamship Co., 130 U. S. 527, 555. In 1920, Congress
adopted a Lord Campbell’s Act restricted to deaths on the
high seas, 41 Stat. 537 etseq., 46 U.S. C. § 761. et seq. * * *.””
“In Just v.. Chambers, /312 U. S. 383, 388, 389 (1941),
“<* * * this Court, upon an elaborate review. of the deci-
sions, concluded that no suit for-wrongful death would lie
‘in the courts of the United States undef#the general mari-
time law.’ The Harrisburg; 119 U. S. 199, 213. -See, also, -
The Consair, 145 U. S. 335, 344. The absence of a federal
® -or state statute giving a right of action was. emphasized.
Bunt when a State, acting within its provinee, has created
liability for wrongful death, the admiralty will enforce it.’’
‘Further, at page 391, the Court said: ‘‘* * * The pith of
the. matter is that the maritime law, as we conceived it, did
not permit recovery, [in the case of wrongful death] and
in the same.sense * * *,’’ The Court of Appeals for this
- &
| Appendix A
Circuit also has spoken; in Klingscisen v. Costanzo Transp.
Go., 101 F. 2d 902 (C. A. 3 1939): ** * * * In the case at bar, ©
we may not apply the familiar rule of admiralty where’
contributory negligence serves to divide the damages. It
is settled that no suit may be brought to recover damages -
for death in an admiralty court of the United States under
general maritime law. Such a right exists solely by statute.
The appellant has based her suit upon’a statute of Penn-—
sylvania.* * * ”’
Thus it is “clear that: libellant’s recovery; if any, is
under the New Jersey: Death Act N. J. S. A. 24:32-1.
| - Incidentally, the respondent and respondent-impleaded
both refer to a proceeding instituted by the libelant in the
‘New Jersey Department of Labor and Industry, Division
of Workmen’s Compensation, Hudson County District, in
which the then respondent, El Dorado Oil Works, ques-
tioned the jurisdiction. of the New Jersey Compensation
Bureau, alleging that jurisdiction was under the Long-
shoremen’s and Harbor Workers’ Compensation Act. 33
U. S. C. §903 et seq. In his decision, Deputy Director
Lorenz held that the New Jersey Department of Labor and
‘Industry, Division of Workmen’s Compensation, had juris-
diction over the petition seeking compensation for the death
-of Carl E. Skovgaard, holding ‘‘that, being in the twilight
zone, the decedent, not being connected in any way with the
operation of. the ship, I find comes under the protection. of '
this Division.’” (Emphasis supplied.) A compensation _
- award was accordingly made for the payment to the widow,
- libelant herein, until M@¥ 12, 1969, at which time the young-
est child of the decedent will reach the age of 18.
The libelant alleges that respondent's negligence con- : \
-sisted: of: (1), Allowing the port tank to remain partly
open without-placing ropes or other barriers around it, (2) .
inadequate lighting in the shelter deck, (3) placing iron |
beams in the walking space between the two tanks, (4) leav-
7a
g
a
Appendix A
ing oil on the deck, tank lid, beams, and in the walkway
between the tanks near an open, unguarded ep
‘ » As to (1),.there was no negligence in. allowing the tank
to remain open as part of the cargo unloading operation.
The tank opening was necessary to discharge the oil. See .
-Long v. Silver Line, Ltd., 48 F. 2d 15 (C. C. A. 2 1931);
The Kongosan Maru, 292 F. 801, 803, 804 (C. C. A. 9 1923) ;
The Louisiana, 74 F.-748, 750, 751 (C. C. A. 5 1896).
' As to (2), on the night of Skovgaard’s death there were oa
four permanent deck lights \forward ard aft of the hatch,
and two reflectors with 500 ampere bulbs immediately after
the hatch; “there were also four regular cargo lights shin-
| ing directly into No. 3. shelter-deck. Additionally, the light-
ing in the hatch was adequate for two surveyors to make
their calculations and for. Donohue and Russo to ye
the sheared-off air injection nipple.
As to (3), libelant cites only Cooney v. United States,
74 F.Supp. 26 (W. D. Wash. 1946). “In that case, hatch
boards had been piled or loosely th wn on deck, causing
the ship’s ‘deck engineer to fall when he stepped on the
_ pile while he was walking along the deck. The court con-
cluded that there had been a negligent: piling of the boards.
The case does not hold that the mere presence of boards is
negligence but only that an improper piling of boards is
a negligent condition. Here, there is no proof that the
iron beams were: unfit to walk upon, aside from the fact
that they were covered with oil, which will be discussed..
Moreover, the facts are inconsistent with the theory that:
the presence of the beams caused Skovgaard to fall into
the tank. His fall was caused by. slipping when he had at
least one foot already on the lid. \
As to (4), the issue. correctly is stated by respondent :
Whether during the repair operations it was the vessel’s
duty to the deceased to clean up the oil spill. eietwiet
forcefully contends that.‘‘Not a single authority has been
cited by. proctor for libellant which spells out a duty on
\is
‘8a \
\
A seble A.\ aN
the part of. the ‘vessel: to clean up an oih spill caused by the . i
very parties whose sole duty and function it was to dis- .
charge the oil properly, and whose employee it is who is’
now attempting to recover.’’ Thé court agrees. In sup-
port of her proposition that it was the vessel’s duty to\
clean up the oil spill, libelant cites Anderson v) Lorentzen, \
160 F. 24.173 (C. A. 2 1947); Fodera v. Booth ‘American
° Shipping Corporation, 159 F. 2d 795 (C. A. 2 1947); Santa-
maria v. Lamport & Holt Line, Ltd.,.119 N. J. L. 467 (E.
& A. 1938); McFall v. Compagnie Maritime Belge, 304 N.
Y. 314 (1952). None of those cases aid libelant. The neg-
ligence of the vessel in theAnderson case was in its fail- ..
ure to warn a longshoreman of the dangerous nature of the ‘
cargo. Here, however, the dangerous oil spill was known [a
- to Skovgaard. In Fodera, the negligence clearly was that ©
of the shipowner ‘and not, as here, that of the injured —
party’s fellow employees. Santamaria does not hold that a
shipowner is liable to a worker for a condition created by |
his fellow employees. “Moreover, under ,New Jersey law |
when the employee of an independent contractor enters
property at the instance of the owner to correct the precise a
condition which later causes the employeé’s injuries, the —
_ owner is not liable unless he supervised or controlled the
employee. Broecker v. Armstrong Cork Co.,.128 N. J. L.
4 3 (E. & A. 1942). Here, Skovgaard boarded the vessel to
help repair the defect and restore to operation the pump
which caused the oil spill. The entire repair operation
was conducted by El Dorado, and there is no evidence from
which to infer that any m/v Tungus personnel supervised '
_or controlled either the discharge of the oil from the tank
_ or the repair of the pump. In McFall, the court held that
_ a longshoreman who is employed by an independent con- @
tractor engaged by the owner to load its ship, is an invitee §
aboard the vessel. ‘‘As such he is entitled to a reason-
ably safe place to work. - The duty of exercising reasonable |
diligence to provide such a place and warn the longshore- |
“s
: \ care _ Appendix A
men of hidden. pals, MMevolv es upon the, owner of the ship
**'*.’? Page 324. Here, however, the independent con-
| 3 El Dorado was engaged by the owner of the cargo
who
as not the owner of the ship. iy
Tam not persuaded that the owner of the vessel i is under
any duty to protect the warkmen of the independent con-
tractor; El Dorado Oil Works, engaged by the owners of
the cargo of coconut oil, against the dangerous conditions -
created by the very. work for which the independent con-
ae 3
tractor was hired. Accordingly, the court finds that the
‘respondents are not liable for Skovgaard’s unfortunate
death and the libel must be dismissed.
The foregoing opinion shall constitute findings of fact
and conclusions of: law, as required by Rule 52. -
An order may be submitted in conformity with the
bition herein expressed.
a Appendix B
bin tan of Staley, C. J. and Dissenting Opinion of
| Hastie, C. J.)
UNETED STATES COURT OF APPEALS ©
For tHe Trp Circuit
| No. 12,025
| No. 12,031
Orca Sxoveaarp, Administratrix.ad Prosequendum of the -
Estate of Cart EK, Skoveaarp, deceased, and Ouca Sxov- . F
. aarp, Administratrix of the Estate of Caru E: Sxov-, :
GAARD, deceased,
-,..
Vv
Libellan- Appellant 7
against
The Vessel M/V ‘Tunaus, her boilers, etc., and Den Nozaxs
AFRIKA-0G AUSTRALIELINIE, WinHELasess DAMPSKIBSAK-
TIESELSKAB, et al., #
; / rire ) Respondents-Appellants, =.
[ - | and against _
| he Dorapp Om Works,
- 9 "Respondent-Impleaded-Appelle. .
/ re’
/ * Vv
/ o
Ox APPEAL Pocus THE iicees eaten District Cover } FOR
THE DistrRIcT OF New a
Reargued October 22, 1957
Before f OO Thief Judge, and Maris, GoopricH, McLaveu- ;
Ly, pecs cial Sraey and Hastie, Circuit Judges.
/
‘OPINION oF THE CouRT
' (Filed December 23, 1957)
By /Srauey, Circuit Judge.
| This admiralty appeal urges upon us the contention |
that the New Jersey Wrongful Death Act, N. J.S. 4. 2A 31-
ja
. Appendiz B
1, is broad enough to encompass an action for death based
upon a breach of the warranty of seaworthiness. 3
_ Carl E. Skovgaard met-his death by suffocation and
shock when he slipped and fell into a tank of heated coconut
oil aboard the M/V Tungus. :Qn December 5, 1952, the
~Tungus, with a cargo of coconut oil, was docked at a pier
* in navigable waters at. Bayonne, New Jersey. The
respondent-impleaded El Dorado Oil Works agreed with |
the owners of the oil cargo in the port deep tank to dis-
charge the oil from the vessel and to store it. Employees
of El Dorado began to discharge ‘the oil from the tank
around 8:00 p. m. of December 5,°1952. Two officers and
two crew members of the Tungus remained aboard on duty ;
the latter two-were specifically assigned to assist El Dorado —
in the discharge operations. The pump owned by El Dorado
and used in the operation was apparently in good working
_ order until around’ 12:15 a. m., December 6. It was then
that an air injection nipple take: causing tons of hot coco. ~
. nut oil to be pumped directly onto the shelter deck of the
-Tungus. It was the crew of the vessel that first discovered |
. the leak and took temporary steps to stop it.
a The deceased Skovgaard was a aiialisliadiiiiein foreman of
El Dorado. He was called from his home shortly after the
leak developed to assist in repairing the pump. He arrived
on board around 1:25'a. m. As Skovgaard walked aff of
the port tank, he stepped on the hatch beams-and then at- -
tempted to step-onto the top of the tank. He slipped on
the spill and fell to his death in the hot oil. . —
The suit was brought by Olga Skovgaard, administra-
trix of the estate of the deceased. Her libel pleads prin-
cipally two causes of action, one predicated on unseaworthi-
ness, the other on negligence. Both of these causes of action
were based upon the New Jersey Wrongful Death Act,
N. J. S. A..2A:31-1. After trial was held, the district court {
dismissed the libel, deciding that an action for death by . "|
unseaworthiness did not lie in the general maritime law,
and as to. the negligence question, that the vessel owed no
duty to the deceased to clean up the oil spill. 141 F. Supp:
_ «Au
oA
I
Appendix B
653 (D, C. N. -J. 1956). The a petition against El
Dorado, was dismissed; respondent took a. jireeaufionary
appeal from this’ action. < _ @ 7
' It is an established principle. of maritime law that in
the absence of statute there is no remedy for ‘wrongful.
death. The Harrisburg, 119 U.S: 199 (1886) ; Levinson v
Deupree, 345 U. S. 648; 650 (1953). ‘‘Death is a composer of |
strife by the general law of the sea as it was for many cen-
turies by the common law of the land.’*-Justice Cardozo in |
Cortes v. Baltimore Insular Line, Ine., 287 U. S. 367, 371
(1932). In an effort to obviate a plain inequity, Congress in .
1920 enacted the Death on the High Seas Act, 46 U. S.-C.
$761 et seq., which provided a remedy in admiralty for
death occurring more than a marine league from shore.
This statute, of course, does not apply to death occurring on
territorial waters. ‘Nonetheless, when -death occurs on
navigable waters within a state whose statutes have created ~ .
a cause of action for death by. wrongful act, admiralty
courts will entertain such an action by permitting the state
statute to supplement the general maritime ‘law. Western
~ Fuel Co. v. Garcia, 257 U. 8. 233 aaa): Just v. Chambers,
312 U. S. 383, 388 (1941).
It follows that whatever right pee has-in seeking
redress for the death of Skovgaard must be based upon the |
New Jersey Wrongful Death Act, N. J. S. A. 2A :31-1, which
reads as follows: ,
; “When the death -of a person is caused _ a
wrongful act, neglect or default, such as would, if -
death had not ensued, have entitled the person in-
jured to maintain an.action for damages resulting
from the injury, the person who would have been
liable in damages for the injury if death had‘not en-
sued shall be liable in an action for damages, not-
withstanding the death ‘of the person injured and
although the death’ was caused under circumstances
amounting in law to a‘crime. ¥ )
Appendiz B
Appellant urges that unseaworthiness is a “ wrongful
act, neglect or default’’ within the meaning of the New
Jersey Act, — “ 7 7 ,
_ We are of the opinion that the district court miscon-
ceived the nature of the fist cause of action as a death
actian under gener al\maritime law. It was iw fact br ought
specifically under the New Jersey death act.
In: the determination of whether unseaworthiness: is
such a “wrongtul act, neglect or default” as will admit of
_ recovery, we must look to the construction given to the Act
-by the New. Jersey courts. They have held: that the Act
-is in the highest sense remedial, and is entitled to’a liberal °
construction, for its aim was to abolish a harsh and tech-
nical rule of the common law. Haggerty v. Central Rail-
road. Co., 31 N. J. L. 349 (1865) ; Cibulla v. Pennsylvania-
- Reading Seashore. Lines, 25 N. J. ‘Mie. 98, 50 A. 2d 461
* (1946).
~” [he nature of the ‘cuihiai which will create. liability
under the New Jersey statute is of crucial importance. The
legislature describes it as ‘‘wrongful act, neglect or de-
fault.’’ It is presumed that the legislature did not employ
useless verbiage and that each word has independent mean-
ing. Ford Motor Co. v. New Jerséy Department of Labor
and Industry, 5 N. J. 494, 76 A. 2d 256, 260 (1950); 82
C.J. S. Statutes ¢ 316 at pages 551-552 (1953). The conduct
required to impose liability, therefore, is not limited to that
conduct embraced in the historical concept of negligence.
The words encompass something more. See, ¢g., The |
H. S., Ine., No. 72, 130 F. 2d 341 (C. A. 3, 1942); Judson-v. _
Peoples Bank and Trust Co. of Westfield, 17 N. J. 67, 110 ©
A, 2d 24, 35-36 (1954). rs ;
— — It is urged that since unseaworthiness is spoken of as a
species of liability without fault, it cannot be a ‘‘wrongful
act, neglect or default’’ within the meaning of the statute.
However, the characterization of jiinseaworthiness as lia-’
bility without fault -is dangerously deceptive. “For urgent —
‘and sound reasons of public policy A te law has imposed the
; ° ‘ ~ bho
2 .
Appendia. B “ts
absolute duty upon ‘the shipowner ‘“ seats a sensiialatn
_vessel, and liability results only ‘as a consequence of the
breach of that duty. If ‘‘fault’’ means negligence alone,
of course no fault is required, and to that extent only, the
phrase ‘‘liability without fault’’ is accurate. But to say
that one who breaches a duty is without fault 1 isa logical as”
“well as a legal incongruity. oes
The seaman possesses the legal right of a seaworthy
ship. Whenever this legal right is infringed and harm re-
sults by reason of the ship being unseaworthy, a ‘‘wrong”’
occurs, whether it be of omission or commission. The
Supreme Court of New Jersey has defined ‘‘wrongful act’’
" as ‘‘any act which in the ordinary course will infringe upon
_ the rights of another to his damage, except it be done in the
exercise of an equal or superior right.’’ Louis Schlesinger.
Co. v. Rice, 4 N. J. 169, 72 A. D. 197, 203 (1950). Culpability — -
- is not necessary to constitute a wrong. It is the liability-
___ ereating quality of an act which makes it wrongful.
If it be said that the New Jersey act provides redress
for tortious conduct alone, we answer that providing an
unseaworthy ship is a tort. As was said in Strika v.
Netherlands =e of shes 185 F. bas 555, 558 (C. A. 2,
. 1950) :
“lt would taki from that analysis that the
breach of the ‘obligation’ to furnish a seaworthy ship
is a tort; and.that is a result consonant with the
historical attitude towards breaches of warranty,
~ which until 1778 had to be sued in tort, and which
' may still be so treated if the distinction is impor-
tant.’’ ;
The New | York Court of Appeals ‘has decided in a food
poisoning case that the breach of the warranty of fitness for
human consumption, imposed by law upon considerations
_ similar to the imposition of the warranty of unseaworthi-
ness, is a ‘‘wrongful act, neglect or. default’? within the
‘Appendia B
New York wrongful death statute. Greco v. S. S. Kresge
Co., 277 N. Y. 26, 12 N. E. 2d 557 (1938).
The New Jersey statute further refers to the ‘‘wrong-
ful act, neglect or default’’ as one ‘‘such as would, if death
had not ensued, have entitled the person injured to main-
tain an action for damages resulting from the injury.’’
_ This language may admit of alternative interpretation. It,
may be construed as defining the nature of the ‘‘wrongful
act, neglect or default’’—i.e., if the conduct would have been .
actionable by the deceden had he lived, by virtue of that
very fact his named beneficiaries’ would have an action in
the event of his death. Or the clause may be construed as
a limitation or ar additional requirement—i.e., the conduct
‘upon which the suit is based must be such that decedent
could have sued had he lived, in addition to being a ‘‘wrong-
_ ful act, neglect or default.’”’ In either interpretation, the
statutory requirements are met by plaintiff here, for if
Skovgaard had merely been injured he could have main-
- tained an action against the vessel~on the theory of un-
seaworthiness, since he was one ‘‘within the range of its
humanitarian policy.’’ Seas re Co. v. Sieracki, 328
U. S. 85, 95 (1946).
We hold that the failure to provide a seaworthy vessel
in the case before us is such ‘‘wrongful act, neglect or
- default’? as will allew recovery under the New Jersey
wrongful death statute.’
" tIeis interesting to note that this court has’ several times held in
the determination of the question of laches in an action for personal —
injuries based upon unseaworthiness: that. the analogous statute of ©
limitations to be applied is the Pennsylvania two-year statute which
uses language substantially similar to the New Jersey Wrongful
Death Act. The time limitation is imposed in actions for injury
“wrongfully done to the person.” Act of June 24,°1895, P. L. 236;
§ 2, 12 Purdon’s Pa. Stat. Ann. § 34. See Kane v. Union of Soviet _
Specialist Republics, 189 F. 2d 303 (C. A. 3, 1951), cert. denied,
~ 342: U. S. 903~ (1952), and ss dal v. Crain, 195 F. 2d 163 (C. A.
3, 1952).
> See ioa
‘ | Appendix B
The same conclusion was reached by Judge Learned
Hand in his dissenting opinion * in Gill v. United States,
184 F. 2d-49,-57 (C. A. 2, 1950) :
ey ik * Is a vessel owner liable for a seaman’s—
or a longshoreman’s—death within the territorial
waters of a state when it is caused by the unsea-
worthiness of the vessel? I have no doubt that the
death was owing to: the respondent’s ‘wrongful act,
neglect or default,’ as the New Jersey Act uses those
seusta ** *.7? [Emphasis supplied. | _
The right thus created by the New ies statute may
be enforced in a court :of admiralty, for it is certainly
not hostile to the characteristic features of the maritime |
law. or inconsistent with federal legislation.’’ Just v.
Chambers, 312 U. S. at page 388. a
j In Lee v. Pure Oil Co., 218 F. 2d 711 (C. A. 6, 1955), it
was held that an action for unseaworthiness would not lie‘
pursuant to the Tennessee wrongful death act. It must be _
noted, however, that the Sixth Circuit commented that the
Tennessee Act allowed recovery only for. negligence..
_ To the extent that Graham v. A.. Lusi, Limited, 206
F. 2d: 223 (C. A. 5, 1953), dnd Mortenson v. Pacific Far |
Kast Lines, Inc., 148 F. Supp. 71 (N. D. Cal. 1956) express
views on similar statutes of other states contrary to those
expressed in this opinion, we are in disagreement with them. -
} As to the negligence question, the holding of the district.
court that ng duty devolved upon the vessel Tungus to
clean up the oil spilled was predicated upon a finding of fact -
that the operation of repairing the pump was conducted
by El Dorado, and that no evfdence indicated that Tungus _
personnel either supervised or controlled the discharge — .
of the oil. : : ;
ee
- 2 The disposition by: the majority rendered a decision on n this 1 issue .
unnecessary. .
; sia
‘Appendia. B
While it may be. true that El Dorado ‘supervised the
pump repair operation, this would hardly lessen the duty
of the vessel to provide a reasonably safe place to work,
‘ especially since El Dorado’s supervision. was not so com-
lete as to exclude crew members from the area. In fact,
- it was the crew which first discovered the oil leakage and ;
adopted temporary measures to stop it. The chief officer of
the Tungus testified that it was ‘the custom to offer the |
unloading the vess The personne of the Tungus were
well: aware of the ewistence of the oi spill and the danger
ereated by it. .
The assimilation by: Seas Shipping Co Vv. , Sieracki, 328
U.S. 85 (1946) of longshoremen to the position of seamen
so far as unseaworthiness is concerned did not take away
. from the longshoreman his accustomed right to recovery
on the theory of negligence. Pope & Talbot, Inc, \v. Hawn,
assistance of ra Rl to independent contractors
]
346 U. S. 406, 413-414 (1953). Engaged in the work of
unloading the ship, Skovgaard was.a business invitee). See,
concurring opinion of Justice Frankfurter in Pope & Talbot,
Inc. v., Hawn, supra ‘at page 416; see also Santamaria \v.
Longport & Holt Line, 119 N. J. L. 467, 196 Atl. 706 .
& App. 1928). It is relevant to note at this point that >
Skovgaard was called for the purpose of repairing the
pump, not to clean up the oil spill. It is alleged that his.
death was caused by the condition of the deck and tank and
not ,by the instrumentality he intended to repair. Cf.
Broecker v. Armstrong Cork Co., 128 N. J. L. 3, 24 A. 2d
194 (Err. & App. 1942).
_ The duty of providing Skovgaard with a sienaiiiaity
safe place to work, Hawn v. Pope & Talbot, Inc., 198 F. 2d
- 800, 803 (C. A. 3, 1952), affirmed, 346 U. S. 406 (1953),
would not be lessened even if there were a concurrent duty
on the part of Skovgaard’s employer. Feinman v. A. H.
_ . Bull Steamship Co., 216 F. 2d 393 (C. A. 3, 1954): |
. While the New Jersey wrongful death: statute adopts ©
_ the maritime standard of care, it is silent as to available
»
\
‘
\
+
\
_ asked to enforce a cause of action, the existence and dimen- ha
10a
Appendia B
- defenses. It is not for us in the first instance, however,
but rather for the trier of fact, to determine whether. the
vessel’s duty was breached and to decide factually what
defenses, if any, might be available to the respondent. The
question of the -unseaworthiness of the vessel is likewise
one which should be determined initially by the district
court. |
‘The judgment of the district court dismissing the libel. °
will be reversed, and the cause will be remanded for further
proceedings in conformity with this opinion. The judg- .
ment of the district.court also dismissed the inpleading
petition as a consequence of the dismissal of the libel. This -
will also be reversed. inasmuch as the liability of the
impleaded defendant cannot be determined until there has
been ses and —— development of the facts. :
Bice: Circuit Judge, with whom' Maris and Kavopner,
Circuit Judges join, dissenting.
In one aspect the iin libel pictures the shipboard —
death of libellant’s decedent within the state of New Jersey
as having resulted, without negligence on the part of the
respondent shipowner, from an unseaworthy condition of —
. .the vessel. This court now. holds that New Jersey, in its
Wrongful Death Act, has made a non negligent shipowner
liable for death thus caused within ‘the borders of that state.
. We think this is a mistaken interpretation of the aed
Je ersey law and, therefore; dissent. |
The division of’ the court on this point‘ seems best -
explained by starting with certain premises and underlying °
‘concepts upon which all of us agree. A federal court is here ~
7 sions of which are determined solely by the law and policy
of New Jersey.. True, the United States District Court.
which heard this case was sitting ‘‘in admiralty”. But for
Appendia B
present purposes this is significant only in that the practice .
properly followed in that forum is admiralty practice.
Thus, the proper form of complaint in this case was a libel
in the admiralty style. The shipowners could be reached by
attaching the vessel in the classic admiralty manner. But
‘beyond such matters of legal administration, the substan-
tive concepts of admiralty had no effect as law in defining
the claim. State law and it alone performed that function.
Admiralty was merely: the administering forum in a situa-
tion in which the maritime law itself did not even provide
a cause of action for wrongful death.
The Supreme Court has recently made an cuties and
authoritative statement of what a district court does in a
situation like this:.
‘‘The United States District Court for the Eastern —
District of' Kentucky heard this suit sitting in admi-
ralty. ... The District.Court adopted and enforved
the obligatio created by the State of Kentucky not be- —
cause it sits in Kentucky and responds to.the desir-
| ability of uniformity in the administration of justice _
~ within that State. In the absence of congressional ”
action, the court. adopted and enforced the obligatio
created by Kentucky as it would one originating in
any foreign ee . And it.was bound to
‘enforce it as it found it, . + [except for] —
niceties. ....77? —
For present purposes the most important part of this ex-
position isithe concluding sentence: ‘‘it [the federal admi-
ralty court] was bound to enforce it [the state obligatio |
as it found it... .’’
_ Thus, to the ‘extent that state. policy has led the state
legislature to give dependents rights. against one who has
caused the death of their provider within the sate, 0
1 Levinson v. Deupree, 1952, 345 U. S. 648, 651-2. And see ‘the
similar rationalization of Circuit Judge, now Chief Judge, Biggs in
Klingseisen v. Constanzo Transp. Co., 3d Cir. 1939, 101 F. 2d 902,
a
2a.
Appendic B BO arcu
~~
rr,
federal court willl carry out that policy. Ordinarily the
federal court. entertains: the state created wrongtitl. death. . .
claim on its law side. But where the fatal injury Tras.
occurred on navigable water, it is accepted. practice to
entertain the suit on ‘the admiralty side. But, in either
event, it is the state law,’as defined and construed in the
‘light of state policy, which the federal court must apply.
It ‘is believed that all members of. this court accept the
above outlined legal theory of what a federal court does F
and how it: should approach its task-in a case like this.
However, we who dissent think tlie majority has disposed —
of this case as: if admiralty policies.and concepts developed
:. by federal courts in-maritime causes were controlling when
there is nothing to ‘show that New Jersey has adopted, or
would adopt these federal maritime concepts of liability
to define rights ® has created. as part. of its common law
“ jurisprudence.
. oy
‘The New J ersey Wrongful Death Act, like most dio.
types of Lord Campbell’s Act, gives dependents a right to-.
recover for death caused by the ‘‘wrongful act, neglect or
- default”’ of another. Historically, neither the common law
- nor any statute of New Jersey seems ever to have utilized
the circumstances of unseaworthiness as a basis of imposed
hability for non-hegligent personal injury. To reach this
court’s result it is necessary to attribute to New Jersey a
purpdseé to make a novel a borrowing of maritime
: concepts. -
We call this borrowing novel and piecenréal advisedly. 3
It has‘ long been a peculiar and characteristic feature of §
* admiralty law that a ship is responsible to indemnify mem- §&
_bers of its company for injuries caused by the unseaworthi-
ness of the vessel.” . But ‘historically this responsibility
cov ered only the members of the crew.* Moreover, a crew-
man’s rights did not survive ‘him. Iti is only i in recent years,
2 The Oscvola, 1903, ‘10 U. S. 158. , |
* See Tetreault, Seamen, Samohi: and the Rights of Har-
bor Workers, 1954, 39. Corn. L. Q. 381, 408. .
¢
cia
“ Appenidia: B
- long since ie enactment of. the\ New Jersey Wrongful
‘Death Act, that admiralty case law of the United States .
courts has extended the seaman’s protection against unsea-_
‘worthiness to longshoremen and other persons not members —
_ of the crew.‘ Thus, to construe the New Jersey statute as
applicable to the present case, requires not only the infer-
ence that the New Jersey statute was intended to creaté
rights i in accordance with admiralty concepts of liability: as
' ‘they existed when the legislation was passed, but also that
shbsequent modifications of admiralty concepts by the fed-
- eral courts routinely, ‘become a part of New Jersey policy
-and law.
Moreover, although the majority do not face the prob-
lem here, the question must arise whether under the pre-
‘ vailing analysis New Jersey accepts the unseaworthiness |
concept alone in defining the statutory rights it has created,
_ or whether other admiralty doctrines, notably that of com.
parative negligence, are also part of the state created right.
This court and ‘others have from time to time rejected the
idea that: state’ wrongful déath causes Fa seria the
admiralty comparative negligence conce If the fact.that
comparative negligence is a liability a g concept pe-
_ culiar to maritime law prevents its implied incorporation in -
‘a state created death cause, the same seems equally true of
the maritime unseaworthiness concept.
Thus, even if the New Jersey cases Gere no date: ‘
for the interpretation of the Wrongful Death Act in situa-
tions of this kind the conclusion reached: by the majority
would seem ‘illogical and for that reason unwarranted. We
ene + Seas ‘Shipping Co. v. Sicracki, 1946, 328 U.S. 85 Pe
man) ; Pope & Talbot, Inc. v. Hown,. 1953, 346 U. >. 406 (carpenter
working on a ship). .
5 Curtis v. A. Garcia Y. Cia., Ltda.,. 3d Cir., 1957, 241 F. 2d ‘30;
_ Klingseisen v. Costanzo Transp. Co., 3d Cir., 1939, 101 F. 2d 902;.-
_ Byrd v. Napoleon Ave. Ferry Co., D. C. E. D. La., 1954, 125.F.
Supp. 573, aff'd per curiam, Sth Cir., 1955, 227 F. 2d 958, cert.
_ denied, 331 U. S. 925; F “eige v. ‘Hurley, 6th Cir., ee 89 F. 2d 575.
rd
©
Pa:
~~,
bite B
are the'‘more canittidaad of this view since several federal and
state courts interpreting death statutes of. other states
. have been unable to find therein any satisfactory rationale
for the use of the unseaworthirtess concept in defining the
causes of action which these state statutes have created.®
But we think the New J ersey cases are instructive and =
helpful. ‘They show rather clearly the way in. which the ~ :
New Jersey courts understand their wrongful Death Act. }
As a general proposition, commorwlaw concepts of tort. with
negligence a4 prerequisite to recovery, are read into the New t
, Jersey statute by the courts of that state. If a fatal acci-
dent occurs on land or non-navigable water within New
Jersey, or if anyone other than the shipowner is sued for a
fatal accident on a ship in navigable New Jersey water,
there is.no question that New Jersey policy and law require
a showing of lack of due care to establish a claim under the.
- Wrongful. Death Act.” It would be strange for New Jersey
to rule thatgunder the general wording of the statute, there
is a different and more stringent duty on shipowners in
navigable water. At least two cases indicate the absence of
‘any such special onerous responsibility. on shipowners. :
In Santamaria v. Lamport & Holt Line, Ltd., BE. & A.
1938, 119 N. J. L. 467, 196 Atl. 706, an action ander the New |
J otsey Wrongful Death Act, a shipowner was sued for the §
death of a stevedore who, while unloading a vessel, was
i - thrown into the hold by the upending of a board constituting
part of a hatch cover. In Moran v. Moore- McCormack
Lines,:1944, 131 N.’J. L. 332, 35 A. 2d 415, a personal i injury
case, one line of proof indicated that a stevedore’ Ss. injury
6 Lee v. Pave Oil Co., ” 6th Cir., 1955,’ 218 F, 2d 711; Graham v.
‘A. Lusi, Ltd., 5th Cir., 1953, 206 F. 2d 223; Mortenson ‘v. Pacific
Far East Lines, Inc., - C. N. D. Cal., 1956, 148 F. Supp. 71;
Babin v. Lykes Bras. S.S. Co., 94 So. 2d 715. (La. 1957).
*E.g., Stewart v. fate 1951, 6 N. J. 591, 80-A. 2d 111;
-DeCicco v. Marilou Holding Co., E. & A. a 137 N. J. L. ‘186, 59
A, 2d 227.
—————— ee
8a
Appendix ie
had been caused by a » inne defect:in a skid which the: ship- 4
owner had provided for the unloading and transferring of
cargo. In both cases the New Jersey courts emphasized -
the absence of liability unless negligence on the part of the
shipowner should be proved. True, there was no discussion
of the unseaworthiness of vessel or gear as a possible basis
of liability without fault. Still if the substantive law of
New Jersey as applicable to ‘wrongful death causes recog- ie
- nizes an absolute duty of a shipowner to supply a long- -
shoreman with a seaworthy vessel and gear; it is very
‘difficult to believe that neither court nor counsel would ad-
/vert to this legal basis of liability in cases so obviously
‘appropriate for its invocation. It should be added .that
/ we have found no mention of this possibility in | any other
N ew Jersey case. .
- We think it clear that in administering their Wrongful.
- Death Act, whether the injury has been on land or water and | |
whether the defendant has been a shipowner or anyone else,
the New Jersey courts have consistently defined and con-
fined’ liability within: ‘common law concepts of negligent or
‘intentional wrong. For a federal court to say now that the
law of New J ersey is otherwise i is to rule in derogation of
the whole history of New Jersey litigation interpreting a
New Jersey statute as based: on common law concepts.
_ ° Finding: no New. Jersey cases helpful, the majority
_ point to decisions of several other state courts holding that
death caused by breach of warranty of quality of goods may
be actionable under their death statutes.* But these cases
- illustrate the very point We are stressing in dissent. In
these states there are ‘statutes or decisions, or both, clearly
showing the state policy and legal rule making such adul-
teration of foods.an actionable wrong. It then is logical to
view death caused by such violation of state policy and re-
8 Greco V. S.S. Kresge Co., 1938, 277 N.Y. 26, 12 N. E. 2d 557,
and see cases collected i in 115 A: L. -R. 1020.
ere /
at bBo ; Appendix B
zak quirements as Aéltonnble under the local Wrongful Death
Act. It is the absence of aly such New Jersey concept of
unseaworthiness as an actionable wrong which requir es an
opposite result in this case.
Finally, the majority find support for their view in the
fact that the New Jersey statute in terms comprehends |
fatal injury ‘‘such as would, if death had not ensued, have .
entitled the person injured to maintain: an action for dam-
ages resulting from the injury.’” This provision is present
in almost all death statutes of this type and has been uni-
versally considered to be a-limiting. concept. See Prosser,
Torts, § 105 (2d ed. 1955). The liability defining part of
the statute is found in the words ‘‘wrongful act, neglect or”
_default’’. The limiting words which follow. serve only
to make sure that defenses which would have been available,
against the decedent, had he. lived, shall be available against,
the.wrongful death claim. We think these limiting words’
have no bearing upon our present problem whether a mari-
time type of liability without fault is created by the pre-
_ ceding phrase, ‘‘wrongful act, neglect or default’. :
For the foregoing reasons we think the New J ersey law —
| provides no cause of action for death resulting from unsea-
worthiness without negligence. Judge Maris and Judge
-Kalodner would go farther and say that the result of the
majority would be incorrect even-if New. J ersey did in-.
corporate the unseaworthiness concept ‘of admiralty. In.
this case the district court found as a fact that the decedent
knew of the presence of the oil slick which caused him to slip
and fall to his death. Indeed, the record shows beyond
question that this condition was apparent and obvious. In.
addition, decedént boarded the ship to repair the very de-
fective valve which had caused the oil to leak and spread
over the deck. In these circumstances Judge Maris and
Judge Kalodner would hold, relying upon Bruszewski v.
Isthmian SS Co., 3d Cir., 1947, 163 F. 2d 270, cert. denied ’
333 U. S. 828, that, even applying concepts of the maritime
a
Ba |
yee ah eel
law, a ehipowner does not warvend. {uv one so situated and
informed as this workman, that the deck is free of oil or of
the obvious hazards incidental to the: presence of that sub-:
stance. However, I am eontent to rest my. dissent solely |
upon the construction and application of the New Jersey
law, without examining the reach of the unseaworthiness
doctrine, if maritime law were applicable.
Phis case has a second aspect. The libellant. undertook
to: prove that, quite apart from unseaworthiness, the ship-
owner was responsible for actionable negligence on the part
of the ship’s personnel in not providing the decedent with a
reasonably safe place to work. On the evidence and the
findings we think the defendant was entitled to judgment on
’ this branch of the case.
Here again the majority seem to, apply federal ad-
miralty concepts to define a state created death claim. But
- the question to-bé decided is the extent of the duty which: .
New Jersey law imposes upon the possessor of a place to.
provide a safe placé to work for employees of independent
contractors who entered the place as business inyitees. The
fact that the place in this case is a ship is incidental and
irrelevant for present purposés.
We have already pointed out that in this case it has
_been established as a fact that the dangerous condition |
was obvious and actually known to the decedent. . In New-. ;
bury v. American Stores Co., 1935, 115 N. J°L. 604, 607, 180.
Atl. 875, 876, the Court of Errors and Appeals stated the.
rule of New Jersey law which is controlling i in such cireum-
stances : “‘It is axiomatic that the rule that one who enters
_ store premises by invitation may lawfully assume that the
proprietor has performed his duty to render the premises
reasonably safe, is not applicable where the invitee knows
_. the contrary to be the case.’’ We think Broeker v. Arm- |
strong Cork Co., E. & A. 1942, 128 N. J. L. 3, 24 A. 2d 194,
turns on the same principle that a danger which is obvious
to the business visitor does not constitute a breach of duty
6
Ga
Be
“Appendia B
to provide‘ him with a safe place, to work. ‘Indeed, this ap-
pears to be a principle which i is generally accepted in the
law of torts.°
In_these circumstances it is: immaterial whether ad-
miralty law, in cases to which it is applicable, may impose
a more stringent duty. New Jersey tort principles are con-
trolling here, and under them, on the admitted facts, the —
person in possession of the place of injury was not re-
sponsible for death caused by a condition of which the in-
|vitee was fully cognizant. 3
| In our view the. judgment below should be affirmed.
?
‘a _A true Copy:
Teste: |
Clerk of the United States Court of’ Appeals
for the Third Circuit.
® Torts, RESTATEMENT,: §§ 340, 343; Ambrose v. Moffat Coal
Co., 1948, 358 Pa:-465, 58 A. 2d 20. McCreerey v. Westmoreland
. Farm Bureau Co-Operative Ass'n.,.1947, 356 Pa. 567, 55 A. 2d 399.
(27a . .
Appendic B~
| (Judgment) |
_ UNITED STATES COURT OF APPEALS
; For THE THIRD Circuit
Nos. 12,025 and 12,031
4
bd
Osa Sxoveaarp, Administratrix ad prosequendum of the
Estate of Carl E. Skovgaard, deceased ; and: Oxea Sxov-
"aarp, Administratrix of the Estate of Carl E. Skov- ~ . |
— deceased, 3
‘Appellant in N o. 12025, .
vs. .
The Vessel ‘‘M/V Yosoos'! her ils, engines, tackle, .
tes and satire :
\
| and .
Den Noxské Arrtka-OG AUSTRALIELINIE WILHELMSENS
DAMPSKIBSAKTIESELSKAB, A/S Tonsperc, A/S TANKFART
I, A/S TANKFART IV, ang Sere v, A/S TaNK-
rast VI,
Ce — - Appellants i in No. 12 031,
Barser Sreamsuip Lives, Inc.,
| | and
- ExDorapo O11 Works.
er
os
On appeal from the United States District Court for the
District of New Jersey _ -
280
Appendiz B
Present:
_ Bices, Chief Judge, and Magis, sinned McLavan-
LIN, SALaoume, Staey and cua Circuit Judges.
“This cause came on to he heard on the record from the
United States District Court for the . i District
of New Jersey and was argued by counsel.
On consideration whereof, it is now here ordered and.
adjudged by this Court that the judgment of the said. Dis-
trict Court in this case dismissing the.libel and the im-
pleading petition be, and the same is hereby reversed, with
costs, and the cause remanded for further proceedings in
conformity with the opinion of this Court.
Attest:
Ipa O. Greskorr,
' aoe, ox ~ Clerk..
December 23, 1957
, ie
® ; re | o
> . Before:
. 29a
Appendix C
(Opinion of Hand, C. J.)
UNITED STATES COURT OF APPEALS
: | Fos rue Sgeconp Circuit
No. 94—October Term, 1957
(Argued November 21, 1957 Decided January 10, 1958)
| _ Docket No. 24551 _ |
4.
="
Anna Harecki, Administratrix ad Prosequendum of. the
Estate of Walter J oseph Halecki, deceased, and ANNA
Hateck1, Administratrix of the Estate of Walter Joseph
Halecki, deceased, |
TEE Aandies:
v. 7 tes
Unrrep New York anp ‘New Jersey Sandy “Hoox Pots
ASsocIATION, & corporation and Unrrep New York Sanpy
Hoox Pnots ASSOCIATION, & corporation,
Appellants.
ra% Z
Ww
Hanp, Hincks, and Lusnas,
: Circutt Judges.
.
7:
Appeal by the defendants bien a a ee of the Dis-
trict Court for the Southern District of New York in favor |
of the plaintiff in an action to recover damages for the
- death of the decedent in the State of New Jersey because of
the negligence of the defendants and of the unseaworthiness |
of a pilot boat on which he was opaieis Affirmed.
%
‘Lawaexce J. Mantoney for the appellants.
Natwan Baxer.for the appellee.
!
30a
| “Appendix C
Hann, Circuit Judge: | ; ee ah,
This appeal i is from a judgment for the plaintiff enter wl
on the verdict of: a jury, awarding damages for the death
of the plaintiff’s decedent while engaged in cleaning the
pilot boat, ‘‘ New Jersey,’’ belonging to the defendants. The
- complaint was based upon two counts; one for negligencé
~~ and the other for -unseaworthiness,, and four errors are
alleged. First, that the evidence was not sufficient to justify
‘a verdict on either count. Second, that the court erred in _
-submitting to the jury any question of seaworthiness. Third, -
that the court should have charged the jury under the
New. Jersey Death Statute contributory negligence was a
bar and not a limitation upon damages. Fourth, that the
defendants should have heen allowed: to show that thé plain- .
tiff had made inconsistent allegations i in another and pend-
ing. litigation.
On September 22, 1951, the “New J ersey,’’ a pilot boat, .
was moored at a pier in the repairyard of Rodermond
Industries, Inc., North River, Jersey City, for annual over-
haul and repairs; the only employee of the defendants on
board was a watchman. Part of the work was to clean the
ship’s generators which had become fofiled in use, and
Rodermond Industries subcontracted this part of the job
to K. &S. Electrical Company; the employer of the dece-
dent, Halecki. On the 28th he and Doidge, a fellow worker,
set up the necessary equipment on the boat. Since she was
at the time without any electrical current, it was necessary
to bring in current from the shore. The generators were
cleaned by spraying them with carbon tetrachloride, a vola-
tile liquid, which will ‘‘remove all traces of dirt and film,”’
but whose fumes, unless their density is carefully -con-
trolled, may be deadly. The generators were’in the ship’s
engine-room, one deck below the main deck, and Doidge and?
the decedent sought to protect themselves during the work,
(1) by using gas masks, and (2) by bringing two ‘‘air hoses”’
and.a ‘‘blower,’’ actuated by the current from the shore.
dla
Appendix C *
‘One hose was'used to spray the tetrachloride upon the
generators ; the other, to blow in fresh air from the outside.
The ‘‘blower’’ was set at the bottom of the engine-room near __
the generators, and from it led an exhaust pipe to an open
. door about eight feet above. In addition, the ship’s perma-
nent ventilating system ‘was set in action by the outside
current; it consisted of some fatis and ‘‘vents’’ at the top of
the engine-room through which air was drawn in. Thus, —
means of exhausting the contaminated air consisted of (1)
the hose that was not used to spray, (2) the ‘‘blower,”’ and
_ (3) the increase of air pressure resulting from the intake
of the ship’s own ventilating system. Besides this, an open —
door and an open skylight led to the air. A biochemist,
familiar with: the use of tetrachloride, after being told in
detail the size of the engine-room and the apparatus in-
stalled, gave as his opinion that the ventilating system in
the engine-room, even when supplemented by the apparatus
brought on board and installed by-Doidge and the deceased —
was not ‘‘adequate to remove the fumes.’’ The competence
of this expert to give an opinion was so much within the
«‘seretion of the trial court that only in a clear case should
we overrule its decision. The state law of evidence is no—
longer the final test of the admissibility of evidence.
As we have said the case was left to the jury ina double
aspect: (1) whether the defendants had been negligent in
furnishing the deceased as a ‘‘ business guest’’ with an unfit
place to work, and (2) whether the ship was unseaworthy
_ vis-a-vis a shore worker who came aboard to take part in ©:
the annual overhaul, It is obvious therefore that the plain-
-tiff’s evidence had to support a verdict on both claims; for 7
we cannot know that the unsupported claim was not the one
1 United States ‘v. Miller, 61 F. 2d 949, 950 (C. A. 2); Tucker £
v. Loew’s Theatre & Realty Co., 149 F. 2d 677, 679 (C. A. ast.
Trowbridge v. Abrasive Co., 190 F. 2d 825, 829 (C. A. 3); 2 Wig- .
- more, (Joa
32a 3
Appendix C -
on which alone they brought in their verdict. As to the
_elaim based on negligence, so far.as the defendants mean
to argue that the engine-room, equipped as it was, was a
reasonably safe place in which to work, we hold that the _
evidence created an issue that could be decided only by ae
verdict. The deceased was certainly an ‘invited person,’’
or ‘‘ business guest, ’? and the shipowner was liable, not only
for the negligence of the master,” but, although the work
was lét out toa subcontractor, also for any lack of ‘‘reason-
able care to ascertain the methods and manner in which the
concessionaire or indépendent contractor carries on his
activities; not only at the time when the concession is let,
or the. contractor employed, but also during the entire
_ period in which the concessionaire or contractor carries on _
his activities.’’ 3 Being charged with knowledge that so _
dangerous a substance as tetrachloride might be used, it
was proper to leave to the jury whether the ‘‘methods and
manner’”’ of its use were proper. So much for the negligence
count.
Quite a different question arises as te the warranty of ~“
3 ‘seaworthiness, for, if that attached, it imposed an absolute —
liability; if the engine-room was not properly equippéd. |
Although in a very scholarly analysis of the earlier deci-
sions, it has been recently argued that the maritime law
didnot i impose such a warranty in favor of seamen,* rightly
or wrongly the. opposite doctrine has become so. firmly
_ settled since-The Osceola, 189 U. S: 158 (1902) that: we.
decline to reconsider the question. All that is left for us .
on this appeal is whether the warranty of seaworthiness
extended to the decedent although concededly he was not a |
seaman, but as we have said, a ‘business guest’’ on a vessel « )
2 Leathers v. Blessing, 105 U. S. 626, 630
8 Restatement of Torts, Vol. I], § 344, Comment b.
4 “Seamen, Seaworthiness and the Rights of Harbor Workers,”
Francis L. Tetrault, 39 Cornell Law Quarterly, 381. :
ves)
f
i
pha lls be ad re ”
.' Appendix C
| within the navigable waters of New Jersey. In Guerrini
v. United States, 167 F. 2d 352 (C. A. 2), the ship, as in the
case at bar, was‘moored in Brooklyn alongside a dock, and
the libellant, an employee of a subcontractor, was engaged
in cleaning her boilers and tanks, when he was hurt by
slipping on a grease spot. We held that the doctrine of Seas
Shipping Co. v.Sieracki, 328 U.S. 85, did’not apply. How- |
ever, that was in 1948 before either Pope ¢ Talbot v. Hawn, ~
346 U.S. 406 or Petterson v. Alaska SS. Co., 347°-U. S. 396,
was decided; it is now clear that we were wrong both in
limiting the warranty to those doing longshoremen’s duties
~ and in supposing that the surrender of ‘‘control’’ of the ship
was relevant. We:can see no distinction between the work
of the decedent in the case at bar and that of the plaintiff
in Pope & Talbot v. Hawn, supra (346 U. S. 396), which
was carpenter’s repair work. We think that the test is
whether. the work is of a kind that traditionally the crew
has been accustomed to do, and as to that it makes no
difference that the means employed have changed with time,
or whether defective apparatus was brought aboard and
. was not part of the ship’s own gear. Since the deceased was
cleaning the ship, we hold that it was within the doctrine of
Pope & Talbot v. Hawn, supra.
As might be expected, so shadowy a line of demarcation
will in application produce inconsistent results. For ex-
ample, in Read v. United States, 201 F. 2d 758, the Third —
Cireuit heid that the warranty extended to a ‘‘business
guest’? who was doing part of the work of changing a
‘‘Liberty’’ ship into a transport, while the Ninth Circuit in
Berryhill v. Pacific Far East Line, 238 F. 2d 385, cert. den.
354 U. S. 938, refused relief to a workman who was en-
‘ gaged in ‘‘major. repairs,’’ as these were described in the
District. Court (138 Fed. Supp. 859). In the appeal in :
Berge v. National Bulk Carriers, Inc. (148. Fed. Supp. 608),
- decided herewith, we shall state the reasons that impel us
to prefer the decision of the Ninth Circuit, but it is not
34a
\ “Pe
A ppendis C
necessary to ‘pass on that question here, bedause as we
have said, the work did not involve any structural changes ;
in the ship, but was of a kind that was part of the crew’s
work, not only at sea, but when she was laid up for general
overhaul. We start therefore with the conclusion that it was
’ proper to leave to the jury, not only the issue of negligence,
but that of unseaworthiness. \
That does not: however answer two other objections :
_ (1) that the plaintiff is not the decedent, but an adminis-
tratrix, and (2) that the judge left the decedent’s contribu- |
| _ tory negligence to the jury, not as a bar, but only in limita-
_ .tion of damages. It is common ground.that the liability
for breach of the warranty of unseaworthiness does not
survive under the maritime law (The Harrisburg, 119 U.&
199; Lindgren v. United States, 281 U. S. 38). As to thie
maritime tort, §33 of the Merchant Marine Act of 1920
_ (Title 46, § 688) gave to ‘‘the personal representatives’’ of
a deceased seaman the same remedies that. the deceased’
, would have had, had he lived. However, in the case at bar
the deceased was not a seaman, so that upon both counts the
- plaintiff must resort to the ‘‘Lord Campbell’s Act’’ of
New Jersey ® which provides in general terms: ‘‘When the
death of a’ person is caused by a wrongful act, neglect or
default such as would * * * have entitled the person injured -
to maintain an action for damages ** © the person who
would have been liable * * * shall be liable in an action
_ for damages.’’ Much controversy has arisen over the scope
~~ of the phrase just quoted, making the liability to the next
_ of kin depend upon an ‘‘act, neglect or default’’ of the
putative obligor. When the question arose in the. Third
. . Cireuit whether these words covered a breach of the war- .
ranty of seaworthinéss, the court in banco by a. vote of
four to three held” (Skovgaard v. The Tungus, December
23, 1957 ) that they did. In spite of the zeal wath which the»
eN.J:S. A, 2A:31-1. °°\": ; . a
. | | e
aye oe
\
35a
“Appendix C
eontrary has been argued, we think that the majority was
right. Graham v: Lusi,.206 F. 2d 223 (C. A. 9) does not
actually hold the contrary; though that ‘may have’ been
the court’s opinion. Its decision was based solely on. the
point of contributory negligence, and did not pass upon
- the ruling of the district court that the libel could not rest .
on breach of warranty. Lee v. Pure Oil Co., 218 F. 2d 711
_ (C. A. 5) held that, even vis-a-vis the deceased, there was ~
no breach of warranty, and then went on to say that in
_. any event his administratrix would not recover. The report —
does not tell us what was the language of the Tennessee
statute; but if it was the same as that?of New Jersey,
we are not persuaded. We hold that ‘‘neglect’’ and ‘‘de-
; fault’? both cover a breach of the warranty.
There remains, however, the further question: é.e.;
whether contributory negligence is an absolute defense. Be-
fore the decision of the Supreme Court in Pope ¢ Talbot v.
_Hawn, supra, it had been generally held'that when a sea-
man before the Merchant Marine Act of 1920, or a shore-
- worker thereafter, had been killed because of the negligence
of the ship’s.crew in the navigable waters of a state having
a local Lord Campbell’s Act, coftributory negligence was
‘a bar to an action by his next of,kin. This was as true
_. when the suit was in the admiralty as,in a court of the .
state; in short, the bar arising from contributory negli-
gence was an incident of the liability imposed by the state,
no matter where suit upon it was brought. In Pope ¢
Talbot v. Hawn, supra, however, the Court held that con-
tributory negligence was not a bar to an action at law by
6 Robinson v. Detroit V. C.. Steam Navigation Co., 73 F. 883 (6th
Cir, 1896) ; Quinette v. Bisso, 136 F. 825 ( 5th Cir. 1905); O’Brien = ©
"vy. Luckenbach 'S. S. Co., 293 F..170 (2d Cir. 1923); Klingseisen v.
Costanzo Transp Co., 1Q1 F. 2d 902 (3d Cir. 1939) ; Graham v. A.
Lusi, 206 F. 2d 233 (5th Cir. 1953); The A. W.. Thompson, 39 F.
115 (S. D. N. Y. 1889 per Addison Brown, J,); The James M’Gee
30g F. 93 (S. D; N.Y. 1924). 3 eve
| re _Appendiz c
s\\besineed cena. > but eile limited his damages, asa this.
we read to mean that rights arising from faults that occur.
; im navigable-waters are exclusively the creation of mari-
time law, and are exempt from the defense of contributory
_ negligence whiether suit upon it is in the admiralty or in
- an action at law, state or federal.’ The following language
we take from the opinion of the majority i in that:case, pages
409, 410: *‘the right of recovery for unseaworthiness. and
eas negligence i is rooted in federal maritime law. Even if Hawn
were seeking to enforce a state created remedy for this . —.
‘right, federal maritime law would be controlling. While
- states may sometimes supplement: ederal maritime policies
a state may. not deprive a persdn Of any substantial ad-
miralty rights as defined by acts of congress, or interpreta-
, tive opinions of this Court.’’. Althoui h, as we have said,
.. we are not dealing with «federal maritime law,’’ we should ..
remember that so far as “we can we ought. to construe the
_. ‘statute so as to avoid capricious and irrational distinctions. —
-We leave open whether New Jersey is without power to
_ take.as much or as little ‘of the rights ‘‘rooted i in federal
maritime law’’ as it chooses.as the model for the right it
confers. upon the next of kin; but the courts of that state
- have never pagsed upon the question, and to deny the ex-.
emption ‘to the next of kin seems to us to the last degree |
capricious and irrational. Although it was only a dictum,
- the First Circuit in O’Leary v. United States Lines Com- '
pany, 215 F.2d 708, 711, declared that ‘‘it would be incon-
gruous to hold in conformity with Pope & Talbot v. Hawn,
supra, that the ritime. law determined the respective
rights of the par ies in the event of personal injuries short
of death,:but that \state law determined nas in the
“event of- injuries fésulting in-the ultimate consequence of -
‘death.’’ We are aware t t Curtis vi Garcia, 241 F: 2d 30,36 .
(C. ae the contrary, but as neither it nor ‘O’Leary v.
me 'tCI Ge ett V; Meeei-McClvuach Céc. 317 U. S. 239.
a
.
Te
| Appendix C
: United States Lines Company, supra, is authoritative, we
are free to choose. Obviously, the answer is not certain;
we must do as best we can-:with what we have, a = we hold
» that: the New Jersey statute should be constru
as taking =.
- over as a part of the model it accepted ~ _exemption . aoe
contributory negligence as a bar. i
‘Finally, the defendants complain, that the judge refused
to allow them to prove that the plaintiff in another action:
. had asserted that Rodermond Industries had control of the.
vessel. Even though'this were an error—on which we do °
not pass—obviously it was not of enough importance to
reverse the judgment.
. udgment affirmed.
fs Lumparp, Circuit Judge (dhiptitaey
e | cannot agree that we must subscribe to the principle
that a shore-based worker who performs any labor on a .,
‘-ship, even though the ship is out of operation and tied fast
‘to a dock for overhaul, should have extended to him a\war-
ranty of seaworthiness merely because the work which he is
doing can be generally characterized in terms of the duties
which a seaman could be expected to perform. It is not |
enough to categorize Halecki’s work as cleaning ship’ 8
uipment. Here’ the inescapable fact is that Halecki, in
spraying the generators” with carbon tetrachloride, was
doing something which a seaman could not do, which no
seaman had ever done, and which would expose the sea-
man’s life to serious danger if he even attempted it.
_ A summary of the evidence showing how the generators
' were cleaned by spraying with carbon tetrachloride shows.
the absurdity of assimilating this work to that of a seaman
' or of saying that the work ‘‘is of a kind that traditionally :
the crew has been accustomed to do.’”’
.Qn Saturday, September 22, 1951 the pilot boat “New
J “a, owned by the appellants was turned over to Rod-
38a
Appendix C
ermond Industries, — for its annual overhaul and i inspec-
tion. It was moored at the Rodermond repair yard pier at
the foot of Henderson Street, North River, Jersey City,
New Jersey. A list of repairs, prepared by Rodermond
the following Monday, September 24 provided that the crew
was to remove and replace the eight cylinder heads for the
port and starboard generaters, and the contractor was: to
‘do some work on the ar heads. Under the same head-
ing ‘‘Port & Star Generators’’ it was provided :
‘Spray clean with carbon tetrachloride the armature
_ and field windings to remove all traces of dirt and .
film. Close up and prove in good order.”’
Rodermond in turn subcontracted with Halecki’s em-
ployer, the K & S Electrical Company, to do certain elec-
trical work and to spray the generators with carbon tetra-
chloride, since neither ship nor shipyard was equipped or
competent to do this work. The K & S foreman, Donald
Doidge, was at work on the New Jersey from Monday,
September 24, and on that day he consulted with the New
Jersey’s chief engineer as to When the spraying should be
done as ‘‘we know it has to be done when there is nobody
else on boafd ship.’’ Doidge agreed with the chief engineer .
that it shéuld be done on Saturday during the absence of
tke crew, since during the week members of the crew were
working on the ship. ’
Pursuant to these arrangements, Doidge and Halecki
made preparations on Friday for the Saturday spraying.
Doidge, the shop foreman, had been an electrician for about
25 years and Halecki had worked with him for about 6
“Xears. Not all their work was on ships; they cleaned gen-
erators by carbon tetrachloride spray in factories and |
buildings, wherever the generators were. On Friday they
br ought on board extra air hoses and a blower belonging to
Rodermond. One air hose was uséd for the spray gun, and
the other was used underneath the generator as an exhaust
. to blow the fumes away from the man spraying. A high
fy
‘
39a .
| Appendiz a: 7
compression ‘*blower’’ was | placed so that it would exhaust
foul air through one of the two open doorways. ° ;
On Saturday morning, September 29, according to the '
previous arrangement, and Halecki came a to
do the spraying. They found only the defendant’s watch-
man, Walter C. Thompson, and they told him to stay out of
the engineroom and not to let anybody down. They
~ ‘brought with them three gas masks belonging to K & S
- Electric Company. Halecki wore a gas mask and did most _
_ of the spraying 10 to 15 minutes at a time with intervening
rest periods of equal length. All the. equipment for ex-
hausting the fumes and the ship’s ventilating system were
in operation ‘and run by power supplied from generators
on shore. Halecki took sick the next day -and died two
weeks later, There was sufficient evidence to support the
jury’s finding that death was. ee by carbon tetra-
chloride poisoning.
| Despite history and logic, the trend of decisions i in cases
involving injuries and ‘death on navigable ‘waters, now
further extended by my distinguished colleagues, seems to
be guided by what Justice Rutledge has frankly called a
‘chumanitarian policy.’’ Seas Shipping v.. Sieracki, 328
U. 8. 85, 95 (1946). This policy seems to be based on the
theory that judges are competent to determine that it is —
* /better that the shipowners should assume all the burdens
because they aré able to average them out through insur-.
ance or some form) of protection against all the hazards of
accident which may occur on shipboard to anyone coming
on board. The result has been a progressive expansion,
both qualitative an quantitative, in the duties and liabili- —
ties imposed upo hasescane satel From a concept resting
1 See Tetreault, ‘Semmens ee and the Rights of ng" |
bor Workers, 39 Cornell. L. Q. 381 (1954); The Tangled Sei
Survey.of Maritime Personal Injury Remedies, 57 Yale L. J. 43,
252 (1947); Gilmore and Black, The Law of Admiralty, 315-324,
358 (1957).
og. Ae eer *
40a
Appendix C .
- ‘on negligence, seaworthiness has, by judicial development,
become an absolute duty imposing liability without fault.
From a duty running to those we traditionally consider as
_ seamen, exposed to the hazards and discipline of the sea, it
has been expanded to include a multitude of harbor work. —
_ ers who report for work in the morning and return to their
homes at night. The burdens of proving lack of due care
and of defending against the bar of contributory negligence
are jettisoned by this judicial legislation. Where there is
the slightest support for. causation the only question for
the jury is the amount of damages. -
It may be argued that.the initiative takeni,by the federal
courts in imposing absolute liability is justified -by their _
peculiar historical responsibility for admiralty - law. And
-we are told that certain harbor workers come within the
‘ ambit of the warranty of seaworthiness because a ship-
owner cannot escape liability by. delegating to others what
is traditionally seamen’s work. Seas Shipping v. Sieracki,
328 U. S. 85, 95 (1946). Here we go further.’ When a
lower court charges on both seaworthiness and negligence
toward a business invitee, we must assume that the only |
justification for the charge on seaworthiness is that the
shipowner may be found liable despite his own due care. —
By assimilating certain activities to maritime law, we ex-
tend the absolute liability of shipowners, in effect, beyond —
the shipyard gates. The owner, despite the utmost care, is —
liable for: the activities of a specialist employed expressly
because these activities were beyond the range of experi-
ence and competence of the ship’s .crew. These circum-
stances rebut the contention thatthe shipowner is nullify-
ing his liability by parcelling out ship’s work to others.
~The anomaly of the result reached here is pointed up
when we consider the restricted liability of the specialist’s
employer, who is in the. most favorable position to reduce
the npn of injury. Unlike the shipowner, the immedi-
a ployer’s. liability is restricted to the insurance ex-
>
4la
Appendix C
penses of workmen’s compensation or to damages incurred
due to his lack of due care. Although the shipowner was
not’ Halecki’s employer and this was essentially an indus-
trial injury resulting in the death of a ‘shore-based eléc-
trician, an absolute liability of judicial creation is im-
posed upon the shipowner above and beyond the system »
developed by New Jersey to compensate for industrial acci-
dents. I had thought that such far-reaching changes -in
rights and legal duties were solely within the province of
the elected representatives of the people in Congress and -
not the proper business of judges. The traditional re-
sponsibility of the federal judiciary for admiralty does not
justify such an expansion of. liability. = — .
| Halecki risked all the hazards of the sea as one might —
- experience them on a Saturday in late September while
‘- the ship was made fast to a bulkhead in Jersey City. He
was not. a seaman, he was not doing what any crew member
_had ever done on this ship or anywhere else in the world ©
-so far as we are informed. Whatever reasons there may —
be for extending the warranty of seaworthiness to steve-
dores or other harbor workers who'work on board, they
do not apply to those employed to do a special job of such
a dangerous and unusual nature that it is beyond the com-
petence of ship and shipyard, necessitates the removal and .
exclusion of the crew, and requires bringing extra equip-
ment aboard for the safe performance of the*hazardous
activity. | ame sa,
The case of Berryhill v. Pacific Far East Line, 238 F. 2d
_ 385 (9 Cir. 1956) cert. den. 354 U. S. 938, is authority for
_ the proposition that when the manner of doing the work
is foreign to ‘what. the ship’s crew could do and involves
_ the use of equipment not: used or known on ships, therg is
no warranty of seaworthiness ruining to those -who are,
injured in the course of doing such work by reason of any
defect in the equipment so-used. In that case the plaintiff
was injured by the shattering of a grinding wheel brought
>
. 42a |
Appendie C ay
on board by his employer, Todd Shipyards Corporation, 7
for use in repairs. being made on the ‘‘shaft keyway’’ on |
. defendant’s ship. The Court of Appeals held: there was no
warranty: of seaworthiness with respect to the. grinding
wheel. Judge Barnes pointéd out that to hold otherwise
‘would go beyond the Sieracki, Hawn and Petterson? cases
as the grinding wheel was equipment that the ship could do
' without, and the shipowner may never have had any reason’
to know that such equipment existed. That the kind of
equipment used is foreign to the vessel is just another way
of saying that the work done is hot the kind of work.
normally done by a |
My brothers say that this work was merely cleaning 2 e.-
generator and, as cleaning propulsion machinery is the .
kind of work which segrnen would normally do, cleaning a..
genérator is seamen’s work and those who do it are entitled
to a warranty of seaworthiness. This assimilates spraying -
with carbon tetrachloride to all cleaning as if it were -
harmiess and commonplace; it is a play on words which
by a characterization avoids dealing with a difference in
means which completely destroys the validity of the syl-.
-logism. Because seamen may be able to do some kind of
cleaning does not. make seamen of those who do another
kind of cleaning which seamen have never done and can- |
not do; nor does it supply any reason why an outside .
- specialist should be treated, or needs to be treated, like a _
seaman.
That such general. niaheiethies: is not a eben i ae
emphasized by Berge v. National Bulk Carriers Corp., de-
cided this day, There the same panel of this court holds
unanimously that ‘there is no warrenty of seaworthiness
2 Seas Shipping Co.:v. Sieracki, 328 U. S. 85 (1946) ; Popeye
Talbot, Inc. v. Hawn, 346 U. S. 406 (1953); Petterson v. Alaska—~~
_ §.S. Co,, 205 F. 2d 478 ? Cir. hrs oe per curiam 347 V. Ss.
396 (1954),
43a
Appendiz C
to a rigger, engaged in installing a tank bulkhead in the
course of rebuilding a vessel, who was injured when the —
. shearing of a defective shackle pin caused:a chain tackle
to fall and knock him from a scaffold. What Halecki did
was no more the kind of work that the crew of a vessel was;
_ accustomed to do than was what Berggwas doing. Indeed
it was less so. One might charactegze Berge’s work “t
lowering a heavy load into the hold, a normal seaman’s
duty done without abnormal risk of harm. Halecki’s work
was entirely novel and foreign-to what seamen had ‘ever
done and far more dangerous to anyone who might be
aboard. As in Berge, the ‘work required the cessation of
ship’s operatigns and the removal of the crew. oe
Passing. this point, I must also dissent from the °
- majority’s view that under the New Jersey Death Statute,
N. J: S. 2A :31-1.(1952), a maritime claim, such as Halecki’s,
is not subject to the defense of contributory negligence:
‘There is no basis for saying that the New Jersey legisla-
_ ture meant to abandon the defense of contributory negli-
gence in such cases and it seems to me there is every reason
as a matter of common sense and usual practice for saying’
that they did not mean these cases to be on a different
- basis. I would adopt the views of Curtis v. Garcia, 241 F. 2d
30 (3 Cir. 1957). Furthermore, it is difficult enough for
admiralty lawyers and judges to keep up with the changes
and developments in this field without expecting the mem-
bers of a state legislature, few ifany of whom are’ admiralty
lawyers, t6 take over sight unseen whatever may be held
to come along in the kaleidoscope of maritime rights, as
against the doctrine of contributory negligence with which |
_ New Jersey and her lawyers have long heen familiar. To
hold otherwise seems to me ‘to embrace a pure fiction for
the purpose ginger ‘humanitarian policy.’’
To refuse to extend the warranty of ‘seaworthiness to ©
Halecki and incorporate by réferencé comparative negli-
gence into the New Jersey Death Statute would not leave
en
iF es” ~
2
ww
oO al
ee : ie : xy
~
ue ppendix C
- persons in the position of Halecki’s survivors without a
- remedy. Besides:‘the remedies against the employer nor-
mally incident to death by industrial accident in New
Jersey, see R. S. 34:15-1,/34:15-7, 34:15-8, 34:15-9, R. S.
Cum.’ Supp. 34: :15-4, such persons apparently may alter-
natively elect to proceed against decedent’s employer under
the Longshoremen’ s and Harbor Worker’s Compensation
_ Act, 33 U. S. C: A. §$901.et seq. See Davis v. Dept. of - |
_ Labor and Industries of Washington, 317 U. S. 249 (1942) ;
Dunleavy v. Tietjen & Lang Dry Docks, 17 N. J. Super. 76,
85 A. 2d 343 (Cty. Ct. 1951), aff’d 20 N. J. Super. 486, 90
A, 2d 84 (App..Div. 1952). Nor does our refusal foreclose
actions against the shipowner or the shipyard for their
failure to exercise due. care. -Indeed such an action was .
brought by this <appellee against Rodermond Industrie’
for its alleged negligence in the events which led up to
Halecki’s death. Moreover our refusal in this action would
permit retrial of ‘the cause appa the: shipowner on the
theory of negligence."
I would dismiss se much of the complaint as relies on a
warranty of seaworthiness, and reverse and remand for
a new trial on the issue of negligence.
t>
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