Petitioners Brief on the Merits — The Tungus v. Skovgaard

oe

7 me

| The vol N/V. FUNGUS, be ,, ete. and DEN

NORSKE AFRIKA-0G

HELMSENS DAMPSKIBSAKTIESELSKAB, eH,

TONSBERG, A/S ART I, A/S TANKFART

Wy, as TANEKFABT * , A/S TANKFART VI, and

ARBER STEAMSHIP LINES, INC.,

\

OLGA SKOVGAARD, ‘ sdeliniabeetrte ea Prosequendum ~

of the Estate of Carl KE. Skovgaard, d and |

OLGA SKOVGAARD, Administratrix of the tate

of Carl - es deceased, ;

and against

EL DORADO Ol WORKS, .

"Foapondeat pleaded

Gx Warr or Cntionans 10 ‘em User Srizas Couss

' OF APpgats For THE Tump Cimouir

PETITIONERS’ BRIEF ON THE MERITS

J. “Wan O’Nzn1,

‘ Counsel for P Petitioners,

Synth 80 Broad

| : New York 4, N. Y.

Dav P. H. Watson, - ; 7

of Counsel. ) | aes ee

INDEX

Opinions of the Courts below ............. 0000500, 1

SN i ocnie cic

Questions Presented ............:.....05. Serr

The Statute Involved ............ eee mene 3

Statement ............... eer ner Cee bean ea ee

Summary of Argument ........... Raesehwieebeees aE |

Pout I—The respondent is limited to a suit under .

the laws of the State of New Jersey ...... Se 16

Pormr H—The jurisdiction of the District Court —

to entertain this suit in admiralty did not alter

the fact that the Court was required to apply ©

New Jersey law. just as though the action had

been brought against the petitioners in oneof the

courts of the State-of New Jersey ...... ie aes 20 ©

_ Pont I1I—The respondent is not entitled to pro-

_ ceed against the petitioners on the grounds of

the alleged unseaworthiness of the. vessel, not.‘

only because the right to recover for unsea-

_ worthiness derives from the Federal Maritime

: Law, but also because the breach of a warranty

of seaWorthiness is not a wrongful act, neglect:

> or detg R Ate sede tami uen ee eh snnecindds nan’: 23

Pom IV—The Wrongful Death Act of New J ersey

;) is not a survival statute ..................5..5 38

| Pomrr V—The owners of the vessel did not warrant

the seaworthiness of conditions in No.3 shelter.

deck to the deceased ......... taneab nce tes 38°

Pomr VI—The petitioners cannot be held liable to .

the respondent in terms of negligence under

applicable decisions of the Courts:of the State -

.

Of New Jereey. 004.0006 .6i%cees meee eneaews wo «= 42

Conclusion ....... MP RYE Tee steetonieses ° We

he

: ii .

Table of Cases Cited _

PAGE

Blake v. Midland Railway Company, 18 Q. B. 93, 29

L. J. Q. B. 233, 16 Jur. 562 (1852) ..:.......... » &

Boudoin v. Lykes Bros. 8.8. Co:, Inc., 348 U. 8. 336

3 EE sawaksniescne ss eeanheeesend ts Ka dices a”. SS

. Broeker v. Armstrong Cork Company, 128 N. J.L:3,

| 24 A. 2d 194 (1942) ....... cevuan eeeeees been 15, 54, 56

Bruszewski v. Isthmian 8.8. Co., 163 F. 2d 720 (3°

_ C. A. 1947), cert. den. 333 U. 8. 828 (1948) .... :15, 40, 55.

Byars v. Moore-McCormack Lines, 155 F. 2d 507 (2

ae Bs TOME sesiviccccucavcscs ned eeehaes ews 15, 39, 55

Byrd v. Napoleon Avenue Ferry Co., 125 F. Supp.”

573 (E.. D..La. 1954), affirmed on opinion below,

_ 227 F. 24.95 (5 C. A. 1955), cert. den. 351 U. S. ©

Oe a 22°

Cooper v. Shore Electric Co., 63 N. J. L. 558, 44 Atl.

630 (1899) ......... ear Jiixtaas uae,

Cosmopolitan Shipping Company v. McAllister, 337

Us Whi Ti ROD, a's sess wkewsaadsieeiea as calcd... 16

Curtis v. Garcia Y Cia., 241 F, 2d 30 (3 C. A. 1957). + 22,34

Dalehite v. United States, 346 U: S. 15 (1953) ...}.°14, 27

Feinman v. A. H. Bull Steamship Co., 216 F.2d 393.

(80 A, We on... 500: san skvis wheouiin a

Filipek v. Moore-MeCorniack Lines, 156 F. Sypp. 854

(E. D. N.Y. 1957, now on appeal .to the United

_ States Court of Appeals for the Second Circuit)... . 41

_ Garrett v. Moore-McCormack, 317 U. S. 239 (1942).. 16, 22

Graham v. A. Lusi, Ltd. 206 F. 2d 293 (5 0. A. :

ba Bee END eaeeecyeess os oat, £0, 87

Harrisburg, The, 119 U. S. 199 (1886) ........... 12, 18,21

Hill v. Waterman, 281 F.2d 655 (3 C. A. 1958) ..... ‘- 22

H. S. Ine., No. 72, The, 130 F. 2d 341 (3 C:.A. 1942).: 22

_ Just v. Chambers, 312 U. 8. 383 (1941) .......... 19,20 —

6

iii

ere Rea ce : _ PAGE

' Kernan v. American Dredging Co., 355 U. S.- 426-

(1958) ..... sebuene pbichahiegsin os inawhec oie’ 14, 18, 25, 34 |

Klingseisen v. Costanzo Transportation Co.,11F.2d

| 902 (3 C. A. 1939) ....... leceween nee pabheee ine

Lee v. Pure Qil Company, 218 F. 2d 711 (6 C. A.

. (1955) {Uo 49 RCA SA RUDRRESESST isp aeveubancexsa MOD

- Levinson v. Deupree, 345 U. 8. 648 (1952) .......12,19, 21

Lokar v. Church of The Sacred Heart, 24 N. J. 549,

133 A. 2d 12 (1957) ........... een nears ners ame

McAllister v. United: States, 348 U. 8. 19 (1954) ..... 44

McDaniel v. M/S Lisholt, 155 F. Supp. 614 (S. D. N. ¢

Y. 1957), aff’d —F. 24 — toe eee 41

- Mergel v. Colgate-Palmolive-Peet Co. 41.N. J-Super.

73, Os ON... . 15,57

Newbury v. American Stores Oo., 115 N. J. L. 604, '

180 Atl. 75 (1935) ...0......65 a doaeeeseieets

Pinion v. Mississippi Shipping Co., 156 F. Supp. -

652 (KE. D. La..1957) ~...... evn 'd Wacken dase maceaatD 41

Senko v. La Crosse Dredging Corp, 342 U. 8. 370 |

(1957) See eecedeescccceves acsancvesseteneeeans ae |

Seward v. Vera’ Cruz, 10 App. Cas. 59 (House ‘of

Lords, 1884) ...... PEEP ee eM rt egais fa 36

Swanson v. Marra Bros., Inc., 328 U.8.1 (1946) .... 17

Turon v. J. & L. Construction Company, 8 N. J.

043, 86 A. 2d 192 (1952) sav esetsocen tT ES ip 36

Western Fuel Co. v. Garcia, 257 U. S. 233 (1921)... 12, 19,

Lia ‘ ree — 20, 21

* % ?

4)

Statutory Authortion Cited

“ | PAGE

‘Death onthe High Seas Act, 41 Stat 87, 460. S.C.

_ Section 761, et seq. ... cipebaseuncekesbivass aes: 17, 26

Federal Rules of Civil Procedure, Rule 52(a) ..... 4

Federal Tort Claims Act, 60 Stat. 842, 62 Stat. 869,

OUR, 3B U. B. C.F ABGC(D) oo ccc vccccceccccd vec 27

Florida Wrongful Death Act (Title 43; Chanter. 768. A

$1; F. S. A. $768.01) civ eaaseaeaeciias RF EE Mee ~ 30, 37

Jones Act, #1 Stat. 1007, 46 U. S.C. § 688 ........ 16

Longshoremen’s and Harbor Worker’s. Compensation

Act, 44 Stat. 1424, 33 U.S. C. Section 901 et seq. .. 17

.. Lord Campbell’s Act (9 and 10 Vict. c. ee 36

New J ersey Survival Statute, Rev. Stat. N. J. 2A: _.

15-2; N. J. S. A. 2A:15-2 Coetccvcscvscicces ose 12, 33

GA:S1-1 ot o0q.; NJ. S.A. 2A°SL1 ot en .3, 4, 12, 19,

.26, 33, 35, 36 *

Tennessee Death Statute (Title 20, § 607 of the Ten-

tact Phen sl ARS REE TE PERT CERT ETS eee - 82, 37

’ Supreme Court of the Anited States

ogg October Térm, 1958 — fo

: : —<—-—

——.

oo . /

—~{). ——

— ‘Phe vessel M/V Tunous, her boilers, ete. And Dex Nonexi

Arrika-Oc AvsTRALIELINIE, WiLH SENS DaMPsKins- -

AKTIESELSKAB, A/S Tonssi A/% Tanxrart I, A/S

-- “Panxrarr IV, D8 Tskrant V/ A/S Tanxrart VI, |

and Barser Sreamseip Lines, [xc., aap

Petitioners, —

———

= Pe aes against

=

‘Oxea- SKkovesarp, Administratrix ad Prosequendum of the |

_. Estate of Carl E. Skovgaard, deceased, and Orca

Sxovcaarp, Administratrix of the Estate of Carl E.

Skovgaard, deceased, in ies a ,

: Libellant-Respondent,

ee and against |

Ep Doravo Om Works, reer WE

ui Respondent-Impleaded.

Qy Warr or CErtiorart To THE Unirep States Court

or APPEALS FoR THE THIRD Circuir.

/, ae

oe ee

__ PETITIONERS’ BRIEF ON THE MERITS

‘Cpabaae of the Courts Below

The opinion of the United States District Court for

the District of New Jersey (Alfred E, Modarélli, U. 8, :

‘D. J.), dismissing the libel is reported at 141 F. Supp.

653, and is set forth on pages 570-577 of the Record.

a}

: .

2 pas eee

“<i : 4

t

The majority opinion of the United: States Court of °

Appewls for the Third Cireuit (Chief Judge Biggs and

~Cireu.t Judges Goodrich, McLaughlin and Staley) and .

the dissenting opinion (Cireuit Judges Maris, Kalodner and‘

Hastie) are reported at 252 F. 2d 14 and are set forth

on s 582-596 of the Record. - 9 Se

' The judgment of the United States Court\of Appeals.

for the Third Circuit was entered on December 23, 1957.

The petition for a writ of certiorari was filed on March *'

24, 1958, and was granted June 9, 1958. ;

~The jurisdiction of this Court.to grant the writ of =

certiorari is provided by Title 28 U. 8. Code, Section

1254(1), = rae

Questions ‘Presented : aes i

1. Whether a federal court may. engraft concepts of

liability peculiar only to the federal maritime law upon the .

wrongful death act-of a state ix the absence of any state

_ statutes or authoriti¢s incorporating such concepts into

that act? 7 eas | |

. 2. Whether a federal court may attribute 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?

3. Whether, in any event; a shipowner owes a warranty -

of .seaworthiness to a repairman, employed by an inde- °

pendent contractor, as to an obvious condition aboard the

' vessel created by a failure of the contractor’s equipment,

_ which very equipment he comes aboard to repair?

@ ‘ - : ay ; 3

. pe \ é . © , < °

4. Whether a piqued under a duty to provide a -

. Safe place to work to a repairman employed by an inde-

_ pendent contractor with respect to obvious condition’

created aboard the vessel by the failure of-the contractor’s

_.. equipment, when the repairman comes aboard the vessel to

aa repair that equipment with full knowledge of: the facts? .

So ee

, The libellant: sued ‘in the United States District Court.

. | for the District of New Jersey te recover damages under.

the New. Jersey Wrongfual Death Act, Rev. Stat. N. J.

2A :31-1 et seq.; N. J. S. A. 2A :31-1 -et seq.; the relevant -

section which read as follows: © _

‘*2A :31-1, WHEN Action Lis

When the death of a person is caused by a

wrongful act, neglect or defauli,/such as would, if .

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 deat 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. Bere

pea e @ © =

Statement _ ara

; * “ | | ~! :

The libelant-respondent filed a libel (R. 3) in the United

States District Court for the Southern District of New:

York to recover damages, for the death of her “husband,

which occurred aboard m/v Tungus on December 6, 1952

‘while that vessel was ‘moored in Bayonne, New J ersey.

The deceased was an employee of El Dorado Oil Works, |

_ the- respondent-impleaded, at the time of his death (R. 5,

129, 227) Four causes of action were set forth in the libel.

a

4

The first two sought .to recover under ‘the New Jersey

Wrongful Death Act (Rev. Stat. N. J. 2A:31-1 et seg.; |

N. J. 8. A. 2A :31-1 et seq.). The third and fourth causes.

of action in the libel sought to recover for the. damages _

which had accrued to the deceased in terms of conscious

- pain and suffering; medical. expenses, ete., presumably un-

der the New Jersey Survival Statute (Rev. Stat. N. J.

\2A ABQ: N, J. S.A, 2A :15-2), since such damages are not

. recoverable under’ the Wrongful Death Act. |

- The petitioners, the owners of ;m/v Tungus, success-

- fully moved for a change of venue to the United States Dis-

trict: Court for the District of New Jersey in order to

permit them to serve an. Seeing ee upon hex

~ Dorado Oil Works (R. 33). .

The chronological facts giving’ rise to the admiralty i

suit in the District Court were as follows:

In October, 1952, in the Philippines, m/v nw a. dry :

cargo merchant vessel owned by the petitionérs, took on

board two shipments of coconut oil in bulk, which were

loaded into the two-deeptanks (R. 293, Exh. R-6, R. 557,

297) in No. 3 shelter deck. In accordance with the terms of

__ the contract of carriage this coconut oil’ was loaded,at the

expense of and with the equipment of the shipper (R, 314).

The contract for the carriage of the oil also specified that

'. the oil was to be discharged at the ‘‘sole risk and expense _

of the consignee, ”’ and that the consignee was also obligated |

to provide necessary equipment for the discharge (R. 314).

f

_ Upon the arrival of m/v Tungus in New York in De-

cember, 1952, the respondent-impleaded, El Dorado Oil.

Works, received instructions from the then owner of the

coconut oil in the. port deeptank to discharge the. oil from

that tank into El Dorado’s storage facilities in Bayonne,

New Jersey (R.-54, 55, 60, 61, 298, 570). The m/v Tungus 3

was accordingly ordered to proceed from its own pier in

Brooklyn to El Dorado’s pier in _—T (R. 298).

-

5

. Prior to the arrival*of ‘the vessel in Bayonne the de-

ceased, who was Maintenance Foreman for El Dorado Oil

_ Works, checked the operating condition of an electric cen-

trifugal pump, owned by El Dorado (R. 57, 58, 62, 246),

which was to be used by that company to discharge the oil. _

He was apparently ‘‘satisfied that she was in good working -

- condition’? (R. 246-7, 453, 454). . .

Upon the arrival of the vessel at El Dorado’s pier in

Bayonne, New Jersey, at approximately 5 p.m. on Decem-

. ber 5, a survey of the oil in the port deeptank was made

by Mr, Mallett, a surveyor representing the vessel, and

by J Mr. Sexton, El Dorado’s Receiving and Shipping |

Foreman ‘(R. 259, 260, 481). One officer and two mem-

bers of the ship’s crew assisted the El Dorado per- :

- - .sonnel in loading’ the discharging pump aboard the ves-'

sel. The two crew members were employed in driving the

ship’s winches (R. 299, 300). Under the direction of the El

Dorado workers and by means of the winches, the lid of the

port deeptank was first lifted, rotated 90 degrees, and then

placed on top of the deeptank coamings (R; 239, 260, 261, .

457). The placement of the tank lid can .be seen in Exh.

L-9 (R. 151) and Exh. R-2.(R. 258). El Dorado’s pump, ©

which had been lying on the pier, was then lifted by means

of the ship’s winches and lowered into No. 3 hatch and

placed on top of the port deeptank lid (R. 457-458). Th

placement of this pump was directed by the El Dorado pe

sonnel (R. 239; interrogatory No. 15, R. 427; B. 457, 460).

, _ The Trial Judge, in an opinion which constituted his _

- findings -of fact (R. 576), described this phase of the opera-

' tion as follows: - . : | a

‘*Under the supervision of the El Dorado workers,

two of the ship’s crew operated winches; they were

aided by one officer of ia: ais the port deeptank

lid was lifted, rotated 90 degrees, ind lowered to a

position across the top of its coamings, so that the

eit te oe 1e El] Dorado ©

workers were satisfied with the position of the tank

eS 9 6

lid. A wen. owned by Dorado, was lifted by ©

ge 8 winches and oy « into. ay 3 shelter

placed on port deeptank

-wnder the directions oy an El Dorado worker. He

_ also..directed the rigging of the suction: _—

hoses.’ > (R. 570-1) -

“The EI Deradb pump crew started discharging the oil

from the pow deeptank at about 8 p. m. ( Exh. R-4, R. baie

266; Exh. R-6, R. 560, 297).

ae discharge ofthe oil from the deeptank was under

the direct supervision and control of El Dorado: personnel

(R. 157, 187, 221, 229, 261, 430, 497). The Trial Court so,

found in its opinion (R. 570, 576).

Mr. Patrick Sexton, the receiving and diisichien: eccktin

for El Dorado was in charge of .the discharging. Mr.

Blaney, the Plant Superintendent for El Dorado testified

"as follows: Pend

. . >

“<Q, And ae | is no : sania that thie aienguies:

discharging was, under your man, Patrick Sexton, is

that right? A. There is no question. ’” (R. 430) | .

Shortly after midnight on the morning of December 6,

1952, one of the officers- of the vesse], while making a rou- -

tine tour of the decks,.looked down: into the ‘open shelter '

deck of No.-3 hatch and saw that the pump had burst and_

that tons of hot liquid coconut oil were being pumped di-

rectly into the shelter deck area (R. 188, 268, 304; Exh. R-4,

R. 554, 266; Exh. R-6, R. 560, 297). At that time none of: the

-. El Dorado pump crew were in attendancé, much less even

aboard the vessel (R. 304; Exh. R-6, R. 560, 298).

: In answers to interrogatories it was admitted by re-

‘spondent-impléaded. El Dorado that one member of the El

Dorado pumping crew. was required to remain on duty in

‘number 3 shelter deck of the vessel to maintain a constant —

watch. on the pump itself (B. 57, 62). :

.

aS) as, owe

: \ a :

LL 2\ \ (i ake

Ste: PERE Nee oe apr ee ag

_ * As a result of this failure of El Dorado’s pump, a .

coconut oil covered the entire area of No. 3 shelter

-ineluding the top of both the port and starboard tank lids,

the area forward of the tank coamings, and the area between

_ the port and starboard tank coamings, and covered as well -

two steel hatch beams.which were lying in a fore and aft

direction between the and starboard coamings (R. 143, -

_ 152, 153, 177, 190, 191, 269, 275, 276, 329, 346, 495, 505): -

_ _ ‘When this pump failure was discovered it was necessary

for an officer.to. go ashore in order to find an El Dorado —

employee to turn off the pump, which in the meantime con-

- tinued to pump oil into the general cargo spaces in No. 3

hatch (R. 188, 304). The pump was finally turned off by

an El Dorado employee (R. 188, 304), and a wooden ‘plug

was driven into the fractured air injection nipple. of the

pump, where the failure had occurred (R.188). The broken

‘fitting was replaced by Donahue and’Russo, two El Dorado.

employees (R. 55, 194), but not before they had squeegeed

or pushed away the spilled oil in the working area around

the pump (R. 155, 176-7, 199, 144, 491-3, 495). Norie of the «

#1 Dorado employees on duty, however, were able to regain

pumping suction (R. 156, 196), because, as it later proved, ©

' ., the distance between the pump and the oil level in the deep |

tank was too great to regain suction. It was. finally neces-

sary to lower the pump into the partially open tank (R.

235, 240, 433, 473-5).. In this manner the suction line

length was. reduced to the point where the pump was able’ -

_ to regain suction, Mr. Blaney. testified that any stoppage

of the pump at that stage of the discharge would necessitate

lowering the pump. into the partially open tank (RB. 235):

‘in order to regain suction. This fact explains why it was

not possible to discharge the tank through the small man- ee

~~ hole in the lid (R. 277-8). The Trial Court found that it was

|: necessary to have the tank open (R. 575).

. As a result of this inability to- resume pumping Carl

Skovgaard, El Dorado’s Maintenance Foreman, was called

_ \ ‘ 7

»

.

mo

' from his home in the middle of the night. It will be re-

_-ealled that Skovgaard was the one who had checked thé

- operation of the pump prior to the arrival of the vessel. at

on the pier the previous afternoon. At least two El. Dorado

employees claimed that they were the ones who had called

Skovgaard at his home by telephone (R. 156-7, 507). Skov-

gaard was told about the conditions existing in No. 3 shelter

deck by Patrick Sexton, the El Dorado foreman (R. 507).

is Donahue also testified that it was he who telephoned Skov-

gaard and told him ‘‘about the condition of the pump, and

the trouble we were having”’ (R. 156-7).

After having been so summoned, the deceased left.his

home and shortly.later boarded the m/v Tungus. The de- :

~ ceased first observed the conditions in.No. 3 shelter deck by

looking down into the open hatch from the main deck level-

» (R. 156-7). The deceased was then down in No. 3 shelter |

deck. itself observing conditions for some 10 or 15 minutes

_ before his death (R. 158, 219-20, 484-6). erate 4

‘The next sequence ‘of events was found by the ‘Trial

Court to be as follows: ee

_ In moving from the foot of the ladder leading

down from the main deck to the shelter deck, Skov-

gaard 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

| oR i) in the hatch opening of the port tank.’’ _

Zeke These findings find full support in the record (R. 158-9,

197, 225, 442, 486). ; ; | ae

There is not one word of testimony in the record as to °

any request having been made by the deceased: or by any

. other El Dorado émployee to the officers or crew of the

vessel to have the conditions in No. 3 shelter deck altered

or remedied in any way either before or after the spill oc-

) 5

| 9

curred. As a matter of fact the El Dorado employees stated ©

specifically that they were satisfied with the conditions and -

the placement of the equipment (R. 180-1, 461, 469, 491-3).

The’ Chief Officer of the vessel, Mr. Folkmaii, testified

that after the pump’s failure and before the arrival of

the deceased aboard: the vessel he had offered sand or ‘saw-

dust to Patrick Sexton, the Receiving and Shipping Fore-

man of El Dorado, :for spreading in the shelter deck, but

that his offer was sharply refused (R. 305, 308-9, 331, 349).

-. This offer finds substantiation in:-the vessel’s log entry

' made’ pertaining to this entire incident (Exh. R—6, R.

560, 297).° Mr. Sexton, however, when called as a witness,

denied that any such offer. was made by the Chief Officer

(R. 484). His denial was rendered totally academic, since .

| he also testified as follows: Fee, one m5

-— ‘*Q. Now, as receiving clerk in charge of receiv-

ing the oil, it would be up to you to say whether.

. or not anything could be put on that oil so it wouldn’t |

be left slippery, isn’t that sof A. That is so, yes. :

‘~ Q. And after inspecting that area you gave no ~

instructions 9 the men that were working there, is |

that correct? A. In my opinion, at’ that time, I

thought that the area was clean enough. They[El .

Dorado employees] had squeegeed it.’? (R. 493 |

The foregoing testimony referred to. the time between

the pump’s failure and, the death of the deceased.

_ The plant Superintendent of El Dorado, Mr. Blaney,

testified that the pump’s air injection nipple had broken.

off as a result of ‘‘normal vibration”’ of the pump (R.-430),

- and admitted that the air injection nipple was not an in-

tegral part-of the pump (R. 429-30), but had been added to

‘ the pump by El Dorado out of parts already in stock at the

plant (R. 430). ° ieee Se) sr

Upon the foregoing facts this suit came on- for trial in

“the United States District Court for the District of New —

Ad

~ 10

‘On June 11, 1956 Judge Modarelli filed an opinion holding _

* the petitioners not \liable for the death of: the deceased

(BR: 570-7). J udgment was accordingly entered. dismiss-

‘ing the libel and consequently dismissing the impleading

petition as well (R. 57%). After. libelant filed a notice

of appeal to the United States Court of Appeals for the

‘Third Circuit (R: 577-8), ‘the petitioners filed a precau-

tionary notice of appeal to the same Court from the dis-

missal of the impleading petition in order to preserve their:

Jersey. before ote Judge Modarelli in N ovember, 1955.

~ rights under the impleading petition (R. 579-80)..

Both appeals were argugd in the United States Court

_of Appeals for the Third Circuit. on February 8, 1957

before Circuit J udges: McLaughlin, Staley, and Hastie.

On June 27, 1957,:the Court of Appeals handed down an

order calling for reargument of the appeals before the

Court en Banc (R, 580-1). On October 22, 1957 the ap- |

peals were reargued before the full bench of ‘seven judges.

‘On December 23, 1957 the opinion of the Court was filed. |

and judgment entered (R. 681-97). The majority of four,

consisting of Chief Jtrdge Biggs and Circuit Judges Good-

rich, McLaughlin 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 de-

~ ceased and were in addition under a duty to provide him

with a safe place to work. ‘The dissenting minority of.

- three, consisting of Circuit Judges Maris, Kalodner and

Hastie felt that the majority of the Court had injected into——

the New Jersey Wrongful Death Act liability defining con-:-

cepts peculiar only to and borrowed from the federal mar-

_itime law, and that since the federal maritime law afforded

no rights ‘(the deceased having died in state waters) 2G

such borrowing was improper. It was also the opinion of —

- the minority that the seaworthiness of the vessel could not -

__have been warranted to the deceased and under the New —

Jersey cases there could have been no breach of duty

ll

to the respondents to provide the deceased with a safe

- place to work, since the danger was obvious to the de-

_ ceased and since he came aboard to repair and restore to

operation the very pump which had caused the oil spill.

Petitioners thereupon filed a petition for a writ of cer-

tiorari in this Court on March 24, 1958. On June 9, 1958, .

an order was entered allowing certiorari (R. 597 oe

Summary of es

The identities of the parties to this suit were as follows:

The petitioners: were the owners of the Norwegian m/v

Tungus, a merchant vessel designed for the carriage of

deck suitable for the carriage of oils in bulk. The respond-

ent is the widow of Carl Skovgaard, deceased, who was

Maintenance Foreman for El Dorado Oil Works. Respond- °

ent-impleaded El Dorado Oil Works was the eniployer of .

the deceased and had its employees aboard m/v Tungus on -

orders of the owner of the shipment of oil being carried .

in the port deeptank of the vessel. El Dorado was mot

engaged by petitioners, but by the consignee of the ship-

- ment, and El Dorado employees were aboard for the pur-

_ pose of discharging the oil = their own eet and

_ personnel, sf

During the discharge of the pee of coconut oil by

El Dorado, which took place at El Dorado’s pier in

Bayonne, New Jersey, El Dorado’s electrical discharging

pump ruptured, causing several tons of hot liquid oil to be

pumped directly into the shelter deck area where the El

Dorado employees were supposed to be working. When

El Dorado’s pump crew could not get the pump operating

_’ again, they summoned the deceased from his home. ‘The

deceased boarded the vessel in the middle of the night, and

after observing conditions from the ‘main deck level, went

down into No. 3 shelter deck in order to assist directly in

_ dry cargo, but having two deeptanks’in her No. 3 shelter

i:

the further repairs of the pump. While in the close vicinit

of the pump and while approaching the tank lid on which -

the pump had been placed the deceased slipped on the

spilled oil and fell to his ‘death into the deep tank.

' -His widow instituted a. suit in admiralty in the United’

States District Court setting forth four causes of action, .

two under the New Jersey Wrongful Death Act (Rev. Stat.

ON. J. 2A :31-1 et seg.; N: J. S. A. 2A:31-1 et seq.) and two _

under the New Jersey Survival Statute (Rev. Stat. N. J.

, 2A715-2; N. J. 8. A. 2415-2). Since no damages. were

. proven which might be recoverable under the latter statute,

_ the atténtion of the Courts was focused on the first and

second action under the Wrongful Death Act.

The New Jersey Wrongful Death Act predicates liabil-

ity upon a ‘“‘wrongful act, neglect or default’’ and, upon.

proof of such liability, awards damages jn the form of

compensation: for. ‘‘the pecuniary injuries resulting from

‘such death”’. oo

Since the deceased met his death on navigable waters

within the jurisdiction of one of the states, the substantive

federal maritime law afforded no rights to his widow. The

_ Harrisburg, 119 U. S. 199 (1886). Whereas the United -

States District. Court, in admiralty, had jurisdiction to

entertain the suit (Western Fuel Co. v. Garcia, 257 U. S.

233 °(1921)), the fact that the forum’ was a United States aad

- District Court, in admiralty, did not alter the’ fact that

liability had to be determined solely by reference to the

“ substantive provisions: of the laws ofthe State of New

Jersey and the decisions of the various Courts ofthe State

. Of New Jersey. Western Fuel.Co. v. Garcia, 257 U. 8. 233

(1921); Levinson v: oe 345 U. S. 648. (1952).

The Trial Court held that the doctrige of unseaworthi-

5 - ness afforded no basis for a recovery by the. respondent

against the owners of the vessel, and held further that the

owners of the vessel were not liable to the deceased or the _

»

EE

the decision of the Trial Court: |

~ United States Court of Appeals, while stating that respond-

‘State.

'. The warranty of seaworthiness derives from the federal

e majority bench of the

ent’s rights in seeking redress for the death’of her husband

_ Were necessarily limited to those under the New Jersey

Wrongful Death Act, proceeded to hold’ that petitioners |

owed a warranty. of seaworthiness to the deceased and fur- —

ther held that petitioners were under a duty to provide the

deceased with a safe place in which to work. In support

' . of these propositions the majority benclt cited cases involv-

' ing injured workers, who had rights under the federal

the appeal), reversed

maritime law and who were proceeding under that law

rather than under any-state statutes. Seas Shipping Co. v.

Sterackt, 328 U. S, 85. (1946); Pope & Talbot Inc. v. Hawn,

v4

346 U. S. 406 (1953). We submit that ‘there “is not the

| slightest connection between the law as set forth in those

two cases and the cases in the Courts of the State of New

. There are no authorities in. New Jersey which.warrant

indicate that the legislature of the State of New J ersey,

when it enacted the Wrongful Death Act in 1848, with the _

same language, intended that warranties or theories of

absolute liability without fault should form a basis for

¢

Jersey under which this suit must necessarily be decided. .

, the inclusion of a warranty of seaworthiness in the words —

‘“‘wrongful act, neglect or default’’, as used in the Wrong- .

__ ful Death Act of New Jersey. There is nothing that would.

liability under the Act: Nor is there anything in the cases

or the laws of the State-of New Jersey which would indicate

that it was the intention of its legislature to formulate a

double standard—one creating liability for matters occur-

ring ashore and the other creating different liabilities for |

matters occurring afloat on the navigable waters of the

t

maritime law (Seas Shipping Co. v. Sieracki, 328 U. 8. 85

14)

(1946) : ; Kernan v. American Sectites Co. -» BOO U. S. 426

(1958)), and is a species of liability wholly alien to con-

cepts. of fault or negligence. Unseaworthiness has never

‘been a basis for a recovery. under the Death on the High

‘Seas Act, 41 Stat. 537, 46 U. S. C. § 761, which uses the -

identical” words ‘‘wrongful act, neglect or default’. In _.

- Dalehite v. United States, 346 U. 8. 15 (1953), this Court

held that the words ‘‘wrongful act’’ in the Federal Tort

Claims Act, -60 Stat. 842, 62-Stat. 869, 992, 28 U. 8. C. -

§ 1346(b), did not include theories of absolute liability with- ,

out fault. The warranty of seaworthiness is a form of

absolute liability which has ‘been imposed by the federal |

- maritime law upon those engaging in maritime services

predicated. upon the hazards of such service (Seas Ship-

ping Co. v. Sieracki, supra). Since the federal maritime

law affords no rights to this respondent, and since the

New Jersey Wrongful Death Act makes no provisions for

a recovery predicated upon warranties of seaworthiness,

the respondent is necessarily limited to alleging negli-

‘gence in seeking a recovery: ‘under that Act.

Even if this suit were to be decided under the federal

maritime law, no warranty of seaworthiness would be owed

to the deceased with respect to the conditions which

proximately caused his death. The a tions of un- |

seaworthiness would necessarily be pointed at either

the broken pump of El Dorado or ‘the ‘oil spill which

that pump created in‘ breaking down. In either event the ;

8 ~ petitioners made no -warranty-of-fitness-or—seaworthiness —_

to the deceased, and the deceased himself was fully aware: -

_ Of the defective-and broken condition of, the pump, having

——come aboard for the purpose of repairing it, and was also

fully aware, both from having been told and from personal

observation, of the existence of the oil spill in the No. 3 -

shelter deek, where the pump was located.

The Courts of Appeals for the Second and Third Cir-

cuits have held in similar fact situations that no warranty

|

aa

\

;, of seaworthiness was owed to the inj ‘man. Byars v.

Moore-McCormack Lines, 155 F. 2d 507 * ©. A. 1956); -°

_ Bruszewshi-v. Isthmian 8.8. Co.,.163 FY 2d 720 (3 C. A.

- 1947), cert. den. 333 U.'S. 828 (1948). Fp aseost

: Finally, we submit that ths -teatiaagay ta the ‘record

~ makes it clear that the repair of El Dorado’s pump and the

discharge of the oil was under the supervision and control ~

of El Dorado and not under the supervision or control of

the officers or. the members of the crew of the vessel.. The

finding of the Trial Court to that effect was not held to be

- “‘elearly.erroneous’’ by the United States Court of Appeals,

and the firiding of the Trial Court is fully supported in the

record. Trial testimony referred to in the body of this

brief points to the fact that the efforts of the Chief Officer .

to suggest corrective measures after the oil spill occurred

(and before the death of the deceased) were rebuffed by

El Dorado’s supervisor. This supervisor conceded that the

_decision as to whether to spread sand or sawdust on the

_ spilled oil was his to make and his alone. Since he was at

that time of the opinion that no such measures were neces-

sary, the No. 3 shelter deck,-where the pump was located,

was left as is, exeept for the fact that the El Dorado pump >

_ crew swept away some of the spilled oil from the immediate

working area around the pump.

On such a set of facts the Courts of the State of New

Jersey would hold that no duty would be owing to one

, in the category of the deceased, who not only came aboard —

—to- repair the very instrumentality which had eaused-the— —

“spill, but was also fully aware of the existing conditions.

Broecker v. Armstrong Cork Company, 128 N. J. L. 3, 24.

A. 2d 194 (1942); Mergel v. Colgate-Palmolive-Peet Co.,

41 N. J. Super. 372, 125 A. 2d 292 (1956) ; Newbury v.

American Stores Co., 115 N. J. L. 604, 180 Atl. 75 (1935)...

Since the. respondent cari look only to the law of the °

State of New Jersey for a determination of her rights to

_ Tecover for the death of her husband, the aforementioned

16

cases in New Jersey Courts are determinative of her rights.

. Under them it.is obvious that if this matter had been

; tried-in-one of the Courts of the State of New Jersey,

reeovery would have been denied to her. Since even the |

majority of the United States Court of Appeals below con- -

ceded that the respondent had no rights other than under

_ the laws of the State of New Jersey, their conclusion that

the petitioners were liable to the respondent in terms ‘of

unseaworthiness and negligence flies in-the teeth of the ~

New Jersey decisions.. As stated in Garrett v-“Moore-Mc-

. Cormack, 317 U. 8. 239, 245 ( 1942): © eee

_ © © © and admiralty Courts, when invoked to pro-

tect rights rooted in state law, endeavor to determine .

a — ,in accordance with the substantive law of

MONTE |

The respondent is limited to a suit under the laws ~

of the State of New Jersey. | |

> The deceased, Carl Skovgaard, while employed by the

respondent-impleaded, El Dorado Oil Works, met his death

: aboard m/v Tungus, a vessel owned by petitioners, while

_ that vessel was moored at El Dorado’s pier in Bayonne, —

New Jersey. wt ee

_ 7° As such, the respondent, his personal representative and

limited to any causes of action which y be given to her

by the laws of the State of New Jersey. cate :

The respondent cannot proceed against the petitioners

under the Jones Act, 41 Stat. 1007, 46 U. S. C. Section 688,

not only because the deceased ‘was not a member of the

crew of m/v Tungus, but also because he was not employed

by the petitioners, the owners of that vessel. As was held —

by this Court in Cosmopolitan Shipping Company v. Mc-.

to ne EP sian =

. Mf

Allister, 337 U.S. 783 ( 1949), the ii Act affords a right

‘of recovery only against the employer, and the relationship —

: of employer-employee must be wn to exist. In Swa:son_

v. Marré Bros., Inc., 328 U. 8. 1 (1946) and Senko v. La-

Crosse Dredging Corp., 352 U. 8. 370 (1957) this Court ©

has also held that since passage of the Longshoreman’s and .

_ Harbor Worker’s Compensation Act of March 4, 1927, 44

' Stat., 1424, 33 U. 8. C. Section 901 et seq., the benefits of

: the Jénes Act have been restricted to members-of the crew ©

of the vessel. The Jones Act affords no basis for a Yecov-

ery” in the instant case.

: A further statutory provision giving rights of action in ..

maritime deaths is the Death on the High Seas’ Act, 41

Stat. 537, 46 U. 8S. C. Section 761 et seq. The Death on the

High Seas Act, however, gives a cause of action only when

_ “*the death of a person shall be caused by wrongful act,

neglect or default occurring on the high’ seas beyond a

marine league from the shore’’ (46 U. 8S. C. Section 761).

_ Carl Skovgaard met his death aboard m/v_ Tungus in

waters under the jurisdiction of the State of New Jersey,

and not on the high seas beyond a marine league from

shore. The Death on the High Seas Act specifically left

- untouched a fact situation like the one presented, for in

460. 8. C. Section 767 it is stated : ?

‘The provisions of any State giving or regulat-

ing rights of action or remedies for death shall not

_be' affected by thie chapter. we

This section iiadiontes the intention of vee not to.

interfere with legislation of the States in the field of death

occurring on waters within the jurisdiction of those States. —

nae Finally, neither the common law nor the federal mari-

time law ‘provide rights in the case of death.. The rule -

under: the commen law and the federal maritime law

-has alw ys been and still is that the right of action, if any,

dies wi re ean = wr ee

|

. = OLB as. tig

ore :

Se,

an, men,

18

euihoritios, both i in this Court and it in the Courts of Appeal

| of the various circuits.

The most recent reference to the ‘point is to be found

in Kernan v. American Dredging Co., 355 U. 8. 426, 428

(aM, when Mr. Justice Brennan wrote:

| “But the remedy, for. unséaworthiness: derives —

from the general maritime law, and that law recog-

_nizes no cause of actio for ea 5 death whether

“Occasioned by unseawort or by negligence. "

On this particular point the four dissenting J ustices ee

this Court coneurred (355 U. 8. 441). , 3

These principles were enunciated by this Court as early

as 1886 in The Harrisburg, 119 U. 8. 199 (1886). This

involved a suit in rem. begun in the United States District

Court for the Eastern District of Pennsylvania against the

steamer Harrisburg by a widow to recover damages for

the. death of her husband allegedly caused by the negli--

_. gence of that steamer in collision with another vessel. Mr.

_ Chief Justice Waite at 119 U. S. 204 phrased one of the -

questions presented as follows : 2

‘“1..Can a suit in admiralty be inéintained | in

the courts of the United. States to recover

for the death of a human being on the high seas, or

waters navigable from the sea, caused by negligence,

ats hate ohtee ee 2 ee ;

Be: ‘of a State, giving a right of action therefor?” — 3

After a most. thorough review of earlier authorities

- Mr. Chief Justice Waite wrote at page 213: —

| Sinee, however, it is now established that in the _

courts of the United States no action at law'can be —

ane, Oe ae SS in the absence -of a

' statute gi right, and | t has not been shown

Set Ge malian |

” 5m)

&.

19 .

matters of this kind, we are Sinead to the a ee

- that no such action will lie in the courts of the United

. States under the general maritime law. The rights

of persons in this particular under the maritime law

of this country are: not different from those under

the common law, and as it is the duty of courts to

declare the law, not to make: it, we cannot ehenge

this rule.’’ ‘ ae |

' Later this proposition was reaffirmed in “Wester Fuel .

Co. v. Garcia, 257 U.S. 233; 240 (1921). That recovery for

‘death cannot be had under the federal maritime law was

_ restated by Mr. Chief Justice Hughes in Just v. Chambers, ©

312 U. S. 383, 391 (1941). To the same effect is the opin-

ion of Mr. Justice Frankfurter in Levinson v. Dupree, 345

U. S. 648, 650 (1952).

It is apparent, therefore, that this nn ar is lim- —

ited in seeking recovery for the death of her husband, to

whatever rights may be afforded to her under the stat-

- utes and laws ofthe State of New Jersey in whose -juris-

diction the deceased met his death.

‘The majority opinion below as written by Cireuit J udge

Staley professed ‘to recognize this limitgd basis for re-

covery by the respondent and recited the fact that redress

- for the death of Skovgaard would have to be based upon

the statutes of New Jersey, more specifically the New

Jersey Wrongful Death Act, Rev. Stat. N. J. 2A:31-1 et

seq. N. J. 8. A. 2A :31-1 et seq. (R. 583).

We submit, however, that the majority of the bench.

below actually lost sight of the fact that no cause of action

was given under the federal maritime law, and proceeded

to dispose of the suit under that very law, holding that

the respondent was entitled to recover on the basis of un-

seaworthiness of the vessel and under negligence principles —

set forth in various cases, which were in fact adjudicated

under the federal maritime law. __

2

?P OIN T II on

“The jurisdiction of the District Court to entertain |

this suit in admiralty did not alter the fact that the

Court was required to apply New Jersey law just as

though the action had been brought against the peti-

tioners in one of the courts of the State of New Jersey.

The right ‘of the United States District Court, sitting

in admiralty, to entertain this libel in personam under the —

New J ersey Wrongful Death Act is supported by. such au-

thorities as Western Fuel Co. v..Garcia, 257 U. S. 233

(1921) and Just v. Chambers, 312 U.S. 383 (1940).

In Western Fuel v. Garcia, Mr. Tustice McReynolds |

wrote as follows at 257 U.S. 242: 5. w é

‘Ag the logical result of. prior decisions we think

it follows that, where death upon such waters _re-

’ sults from a maritime tort committed on navigable

waters within a State whose statutes give a right .

of action on account of death by wrongful act, the

admiralty courts will entertain a libel in personam

for the damages sustained by | those to whom such

right i is given.’’ . : 7

In Just v. Chambers, 312 U. S. 383 (1941), Mr. Chief

_ Justice Hughes referred to the fact that a right of action

- for death was denied by the federal maritime law, and in

— ‘referring to_the-earlier_authorities_on ——— ote

at page 388:

“*The absence of a federal or state statute: giv-

ing @-right of action was emphasized. But when a

State, acting within its province, has created lia-

bility for wrongful death, the = mat will = :

it.’? F

“It being established that the Uni xd States District

Court, in admiralty, was empowered to entertain the suit

despite the fact that no right of action was given other

21

than under the laws of the State of New Jersey, the ques-

tion arises as to what federal. or state substantive prin- —

ciples are to be applied by that Court in determining the

right of the parties to the suit. Circuit Judge Hastie, in

his dissenting opinion in the instant matter (R. 589), out- —

lined the situation in the following terms: Se

' **A federal court is here asked to enforce a cause

of action, the existence and dimensions of which are

determined solely by the law and policy of New Jer-

sey. True, the United States District Court which

- heard this case was sitting ‘in ‘admiralty’. But for -

present purposes this is significant only in that the

_ practice properly followed in that forum is admiralty

_ , - practice. Thus, the proper form of complajnt in this.

ae case was a libel in the admiralty style. The ship-

ownets could be reached by attaching the vessel in

the classic admiralty manner. But beyond such mat-

ters of legal administration, the substantive con-

cepts 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 situation in which the maritime law itself

_ did nofeven provide a cause of action for wrongful

death.”” — a ae :

In so writing Circuit. Judge Hastie referred to the case

of Levinson v. Deupree, 345 U. S. 648 (1952), where’ this

Court held that a United States District Court, sitting in

admiralty, in a suit under the Wrongful Death Act of Ken-

~~ tueky was bound to-enforce-a substantive provision of the

laws of Kentucky “le | Ss | :

‘‘as it found it, but ng bound beyond that to strive

for uniformity of results in procedural niceties with -

- the Courts of the jurisdiction which originated the

obligatio.”. 5 enn et

' This principle was not new having been enunciated by

~ this Court earlier in The Harrisburg, supra, and Western

_ Fuel Co. v. Garcia, supra, where this Court held that

_ limitations which would bar a suit. under the state law,

22

had im suit beet instituted i in a , court a that state, would

‘also serve to, bar the suit, which was in fact brought in

admiralty in the United States District Court.

Mr. Justice Black discussed the point in Garrett "ei |

; Moore-McCormack, 317 U. S. 239, 245 (1942): .

“The constant objective of legislation and 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 admiralty

‘courts, when invoked eg protect rights rooted in state

law, endeavor to determine the issues in accordance

- with the substantive law of: the State.’’ :

The Third Circuit had until now maintained an un-

broken line of adherence to the: ‘idea that guiding princi-

ples of applicable state law were to be applied by a District

Court sitting on an action under the wrongful death act

of a state. Klingseisen v. Costanzo Transportation Co.,

11 F. 2d 902 (3 C. A, 1939), The H. S. Inc., No. 72, 130 F.

2d 341 (3 C. A. 1942), Curtis v. Garcia Y Cia., 241 F. 2d 30

(3 C. A. 1957) and Hill v. W. aterman, 281 F. 2d 655 (3 C. A. :

1958). . :

Judge Borah of the United States.Court of Appeals for

the Fifth Circuit adhered to the principle in Graham v. A.

Lusi Ltd., 206 F. 2d 223 (5 C. A. 1953). To the same effect

is the decision of the same Court in Byrd v. Napoleon

Avenue Ferry Co:, 125 F. Supp. 573 (E. D. La., 1954), .

affirmed on opinion below, 227 FP. 2d 95 (5 C. A 1955), cert.

den. 351 U. S. 925 (1956). ;

“Tn short, the obligation of the United States District

Court for the District of New Jersey and of the United —

States Court of Appeals for the Third Circuit was to dis-

pose of the suit under the same principles and with the

same results which would have obtained had this respond-

ent instituted suit against the petitioners in one of the

Courts of the State of New Jersey. The principles of ‘New _

Jersey negligence law must prevail. Since no federal

statutes are involved ‘and since the federal maritime law

provides no rights, the law of the State of New Jersey

‘Stands alone and unchallenged, ‘Those cases involving

.. injuries in which the state law has been required to bow to

applicable and therefor overriding federal maritime law:

_ are not in point. Aisl ete

POINT III

The respondent is not entitled to proceed against

the petitioners on the grounds of the alleged: unsea-

worthiness of the vessel, not only because the right to

'_ recover for unseaworthiness derives from the F ederal

_ Maritime. Law, but also because the breach of a war-

ranty of seaworthiness is as wrongful act, neglect

or default. |

The four majority Judges in the United States Court

of Appeals for the Third Circuit, in an opinion by Circuit

Judge Staley have held that aoe ere tah thie

‘“‘The failure to provide a/ seaworthy vessel in

the case before us is such ‘wrongful -acf,: negleet or

default’ as will allow recovery under New Jersey

wrongful death statute.’’ (R. 586) .

In so holding the majority bench below have ignored the

decisions of this Court which have held that the warranty

of seaworthiness. derives from ‘the general maritime law

and bears no similarity to concepts of negligence liability.

___ In Seas Shipping Co. v. Sieracki, 328 U. 8. 85 (1946),

Mr. Justice Rutledge wrote extensively on the nature of

the warranty of seaworthiness. The principal ‘question

before this Court was whether the warranty of seaworthi-

A

an t -

. hess was to be extended to a longshoreman injured while

working aboard a vessel even though the injured man was

not an employee of the owners. At the risk of quoting

. too familiar language we respectfully refer this Court to

what was written; at 328 U.S. nd 3 Me

- “Tt'is-true that the liability for unseaworthiness

is often said to be an incident. of the seaman’s con-

tract. But in all instances which have come to our

attention this has been in situations where such a:

contract existed. Necessarily in such a setting the

statement could have no reference to any -issue over

liability in the absence of such a contractual relation.

Its function rather: has been to refute: other sug-

gested restrictions which might be held to apply

~. on the facts. Most often perhaps, these have been

limitations arising from the erroneous idea that the

liability is founded in negligence and therefore may

be defeated by. the common-law defenses of contribu-

tory negligence, assumption of risk and the fellow-

servant rule.’’ (Emphasis supplied.) )

In further describing the nature of unseaworthiness the

Court wrote at page 94: : s

~ “It [unseaworthiness] 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 the service im-

poses, the liability is neither limited by conceptions

<. of negligence-nor contractual in character.’? (Em-

phasis supplied.) ; PS ter +s |

WW, Lykes Bros. SS. Co., Inc., 348 U.S. 336,

' . 339 (1955), Mr. Justice Douglas in delivering the opinion

_of the Court wrote: | a’ oe

7 ‘‘The warranty of seaworthiness does not: mean

that the ship can weather all storms. - It merely

means that ‘the vessel is reasonably fit.to carry the

cargo’. The Sylvia, 171 U. S.°462, 464; The South-

' wark, 191 U.8. 1,9. If it is not, the owner is liable,

irrespective of any fault on his part. The Osceola,

supta; Seas Shipping Co. v. Steracki, supra. be

1°

ee coy,

is ate 4

In Pope & Talbot Inc. v. Hawn, 346 U. S. 406 (1953),

Mr. Justice Black in commenting upon the origins of the.

‘warranty of seaworthiness wrote at 346 U. S. 409 as

follows: . Sa. ets

‘‘His right of recovery for unseaworthiness and

‘negligence is rooted in federal maritime law.’’ ©

_ Mr. Justice Frankfurter, in the same case, wrote a

concurring opinion and on this point stated: |

‘‘The right of seamen to recover for unseaworthi-

ness is peculiarly a cause of ‘admiralty and mari-

time jurisdiction’, 1 Stat. 73, 77.. The right 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 |

_ created right to.recover for unseaworthiness a com-

_ mon-law defense foreign to that right’’. (346 U. S.

er ) ATs

__ Most recently, Mr. Justice Brennan commented upon |

the point in Kernan v. American Drédging Co., 355 U.S.

- 426,.428 (1958) :

‘‘The petitioner urges first that the~ statutory

violation made the flotilla unseaworthy, creating lia-

bility, without regard to fault. But the remedy for

unseaworthiness derives from the general maritime

law, and that law recognizes no cause of action for

wrongful death whether occasioned by unseaworthi- .

ness of by. negligence,’’ ss

4

he warranty of seaworthiness, therefore, is a creature

he general maritime law, -restricted to maritime mat-

ters, having its roots in our federal maritime law, and

partaking of none of’ the: characteristics of negligence.

en

What justification is there, therefore, for J udge Staley’s

statemefit that ‘‘the New Jersey wrongful death statute

adopts the maritime standard of care”? (R. 588)? There

is nothing in the decisions of the Courts of the State of

20

New J ersey, in the wording of the Wrongful Death Act

itself or in the legislative history of the Act which’ would

justify such a conclusion. It is significant that no author-

ity has been cited by the majority of the United States

Court of Appeals for the Third Circuit to justify the state- ©

ment that, the New Jersey Wrongful Death -Act gave a

cause of action for a breach of warranty of seaworthi-

ness.

‘The New J ersey Wrongful Death Act with the original |

words “wrongful act, neglect. or default’? was enacted on

. March 8, 1948, some two years after the British Lord Camp-

bell’s Act (9 and 10 Vict. c. 93), on which the New Jersey

statute was patterned, And yet the extension of the war-

ranty of seaworthiness to those other than members of the

_ crew of a vessel was not made until 98 yearsMater in the

decision of this Court in Seas Shipping Co.'v. Sieracki, ©

'. supra. As suggested in the/dissenting opinion of Cireuit

Judge Hastie (R. 591) only bedlam can result if we are to

ascribe to a state legislature an intention to incorporate in-

terpretations of federal maritime law by our admiralty

_ courts given almost a century ‘after the legislation was

enacted. 7 5; |

Ne a Pn en

_. The decision of the United States Court of Appeals for

the Third Circuit in ‘the instant matter is ‘totally unsup-

_ ported by the law of the State of New J ersey in a situation

where admittedly the laws of the State-of New Jersey

provide the sole right. _ av . :

__ Light can be thrown on the meaning of the words

‘“‘wrongful act, neglect or default’? by reference to

- interpretations of other statutes using identical or similar

language. ees | pa ane

The opening section of.the Death on the High Seas Act,

41 Stat. 537, 46 U. S. C. § 761, reads as follows: |

‘*Whenever the death of a person shall be caused -

©

by wrongful act, neglect, or default occurring on the:

high. seas *-* * »,

¢

Z4

The key words, of course, identical to those in the New

Jersey Wrongful Death Act. It is most significant that

a search of authorities and of decisions dealing with the

Death on the High Seas Act has revealed no instance in

which recovery under that Act has been predicated upon

unseaworthiness of the vessel involved. Recovery has been |

limited strictly to acts of negligence.

_ A further Federal statute which is of assistance on this

point is the Federal.Tort Claims Act, 60 Stat. 842, 62 Stat.

- 869, 992, 28 U. 8. C. § 1346 (b). That section of the Act

states that the Federal District Courts,@ ubject to the pro-.

visions of the Act, are to have:

““* * * ‘exclusive jurisdiction of civil actions on

claims against the United States; for money dam-

ages, accruing on and after January -1, 1945, for

injury or loss» of property, or personal injury or

' death caused by the negligent or wrongful act or

omission of any employee of the Government wired 3

It will be noted that the phrase “wrongful act’’ is used.

Judge Staley, writing for the majority bench below, held —

that the breach of a warranty of seaworthiness was a

‘“‘wrongful act’’ (R. 585). It might be noted that Judge

Staley justified this interpretation by stating that:

“It is the liability—creating quality of an act

which makes it wrongful.” - _ :

__Referenceto Dalehite v. United States, 346 U.S. 15° ~

_ (1953), shows that this Court has not been as liberal as

Judge Staley in its interpretation of the words ‘‘wrongful

_act’’. That was an action under the Federal Tort Claims

_ Act by petitioners seeking damages from the United States —

for the death of one Henry G. Dalehite, which occurred in

the explosion of FGAN at Texas City, Texas in April

1947, the incident commonly referred to as the Texas City

Disaster. On pages 44 and 45 of the Dalehite opinion this

Court rejected the contention that the language of the

©

ata aS ¥ =

f ae at

Federal Tort Claims Act, including the words ‘‘wrongful

-act’’, embraced concepts of liability without fault or of

absolute warranty. Mr. Justice Reed wrote as follows:

‘‘Though the findings of specific and general neg-

ligence do not support a-judgment of government

liability, there is yet to be disposed of some slight

residue of theory. of absolute liability withéut fault.

This is reflected both in the District Court’s finding

that the FGAN' constituted a nuisance and in the

contention of petitioners here. We agree with the .

six judges of the Court of Appeals, 197 F. 2d 771,

776, 781, 786,.that the Act, does not extend to* such

situations, though of course well known in tort law

generally. It.is to be invoked only on a ap aa

or wrongful act or omission’ of an employee. Abso

lute liability, of course, arises irrespective of how

the tortfeasor conducts himself; it is imposed auto-

matically when any damages are sustained as a

result of the’ decision to engage in the dangerous|

activity. The degree of care used in performing the

_ activity is irrelevant to the application of that doc-

trine. But the statute requires a negligent act. So 4

it is our judgment that liability does not arise by

virtue either of United States ownership of an ‘in-

herently dangerous commodity’ or property, or of

engaging in an ‘extra-hazardous activity’. United

States v. Hull, 195 F. 2d 64, 67.”? .

_ It will be noted that.this Court agreed that there are

certain situations in which absolute liability i imposed

irrespective of how the person liable conducts himself.

These are instances -where the liability . creating quality

of ‘the act does not necessarily mean that the act was :

“‘wrongful”. In this day and age liability can’ and does

arise irrespective of wrong, and for that reason we submit

_ that Judge Staley’s reasoning (R. 585) is faulty.

A prime example of the fact that the liability creating

aspects of an act or condition need not be predicated

upon wrongfulness is the absolute warranty of seaworthi-

ness. Reference once more to the key case of Seas Shipping.

e :

: zy

Co. Inc. v. Sieracki, 828.U. 8. 35. (1946), shows that the

concept of a warranty of seaworthiness by a shipowner

was not predicated upon wrong on his part, but rather ~

upon the hazards of the trade which, this Court felt, jus-.

tified imposing a liability upon a shipowner on a ‘spread

the costs’’ theory rather than on any theories of wrong.

This Court wrote as follows at 328 U. §. 93: |

“That the liability may not be either so founded

.or so limited [to situations where an .employer-

employee relationship existed] would seem indicated

by the stress the cases uniformly place upon its

relation, both in character and in scope, to the hazards

of marine service which unseaworthiness places on |

, the men who perform it. These, together with their

helplessness to ward off such perils and the harsh-

ness of forcing them to*shoulder alone the resulting

personal disability and loss, have been: thought to

justify and to require putting their burden, in so far ‘

as it is measureable. in money, upon the owner

regardless of his fault [citations]. Those risks are

avoidable by the owner to the extent that they may

result from negligence, And beyond this he is in

position, as the worker is not, to distribute the loss

- in the shipping community which receives the service

and should bear its cost. | a

These and other considerations arising from the

hazards which maritime service places upon men who

perform it, rather than any consénsual basis of re-

‘sponsibility, have been the paramount influences

dictating the shipowner’s liability for unseaworthi- -

ness as well as its absolute character.’’ i

The price which the shipping industry pays for engag-

ing in what are termed to be ‘‘the hazards of maritime

_-Service’’ is that the shipping industry must bear the bur-

. deh of absolute liability. That does not mean, of course,

_ that to engage in shipowning is wrongful, only that it is

' hazardous.- —

Judge Staley has over-simplified his analysis of the

words ‘‘wrongful act’? when he states that anything which

Ts

30.

produces liability must necessarily be wrongful. It should

be: obvious that our 20th century views on liability are not

‘so restricted. Liability can and does trise every day with-

out ‘‘wrong’’ in the sense that word was. used’ by the

Legislature of the State of New Jersey in 1846 when it

enacted its counterpart of the British Load Campbell’s Act.

Insofar as decisions emanating from the Courts of the °

+. State of New hase gi concerned, no case has been

found. holding that thé words “wrongful act, neglect or

_- default’’, as used in the New Jersey Wrongful Death Act,

include or were intended to include concepts of absolute

liability or warranties of any sort, let alone a warranty of

seaworthiness which would indicate that it was the inten-

- tion of the legislature to create’a double’ standard in the

State of New Jersey—one standard for deaths oecurring

ashore and another standard for deaths occurring on waters

of the State. To say that the legislature in 1848 intended

one meaning to be applied as to land matters and another

as to maritime matters is to embark on pure conjecture,

wholly unsupported by authority. ae

The United States Court of Appeals for the Fifth Cir-

cuit has held that a State Wrongful Death Act using simi-

_ lar language did not give a cause of action for uriseaworthi-

ness.. Graham v. A. Lusi Ltd., 206 F. 2d. 223 (5 ©. A.

1953), was a suit brought by a widow of a longshoreman

to recover under the Florida Wrongful Death Act (Title

43, Chap. 768, §1;'F. S. A. ¢ 768.01). The longshoreman

_ Was killed when a defectively welded link in a chain sup-

porting the weight of a ship’s cargo boom parted and the

boom fell. striking: him. The pertinent portion of the

Florida Wrongful Death Act reads as follows:

_ #*Whenever the death of any person in this state

_ Shall be caused by the wrongful. act, negligence, care-

. lessness or default. of any individual or individuals

* * * (or by the wrongful act, negligence, careless-

. 31

ness or default of any ship, vessel, boat or persons

employed thereon), and the act, negligence, careless-.

ness or default, is such as would, tf death had not

ensued, have entitled the party injured thereby to

maintain an action, * * * then and in every such case _-—

the person or persons who, or the corporation (or .

the ship, vessel or boat), which would have been

liable in damages if death had not ensued, shall be

liable to an action for damages, etc.’”? (Emphasis

supplied.) = ; ae

The libel asserted both the negligence of the owners of

the vessel in providing unsafe equipment and the unsea-

worthiness of the vessel herself. The District J udge held

that the words of the Florida Wrongful Death Act limited

the causes of death to those occasioned by wrongful act

or negligence, and that no cause of action was given for

‘unseaworthiness. At the same time the District Judge

conceded that had the plaintiff survived he could have

' maintained an action predicated upon unseaworthiness. by

virtue of the decision of this Court in Seas Shipping Co.

v. Sieracki, supra, but since that cause of action under the

federal maritime law did not survive his death, his. widow

was limited to a recovery based on: negligence under the

state. wrongful death act. The United States Court of .

Appeals for the Fifth Circuit heard the appeal. The same

claim was made, i.e., that unséaworthiness, being a cause |

of action which the deceased would have had if injured

only; was therefore available to his representative in the

action under the death act. J udge Borah rejected the ar-

gument at 206 F. 2d 225, writing as follows:

__ . There is a complete absence of merit in appel-

. lant’s attempt to avoid the foregoing defenses by

_ invoking a right of action for unseaworthiness which,

being a right of action the deceased might have main-

tained had he simply been injured and lived, is

clearly not preserved by the legislative enactment

under which appellant proceeds. Ake v. Birnbaum,

on the issue of negligence only. A verdict for the defend-

32

_ 156 Fla. 735, 25 So. 2d 213, 221;? Epps v. Railway

- - Express Agency, Fila., 40 So. 24 131.” .

The United States Court of Appeals for the Sixth Cir-

cuit has also held that the words ‘‘wrongful act,’’ will not

_ support a cause of action predicated upon unseaworthiness.

In Lee v. Pure.Oil Company, 218 F. 2d 711 (6 C. A. 1955),

_the widow of a truck driver instituted suit to: recover for

his death when-he-fell-from.a barge into a river incTen-

nessee. The original complaint was based upon the Ten-

-nessee Death Statute (Title 20, $607 of the Tennessee

Code), and was predicated solely upon the alleged negli-

gence of the barge owner, Upon the trial the plaintiff at-

_ tempted to amend her comptaint so as to allege a cause

of action based upon the alleged unseaworthiness of the

barge. The Trial Court refused to charge the jury as tq .

unseaworthiness, and the case was accordingly submitted\_

ant resulted. The Tennessee Death Statute uses the key

_ words. ‘‘wrongful act, omission, or killing by another.”’

The Court of Appeals for the Sixth Circuit affirmed the

' Trial Court’s rejection of the requested unseaworthiness _

charge, stating at page 713 that the statute of Tennessee .

allowed “recovery only in the event of appellee’s negli-

‘gence.”? .

for the recovery of damages suffered by them. not the decedent, as

a consequence of the wrongful invasion of their legal right by the ©

5S)

We submit that there are no authorities which would

justify an interpretation of the words ‘‘wrongful act, neg-

lect or default”’ as used in the Wrongful Death Act of the

State of New Jersey, to include unseaworthiness.

POINT IV 2

As was pointed out in the apening paragraph of the

Statement of this brief the libel in question sets forth

four causes of action. The first two seek recovery under . -

the New Jersey Wrongful Death Act, whereas the third

and fourth causes of action seck to recover for damages

accruing to the deceased in terms of conscious pain and

- suffering, medical expenses, etc. The latter two causes of.

action were presumably brought pursuant to the New Jer-

_ sey Survival Statute (Rev. Stat. N: J. 2A 313-2; N. J. 8. A.

2A 315-2). “ ; =

In this respect the State of N ew Jersey conforms closely

_ to the majority of the States, in that its legislature has |

- enacted both a wrongful death statute and a survival stat-

ute. In one, an entirely new cause of action is given to

the personal representative of the deceased to recover

pecuniary damages which result to the designated bene-

ficiaries by reason of the death. Under the survival .

statute, however, the damages recoverable by the estate of

the deceased are limited to those damages which acerued

to the deceased prior to his death. Assume, for example,

the case of a person who is severely injured and dies from

the injuries sustained after several weeks of hospitaliza-

tion. Assume further that the widow of the deceased was

the sole surviving next of kin. In such a situation the

widow of the deceased, as his personal representative,

would be entitled to recover under the New Jersey Wrong-

34

ful Death Act for the pecuniary ‘loss resulting to her by

reason of the death. That is, she would be entitled to

receive money damages to compensate her for the fact that

she could no longer expect contributions from the earnings —

of the deceased. On the other hand, the estate of the

deceased would be entitled to recover under the survival

statute, not the damages resulting from death, but rather ©

the damages which accrued to the deceased before his death

in terms of compensation for pain and suffering during the

weeks in the hospital, together with the expenses of the |

hospitalization, doctor’s. fees and ‘other items of damage

to him. The two theories are, of course, entirely different. .

‘Mr. Justice Brennan was sharply aware of the distinc-

tion between a survival statute and a wrongful death act.

in delivering the opinion of this Court in Kérnan v. Amer-

ican Dredging .Co., 355 U. S;°426, 430 (1958). In a foot- -

note to the statement that the Jones Act remedy for wrong-

ful death was exclusive as to members of the crew of the

vessel, Mr. Justice Brennan wrote: ‘

‘‘Presumably any claims, based on unseaworthi-

ness, for damages accrued prior to the decedent’s

death would survive, at least if a pertinent state

statute is effective to bring about a survival of the

seaman’s right. See Holland v. Steag, Inc., 143 F:

Supp. 203; ef. Cox v Roth, 348 U. S. 207; Just v.

| Chambers, 312 U. 8. 983." «i

Mr. Justice Brennan apparently had.in mind a situa-.

tion such as was presented in Curtis v. A. Garcia Y' Cia..

241 F. 2d 30 (C. A. 3, 1957). Appeals 11,993 and 11,994

in that action concerned two claims by the administratrix

7

of Thomas’ estate based upon the Pennsylvania Wrongful |

Death Act and the Pennsylvania Survival Statute. As

stated in the opinion of the United States Court of Appeals -

for the Third Circuit, the Courts of Pennsylvania had

held that the Pennsylvania. Wrongful Death Act did not

35

carry over causes of action which the deceased. himself

might have had. The ruling of the Pénnsylvania Courts

‘on this question is identical to those to be found in the _

Courts of the State of New Jersey.. In the action under—

the Pennsylvania Wrongful Death Act the contributory

negligence of the deceased was held to constitute a bar to

recovery, but that very same degree of contributory neg-

ligence ‘went only to mitigation of damages in the causes

of action based upon the survival statute, since the sur-

vival statute preserved the deceased’s rights to recover

under the federal maritime law. In the Curtis case sub-

stantial damages had accrued to the deceased himself be-

tween the time of injury and the time of his death. As |

a result, his estate recovéred a considerable amount of

_ money. under the survival statute portion of the claim,

whereas nothing was recovered under the wrongful death

act claim. => as oe : -

Libelant’s proctor in the instant matter was filly jus-

_ tified in proceeding both under the New. Jersey Survival ”

_ Statute and the New Jersey Wrongful Death Act, but as

it turned out, no damagés were proven which might be re-

coverable under the New Jersey Survival Statute.

Perhaps as a result of disappointment over the failure _

to prove damages under the third and fourth causes of ac-_

tion, respondent has urged in the lower Courts that the

New Jersey Wrongful Death Act was really a survival |

statute and that the deceased’s causes of action were pre-

served to the respondent. ~ : |

_ The Courts of New Jersey have held otherwise. As

we understand it, respondent’s argument is ._ predicated

upon the words ‘‘such as would’’ which are contained in the

opening section of the New Jersey Wrongful Death Act.

The argument appears to be that these words in some man-

ner transform the wrongful death act into a parallel

of the New Jersey survival statute.

|

36

In Turon v. J. d L. Construction Company, 8 N. J. 543, _

906, 86 A. 2d 192 (9952), the Court wrote, in interpreting

the New Jersey Wrongful Death Act:

*‘This is not a mere survival: statute. It does -

not abolish the rule that a personal action dies. with

@ person injured. The act creates new causes of

‘ action for the loss suffered by the beneficiaries,

measured by the reasonable expectation of pecuniary

. advantage from the continuance of the life of the .~ .

deceased. "oe | )

-. “As said, it is in no sense the enforcement of an

action by survival.’’ (Emphasis supplied.)

This interpretation was predicated upon that part of

the Act defining the scope of the damages (N. J.‘S. ) 3

2A31-5): - xe a

*“‘In every action brought under the provisions

_ of this chapter the jury may give such damages. as

_ they shal) deem fair and just with reference to the

pecuniary injuries resulting from such death to the. .

persons entitled to and to any- intestate personal —

property of the decedent.’’ (Emphasis supplied. )

The words “such as would” stem from:the British Lord

Campbell’s Act (9 and 10 Vict. ¢. 93), from which Act -

the New Jersey Wrongful Death Act and most of the

other wrongful. death acts of -our: States have sprung.

Cooper v. Shore Electric Co., 63 N. J. ‘L. 558, .563, 44 Atl.:

a =

__ Similar interpretations have. been made by the British |

Courts interpreting Lord Campbell’s Act in Blake v. Mid-*

land Railway Company, 18 Q.B. 93, 110, 29 L.J.Q.B. 233,

16 Jur. 562 (1852) and in Seward v. Vera Cruz; 10 App.

Cas. 59 (House of Lords,'1884), holding that the Act was :

_ entirely new in its nature and scope, as evidenced by the

fact that the damages were not the damages which the

deceased would’ have had, had he ‘survived. |

e

a

_ In the previous Point reference was:made to the decision

~ of the Fifth Circuit in Graham v. A. Lusi Ltd., 206 F. 2d

223, 225 (5 C, A. 1953), involving a suit brougnt under the

Florida Wrongful Death Act, where ‘the: claim was made .

that a recovery could be had for unseaworthiness. The

Florida Death Act too contained ‘‘such as would”? language,

’ and yet Judge Borah rejected the argument that unsea-

worthiness, being a cause of action which the deceased

would have had had he survived, was available to his repre- .

‘sentative inthe action to recover for his death. Judge

Borah’s decision was predicated upon decisions of the

_ State Court, which held that the Florida Wrongful th

Act was not a survival statute since the damages given

were those ‘‘sustained by reason of the death of the party —

killed’’ and were not the damages which had accrued to the

.. _ The Tennessee death statute, which was involved in the -

_ decision in Lee v. Pure | uw Company, 218 F. 2g 711 (6 C. A.

' 1955), was also commented upon in the previous Point.

The statute referred to the cause of action the deceased

would ‘‘have had against’ the wrongdoer, if death had not

‘ensued’’. . The Court of Appeals for the Sixth Circuit held

that a cause of action for unseaworthiness was not avail-

able to Lee’s widow, since that cause ‘of action was extin-

guished at the moment of death. - -

\ “

We submit that the language of the New Jersey Wrong-

Death Act does not serve to give to the personal rep-

esentative of the deceased rights under the federal mari-

r, which rights, if any, necessarily must have termi-

sated’ at the instant of death in accordance with preyail-

ing law: | Ash

POINT V

The owners of the vessel did not warrant the sea-

worthiness of conditions in No. 3: shelter deck to the

deceased. =~

Assuming for ‘the moment that the respondent was en-

titled to recover, in general terms, under the federal mari-

time law, the facts show that the petitioners could not have

‘warranted the seaworthiness of the No. 3 shelter deck to

the deceased. ea yitrey | 7

The previous Points in this brief have dealt primarily

with questions of general law,. whereas in discussing. this

Point it is necessary to refer to the factual record.

The decedent, as Maintenance Foreman for El Dorado

Oil Works, met his death when he fell into ‘the port deep-

tank of the vessel, which deeptank was located in No. 3

shelter deck. The deceased fell into the partially open tank

‘tas he attempted to step on top of the tank’? and ‘‘slipped

on the spilled oil’? (R. 573, 582). “His fall was caused

by slipping when he had at least one foot already on the

- lid’’ (R. 575). At.the time of his fall the deceased was

approaching the electrical centrifugal pump, owned by El

o Dorado, which was Standing on top of the. tank lid. It -

was the failure of this pump which was the reason for —

the deceased’s being on. board at all (R. 573, 582). It was.

also the failure of this pump which had caused the tre- |

mendous oil spill in No. 3 shelter deck of the vessel (R.

582). : SA

~The allegedly unseaworthy conditions upon which the

resporident might rely and which might be deemed to be

"proximately related to the death must be limited to the —

condition of the. pump itself, or the oil spill in the No. 3

shelter deck resulting from the failure of the pump. In

either case it would be ridiculous to state that the peti-

tioners warranted the seaworthiness of the. vessel with

respect to either of these conditions .to the deceased.

ud .

We are not urging that no part of m/v Turigus was war-.

ranted to the deceased as being seaworthy, but only that -

El Dorado’s pump and the oil spill it created could not

have been warranted to the deceased as”being free of

defects or potential dangers.

If the deceased had met: his death ‘in falling from a

defective gangway while boarding the vessel or in falling

_* through a rusted and defective deck plate, then an entirely

different situation would be presented. Then it’might be

argued, at least, that the owners of the vessel warranted .

. the seaworthiness of the gangway or of the deck plates,

.because the deceased was not summoned aboard the vessel

to repair either the gangway or the deck plating and was

not told that those portions of the vessel were in fact.

defective and unsafe.

On the other hand, the record makes it abundantly clear

that the deceased was informed as to the trouble with the

pump and did observe the working conditions in the No, 3

shelter deck before going down there to work on the pump

(R. 156-8; 219-20; 484-7). The deceased was responsible

for the. operating condition of the pump and checked it

: before the arrival of the vessel at the El Dorado pier the

previous afternoon (R. 453, 454).

It would be a contradiction of ‘terms to state that a

warranty of seaworthiness would be owed to the deceased .

‘as to the condition of the pump or the condition of the |

No. 3 shelter deck caused by the failure of that pump..

| : - Our Courts have lent support to the argument that the

arranty of seaworthiness must necessarily be limited in

fact situations similar to the one presented, In Byars v.

_ Moore-McCormack Lines, 155 F. 2d 587 (2 C. A. 1956), the

plaintiff sustained injuries when falling through a defective

_ hatch board of the. vessel while engaged in setting up a

. beam across an opening in the ship’s deck in ¢ornection

with the construction of ammunition compartments. Plain-

tiff was an employee of East Coast Shipyards, an inde-

ic eee )

ae *

pendent contractor employed for the purpose of making.

: certain repairs to hatch boards and also for building: am-

.\,. munition compartments aboard. The contract for the work

N specified among other repairs the renewal of 50% of the

\\wooden hatch covers of \the vessel:. Before the work was _

done the independent contractor.had the benefit of a survey |

of ‘the defective hatches made by a port engineer. While

aboard the vessel in connection with the construction of

the ammunition compartment, the plaintiff fell through one

of the defective hatch boards and was injured. In a per

curiam decision it was held that there was no liability to

the injured man‘under such a set of facts.

i“ A similar situation, was presented. in Bruszewski -v.

Isthmian. 8.8. Co., 163 F>2d 720 (3 C. A. 1947), cert. den,

333. U. S. 828 (1948). While'the, vessel in question was be- _

ing loaded in Philadelphia one ofthe ship’s booms:broke __

_~ in two parts, with the. larger section falling across the -

_ ship’s winches. Arrangements were made with plaintiff’s

. employer to have men. furnished to remove the wreckage.

_ Later in the day the plaintiff and 8 other longshoremen

arrived at the pjer in order to carry out this work. While

the wreckage was being cleared, a loose block suspended-in

the rigging of the boom dropped upon the plaintiff. The

. Plaintiff urged that”he .was entitled to recover under the

_ traditional warranty of séaworthiness referred to in Seas

Shipping Co. v. Sieracki, 328 U. S. 85 (1946). In answering

- the question as to whether the doctrine of unseaworthiness

included objects obviously unseaworthy the Court stated .

as follows at page 722 of 163 F. 2d: ~ 3 ee

* ‘‘We agree with the district judge that, although -

séaworthiness normally is a question of fact, Mah-

aig nich v. Southern 8.8. Co., 1944, 321 U. S. 96, 98, 64

y - §. Ct. 455, 88 L. Ed. 561, it may be stated a8 a con-

efi _, ¢husion of law that no warranty of seaworthiness

existed here. Logically construed, liability fer an

\ unseaworthy vessel should obtain only when the in-

~ dividual affected is entitled to rely, and does rely,

upon the seaworthiness of something actually unsea- es

>

- Co. v, Sieracki, supra, by pointing out that

ti

«

worthy. To state that a broken boom is warranted

as seaworthy would require distortion of. the mean-

ing generally accorded those terms. ‘The mere fact.

that.a seaman has been ordered to do a dangerous

thing does not establish a case of unseaworthiness.

Chelentis v. Luckenbach S.S. Co. 1918, 247 U. S. 372,

38.8. Ct. 501, 62 L. Ed: 1171’. The J osephine & Mary,

’ 1 Cir., 1941, 120 F. 2d 459 at page 464." ;

The Court then proceeded to distinguish leas: Shipping

i. plaintiff in-

that action suffered injury as the result of a defective |

appliance which appeared ‘otherwise. In short, the Court.

held that the doctrine of unseaworthiness was not. ap- |

_ plicable where the presence of the injured man Aboard the .

, vessel was necessitated by and caused by the condition -

which proximately caused his injury. ;

"This same point has been made in such cases as Pinion

'v. Mississippi Shipping Co., 156 F. Supp. 652 (E. D. La.,

1957), and Filipek v. Moore-McCormack Lines, 156 F. Supp.

- 854.(E. D. N. Y. 1957, now on appeal to the United States

Court of Appeals for the Second Circuit). Also in McDaniel

v. M/S Lisholt, 155 F. Supp. 614 (S. D. N. Y. 1957), aff’d

— F. Ind — (2 C..A. 1958). we

As’ stated in the dissenting opinion of Cireuit Judge

- Hastie (RB. 594): : Bey) eae | Bre os

| “‘In these circumstances Judge Maris and Judge .

- Kalodner would hold, relying upon Bruszewski v.

Isthmian 88 Go., 3d Cir. 1947, 163 F. 2d 270, cert,

denied 333 U. S; 828, that, even applying concepts of

the maritime law, a shipowner does not warrant, to

one so situated and informed as this workman, that

*. , the deck is free of oil or of the obvious hazards

- “. ineidental to the presence of that substance. How- -

_ ever, I am content to rest my dissent solely upon the

- ., construction and application of the N rein ersey law,

without examining the reach of the Seaaaworthinee:

doctrine, if maritime law were applicable. ’’

42 ~C

Bearing in mind the fact that the-xteceased was fully

aware of conditions in the No. 3 shelter deck, not only from —

having been informed, about them over the-telephone, but

as a result of having been in the area itself for some 10 or ae

15 minutes (R. 158, 219-20, 484-6), we fail to see how it can

be stated that the petitioners warranted conditions in

the shelter deck to him, when the very reason for his pres-

ence aboard was that his pump had failed, and in failing

had created the disastrous oil spill on which he eventually

slipped and fell to his death. We fail to see how the defec-

tive pump or the oil spill created by that pump could have

been warranted as seaworthy to one in the category of this

deceased, who was.necessarily familiar with pumps and

_ their maintenance as well as with the characteristics of the

_vegetable oil products handled by- his employer. The de-

ceased was not an innocent passerby, but came aboard with

full knowledge of the facts because the pump for whose

proper operation he was responsible had failed and in

failing had created the conditions now complained of.

POINT VI

- oe petitioners cannot be held liable to the respond-

ént in terms of negligence under applicable decisions

of the Courts of the State of New Jersey.

J

| It.has been urged by the respondent in the lower Courts

‘that the shipowner would be liable for actionable negligence

for not having provided the deceased with a safe place to

work. cits \ |

_. Upon the trial of the action the allegations as to negli-

gence were directed ,towards claimed inadequate lighting

in the shelter deck, the claim that the port deeptank should -

' not have been partially opened, the claim that two steel

. hatch beams obstructed the passageway between the two

tanks, and finally the claim that the members of the crew

_ Of the vessel should have cleaned up the oil spill in No. 3

43

shelter deck before the deceased was allowed to work on

his pump: ‘The first three grounds mentioned were effec-

tively eliminated by the Trial J udge in his opinion (R.

574-5). They did: not even. warrant discussion by the

majority or dissenting Judges of the United States Court

of Appeals for the Third Circuit. ‘There remains the ques-

tion of alleged negligence in connection with not having

- cleaned up the oil spill.

~The Trial ‘Judge posed the question in the following

terms (R. 575): e pore

“*As to (4), the issue correctly is stated by re-

spondent [petitioners]: Whether during the repair

operations it was’ the vessel's duty to the deceased

to clean up the oj] spill’’. aioe |

In deciding that issue the Trial Judge stated (R. 576) : °

‘‘T am not persuaded that the owner of the vessel

is under any. duty to protect the workmen of the

independent contractor, El Dorado Oil Works, en-

gaged by the owners of the. cargo of coconut oil,

against the dangerous conditions created by the very

work for’ which the independent @ontractor was.

hired. Accordingly, the court finds that the - re-

-° spondents are not liable for Skovgaard’s unfortunate .

- death and the libel must be dismissed. ’’

During the course of his opinion, which constituted as

well his findings of fact, the Trial J udge found that:

‘‘The entire repair opération 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.’* (R. 576)

“The majority opinion of the United States Court of

Appeals for the Third Circuit did not set aside the’ above

_ finding of fact as ‘clearly erroneous,” which is the stand-

ard prescribed by Rule 52(a) of the Federal Rutes of Civil

Procedure. > ~~ | . |

9

44

J

In McAllister v. United States, 348 U. S. 19, 20 (1954),

- this Court held that no greater scope of review was exer-

cised by the Courts of Appeal in admiralty cases than that

prescribed by Rule 52(a) of the Federal Rules of Civil

Procedure. rt ieee |

The majority of the United States Court of Appeals —

prefaced their discussion of negligence liability by stating

(R. 587): - en Be : ape

“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 super-

_ Vision was not so complete as to exclude crew mem-

bers from the area. In fact, it was the crew which

first discovered the oil leakage and adopted tempo-

rary measures to stop it.’ ir

_ The majority bench below then proceeded to cite a num-

ber of cases, all of which were decided under the federal

‘ maritime law, since*they involved cases of injury and not of ©

death. | ; , :

The three dissenting J udges of the United States Court

of Appeals forthe Third Circuit, in the opinion by Circuit

Judge Hastie, took strong ‘exception to the majority’s

position on the issue 6f negligence. J udge Hastie pref-.

aced his discussion. of the point in the following terms (R.

595) : 3 ;

“This case has a second aspect. The libellant

undertook to prove that, quite apart from unsea-

worthiness,‘ the shipowner was responsible for ac-

tionable negligence on the part of the ship’s person-

nel 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.’ | fe?

In discussing this aspect. of the case it is necessary to

refer to the transcript of the trial testimony to determine

G : wee

av -

_* the true degree of “supervision and control exercised by

_ the El Dorado. pump crew and by the crew of the vessel

_ Over the discharge of the oil and the repair of the pump.

First of all, the electrical discharge pump, together

' with its accessories, including the suction and discharge

lines, the source of electrical supply, and the air injection

nipple whose fracture was the cause of the oil spill, all

belonged to El Dorado. Ownership of the entire pump

assembly and its accessories was admitted by El Dorado

in answer to interrogatories 27, 28, 29.and 30 which were

addressed to it by petitioners (R. 57-8, 62). The testimony

of the various witnesses upon the trial did not vary on

these points. ° Nor is it disputed that El Dorado and.its

employees were aboard m/v Tungus to discharge the con-

tents of the port deep tank at the request of Pacific Vege-

table Oil Company, the ‘then owner of that shipment (R.

54-5, 60-1). ate alee

After m/v Tungus came alongside El Dorado’s pier

. in Bayonne, Néw Jersey,. the first thing to be done was to

have the port deep tank opened in order to gain access to

the oil. One officer and two ‘members of: the ship’s

crew assisted the El Doralo personnel in loading the dis- .

charging pump aboard the vessel (R. 299, 300). The -fune-

tion of these crew members was described by the Nor-

" wegian Chief Officer in the following terms (R. 299):

“Well; during any discharge of any tank the

ship, as a courtesy, always gives the company some - .

_ of the crew members to help them, to be used for

-ship’s equipment, to drive winches, and to hoist their

equipment on board the ship.”’

‘The lifting and the placement of’ the tank. lid was

dirécted by El Dorado’s employees. Mr. Blaney, the Plant

Superintendent for El. Dorado, testified that the complete

discharging was under tle direction of Patrick Sexton

(R. 430). |

a

The next order of business was to. lift: El’ Dorado’s

pump. from the pier and lower it into the hatch and on

top of the tank lid. With members of ship’s crew driving

the ship’s. winches this job was’ directed by El Dorado

. Personnel as well. Mr. O’Leary, an El Dorado employee,

who worked as a mechanic under the deceased, admitted

that he was down in No. 3 shelter deck for the express

purpose of arranging for a firm foundation for his pump

(R. 461). He was completely satisfied with the way the

pump had been placed before the ‘suction and discharge

hoses were brought aboard (R. 461). Mr. Blaney, the

Plant Superintendent for El Dorado, admitied that the

placement of the pump was determined by one of the em-

. ployees of El Dorado -(R. 239).

The ship’s winches were then used to bring the suc-

tion and discharge hoses aboard the vessel for connecting .

to the pump, and, with the two members of the ship’s —

‘crew driving the winches, the hoses were held by the.

winches and booms while the El Dorado ‘personnel bolted -

_the hoses into position (R. 461-2). -

-- Judge Staley seems to make much of the fact that it

was one of the members of the crew of m/v Tungus who :

“first discovered. the oil leakage” (R.: 587). .We submit,

however, that the discovery of the leak by: the ‘mate on

watch most certainly did not indicate any degree of con-

trol by the officers or members of crew over the discharge. .

It will be recalled that when the burst in the pump was

discovered by one of the officers making a routine tour of -

_- the decks,-none of the El Dorado crew were in attendance,

much less even aboard the vessel (R. 304; Exh. R-6, 560, -

298). This absence from the vessel was contrary to the

instructions of El Dorado, the employer of the pump crew

(R..57, 62). The Chief Officer testified: under cross-ex-’

amination that never before in his experience had he known

, members of a pump crew to leave their pump unattended.

during the course of discharging (R. 327).

Nor does the fact, as pointed out by Judge Staley (R.

587), that the personnel of m/v Tungus were aware of..

the existence of the oil spill spell out control or liability. -

It is difficult to conceive of how the officers of the vessel

could have been unaware of the oil spill, when it was one of _

them who happened to discover the oil spill in the first

place. Heese : = :

Judge Staley ‘stated that the ship’s crew adopted tem-

_ porary measures to stop the oil leakage (R. 587). The

fact of the matter is that none of the ship’s crew even

knew how to turn off El Dorado’s pump., That is why it |

was necessary for an officer of the vessel to go ashore

in order to find one of the El Dorado employees to have

him turn off the pump, which in the meantime continued

to pump hot liquid oil into No. 3 shelter deck until finally

stopped (R. 188, 304). The pump was turned off eventually

by one of El Dorado’s men (R. 188, 304), and, according |

to the testimony of one of the El Dorado employees, mem- _

bers of the ship’s crew drove a wooden peg into the frac- |

tured opening in the pump, not to stop the pumping oper- —

ation, but to stop the backflow of oil in the discharge line.

and thereby reduce the extent of the spill (R. 188). _

__ While the El Dorado pump crew were trying: to repair

the pump and restore it to operation, the Chief Officer

of the vessel.and Mr.; Mallett (the cargo surveyor) went

down into No. 3 shelter deck in order to examine the

extent of the damage done by the spilled oil to general

dry cargo which was stowed in the forward portion of

the shelter deck and in the No. 3 hold, one deck below the _

‘shelter deck (R. 270-1, 304-5). As a result of that inspec- -

tion the Chief Officer asked Mr. Sexton to sign a statement

conceding liability for .the damage done to the general

eargo (R. 305), which Mr. Sexton refused to do (R. 508)...

The Record is clear on the point that the employees of

El Dorado maintained control over the repair of the pump

and the clean-up operation in the interval between the —

\

ie

time the pump was turned off and the time the deceased

fell into the open tank.

pill in

working area around the pump by squeegeeing the

off the tank top (R. 155, 176-7, 1 01-3,

| (

-* Whereas Russo testified at first

shelter deck contained general cargo with which El Dorado

was in no way concerned. The presence of the Chief .

4y

a

Officer and the surveyor. in the forward wast of No. 3 dilinn

deck conducting inspections of the damage done to other

eargo in the hatch in no way diminished = Dorado’ . control

over the pumping operation. :

For Judge Staley to say that ‘‘it- may be true| that

El Dorado supervised the pump repair operation’’ (R. 587),

_is to understate the true faets, because there is not-one word

of testimony anywhere in the record pointing to the fact

that the officers or members of the crew of the vessel had

anything to do with the repair of the pump.

"As has been’ pointed out earlier in this brief the Chief

Officer offered sand or sawdust to Mr. Sexton, the El Do-

rado man in charge. He also testified that sawdust had

| actually been given to Mr. Sexton for spreading in the No.

_ 8 shelter deck after the oil spill and before the deceased

fell into the tank (R. 309, 331).. The offer, according to

‘ the Chief Officer, was rejected by Mr. Sexton, whereas

_ Sexton himself denied that the offer had ever been made.

The testimony on this issue was most significant, for under

questioning by the Court the Chief Officer made it clear

that he could do no more than suggest to Mr: Sexton that

_ the sawdust be used, and that he was in no position to

order Mr. Sexton to do anything at all, since Mr. Sexton

was not one of his crew, and Sexton took orders only from '

his immediate superiors in El Dorado Oil Works (R. 347-8). -

It will be remembered that El Dorado was not engaged by

petitioners.

Assuming oe the moment that the todtinetg of the

| ‘Chief Officer (as backed up by the contemporaneous log

entry) was correct ag to his offer of sand or sawdust, one

‘might wonder why the offer was refused. Mr. Sexton’s

testimony on this point should be noted, because he tes-

tified that at the time the alleged offer was made he, Sex-

. ton, was of the opinion that neither sand nor sawdust were —

| necessary, because his men had already squeegeed the y

50,

working area (R. 492, 493). Mr. Sexton agreed that the: .

Chief Officer was in no position to tell him, Sexton, what |

should be done in the No. 3 shelter deck ‘after. the oil spill. -

The questions of counsel and the answers of Mr. Sexton

were as follows (R. 493) :

= “Q: Now, as receiving clerk i in charge of vesete-

ing the oil, it would be up to you to say whether or -

: not anything could be put on that oil so it wouldn't -

be _ sli per isn’t that so? By. That is so, yes.

i that area you gave no

ae. 1 "° +3 at were working there,

is that correct? A.- to ey hin, 0 et One, .

thought that the area was clean enough. _— -

Dorado employees) had squeegeed it.”’

Mr. Sexton conceded.that he was in charge in the in

_ tank area of No. 3 shelter deck, and that he was in a po- |

sition to veto or overrule any ‘suggestions or orders

_ Which might be given to him with respect to the operation

of the pump, the discharge of the oil, or the contamination

of the spilled oil. The word contamination is used ad-

_visedly, since it was the’ intention of the El Dorado per-

sonnel to salvage the spilled oil-so as to insure receipt of

as much of the oil as possible from the vessel. It is inter-

esting to note that Donohue, one of the El Dorado pump

crew, and Sexton both. conceded that they had signed writ- .

ten statements within a couple of days of the accident in

which they stated that it was their intention to salvage

the spilled oil (R. 179-80, 480, 491). - Naturally, if the oil

had been contaminated with either sand or sawdust, such

salvage would have been impossible.

Mr. O’Leary, an El Dorado employee, who arrived on

board the vessel two hours after the accident, testified that —

when he observed the No. 3 shelter deck at that time ropes |

had been put around the tank opening and sawdust had -

been spread oni the spill. Such testimony is wholly irrele-

vant to a determination of liability, but is significant in

deciding who was in control of the area at the time of the

accident itself. After the. accident, which occurred at 1:25 |

A. M. all the’ El Dorado employees on the ship walked off”

. the job. /O’Leary himself was the. first to return (R.

470), and /ke did not return until 3:30 in th morning (Exh.

- R-6, R. 560, 297). The El Dorado crew did not, even re-

_ Sume: pumping until 6:20 A. M. (Exh.. R-4, BAe 200

Exh. R-6; R. 560,:297). Any corrective) measure which

-may have been taken by the ship’s crew were taken only

after the El Dorado employees had abandoned the vessel,

, From Mr. Sexton’s testimony. it is obvious that he would

not have‘ tolerated such measures had he still been aboard

the vessel at the time. at

We feel that these facts are important to point out the |

tremendous distinctions which exist between this case and -

the usual longshore injury case, where it- is not unisual

_ to find that the officers of the vessel were supervising the

longshoremen and the discharge of the cargo, where the.

vessel engaged the longshoremen and was responsible. to

the shippers and/or consigneés of the cargo for its safe a

- discharge and where the vessel supplied the: gear to effect,

that discharge. We have here a totally different situa-

tion—one in which the obligation to discharye and the ob-

ligation to provide equipment and personnel for the’ dis-

. charge were those of the consignee of the cargo, Pacific

Vegetable Oil Company, which in turn hired El Dorado |

, to carry out that obligation (R. 54-5, 60-1). - ’

We submit that the Trial Judge was. amply supported

by the trial record when he stated (R. 576):

° . - ins

‘‘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

and controlled either the discharge of.the oil. from

the tank or the repair of the pump.’’ :

It is against such a background that we must deter- |

mine ‘‘whether during the repair operations it was the

52 . '

vessel’s duty to the deceased to clean up the oil =

(RB. 575).

In support of his point that pitta owed a duty to

the deceased to provide him with a safe place to work with

particular reference to the oil spill in No. 3 shelter deck,

_ Judge Staley relied upon two cases—Pope ¢ Talbot Inc. v.

Hawn, 198 F’. 2d 803 (C. A. 3, 1952), affirmed 346 U. S. 406 |

(1953), and Feinman v. A. i. Bull — Co, 216 F. 2d

393 (3 C. A. 1954). :

Both these cases are a aie distingciahable o on at least

two grounds. First, both cases involved i injuries occurring

aboard vessels on navigable waters, and as a result the

cases were decided under the federal maritime law and not

under state law. Second, in both instances the failures to

. provide safe places to work and the resulting injuries had

not the remotest connection with the particular work which

was being done by the injured men. )

\-

Hawn was a ship’s carpenter foreman who was aboard

the vessel making certain minor adjustments to the grain

- feeders while the vessel was berthed in the Delaware River

at Philadelphia. As he was moving about the hatch of the

- vessel giving instructions to his men he fell. through an

» Opening caused by the absence of one of the wooden hatch

boards of the vessel. He sustained substantial injuries.

_ The fact that the hatch board was not in place had nothing.

to do with the work being performed by the plaintiff and ~

_ his men aboard the vessel. The plaintiff was.not aboard

to. repair or replace wooden hatch boards. | He was aboard

fora totally different reason—to construct and make minor

alterations in the grain feeders aboard the vessel.

Most important is the very clear. statement of Mr.

Justice Black, in delivering the opinion of this Court to

- the effect that Hawn’s rights were to be determined under

_the federal maritime law and not under the laws of the )

State of P ennsylvania. Mr. Justice Black wrote as fol-

- lows at 346 U. S. 409: ' apne

‘“*(b) Nor can we agree that Hawn’s rights must

be determined by the law of Pennsylvania, under

which, it is said, any contributory negligence would

bar all recovery in this personal injury action. True,

Hawn was hurt inside Pennsylvania and ordinarily

. his rights would be determined by Pennsylvania law.

. But he was injured-on navigable waters while .work-

ing on a ship to enable it to complete its loading for

. safer transportation of its cargo‘by water. Conse-

quently, the basis of Hawn’s action is a maritime

. tort, a type of action which the Constitution has

_ placed under national power to control in ‘its sub- -

stantive as well as its procedural features * * * ’

Panama R. Co. v. Johnson, 264 U..S. 375, 386. And

_ Hawn’s complaint asserted no claim created by or

arising out of Pennsylvania law. His right of recov-

ery for unseaworthiness and negligence is rooted in

federal maritime law. Even if Hawn were seeking.

to enforee a state created remedy for this right,

federal maritime law would be controlling. ‘While

states may sometimes supplement federal maritime

policies, a state may not deprive a person of any sub-

stantial admiralty rights as defined in controlling

Acts of Congress or by interpretative decisions of

this Court.’ These’ principles have been frequently

declared and we adhere to them. See e.g:, Garrett v.

Moore-McCormack Co., 317 U. S. 239, 243-246, and -

cases there cited.’’ ‘

Feinman v. A. H. Bull Steamship Co., supra, concerned _

an injury to a marine electrician, employed by Sun Ship-

building and Drydock Company, to recover for injuries

sustained by him when he was struck by a falling hatch

beam while working aboard a vessel owned. and operated

by A. H. Bull Steamship Company. The vessel was in

navigable waters at the time. As such, there was no ques-

tion but that Feinman’s rights were defined by the federal —

‘maritime law rather than by the laws of the State of Penn-’

sylvania. It is also obvious from the opinion that neither

be

Feinman nor his fellow employees had anything whale.

ever to do with the condition of this hatch beam,\ and that

; they’ were entitled to rely upon the fact that it should have

been securely locked i in position while they were aboard. |

The reliance of the majority below on these two aia’ is

a further demonstration of the fact that they have ignored ..

the negligence principles in effect in the Courts of the State

of New Jersey,,in a case where they have professed to con-

cede that the Wrongful Death Act of the State of New

Jersey. provides the sole basis fora: recovery by the re-

“ spondent.

‘We submit that tho editane of the courts of the State

of New Jersey are most. instructive ‘in determining.

“whether during the: repair operations it was the vessel’s

duty to the deceased to clean up the oil spill’’ (R. 575).

In Broecker v. Armstrong Cork Co., 128 N. J. L. 3, 24° A.

| 2d 194 (1942), it was held that a danger which was obvi- ~

ous to a business visitor did not constitute -a breach of

‘duty to provide him with a safe place to work. An action

was there brought. to recover damages for the death of

plaintiff’s decedent, who had been killed as a result of a

fall through a defective roof. The deceased was an em-

ployee of a roofing concern and was engaged in repairing

_ and replacing the-roof in question: /A non-suit was granted

by the Judge in the Supreme. Colirt, whieln non-suit was

subsequently affirmed by the Court of Errors and ‘Appeals

‘in a unanimous opinion delivered by Judge Case. Judge

Case pointed out at 128 N. J. I,.4 that there was no proof

in the record that defendant had exercised ,any authority |. ;

. over the contractor or its employees:as to the methods

which were to be followed or the precautions which were

to be taken in the performance of the work. The Court

held that the defendant was under no duty to provide the

deceased with a safe place to work, and wrote at 128.N. J.

L. 7 as follows:

{

/

‘*In our opinion the logic of the situation requires

that there be a further exception in such a state of

facts as exists when an independent contractor, or

the employee of an pase Faascs 2m

upon lands, at the instance of the owner or occupier,

to correct the precise condition which causes the in-

jury. The restoration or repair of a rotted roof is

hot per se an.act of negligence. ‘That the-rotted con-

dition results in injury to the employee of an inde-

pendent contractor who, without supervision or

cuntrol by the owner or’ occupier, undertakes by his

~ Own methods and materials to do the job: does not

- manifest negligence on the part of the contractee. As

well might it be said that-a contractor, employed to

level the. uneven condition of a sidewalk, may re-

cover from his contractee for injuries which he re-

ceives in the course of his work by stumbling over

the very obstacle which he is e to remove. It

is said by. the appellant that the deceased workman —

should have been provided with a mgr | built

_ under the roof so that he need not have walked upon

the weakened board ; but that was a problem for the

contractor, who undertook to do the work. 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 person who en-

gages. an independent contractor is under any duty -

to guard the servants of the latter against the very

danger that arises from their work.’’ ( i

supplied.) 7 See, : ei

The reasoning is similar to that of. the United States

Courts of Appeals for the Second and Third Circuits, re-

- spectively, in the cases of Byars v. Moore-McCormack

Tines, 155 F’. 2d 587 (2 C. A. 1956), and Bruszewski v. Isth-

_ mian 8. 8. Co., 163 F. 2d 720 (3 C: A. 1947), cert. den. 333

U. S. 828 (1948), both of which were discussed in the pre-

ceding Point. Loa ee

_ ° As a matter of fact, the instant fact situation is even

stronger than that presented in the Broecker case. The

hole in the roof in that case was not created by the em- |

ent contractor, comes —

p

*: ee Sas 5 vo, Es | hee as

. ployees of the roofing concern, whereas the El Dorado Oil

' Works, through its employees, including the deceased, was

_ most intimately. at fault in the creation of the oil spill -

in, the No. 3 shelter deck of m/v Tungus. aaes |

_ The instant fact situation is also stronger than that

presented in ‘the Broeéker case in that this independent

contractor, El Dorado Oil Works, was not engaged by peti-

tioners. The owner of the cargo, Pacific Vegetablé Oil

Company, and not petitioners, weyé the ones who selected . _

El Dorado and who ordered El Dorado-to go aboard mi/v

Tungus to discharge the contents of the port deep tank.

_ The petitioners did not even have a chance to seléct a com-’.

_petent contractor.

) The testimony of Mr. Sexton makes it plain enough

~¢ that he would have brooked no interference by the officers

of the ship with the discharging of’ the oil or the repairs

__of the pump. The petitioners, not having hired the ‘inde-

pendent contractor to begin with, were in no position to

=

‘ enforce suggestions or orders given to the employees of |

thaf independent contractor. |

Judge Staley tried to Avoid ‘the impact of the Broecker.

decision by stating that Skovgaard’s death was not caused

_ by the pump he was‘to repair, but rather by the oil spill. -

We respectfully submit that the distinction. is so fine as_

to be meaningless. The breakdown of the pump and the - |

_ Spilling of the oil.in the shelter deck are inseparable. The :

_. Record makes it abundantly glear that the petitioners had

_. as little control over what ws to be done with the spilled

_ Oil as they did over the operations and repairs of the pump. . °

_. In going down into the shelter deck to repair the pump the |

deceased was fully aware of the conditions created by the

_ failure of his pump. In line with the reasoning of the

Court inthe Broecker case,\the oil spill was a danger

which arose from Skovgaard’s work as Maintenance Fore-

* man for a vegetable oil storage and processing plant.

/

oF.

ar

__ In Mergel.v. Colgate-Palmolivé-Peet Co., 41 N. J. Super.

372, 125 A. 2d 292 (1956), the Superior Court cited with

approval the foregoing language from the Broecker opin-

ion, and added at page 379: — eck i

si “It has long been the law of the State that an .

employee assumes all those risks which are ordinarily

which at to his employment as well as those dangers

which are plai: obvious to Pye of ordinary

the decedent. The record also 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 responsibilities of the de-

- ceased, 7 3 oe d tee

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 ef the State of New Jersey. ea

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

Lokdr v. Church of the Sacred Heart, 24 N. J. 549, 183 A. 2d ;

12 (1957). At page 553 the Court held: :

, a The possessor of land is not liable to one right-

fully on the premises. for injuries attributable to

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 Jersey

referred to by Judge Hastie in his dissenting opinion in

- the instant matter. .In ruling on the obligation of the owner

dos

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

_ &@ 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.”

The foregoing decisions should be binding in this case.

We submit that the Trial Judge-was correct in stat- .

ing that the owners of this vessel were under no. duty to. ©

- protect the deceased against the dangerous conditions

which his fellow employees and his equipment had created

during the course of. the very work for which they were

hired. Judge Staley and the other majority Judges below

-misconeeived the nature of the operation and overlooked

the obvious limitation of the authority of the Chief Officer

over El Dorado’s employees. They also applied federal

admiralty concepts to define a state-created death claim.

CONCLUSION —

of the United States Court of Ap-

Dated, New York, N. Y., September 4, 1958, :

Respectfully submitted,

\

\ Se Warp O’Nenz,

Hee x Counsel for Petitioners. —

Davin P, H. Watson, nS | ae z

e of Counsel. » ;