# Petitioners Brief on the Merits — The Tungus v. Skovgaard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0125%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief on the Merits - **Published:** January 1, 1959 - **Citation:** 358 U.S. 588 ## Text 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 : : — (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 . . > “ _ 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 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. » ; --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0125%3A3. Public record. Not legal advice.