Petition for Writ of Certiorari — United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki

Ix THE | maf

‘Supreme Court of the Hnited States -

Di cavecaaied Toms, 1

| /

Uniren New Youn 4 axp New Jersey Saxvy Hoox Prors ide

Association, a corporation and Unirep New York Sanpy

- Hoox Pots Association, a corporation,

BE os Bae ; Petitioners,

Awwa .Hateckt, Administratrix ad Prosequendum of the

Estate of Walter Joseph Halecki,; deceased, and Anna

2S Hautcx1, Administratrix of the Estate of Walter Joseph

_.* _ Halecki, deceased,

Respondent.

_” PETITION FOR A WRIT OF CERTIORARI TO THE —

_ UNITED STATES COURT:OF APPEALS FOR THE

E _ SECOND CIRCUIT _

Lawrence J. Manoney

Counsel for Petitioners

_ 67 Wall Street .

- New York 5, N. Y.

~

die oe ; 3 ere ee mea

: Opinions of the Courts Below ..... baancia te Gcthee' 3

_ Jurisdiction ........... eweeees beaks ivdvaneeie eee ce

- Questions Presented ........ aoa eeegieee vias ee a

The Statute Involved . Leyes de ped eeaseedecetes 3

Sisseinan of Facts i Se cankoee | 4. | :

Reasons for Granting the Writ ............ boners ee

~ Conclusion: ..... Seles ee mean Deena morta eee 20

Appendix— |

~ Opinion of Hand, C.J. in Halecki v. United New ~

York, et al. and Dissenting Opinion | of Lum-, reheat

Wi fe oc PETES CELE Pee e a 5

, - Judgment... 6)... cess eei cece cies cere ceecees

Tasiz or Cases Crrep

_ Berge v v. National Bulk Carriers Corporation, a1 F. ° !

2d 717 (CA—2¢ 1958) °20 2... rtp hercccare tho «8 17,18 ©

Beriyhill v. Pacific Far East Line Inc., 238 F.2d:385.

— (CA—9, 1957), cert. den. 1 L. Ed. ‘2d BNE 804004 16-17

Blaker v. The Receivers of the New Jersey Midland

Railway Company, 30 N. J. Eq. 240 (1878) ..... ie Be

. Byrd v. The Napoleon Avenue Ferry Company Inc.,

125 F. Supp. 573 (E. D. Lonisiana, 1954), aff’d .

227 F. 2d 958 (CA—5,.1955), cert. denied 301 U. 8. :

om . Ve MSR eaNaR anal beeek Nath en ed ka Vie btcecs 9,15

"| Curtis v. Garcia, 241 F. 2d 30 (CA—3, 1957) ....... 9,10

o

PAGE

Donus v. Public Service Railway, 102 N.J:L. 644

cas: 1926 [RACKREEREARCOA CDE OSC heRdENEdd p56 11

Si Erie Railroad 1 Company Soe 304.U.. s. “eo =

| (1938) . Sy ee ey ee ae (Keakbastedsisene 12

Garrett v. Moore eee Company, 317 U. lee

© 2BD (W9KZ) Lace ecec teens ce ceecccnsceeebiceees 12

Graham v.'A. Lusi Ltd.,-206 F, 2d 223 (CA—5, 1953) %, 15

_ Gunning v. Cooley, 281 U.S. 96 (MER) oe

“othe Harrisburg, 119 U.S. 199 (1886) :..... 1 1 th: eeesiin

Hartford Accident & Indemnity Company v. Gulf _.

Refinery Company, - 24-346 (CA—5, 1956)... 9

‘ Hill v. Waterman, 251 F. 2d 655 (CA—3, 1958) .... 9

Just v. Chambers, 312 U. S..383' (1941) ...5.....,... 18

Klingseisen v. Costanzo Transportation Company, ie

101 F. 2d 902 (CA—3, 1939) ....... Perr beens 10

‘Lavender v. Kurn, 327. U. S. 645 (1946) . RO ae pe 19

Lee v. Pure Oil Company, 218 F. ne 711 (CA—6,

ER eats iia RPE Se ae See ee ae : ri 15

Levine ¥. Deupree, 345 U.S. 648. (1953) . Ely 12, ‘passim

Lindgren v. United States, 281°U. S. 38 (1930) , ive 14

Moore v. ‘Chesapeake & Ohio Railroad. iescan, 340 -

U. 8. 573 (1961) ...... EE SAA a PGI AP ea es:

‘The Néw’ ‘Jersey Express Company v. Nichols, 33

_ NJLL. 434 (1867) ........-200. Pe et ae re mee

O’Leary v. United States Line Company, 215 F. 2a |

FOR CEL, Seed Sh ha iicee pews iri ees oda vacn cee ites:

Pennsylvania RR Company v. Chamberlain, 288 U. ee

DE ET a kink hac nasa s bak ea es Cha ObE Kia 19

Pettersen v. Alaska SS Co., 205 F. 2d 478 (Ca,

sag SRE ia es PRVORENGERUEOKos Cha uadh es oie 17

= |

"PAGE

Schulz ve. Pennsylvania RR: Company, 350 v. S.. 523° a

(1G56) a. 0s cocyedccroccccecavecestesensorseres 19

‘ Sieracki v. Seas Shipping Company, 328 wu. & 85 ieee

(BOUG) oo so conseccnerecsessssncesssis(ovcners® aoe |)

Skovgaard Vv. The M/V. Tungus, 952 F. 2d ‘14 (CA

BIDET) coe eieeteeecheneneegeetey Chicane less: Se

Torres v. The Kastor, 927 F. 2d 664 (CALS: —. -.

» Turner v. Wilson Line, 242 F. 2d 414 (CA—1, 1957) 9

Western Fuel 1 ee y. Garcia, 257 U. S: 233 |

since PRA Sera ey Beer ree. ’ 3—

_SraruTes Crp \

New Jersey Wrongful Death Ket; NJ SA. SAS.

through 6 NE Poe OS Led ANS Eng EP 3, 4, passim .

Title 28 US.C. Sec. 1254(1) meinews we deeeeeees eeis 2

“1 THE

- amrene Court af the Wnited States

_ October Term, . 1957 <a tee

No. . :

- SS

.

“Unrrep — Yorx ‘AND’ New Jersty Sanpy Hook Dioes

Association, a corporation’ and Uxirep New fe nen Sanpy '

Hock Puots pe ssasees! a corporation, . —

—_—

a Petitioners,

—against—.- |

Awwa Haxeckt, Administratrix ad Prosequendum of the

Estate of Walter Joseph Halecki, deceased, and AnNa —

Hatecxi, Administratrix of the watate of Walter. Joseph. Se.

Halecki, deceased, , | :

[3 Respondent.

+ ; = ease see]

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

_ SECOND CIRCUIT |

To the H siiashle the Chief Justice of the United States onal

the Associate Justices of the Supreme Court of the

United States: A

Petitioners pray. that. 2 writ of certiorari issue to review

the judgment of the United States Court of Appeals for :

‘the Second Cirenit entered in the: above entitled case on |

cconen 10, 1958.

Opinions of the Court Below

“Wie majority opinion of the United States Court of is

peals for the Second Circuit (Cireuit Judge Hand. and

‘Cireuit Judge Hincks) and the dissenting opinion of Cir- F

cuit: Judge Lumbard is repotted at 251 F. 2d 708, and is”

-set out in' the appendix to this petitibn (pp.-2#39). The

judgment of the United States Cour of Appeals: is, also

: set forth in the appendix to this petition (pp. 40-41).

a a : Jurisdiction

The. jurisdiction of the District. Court was invokéd be- |

cause of diversity of citizenship, the plaintiff being a citizen

. of New J ersey and the defendant a New York corporation.

The judgment of the United States Court of Appeals for

the Second Circuit was entered ‘on January 10,,1958. The

rehearing was denied on January 31, 1958. Petition for

» hearing en banc was denied. on February 20, 1958.

The* ‘jurisdiction of t is Court is invoked under Title 28

7 Scie s. ¢ eer Section 1 ee .

ie | Questions Presented |

1. Whether an action/Aought vatidai to a state

Wrongful Death Statute is to be determined by the state

rule of contributory negligence or ade tee admiralty rule of

comparative mhaneerey ipa tee

2, Whether a state wrongful death statute may be ex-

tended by a Federal Court, to encompass an agtion for

unseawortliness, without evidence of legislative intent?

2

ol Whether a Federal Court may enforce a state created :

remedy without regard to the substantive law of the Fars

4. Whether the warranty of seaworthiness’extends to a

shoreside electrician employed by a sub-contractor, to clean

id

generators aboard a vessel while it was out of operation ~~

7? .

in a-repair yard?

5. Whether a jury should be permitted to. draw, infer-

‘ eneés when there is a complete absence of probative facets

to support the conclusion reached?” z eS ae

The Statute Involved ee

_.The plaintiff sued in the United Sister Matzict Court for

the Southern District of New York to. recover damages _

. under the New Jersey Wrongful Death Act, N.J.S.A.2A:31- ©

4 through 6, the relevant section of which read as follows: - “

“2A 331-1. Wuen Awrion Lies 3 S

ea. When the death of a person is caused by a wroftg-

ful-act, niegieet or default, such as would, if death

had not ensued, havegentitled the person ‘injured to

', maintain an action for damages resulting from the

‘injury, the person who would have beer liable in

damages for the injury if death had not ensued shall ©

be liable in an aetion for damages, notwithstanding:

the death of the person injured and although the

death was caused under circumstances amounting in

law to a crime.” - : :

eae Se pone of Facts. |

e The plaintiff, as administratrix of the Estate of Walter —

J. Haiee i; brought suit in the United States District C 3

- for.thé Southern District of New York, to ® . er.damages

forthe personal injuries and death of the decedent, who .

died on October'12, 1951, allegedly as a result of ‘the negli-

gence of the defendants and the unseaworthiness of the .

pilot boat ‘‘New Jersey’’, owned by the defendants. The _

'.° action was brought pursuant to the New Jersey Wrongful

Death. Act, N.J.S:A. 23: :31- 1, and the —— alleged

7 diversity of citizenship.

The facts which took place’ ovine to trial i in the District

Court were as follows: :

: On September 22, 1951, the pilot boat ‘‘New y aeeae

was turned over to Rodermond Industries, Inc., for .the

purpose of annual overhauling and ‘inspection, which were —

undertaken by Rodermond in accordance with an agreement

with the defendants. At the’ time“olthe incident the vesse

was. moored at a-pier in the repair yard of Rodermond,

North River, Jersey City,.New Jersey, and was out of

. operation. The. only employee of ts defendants aboard

: was a watchman. re . Hie eel

<5 Walter Halecki, the plaintiff’s decedent, was an electri-

cian employed by K &S Electrical Company, a sub-contrac-

tor engaged by Rodermond to do elecirical work aboard

the ship.’ Neither K & S nor Rodermond, both Jersey cor-

porations, are parties to this action. On: September ae

1951, the decedent came aboard ‘the vessél together with a .

co-employee of K&S Electrical Company, one Donald

Doidge. These - electricians received ete instructions ,

a

—_———- —

from their aia’ K & 5S Electrical Company, whieh.

had undertaken to perform electrical work on the ship, in

-. aecordance with specifications given it by Rédermond Ih-

“dustries, Ine. These specifications included | cleaning the, o

Senerators on the ship, which was the work performed by

the decedent and Mr. Doidge on September 29, 1951.

‘Donald Doidge, who had préviously given a deposition

for -the defendants, testified on behalf of the plaintiff at —

-the trial.- Mr. Doidge was the only factual witness intro-

duced by. the plaintiff, and was the only person present at

the time. the work was done, in addition to the decedent.

. Mr. Doidge, who was in charge of the work, testified that

the date, the time and the. manner in which this work was

--to be dene, were left to his diseretio Uy and that the ons: -

tomary method for cleaning generators was by use of

carbon tetrachloride. On September 28, 1951, the day before

the work -was: actually done, Doidge and Halecki ‘set ,up

the equipment which was:to be used, including air bbees: f

and an electric blower, supplied by Rodermond. The power

‘was produced by shore generators, owned by Rodermond, |

as the ‘‘New Jersey’’ was a dead aigiee “it did not. pro-

dace its: own power. - :

-ployees, under the supervision of Mr. Doidge, set up

table blowers-in the engine room where they were working,

and also brought gas masks with them, as the cleaning of

the generators was done by spraying them with carbon

tetrachloride. ‘The engine room where this work was done °

| was only, one | level below the main deck, and both doorways ©

and the skylight were open. The ship’s ventilation system

was also operated by, power from a generator on shore, |

on the morning of September 29,. 1951,. the KéS be

‘ 8 ‘

.. °

a” ; H ;

8

: .

“Mr. Doidge t Sli timt,the decedent did most of the

ae spraying, and that he wore’a gas mask during the

performance of the work, which continued uneventfully

from 8:30 A.M. to 4:00 P.M. Thé decedent left Mr. Doidge

without’ making any complaint other than that he had: a

peculiar taste in his-mouth. aC

Mr. Halecki became ill at home, and on October 2, 1951, .

was admitted to the Medical Center in Jersey City, where |

‘he: died on October 12, 1951. The hospital record stated .

. \ that the cause of death was carben tetrachloride poisoning,

. E .

<° : y

‘ = . z :

.6 2 ‘ °:

. . ® . 9

| and the record alsa disclosed that the. decedent had habitu-

_ally constimed excessive amouzits of alcohol. ;

‘Mr. Doidge testified that all of the equipment and ven- .

: tilation systems had operated perfectly during the day, and -

that i in his opinion the ventilation was adequate, and. also

that he and the decedent had used carbon tetrachloride on

‘many occasions, and were completely familiar with its.

~ Properties. : ;

Robert Gaines, a bin ahaieiad testified as an expert on E

behalf of ‘the plaintiff, regarding the qualities. of carbon.

tetrachloride, and the degree of concentration necessary

to produce a ‘dangerous condition. Mr. Gaines liad never

been aboard the pilot boat ‘‘New Jersey”’, and his testi-

ty mony as an expert was based upon the description of the

- engine room given by witness, Donald Doidge, and also

tipon certain photographs of the engine room: which had

been-introduced.- - . ‘ ; os,

Mr “Gaines testified that a safe concentration of carbon .

'. tetrachloride was 100 parts per million, and that in his

opinion, a concentration of 20; 000 = per. million a existed :

* >

in theyengine room of the pilot boat ‘‘New J ersey”?{ Upon’

cross-examination, Mr. Gaines ‘admitted. that the concen- _

- tration of carbon tetrachloride would depend upon such

factors as the horse power of the ventilator motors, :the

location of the ducts, the size and angle of the fan blades,

- the location of exhaust vents, the size and arrangement of 4:

portable blowers and air hoses, and the condition of the,

gas mask. used. . The witness further tastified | that these

> factors, which were ‘unknown to him, | were essential in

_ettating the concentration: :

The defendants introduced the testimony of Wiftiam M.

“Finkenaur, a marine engineer who had actually | tested the

- _ ventilation system aboard the vessel. Mr, Finkenaur testi- —

fied that the system was entirely adequate and éffjcient to

perform the function for which it was designated.

The defendants also produced as an expert. witness, Dr.

Milton ‘Helpern, the New York State Medical Examiner,

who emphasized that a person who drinks to excess hasa |

: " strong pre-disposition to carbon tetrachloride poisoriing. -

: ‘Dr. Helpern reviewed the medical records , of the decedent,

‘and stated, that in his opinion, Mr. Halecki’s history of

alcoholism. created a susceptibility to a or senerare of .

the substance. aay | Zz;

The case was tried before the Honorable Edward Wein-

fela and a jury in December, 1956, and January, 1957, and

resulted in a jury verdict in favor of the plaintiff in the .

total amount of $65,000. After judgment was entered, thes -

defendants filed a- Notice of Appeal to the United States

Court of Appeals for the Second Circuit. :

The appeal was “argued in the. United States Court of

Appeals for the Second Circuit on November r a, 1957,

iterates oe

*

*

'. entitfed him to the warranty of: seaworthiness, and that

REE

before Circuit Judges Hand; Lumbard and Hincks. On ©

‘January 10, 1958, the opinion of the Court of Appeals was _

handed . down and judgment entered. The majority, con-

sisting of Circuit Judges Hand and Hincks affirmed the.

__- judgment. ofthe District Court, and Circuit J — Lum-

bard dissented. :

The majority opinion , delivered by. Circuit Judge Hand

é held that the decedent performed the type of work which

the New Jersey Death Statute was broad enough to encom-.

pass a claim for unseaworthiness. The majority also held

that the Trial Court properly applied the maritime rule of |

comparative negligence’ rather than the state doctrine of . §

contributory negligence. The majority rejected the appel-

lant’s contention fhat the. record below was insufficient to _

support the jury. verdict. .

Thé dissenting opinion of Cireuit. J udge Lumbard held }

that the decedent’s work as a shoreside electrician, was

not that traditionally done: by seamen, and’ he therefore

was not entitled to the warranty of ‘seaworthiness. Circuit

Judge Lumbard also disagreed with the majority’s view -

: that a maritime claim brought pursuant to the New Jersey

Death Statute was not subject ‘to the defense of contribu-

atory negligence. ies

Subsequently, on Talay 24, 1958, the petitiones filed

is petition for re- hearing and a petition for hearing in bane,

- together with a motion to stay’ the mandate. : The petition

- for re-héearing was denied on January 31, 1958, with Cireuit

Judge Lumbard dissenting. The petition for hearing en

_ bane was denied on February 20, 1958, again over the dis-

A .

sent of Gireuit Judge Sacha. The motion to “stay the

mandate was urianimously crane on stare 27, oe

s : Reasons for Granting of Writ

1. The United States Court of. Appeals for the Second

- Cireuit, in applying the admiralty rule. of comparative neg-

ligence to an action brought under a State Death Statute,

acted in conflict with every other circuit which has passed. mF

— the question. .

- The State Rule of Contributory ogligence has been

tlovale applied to actions arising under the various .

Lord Campbell’s Acts: Graham v. A. Lusi Ltd., 206 F: 2d

223 (CA—-5, 1953) ; Hartford Accident & Indemnity Com-

pany vGulf | Refinery Company, 230 F. 2d 346 (CA—5,

- 1956); Byrd v. The Napoleon Avenue Ferry Company Inc,

125 EF. Supp. 573 (EB. D. Louisiana, 1954), aff’d 227 F.2d

"958 (CA—5, 1955), cert. denied 351 U. S. 925; Lee v. Pure

Oil Company; 218 F. 2d 711 (CA—6, 1633) ; Curtis v.

Garcia, 241 F. 2d 30 (CA—3, 1957) ; Hill v. Waterman, 251

F. 2d 655 (CA—3, 1958).. Please see also. Turner v. Wilson

Line, 242 F. 2d: 414 (CA—1,. 1957).. oe

These decisions were consistent in holding that a remedy

given by State law should be applied subject ‘to the limita-

tions of that law. Ail involved. suits brought under State.

Death Statutes, and all applied the State napa trannies neg: -

_ ligence rule. os

Zz :

The datuel of the conflict is indicated = the result in

- Hill ¥. Waterman, sipra, derided by the Third Circuit on

. February 6, 1958,. shortly after the Halécki decision was

handed down. Here the Third Circuit. reaffirmed the hold-

10

ings of-Klingseisen v. Costanzo Transportation Company,

101 F. 2d 902 (CA—3, 1939) and Curtis v. Garcia, supra,

‘and applied the State doctrine of contributory negligence

to an action brovght under the Pennsylvania Death Statute

. for the death of a longshoreman.

The Third Circuit expressly rejected’ the application. of

the admiralty doctrine of comparative negligence. The

importance of this disagreement with the Second Circuit

‘is apparent because the majority-in the Halecki decision

- relied heavily upon the holding of the Third Circuit ‘in .

Skovgaard v. The M/V Tungus, 252 @. 2d 14, which had

been decided on December 23, 1957. 1 |

Contrary to the decisiony,of other circuits mentionéd .

above, the majority opinion: in Skovgaard held that the

state death statute was broad enough to encompass a claim

_ for unseaworthiness. The Court of Appeals for the Second

” Cireuit i in the instant case agreed with that position, and

: took the additional step of applying the Maritime. Rule of

comparative negligence to a State Wrongful Death Action.

The Court of Appeals for the Second and Third Circuits

stand together and oppose the other circuits in the inter- ~

pretation of the State Death Statutes, but disagree between -

themselves regarding the rale of comparative or contribu-. .

- tory negligence. These conflicts have created legal .uncer-

tainties which may directly. affect the rights. of countless

litigants, particularly those engaged i in maritime industries. -

2. The Halecki decision, in applying comparative negli-

gence, conflicted with the position of the New J Jersey Courts.

? Counsel for the res ndeats ji in the Skoz —" case have recently

filed a petition for a: Writ-of Certiorari in this Court. Halecki and

Skovgaard are represénted by the same counsel, and both petitions

involve’an interpretation of the New Jersey, Death Statute.

/

é

11

tt is oo disputed that the plaintiff’s rights depended

upon the New Jersey Death Statute, and that these rights

were rooted in State law. The Supreme Court of the

‘United States has ruled that a Federal Court, applying a

State remedy, must apply it subject to the limitations of

State law. The Harrisburg, 119 U.S. 199 (1886) and Levin-.

son V. Deupree, 345 U. S. 648 (1953). :

However, the New Jersey Courts have frequently inter-

preted the death statute, and it is settled law in that State

thet contributory negligence i is a complete bar to recovery. |

Blaker v. The Receivers of the New Jersey Midland Rail- |

way Company, 30 N. J. Eq. 240 (1878) ; The New Jersey

_ Express Company v. Nichols, 33 N. J. Le 434 (1867) ; ‘<

Donus v. Public Service Railway, 102 N. J: L. 644 (1926).

The in@uities thereby created. are readily apparent.

The qbligations-of a defendant sued under the New Jersey

Wrongful Death Act are imposed on him by State law,

which,-in reason should also be the source of this defen-

dant’s rights. However, the Halecki decision deprives. the

defendant’ of a defense of. contributory negligence, which

is » deeply rooted in New J om law.

3. “The decision of ‘the Court of sau for the Second

' Cireuit, in applying the admiralty rule of comparative

negligence to a state created remedy, is in direct conflict

_ with the Supreme Court of the United States.

(a) This Court has frequently stated that eubstintive -

rights rooted in State Law are to be protected as zealously

as those originating in Maritime Law, arid ‘that Federal:

‘+ Courts should not infringe upon these rights. The ma-

jority’s decision in the Halecki case, by disregarding the

“as

Ce

12

oe New Jersey rule of contributory negligenge, isin sharp .

_ conflict with that policy. fA, a :

The. opinion of the Court of ipesits. for the Second

Circuit referred to Garrett v. Moore McCormack Company,

317.U. S. 239 (1942), which supports the petitioner’s con-

- tention. Mr. Justice Black, who delivered the majority

opinion in Garrett, stated at page 245: |

“The constant. objective of leiiiatton 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: (Erie Railroad

Co. v. Tomkins, 304 U. S. 64). And admiralty courts,

when invoked. to protect rights rooted in State law, »

endeavor to determine the’ issues in accordance with:

the, substantive law of the state.’’

The Garrett opinion referred to Erie Railroad Company

v. Tomkins, as did Pope & Talbot v. Hawn, 346 U.S. 406

(1953). Here it was cited for the proposition that Federal

District Courts must ‘try state created causes of action in

_- accordance with State laws. These references to the deéi-

‘sion which outlined the relationship between the State and

Federal law, disclose the importance placed by the Supreme

Court of the United States upon substantive rights given

by State law. As far back as The Harrisburg, supra, de- -

cided in 1886, the Supreme Court held thaf a federal court,

applying a state remedy, must apply it subject to the limi-

tations of State law. This j rinciple was affirmed i in’ Levin-

. son v. Deupree, mene 2 e sepiok ania 4

% ae

13

Pléase see also Just: v. Chambers, 312 U. S. 383 (1941)

and Western Fuel Company v. Garcia, 257 U. S. 233 (1921).

~ (b) The Second Circuit in Halecki held itself to be con-

sistent with this Court by relying upon Pope. & Talbot.v. °

_ Hawn, supra, for the proposition that ‘‘faults that ovcur “

' jn navigable waters are exclusively the creation of Mari-

9

time Law, and aré exempt. — the defense of coritributory ,

negligence. . a

The Halecki majority opinion eaeed that the contribu-

. tory negligence of a decedent had been, an absolute defense

‘to an action brought under ‘a Lord. Campbell’ s Act, but

~ cited Hawn as the sole authority for the- ~fandemental )

scat

The petitioner sulaneabilie contends that the rule of the

Hawn .case; involving an injured shore’ worker, has no

application to this action, brought by an administratrix,:

for wrongful death. The Supréme Court of the United |

States, in deciding Pope & Talbot v. Hawn, supra, rejected —

that State rule of contributory negligence. beeause the

plaintiff's right to sue for unseaworthiness and negligence®

“was rooted in Federal Maritime Law. The plaintiff in this

action, suing under the New Jersey Wrongful Death§Stat-—

‘ute, was not seeking to enforce a-right rooted,in Maritime

Law, as no cause of action for wrongful death exists. in

Maritime Law. Just v. Chambers, Levinson v. Deupree,

and The Harrisburg, supra.

The misapplication of the Hawn rule is-made appar ent

by the follow: ing language from the Hawn inion which

oO gars 8

The right of recovery for unseaworthiness oa

negligence is rooted in Federa] Maritime Law. Even

ae ——-

if Hawn was seeking to enforce'a state created rem-

edy for this right, Federal Maritime Law would be,

controlling . ..’’ (pp. 409-410).

The ‘right’? which Hawn was seeking to enforce was a

' -maritime right which should be controlled. by the admiralty

rule of comparative negligence. However, the right to sue —

for wrongful death, which the administratrix in the Halecki ,

case is seeking to enforce, is one which dees not exist under

Maritime ie but is rooted firmly i in State Law.

The incohsistency created by a “reliance upon me Hawn —

. decision as authority for applying: comparatiy ligence

to an action for wrongful death is demonstrated by the dis

senting opinion of Judge Hartigan in O’Leary v. United

. States Line Company, 215 F.2d 708 (CA—1,.1954). His

summary of the appropriate decisions of this Court sup-

ports this petitioner’s contention. that.in an action. brought

‘under a State Wrongful Death Statute, the plaintiff’s rem-_

edy and the plaintiff’s liability are to bé, determined by the _

ee of the substantive law of the state. ne

4. The Court of Appeals for the Bieond ‘Circuit in

Halecki was also in conflict with other circuits, in holding

that the Lord Campbell ’s \Act was broad enough to encom;

_pass ee

In this aspect of the decision, the H itecki opinion agreed

with the Court of Appeals for the Third’ Cirenit in Skov-

gaard, and the opinions in both cases expressly acknowl-:

edged that & conflict existed amoung the cireuits. It is not

“disputed thatthe plaintiff in Halecki had no remedy for

wrongful death under the General Maritime Law. The

- Harrisburg, supra; Lindgren v. United States, 281 U. S.°

_ 88 (1930); and Levinson v. Deupree, 345 U. S. 648. (1953).

| Y : | *

15

therefore, the Halecki wate, like that of Skovgaard,

7 was brought pursuant to the New J ersey Wrongful Death

Statute, N.J.S.A. 2A:31-1. The Court of Appeals of the

Second and Third Circuits found that a — based on un-

rthiness could_be-brought-und ampbell’s

po The opposite conclusion had been sibel by the. Fifth

Circuit in Graham v. Lusi, ‘supra, aud in Byrd v: Napoleon

. ‘Avenue Ferry Company, supra, and by the Sixth Circuit

in Lee v. Pure Oil, supra.: The, respective ‘Courts of Ap-

peals held that ‘the State Death Statutes afforded a recovery

only for negligence and not-for ‘unseaworthiness.

@ The decisions cited above involved actions ae pur-

suant to the Wrongful Death Statutes of various States,

all of which are similar in language to the New Jersey Act.

The Second Circuit in Halecki and the Third Circuit in

‘Skovgaard, by permitting recovery for unseaworthiness

ander the State Death Act directly ee the position

<a the Fifth and Sixth Circuits.

5. In ‘Sellen that the New Jersey: Wrongful Death Act

provided a remedy for unseaworthiness, the Second Circuit -

acted without the authority of New J jersey law.

In ‘addition to rejecting the New J ersey rule of contribu-

tory negligence, the majority held that the Lord Camp-

sbell’s Act was broad enough to. encompass a death action

‘based upon unseaworthiness. The Second Circuit thereby |

attributed to the New Jersey legislature an intent to create

a remedy to enforce a right which did not exist at the time

‘the statute was enacted.

The decision of the shupesine Court in Sieracki v. Seas

Bit Company, 328 U.S. 86. (1948), for the first time

"9

%.

16

witeoiel to a non-seaman the right to to sue for unseaworthi-

ness. The Néw Jersey Death Statute, although originating

—

\?

in 1848, was enacted in its present form in 1937 at a time

before the Sieracki decision, when the legislature could |

» not possibly anticipate a death action by a shore worker,

_ based upon a breach of the warranty for seaworthiness.

The - dissenting opinion of Judge Hastie in the -Skov-

gaard case considered this interpretation of the legislative ~

” intent ‘illogical and for that reason unwarranted’’. Judge

Lumbard, dissenting from‘the majority’s view in the Ha-

’ lecki decision, found no basis for holding that the: New

Jersey Legislature intended to cone the defense of con- .

_. tributory negligence.

iN either the Halecki nor the einent eidien referred

to authority in New Jersey Statutes or decisions for the

interpretation that the Death Act ree. a basis for _

re for unseaworthiness.

6. The ‘Halecki decisioh was inconsistent with other

. Circuits, in holding that the decedent, an electrician, was

- entitled to the warranty of seaworthiness. -

» The Court of Appeals tor the Second Circuit agreed with

the appellant’s contention that the nature of the decedent’s _

.. work determined his right to the warranty of seaworthi-

ness. However, the majority opinion held that Halecki, an

electrician employed by a ‘sub-contractor to clean genera-

tors aboard, the vessel, was ‘‘cleaning the ship’’, and that

the case therefore fell within the doctrine of ues é Talbot

v. Hawn, 346 U. 8. 406.

‘The. appellant had relied upon Berryhill v. Pacific Far

East: Line Iac., 238 F. 2d 385 —s 1957), cert. den. 1

we : i

L Ed. 2d 1537, in which the Ninth Cirenit had found that

the plaintiff was not doing work whi 1 entitled him to the ~° -

warranty of seaworthiness, The Court emphasized that .

Berryhill, & repairman, was ue the ship’s propeller

shaft, and that the vessel’s propulsion machinery was _nce-

essarily out of operation, and pointed out that cases which

. had extended the warranty. to repairmen involved work

_ which was related in some way to the loading of the vessel |

. or with the carriage of cargo. Torres v. The Kastor, 227,

F. 2d 664 (CA—2, 1955) ; ‘Pope & Talbot v. Hawn, supra;

Pettersen v. Alaska SS Co., 205 F’. 2d. 478 (CA—9, 1953).

“The ‘cireumatences in the instant case were similar ‘to

those in Berryhill, for in both instances, the work could

only be performed when the ship’s power was off and the

vessel was out of. operation. Neither job could be done.

~ while the. ship was at ‘sea, and therefore neither could be:

classified as seaman’s work. The dissenting opinion of:

Judge Lumbard in Halecki discussed the conflict created

‘by the majority opinion, and found it inconsistent with .

Berryhill. He referred to the’nature of Halecki’s work, .

and stated hia opinion that spraying generators with car-

-bon tetrachloride was- not a seaman’s work, but was the

task of a shoreside specialist. ~~ .

_ Judge Lumbard also referred to the anomolous situation

created within the Second Cireuit by the decision of Berge

v. National Bulk Carriers Corporation, 251 F.2d 717, which

- was: decided by. the same panel on.the same day as the

Halecki decision.. This opinion was also delivered by Cir-

cuit Judge -Hand, who stated that the plaintiff was not

entitled to the warranty of seaworthiness because he did

" not do seaman’ s work. Berge was a Tigger installing a

. Boe 5; - ie

f [

ae

bulkhead aboard a ship, and heré again the work required

‘that. the ship be out of operation. Judge Lumbard stated

in dissent: that Halecki’s work was even more remotely

related to a seaman’s duties than that done by Berge, and

pas found that the two decisions were clearly inconsistent. ‘The

_ fact that both decisions were handed down by the same -

_ panel of the Court serves to accentuate the confusion con-

| cerning the type of worker who is entitled to the warranty |

of seaworthinéss. The Court in Berge acknowledged that |

a conflict existed, , and Circuit Judge Lumbard concurred

for the same reasons’ which impelled ‘him to dissent . in

H alecks.

. The bunk of ovsiee for the Pe Circuit a

conflicted with decisions of the Supreme Court of the _

United States i in holding that the record ee bates

_ the’case to the jury.

_'* In contending that the plaintiff had failed to establish «.

unseaworthiness or negligence at trial, the appellant had

pointed out to the Court of Appeals that there was no

testimony to establish the conditions complained: of aboard

- the defendant’s vessel.

To summarize the plaintiff’ 8 case, thee only factual wit- ©

ness, Donald Doidge, had stated that the ventilation was

adequate. The plaintiff’s expert witness had testified that

he had never been aboard the vessel and that he was with-

out knowledge of: many factors which he admitted were

necessary to form an opinion of the conditions which ex-

isted. :

NG This Court has icine expressed the principle that.

. & jury verdict must rest upon affirmative evidence and not

a i: = =e

upon sineiibiitiens Moore v. Chseaitiahe'd é Ohio Matvend

‘Company, 340 U: 8. 573 (1951) ; Pennsylvania RR Company -

v. ‘Chamberlain, 288 U. 8S. 333 (1933) ; Gunning v. Cooley,

281 U. S. 90 (1930). gore

The circumstances in H alecki were clearly distinguish.

_ able from the ‘Supreme Court decision of Schulz v. Penn-

sylvania RR Company, 350 U. S. 523 (1956). ‘The Schule

_ record contained évidence of several negligent or danger-

ous conditions which could have caused the’ death of the

decedent. This Court held that the jury should have been

permitted to decide which of. several possible causes had

brought about the accident. -

However, the Halecki acini did not centain proof of ae

any dangerous condition, and the jury ‘was first allowed to

speculate upon the existence of a defect aboard the appel-

Jant’s vessel, and then to further surmise pthat this sup-

: posed — caused the decedent’s death.

An earlier Supreme Court deciaion emphasized the dis-

_ tinetion in Lavender v. Kurn, 327 U. S. 645 (1946). The

Court there was demonstrating that a jury should be per-

mitted, as in the later Schulz case, to deffde which of sev-

eral possible inferences is the mosf reasonable. Howéver,

the Court pointed out that there must be evidence upon

scary to base the inference. It was stated: :

‘‘Whenever facts are in dispute or the evidence is

such that fair minded men may draw different in- -

ferences a measure of speculation and conjecture. is —

required on the part of those whose duty ‘it is to

settle the dispute by choosing what seems to them to

be the-most reasonable inference. Only when there

is a — absence of probative facts to support

Te

2

the’ conclusion reached.does a reversible error. ap-

— (p. 7: :

CONCLUSION

A writ of coxtiovart should be granted i in 1 accordance

with the prayer of this petition. | :

3 Dated; New York, N.Y, , April ag. , 1958.

Bbapestfully submitted,

; LawrkENce J. MaHoney

4 _ . Counsel for Petitioners -

‘ 67 Wall Street

New York 5, N.Y.

21

APPENDIX:

| * Opinions: of United States Court of f Appeals.

' . 3 UNITED STATES COURT OF APPEALS:

For THE Szcoxp Cincure

BER ca 94—October Term, 1957.

(Argued November 21, 1957 Decided J anuary 10, 1958. 8.)

* Docket No. 24551 |

dy.

vv

*

Axwa Hatzoxt, Administratrix ad Prosequendum of ‘the

Hackl, Administratrix of the Ratate of Walter J oseph

Halecki, Be saperes .e

eeiies

—J—

-Unrrep New York axp New Jersey Sanpy. Hoox. Pros

ASSOCIATION, a corporation and Unirep New. York Sanpy

Hoox Pmots ASSOCIATION, a corporation, =

‘ Appellants.

., +

Before:

Hanp, Haron, and iscsi

“= Circuit Judges.

ae Appeal by. the defendants from a judgment of the District 7

_ Court for the Southern District of New York in favor of the

we

Estate of Walter Joseph Halecki, deceased, and and ANNA |

dg

: Appendia—O pinions of United States Court of Appeals a

2

plaintiff in an ‘action to recover damages for the death of «

the decedent in the State of. New Jersey because of the

negligence of the defendants and of the unseaworthinegs of |

a gate boat on which he was employed. Affirméd.

_ LawREnce J. Manoney for the appellants.

Natuan Bawer for the appellee. ~ a

-Hanp, Circuit Judge: .

This appeal is from a judgment for the plaintiff entéred '

"on the verdict of a jury, awarding-damages for the death

. of the plaintiff’s decedent while engaged in cleaning the .

pilot boat, ‘‘New J erbey,”? belonging to the defendants. The

complaint was based upon two counts; one for negligence

and the: other for-amseaworthiness, and four errors are

alleged. First, that the evidence was not sufficient to justify,

a verdict on eared count. Second, that the court erred in

submitting to the'jury any question of seaworthiness. Third,

that the court should have charged the jury that under the

‘New Jersey Death Statute contributory negligence was a —

bar and not.a limitation upon damages. Fourth, that the

defendants should havé been allowed to show that the plain-

- tiff had maje inconsistent allegations i in snatnee and was

.ing litigation.

: On September 22, 1951, the ‘‘New Jersey,’’ a pilot boat, |

‘was moored at a pier in the repairyard of Rodermond

Industries, Ine., North River, Jersey City, for annual over-

haul and’repairs; the only employee of the. defendants on

board was a watchman: Part of the work was to clean the

ship’s generators ‘which had become fouled in use, and

Rodermond Industries subcontracted this i of the job

, : , 23 ‘. ’

: , Appentia--Opaions of United States Court of Appeals

to K. & S. Electrical Company, the employer of*the dece-

dent, Hal On the 28th he and Doidge, a fellow worker,

set up the necessary equipment on the boat. Since she was —

at the. time without any electrical current, it was necessary ..

_ to bring in current from the shore. The generators were

_ cleaned by spraying them with carbon tetrachloride, a vola-.-

__ tile liquid, which will ‘‘remove all traces of dirt and film,’’

but whose fumes, unless their density is carefully: con-

trolled, may be deadly. The generators. were in the ship’s

. engine-room, one deck below the main deck, and Doidge and °

the.decedent sought to protect themselves during the work, —

. (1) by using gas masks, and (2) by bringing two ‘‘air

hoses’’ and a ‘‘blower,’’ actuated by the current from the

‘ shore. One hose was used to spray the tetrachloride upon

‘the generators; the other, to blow in fresh ¢ air from the out-

side. The ‘‘blower’’ was set at the bottom ‘of. the, engine- —

room near the generators, and from it led an exhaust pipe

'- to an open door about eight feet above. In, addition, the

ship’s permanent ventilating system -was set in action by .

- the outside current; it consisted of some fans and ‘‘vents ss

_at'the top'of the _engine-room through which ait was drawn

in. ‘Thus, means of exhausting the contaminated air con- .

‘sisted, of (1) the hose that was not used: ‘to spray, (2) the

“blower,” and (3) the increase of air pres ure resulting

from the’ intake of the ship’s own ventilating By

sides this, an open deor and anopen skylight led to the air.

A biochemist, familiar with the use of tetrachloride, after

being told in detail the size of the engine-room and the

apparatus installed, gave as his Opinion that the ventilating

- system in the emgine-room, even when supplemented by. the .

'. apparatus brought on board and installed by Doidge and

24° —

| | Appendia—Opinions of United States Court of Appeals

—

the deceased was not ‘adequate to remove the. fumes. ie

The competence of this expert to give an opinion was 80

much within the discretion of the trial court that-only in

| _ aclear case should we overrule its decision.! The state law.

of evidence is no ‘longer the final test, of the admissibility

of evuddenes. «= cad

As we have said the case was left to the jury in a double

aspect : (1) whether the defendants had been negligent in

‘furnishing the deceased as a ‘‘business guest’’ with an unfit

place to work, and (2) whether the ship was unseaworthy

vis- a-vis a shore workér who canie aboard to take part. in

- the annual overhaul. It is obvious therefore that the: plain-

tiff’s evidence had to support a verdict on both claims; for

we cannot know that the unsupported claim was not the one

on which alone they brought in their’ verdict. As to the

elatm | based on negligence, so far as the defendants mean

to argue that the engine-room, equipped as it was, Was a

reasonably safe place in which to work, we hold that the

evidence created an issue that could be decided only by a -

verdict. The deceaged was certainly an ‘‘invited person,’’

or ‘business guest,’’ and the shipowner was liable, not only

for the negligence of the master,’ but, although the work

was. let out to a subcontractor, also for any lack of ‘* reason-

_able care to ascertain the methods atid manner. in which the E

concessionaire or independent. contractor carries on his”

activities, not only at-the time ‘when the concession is let,

. United Stotes v. Miller, 61 F.2d 949, 950 (C. A. 2) ; Tucker v.

Loew's Theatre-& Realty Co., 149 F. 2d 677; 679 (C. A. .2).; Trow-

bridge v. Abrasive Coy, 190 F. ad 825, 829 (C. A. ade 2 Wigmore, °

§561.

* Leatliers v.’ Blessing, 105 U. s. -_ 630.

: 25

nsaemeaioipiad:. United States Court of Appeals -

-- the contractor employed, but ‘also during the entire

- period in which the concessionaire or contractor carries on

his activities.’’ ® Being charged with knowledge that so

dangerous - -a substance as tetrachloride might be ‘used, it

was proper to leave to the j jury whether the ‘‘methods and

. manner” of its use were proper. So much for the negligence

count. sys

‘Cults | a different question | arises as to the warranty of ~

‘seaworthiness, for, if. ‘that attached, it imposed an absolute —

’. liability, if the engine-room was not properly equi ped.

Although i in @ very scholarly analysis of the earlier deci-

-sions, it has been recently argued that the maritime law.

did not impose such a warranty in favor of seamen,‘ rightly

“or wrongly the opposite doctrine has become so firmly

settled’ since Fhe Osceola; 189 U. S. 158 (1902) that we

~ decline: to reconsider the question. All that is left for us

on this appeal is whether the warratity. of seaworthiness

extended to the decedent although conoededly he was not a

seaman, but as we have. said; a ‘‘ business guest’>oma vessel

within the navigable. waters of New Jersey. In Guerrini

>

_ v. United States, 167 F. 2d 352 (C. A. 2), the ship, as in the ;

case at bar, was moored. in Brooklyn alongside a dock, and.

the libellant, an employee of a subcontractor, was engaged |

in cleaning her boilers and _tanks, when he was hurt by

slipping on a grease spot. We held that the doctrine of Seas.

Shipping Co. v, Sieracki, 328 U. S. 85, did not apply. How-

ever, that was in 1948 before either Pope ‘é Lalbot v. Hawn,

* Restatement oi Torts, Vol. II, §344, Comment b.

mr ‘Seamen, Snsrodiielnans and the Rights of Harbor W orkers,’ ‘

Francis L. T etrault, 39 Cornell Law Quarterly, 381.

: Aapuiiia-Osinions of United States Court of Appeals —

346 U. S. 406 or Petterson v. Alaska SS. Co., 347 U. S. 396,

was. decided; it is now clear that we were wrong both in

. limiting thé warranty to those doing longshoremen’s duties

and in supposing that the surrender of ‘‘vontrol’’ of the -

ship was relevant. We can see no distinction: between the

work of the decedent in the case at bar and that of the

plaintiff in Pope & Talbot v. Hawn,.supra (346 U. S. 396),

which was carpenter’s repair ‘work. We think that the test

is whether the work is of a kind that traditionally the crew

has been accustomed to do, ‘and as to that it makes no dif-

- ference that the means employed have changed with time, -

* or whether defective apparatus was brought aboard and:

was not part of the ship’ s own gear. Since the deceased was.

cleaning the ship, we hold that it was within the doctrine

of Pope & Talbot v. Hawn, supra. :

As might be diane, so shadowy a line of demarcation

will in application produce ‘inconsistent results. For ex-

ample, i in Read v: United States, 201, F. 2d 758, the Third "

Cireuit held that the warranty extended to-a ‘business

guest’? who was doing. part of the: work of changing a-

‘‘Liberty”’ ship into a transport, while the ‘Ninth Circuit in

~ Berryhill’ v. Pacific Far East Line, 238 F. 2d 385, cert. den.

354: U. S..938,. refused relief to a-werkman whoowas en- —

. gaged in ‘‘major repairs,’’ as these were described in the

Distriet Court (138 Fed. Supp. 859). In the appeal in

Berge v. National Bulk Carriers, Inc. (148 Fed. Supp. 608),

decided herewith, we shall state the reasons that impel us

to prefer the decision of the Ninth Circuit, but it is not

necogeary fo pass’ on "that —— baum because as we -

| Appendix—Opinions of United States Court of Appeals

in the ship, but was of a kinc that was part of the crew’s

work, not only at sea, but when she was laid up for general .

overhaul. We start therefore with the conclusion that it

was proper to leave to the jury, not only the i issue of negli-

gence, but that. of unseaw orthiness.

That does. not however answer two other sitcetlien:

(1) that the plaintiff is not the decedent, but an administra-

trix, and (2) that ‘the judge ‘left the décedent’ s contribu- .

. tory negligence to the j jury, not as a ‘bar, but only i in limita-

tion of damages. It is common ground that the liability

for breach of the warranty of unseaworthiness does not .

‘survive under the maritime law (The Harrisburg, 119 U. $:_

q ‘199; Lindgren v. United States, 281 U. S. 38). As to.the

maritinie tort, §33 of the Merchant Marine Act of 1920.

(Title 46, $688) gave to ‘‘the personal representatives”’

of a deceast seaman the same remedies that the deceased

would have had, had he lived. Howev er, in the case at bar

‘the deceased was not.a seaman, so that upon-both counts.

the plaintiff must resort to. the ‘‘Lord Campbell’s Act’’ of

New Jersey® which provides in general terms: .‘* When the

death of a person is caused by a wrongful act, neglect or

default such as would * * * have entitled’ the person in- .

jured to maintain an action for damages * * * the' person

who would have been liable * * * shall be liable i in ah action

' for damages.’’ Much’ controversy has arisen over the scope

of the phrase just quoted, making the liabjility to the next |

of kin depend upon an ‘‘act, neglect, or default’? of the *

putative obligor. Wher the question arose in the Third.

SN, J. S.A. 2A 331-1.

ava 2 & ras

Ales 9°

-Appendix—Opinions of United States Court of Appeals

_ Cireuit whether these words covered.a breach of the war-.

~ ranty of seaworthiness, the court ‘in banco’ by % vote of

' four to three held (Skovgaard v. The ‘Tunyus, December

23, 1957) that they did. In spite of the zeal with which the

contrary has been argued, we think. that the majority was

right. Graham v. Lusi, 206 F. 2d 223 (C. ‘A. 5) does not -

actually hold the conffary; though that may have been

the court’s opinion. Its decision was based solely on the

point. of contributory negligence, and did not pass upon’

the ruling of the district couft that the libel could not rest

‘on breach of warranty. Lee-v. Pure Oil Co., 218 F. 2d 711

(C, A. 5) held that, even vis-a-vis the deceased, there was

no breach of warranty, and then went on to say that ‘in

any event his administiatrix could not recover. The report —

does ‘not tell us what was the language of the Tennessee.

statute; but if it was the same as that of New Jersey,

‘we are not persuaded. We hold that ‘‘neglect”’ and ‘‘de- -

fault’’ both cover a breach of the warranty.

There remains, however, the further question: ie.,

whether contributory negligence i is arr absolute defense. Be-

fore the decision of the Supreme Court in Pope & Talbot v.

Hawn, supra, it chad been generally held that when a sea:

man before the Merchant Marine Act of 1920, or a shore-

worker thereafter, had been killed because of the. negligence

of the ship’s crew in the navigable waters of a state having -

a local Lord Campbell’s Act, contributory negligence was

a bar to an action by his next of kin. This was as true 7

when the suit was in the admiralty as in a court of the _

_state; in short, the bar arising from contributory negli-

gence was an incident of the ~~ imposed by the state, .

’

©

| oe ia

- Appendia—Opinions of United States Court of Appeals. :

.no matter where suit-upon it was brought. In Pope &

Talbot v.. Hawn, supra, however, the Court held that con-

tributory negligence was not a-bar to an action.at law by

a ‘‘business guest,’’ but only limited. his damages, and this

we read to mean that rights arising from faults that occur

in navigable waters are exclusively the creation of mari-

- time law, and are exempt from the defense of contributory

‘ negligence whether suit upon it is in the admiralty. or in

an action at law, state or federal.’ The following language

we take from the. opinion of the majority in that case, pages,

409, 410: ‘‘the right of recovery for unseaworthiness and

negligence is rooted in federal maritime law. Even if Hawn

were seeking to enforce -a state ‘created remedy for this

tt federal maritime law would be controdling. While

tates may sometimes supplement federal maritime policies ©

state. may not deprive a person of any substantial ad-

miralty rights as defined by acts of congress, or interpreta-

: tive opinions ofthis Cogtt.’’ Although, as we have said,

we are not dealing with ‘‘federal maritime law,’’ wé should

remember that so far as we.can we ought to construe the

_ Statute so as to avoid capricious and irrational distinctions.

- We leave: qpen . whether New Jersey is without power to

take as much or as little of the rights ‘‘rooted in federal

maritime law’’ as it chooses asthe model for the right it

confers upon the next of kin; but the courts of that state

6 itekinion v. Detroit V. C. Steam Navigation Co.. 73 F: 883 (6th

« Cir. 1896); Quinette v. Bisso, 136 F. 825 (5th Cir. 1905); O’Brien ©

v. Luckenbach S.S. Co,, 293 | F.. 170 (2d Cir. 1923); Klindseise move

Costanzo Transp. Co., 101-F. 2d 902 (3d Cir. 1939) > Grahamn. v.

A. Lusi, 206 F. 2d 233 (5th Cir. 1953); The A. W. Thompson, 39 F.

115 (S.D. N,_Y. 1889 per Addison Brown, J.) ; The James M'Gee,

300-F. 93 (S. "D. N.Y. 1924). -

7 Cf, Garrett v. . Moore, McCormick Co., 37 U. S. 239.

oe fs

. Appendia—Opinions of United States Court of Appeals

have, never passed upon the question, and. to'deny the ex-

emption to the next of kin seems to us to jhe. last degree

capricious and irrational. Although it was only a dictum,

‘the First Circuit in O’Leary v. United States Lines Com-

pany, 215 F. 2d 708, 711, declared that ‘‘it would be incon-

gruous to hold in conformity with Pope & Talbot v. Hawn, —

supra, that the maritime law determined the respective —

rights oi the parties in the event of personal i injuries short

of: death, but that state law determined their rights i in the

event of i injuries resulting hb the ultimate consequence of

death.’ We are aware that Curtis v. Garcia, 241 F.2d 30,

. 36 (C. A. 3) is to the contrary, but as neither it nor O’Leary

v. United States Lines Company, supra, is authoritative,

we are free to choose, Obviously, the answer is not certain; °

we must do as best.we can with what we have, and we hold

that the New Jersey statute should be construed as taking j

over as a part of the model it accepted the exemption. of.

contributory’ negligence as a bar. ;

Finally, the defendarits complain that the judge refused

to allow them to prove that the plaintiff in another action

had asserted that Rodermond Industries had control of the

vessel. Even though this were an error—on which we do -

' not pass—obviously it was not of enough importance to

reverse the judgment: a panes

Judgment affirmed.

‘ LuMsarp, Circuit Judge (dissenting) :

I cannot agree that we must subscribe to the principle

that a shore-based worker who performs any labor-on a

‘ship, even though the ship is out of operation and tied fast _

eg :

Appendiz—Opinions of United States Court of Appeals

toa dock for overhaul, should have extended to him a war-

‘ranty of seaworthiness merely because the work which he ©

is doing can be generally characterized in terms of the ~

duties which a seaman ‘could be expected to perform. It i is

not enough to categorize Halecki’s work as cleaning ship’s

equipment. Here the inescapable fact is that Halecki, in

spraying the’ generators with carbon tetrachloride, was

base. something which a seaman could not do, which no

‘seaman had ever done, and which would expose the sea-

man ’s life to serious danger if he even attempted it:

A summary of the evidence showing ‘how the generators

wére cleaned by spraying ‘with carbon tetrachloride shows

~ the absurdity of assimilating this work to that of a’seaman

or of saying that-the work ‘‘is of a kind that traditionally

the crew. has been accustomed to do.” :

Qn Saturday, September 22, 1951 the pilot boat “New

‘Jersey,’’ owned by the ‘jeasiiate was turned over to _

bY.

°

Rodermond Industries, Inc. for its annual ovérhaul and in- :

" spection. It was moored at the Rodermond repair yard pier —

- at the foot of Henderson Street, North River, Jersey City,

New Jersey. A ‘list, ‘of repairs, prepared by Rodermond ~ °

the following Monday, September 24 provided that the crew

was to remove and replace the eight cylinder heads for the

port and starboard generators, and the contractor was to .

_do some work on the cylinder heads. Under the same head-

a ing ‘*Port & Star peasanartall it was provided :

-

3 “Spray clean with inten tetrachloride the artasture

and field windings to remove all traces_of dirt and

film. Close up and prove in good order.’’

Appendie—Opinions of United States Court of Agpeale ss

Seiiecniniaa in ns civcinteeabia with Halecki’ 8 em-

ployer, the K & S Electrical Company, to do certain elec-

trical work and to spray the generators with carbon tetra-

chloride, since neither ship nor shipyard was equipped or

competent to do this work. The K & S foreman, Donald

_ Doidge, was at work on the New Jersey from Monday,

September 24, and on that day he consulted with the New

Jersey’s chief engineer as. to when the spraying should be

done as ‘‘we know it hias to be done when there is nobody

else cn board ship. ’? Doidge agreed with the chief engineer

that it should be done on Saturday during the"absence of

- the crew, since during ‘the week members of the crew were

working on the ship. — - ;

Pursuant to these arrangements, Doidge and Halecki

made preparations on Friday for the Saturday spraying: -

| Doidge, the shop foreman, had been an electrician for about —

. 25 years and Halecki had worked with him for about 6

years. Not all their work was on ships; they cleaned gen-

erators ~by carbon tetrachloride spray in factories and

buildings, wherever the generators were. On Friday they

brought on board extra air hoses and a blower belonging to

Rodermond. One air hose was.used for the-spray gun and |

the other, was used underneath the generator as an ex-

haust to blow the fumes away from the man spraying. A’ |

high compression ‘‘blower’’ was placed so that it would

exhaust foul air out through one ‘of the two open doorways.

_ On Saturday morning, September 29, according to the

previous arrangement, Doidge and. Halecki came aboard

to do the spraying. They found only the defendant’s watch- _

man, Walter C. Thompson, and they told him to stay out of

A z 2 S = >

A ppendio—Opinions of United States Court of Appeals

} the engineroom and not to let anybody down. They brought.

_. with them three gas masks belonging to K & S Electric

Company. Halecki wore a gas inask and did most of the —

spraying 10 to 15 minutes at a time with intervening rest

periods of equal length. All the equipment for exhausting

the fumes and the ship’ 8 ventilating system were in opera-

tion and run by power supplied from generators on. shore.

_ Halecki. took sick the next day and died two weeks later.

There was sufficient evidence to support the jury’s finding

that death was caused by carbon tetrachloride poisoning.

Despite history and logic, the trend ‘of decisions i in Gases _

involving injuries and death on navigable waters, now

further extended by my distinguished colleagues, seems to

be guided by what Justice Rutledge has ‘frankly called a

‘humanitarian policy. ”” Seas Shipping’ v. Si eracki, 328 |

U.S. 85, 95 (1946). This policy seems to be based on the

theory that judges are competent to determine. that it is

- better that the shipowners should assume all the burdens ©

becausé they are able to average them out through i insur-

. ance or some form of protection against all the hazards of

~ accident which may occur on shipboard to anyone coming

om board. The result has ‘been a progressive expansion,

both qualitative and quantitative, in the duties and liabili-

ties imposed upon. shipowners. From a concept resting

on négligence, seaworthiness has, by judicial dev elopment,

become an absolute. duty i imposing. liability without, fault.

From h ede running to those we tsaditionally consider as

———

' See Tetreauls, ‘tom Seaworthiness, and the Rights of Har-

bor Workers, 39 Cornell L. Q. 381 (1954); The Tangled Seine: A

Survey of Maritime Personal Inju Remedies, 57 Yale L. J. 243

252 (1947); Gilmore and Black, The Law of Admiralty, 315- 324, :

358 — ).

| 34

Appendix—Opinions of ica eee Court of Appeals

‘seamen, exposed to the hazards and discipline of the sea,

it has been expanded to include a ‘multitude of harbor .

workers who report for work in the morning and return to |

their homes at night. The burdens of proving lack of due.

care and of defending against the bar of contributory neg- |

ligence are jettisoned by this judicial legislation. Where

there is the slightest support for causation the only ques-—

tion for the jury is the amount of damages.

It may be argued that the infitiative taken by the federal

- courts in imposing absolute liability is justified by their

peculiar historical responsibility for admiralty law. And

we are told that certain harbor workers come within the

ambit of the warranty of seaworthiness because a ship-'

owner cannot escape liability by delegating to others what

is traditionally seamen’s work. Seas Shipping v. Sieracki,

323 U. Ss. 85, 95 (1946). Here we go further. When a lower

court charges on both seaworthiness and negligence toward

a, business invitee, we must assume that the only justifica-

tion for the charge on seaworthiness is that the shipowner

may be found liable despite his. own due care. By assimi-

’ lating certain activities to maritime law, ‘we extend the

_ absolute liability of shipowners, in effect, beyond: the ship- —

-yard gates. .The owner, despite the utmost care, is liable

for the activities of a specialist employed expressly be-

cause these activities- were beyond the range of experience

pr and competence of the ship’s crew. These circumstances

rebut the contention that the shipowner is nullifying’ his

liability by parcelling out ship’ s work to others.

The anomaly of the result reached here is pointed up

when we consider the restricted liability of the specialist’s

we

35

ya

Appendiz—Opinions of United States Court of Appeals —

employer, who is in the most favorable position to reduce

the incidence of injury. Unlike the shipowner, the immedi-

- ate employer’s liability is restricted. to the insurance ex-

penses of workmen’s compensation or to damages incurred

_ due to his lack of due eare. \Although the shipowner. was

not Halecki’s oe em and this was esser.tially an indus-

trial injury resulting in the death of a shore-based elec-

trician, an absolute liability of judicial creation is im-

posed upon the shipowner above and beyond the system

developed by New Jersey to compensate for industrial acci-_

dents. I had thought that such far-reaching changes in

rights and legal duties were solely within the province of

the elected representatives of the people in Congress: and

not the proper business of - judges. The. traditional . re-

sponsibility of the federal judiciary for admiralty does not

justify such an expansioa of preg :

- Halecki risked all the hazards of the sea as one might

experience them on a. Saturday in late September J while

the ship was made fast to a. bulkhead i in Jersey City. He

was not a seaman, ‘he was not doing what any crew member

had ever done on this ship or anywhere else in the world -

so far as wé.are informed. Whatever reasons there may

be for extending the warranty of seaworthiness to steve-

dores. or other harbor: workers who work on board, they.

do not apply to those employed to do a special job of such

-a_dangerous and unusual nature that it is beyond the com-.

petence of ship and shipyard, necessitates the removal and .

exclusion of the crew, and requires. bringing extra equip- | |

- ment aboard for the safe porkoeinanes. of the hazardous

activity.

Appendia—Opinions of United States Court of Appeals

The case-of Berryhill v. Pacific Far East Line, 238 F. 2d

" 385 (9 @ir. 1956) cert. den. 354 U.\S. 938, is authority for

is foreign to what the ship’s crew could do and involves

the use of equipment not used or known on ships, there is

. no warranty of seaworthiness running to those who are

injured i in the course of doing such work by reason of any> -

defect i in the equipment so used. In that case the plaintiff

was injured by the. shattering of a grinding: wheel brought

‘ on board by his employer, Todd. Shipyards Corporation,

‘for use in repairs being made on the “shaft keyway”’ on

a

the proposition that when the manner of doing the work -

-defendant’s ship, ‘The Court_of Appeals held there was no —

warranty of seaworthiness with respect to the grinding

a wheel. Judge Barnes pointed out that to, hol@ otherwise

would go beyond the Sieracki; Hawn and Petterson? cases

as. the grinding wheel was equipment that the ship could do

without, and the shipowner may never have had any reason

"to know that such equipment existed. That the kind of

Ws equipment used is foreign to the vessel is just another way

of saying that the work done is not the kind 2 work nor-—

. mally done by seamen.

My brothers say that this work was ‘merely ia a

generator and, as cleaning propulsion machinery is the ©

kind of work which seamen would normally do, cleaning a

generator is seamett’s work and those who do it are en-

‘ titled to'a warranty of seaworthiness. This assimilates

spraying with carbon tetrachloride to all cleaning as if it

* Seas. Shipping Co. -v. was 328 U. S. 85 (1946) ; Pope &

Talbot, Inc. v. Hawn, 346 U. S. 406 (1953); Pettersoh v. Alaska | 5

S. S. Co., 205 F. 24 $76 (9 ' Cs. 1953), aff'd per curiam 347 U. S. 396 ©

(1954)...

° . 37 | A : 6

Appendiz—Opinions of United States Court of Appeals

were harmless. and commonplace; it is-4 play on words -

which by a characterization avoids dealing with a difference

__ in means which completely destroys the validity of the syl-

- logism.’- Because seamen may be able to do some kind of

cleaning does not. make seamen of those who: do: another -

kind of cleaning which seamen have never done and fan-

not. do; nor does it supply - ‘any reason why an outside

specialist should be treated, or needs to be treated, like a

seaman, . i

That such general charavterization is not a solution is

emphasized by Berge v, National Bulk Carriers Corp., de-

cided this day. There’ ‘the same panel of this court holds

unanimengly that there is no- warranty of seaworthiness

to a rigger, engaged in installing a tank bulkhead in the |

course of rebuilding a vessel, who was injured when the

shearing of a: defective shackle pin caused a chain tackle :

to fail-and knock}, him from a scaffold. What Halecki did.

_ Was no. more the ki of work that the crew of a vessel was

accustomed to do than w as what Berge was doing. Indeed,

it was less: so. ‘One night characterize Berge’s work as_

‘Jowéring a heavy load into the hold,“a normal seaman’s

duty done without abnormal, risk of harm. . Halecki’s work

was entirely novel and foreign to what seamen had ev er

done and far more dangerous, to anyone who might __ ante

aboard. As in Berge, the work xequired the cessation of

- ship’s operations and the removal of the crew.

: Passing this point, I must also. digsonit: from the ma-

jority’s view that under the New Jer y Death Statute,

N. J. S. 2A :31- 1 (1952), a maritime point as Halecki’s,

-sis not subject to the defense of contributory negligence.

¢ f a

Appendix—Opinions of United States Court of Appeals .

There is no. basis for saying that the New Jersey legisla-

ture meant to abandon the defensé of contributory negli-

‘gence in such cases and it seems to me there is every reason-

“as a matter of common sense and usual practice for saying

that they did not mean these cases to be on a different

basis. I would adopt-the view of Curtis v. Garcia, 241 F. 2d

30 (3 Cir. 1957). Furtherthore, it is. difficult enough for

admiralty lawyers and judges to keep up with the: changes

and developments in this ficld without expecting the mem-

bers of a stat® legislature, few if any of whom arc admir-

alty lawyers, to take over sight unseen whatever may be

held‘to come along in the kaleidoscope of maritime rights,

as against the doctrine of contributory negligence: with

which New Jersey and her lawyers have long been familiar.

To hold otherwise seems to. me to embrace a pure fiction for

the purpose of implementing “‘humanitarian policy.”

To refuse to extend the warranty of seaworthiness to_

Halecki- and incorporate by reference comparative negli-

gence into. the New Jersey Death Statute would not jeave

persons in the position of Halecki’s survivors without a

_ remedy. Besides the Temedies against the employer: nor-

mally incident to death by industrial accident in .New

Jersey, see R.S, 34:15-1, 34:15-7, 34:15-8, 34:15-9, R. S$.”

Cum. Supp. 34:15-4, such persons apparently may: alter-

natively elect to proceed against decedent’s employer under

the Longshoremen’s and Harbor Worker's Compensation

Act, 33 Us 8. C. A.4901 et seq. See Davis v. Dept. of Labor

and Industries of Washington, 317 U. S. 249 (1942) ;-Dun-

leavy v. Tietjen & Lang Dry Docks, 17 N. J: Super. 76, 85

A. 2d 343. (Cty,, Ct..1951), aff’d 20 N. J. Super. 486, 90 A.

6,

wh

_Appendio~Opinion of Bnited States Court ed ‘hones: :

: 2d 84 (App. Div, 1952). Nor. does eur refusal foreclose.

actions against the shipowner or the shipyard for their

failure to exercise due care. Indeed such an-action was

. brought by this appellee against Rodermond Industries

for its alleged negligence in the.events which led up to

_Halecki’s death. Moreover our reversal in this action

would permit. retrial ‘of the cause agetent the shipowner on

the theory of negligence.

-I would dismiss so much of the complaint: as relies on a

. warranty of seaworthiiiess, and ‘reverse and remand for a-

new trial on the issue of negligence. |

ow

di

a od

*

s

"Judgment

Be ‘UNSTED. STATES COURT OF APPEALS.

NG Hons THE Sgconp Cmovrr

\ ae

Ata Stated Téxm of the United States Court of Appeals, .

in. and for the Second Circuit, held at the United States

_* Courthouge in the City of New York, on the 10th. day of

January, one thousand Rie hundred ai nd. fifty-cight. /o ;

/

*

Present: ‘ “Hott. Leanne ea

- * -* How: Carron, C>Hincxs

Hon. J. Epwarp Lustnany ARD’

F ey ™SGirewit Judges af

— a

ANNA Hanon, Admiinistratrix ad Prosequendum of f the

Estate “ Walter J — Halecki,

‘Plaintitt Appellee,

—v—

Uprrep New York anp New Jersey Sanpy Hook

| Pots Association, et al., 2

Staal Appellants

4. ion

.

Appeal from the United States District. Court for the

_» Southern District of New York

“This cause cae on to be beand on ihe transcript of |

~ record from the United States District Court for the

scan uri aia of New York, and was argued by eounsel.

ce

ee

: Appendia—Judgment.

‘ON CONSIDERATION WHEREOF, it is now hereby ordered,

aidjudeed, and decreed that the judgment of said District

. Court be and it hereby is priser with costs to the

- appellee. ea *

A. Danten F'vaaxo

| Clerk