Brief for the Petitioner — United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki

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IN THE .

henisite Court of the United States

October Term, 1958

No. 56

}

Usirep New York AND New JERSEY SanpDY Hoox Priors:

_ ASSOCIATION, a corporation ‘and Unitep New York Sanpy-

Hoox Prors ASsoclATION, a corporation, — |

3 fed. ' Petitioners, —

- —against— :

Anna, Hauecki, Administratrix ad Prosequendum of. the

Estate of Walter Joseph Halecki, deceased, and Anna _

Harecki, Administratrix of the Estate of Walter Joseph |

pialecki, deceased,

Respondent.

ae wa go ww a ___ ——

‘BRIEF FOR THE PETITIONER

A re

i ieee _—

— eee ee

—

LaWRENCE J. Manoney

Counsel ‘for Petitioners

67..Wall Street -

New York 5, New York

Opinions Below ......... -Gebcas aa RiREeE Ee

DRE woah ce cifohisrssesnaelioenin

Questions Presented vives ee sisaeies oe:

The Statute Involved Soe e ean jieaicae cas see

SMT a

Summary of Argument teen e eee pereneees Sees

Argument: | ,

Pours 1—The Stat ite. rule. of : eemieiion negli-

gence should, be applied to «an action under a

> state wrongful death act ....:2..s0secee Sea Ke

(a) ‘The Rights of Litigants should be Deter-

mined by the Substantive Law of the Juris-

‘diction in which Each Right Originates ...

_-(b) The Decision in Pope and Talbot v. Hawn °

did not Change the Rule that the Source of

a Right must Determine the ad to be Ap-

eile 2s ee eae De

- (¢) Litigants will not, Receive Equal I Protection |

of the Law Unless Their Rights are Deter-

mined by Their Origin Sib owan serene sks

Port I1I—The New Jersey Wrongfal Death Act

_- does not give a cause Of action for unseaworthi-

NE seveccescpentces 0 eeiees iiviseus erere

(a) The Claimant’ s Rights. Are Derived Only }

| from State Law As The Gene ral Maritime

—*<ZLaw Does Not Provide For a Wrongful

Death tg EP EEP EE Per eer ee ye eerry

v .

33°

34:

ee |

ATS . ie ~ PAGE

(b) The Language Of The Statute Is Not Broad.

Knough To Encompass Unseaworthiness . a

ws Rights Given By The New ea |

Wrongful Death Act Are Distinct From

Those Of AdLiving Claimant i eaSSeeneenee 38

mp The New Jersey Legislature Could Not

_ Have Intendéd The Wrongful Death Act Se

Include Unséaworthiness ..:..........:.. 73 @

(e) The Courts Have Not Interpreted The Vari-.

ous Lord Campbell’s Acts As Encompassing

DO +o 4

Port. I1l—The warranty of seaworthiness does

not extend to BE Ha cadre wadadawkccress 44

(a) Only Those Doing Ww ork Traditionally Per-

formed By Seamen Are Protected By The

- Warranty Of Seaworthiness er rt. PCr 44

—(b) Halecki Was Not Performing Work Tradi-

" _ tionally Done By Seamen ............... - 50-

‘@ A Shipowner Does Not Warrant Reteereeths-

ness Of Equipment Not’ Connected With The

Cpa Of The'Ship ..... Leietkesek ews ; =

’ Pornt IV—Respondent failed to , esiablish the ex- , |

istence of a defective condition ....:.... eeees 56

~ Conclusion at ON Sexes ahepaprreecencrs 60

; | Cases Crtep | cos

Berge. v. National Bulk Carriers Corp., 148 F. Supp.

608 (S. D. N. Y., 1957), aff'd 251 F. 2d 717 (CA-2,

1958), cert. den. 2 L. Ed. 2d 1066 ............. 18, 46,52.

Berryhill v. Pavifie Far East Lines, Inc., 238 F. 2d

385 (CA-9, 1957), cert. den. 1 L. Ed. 2d 1537 .... 17,19,

ili

ote) teen ce PAGE

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

110, 29 L. J. Q. B. 233, 16 Jur. 562 (1852) ........ 40

Blaker v. The Receivers of the New Jersey Midlarid

~ Railroad Company, 30.N. J. Eq. 240 (1878) .... 11,27

Boudin y. Lykes Brothers Steamship Co., Inc., 348

U. S. 836 (1955) occ eel ce see cee dene eens » 14, 37

Byrd v. Napeleon Avenue Ferry ‘Cieaeee, Ine., 125

F. Supp. 573 (E. D. La.), 227 F. 2d 958 (CA-9,

1955), cert. den. 351 U.S. 925 i ueraatenns 15, ms 29, 43

Caldarola v. Eckert, 332 U. a 005 CONST) ww... 5%. 37

Crawford v. "Pope & Tatbot, Ine. = , 206 F. ad 784 (CA-

MOND 0k ss Faso ts eye ES Terres hee 17,48:

Cullings v. Goetz, 256 N. Y. 287 41931) .../....,.3.° 0 37

Curtis v. Garcia; 241. F. 2d 30 (CJ “3, 19% ot) pry = 14, 25/30,: -.

fy 31, 39

DeCicco v. Marlou Holding Co. 1948), 137 N. J. \L, es

186, og % & gerrrereryry Perrys DCT EEKEYT DL 42 -

| Donus. v. Public Service Railway, 102 N. J. L,

(1926)... 22 sere e eee ees aed dh weates ieee

Erie Railroad Vv. ‘Tompkins, 304 U.S, 64 (1938) ..... 27,34

Garrett v. Moore MéCormack, 317 U. S. 235 (1942) . 10, 26,

Graham v. Lusi Ltd:, 206, F. 2d (223 (CA/5, 1953) . | 10, 15, °

Guerrini v. United States, 167 4 2d: 292 (CA-2, 1948) . §0

The Hamilton, 207 U.S. 398 (1907 ne ey) eee ee 23,34.

The Harrisburg, 119 U.S. 199 (1846) .....: :9-13, 23, 24, 34 -

The Hartford Accident Indemmity/ Company v. Gulf

Refinery Company, 230.F. 2d 346 (CA-5 , 1956) . 10, 25 |

: 4 13

Hickman v. Taylor, 75 F. Supp..52&, aff'd 170 F. 2d

327 (CA-3, 1948), cert. den, 336 U.\S8. 9060.2... 6... 40

Hill v. W aterman, 251 F. 2d 655 (CA-S, 1958) . 10, 25, 26

. Just v. Chambers, 312 U. %. 383 (1941)\,......05. 9,14, 23,

ote, S 31, 48

iv \

PAGE

Klingseisen v. Cestanas Transportation Company,

‘101 F. 2d 902 (CA-3, 1939) ...........4 A igvedpen: a)

Lahde v: Society Armadora del Norte, 220 F 2 2d 357

MM EE Gd ohaccs seseniuvanssese nats s Certo

Lauro v. U. S., 162 F, 2d 32: (CA-2, 1947) ..... ‘Seeese. SA!

_- Lavender v. Kurn, 327 U. S. 645 (1946) ........... 21,58

Lee_v. Pure Oil Company, 218 F..2d.711 (CA-6,

1955) . FOE BE Lg Sia E at pte en ait Pea pote EON 10, 15, 25, 43

| Lusinsen ¥. Deupree, 345 U. S. 648 (1953) air ae 24, 35 -

Lindgren v. United States, 281 U. S. 38 (1930) . 9, 23, 34

Mahnich v. Southern Steamship Company, 321U.S.

PE so ocedas beni bse usne deen ues ae eee sins -

Meyers v. Pittsburgh Steamship Company, 165 F. 2d

Oe CG, BOD nS cee cep iene diardevensess ‘.- 17,49!

- , Mollica v. Compania Sud- American de oo 202 -

F. 2d 25 (CA-2, 1953), cert. den. °45 U.S. 965 ...... 45

Moore v. Chesapeake and Ohio :

me S| ey eer err eee * 59

Moran v. Moore MeCormack {L ines (1944), 131 N. J.L.

es Pe lonneee 15, 42

* The New Jersey. Express Company: v. Nichols, 33

N.JL. 434 (1867) 20... cece cece eee eee e eens 27

'. O’Leary.-v. -U. _ ‘Lines, 215 F. 2d 708 (CA-1,

f HEE a hk ea ahada bios caeee eeaR ee ee #28, 32, 34°

‘The Os a 189 U. S. 158 (1903) ceaess Wesaunetin 36

Petersenv. ‘United States, 80 F. Supp. 84 (3. D. N. Y.

I ea egs ca etre dues ee cent: . 17,49

Pettersen v. Alaska Steamship Co., 205'F. 2d 478

(CA-9, 1953), aff’d 347 U. S. 396 (1954) ....13,.19, 38, 54

Pope and Talbot.v. Hawn, 99 F. Supp. 226, 198 F.

2d “— (CA-3, 1952), 346 U. 8. 406 (1953) . .11, 16, 27, 28,

3 “32, 46, 50°

ee v. U. S.. Lines, 347 U.S. 984 (1954) | enteus on

| Vv i $ ‘ 5

| sae PAGE

Santa Maria: v. Lamport & ‘Holt: Line, Ltd. (B.A:-——. —

1938) 119 N.J.L. 467, 196 Atl. 706....... rept OYA 15,42

Schulz v. Pennsylvania Railroad Company, 390 U.S. |

AM GEE. Usehs keke eaaeescascceekeeeents eveey

Seas Soippias v. Sieracki 328 U. S. 85 (1946). .13, 15, 16,

ud Yas 36, 41, 44

Skovgaard x. The M/V Tungus, 252 F. 2d 14. (CA-3,-

yi ARN ISERaNe ater es Seine Stn tape "2... .10,-26, 41, 42

_ Soden v. hehe & Mercer Traction Company, ‘101 ;

Dele Dg: SE le BO oo bea i eerca Sodio bec ka 40

Southern Patific Co. v. Jensen, 244 U. S. 205 (1917) =—_.27

Stewart v. Norton (1951) 6 N. J.591,8 A. 2d 111... © 42

' Strika v. Netherlands Ministry of Traffic, 185 F.

2d 555 (CA-2, 1950), cert. den. 341 U. S. 904 .... 0 45.

"Torres v, The Kastor, 227 F. 2d 664 (CA-2 - 1955).. . 17; 48

Turon v. J & L Construction Company, 8 N. J. 543,

* 86 A. 24192 (Supreme Court, N. J. } >t ~ 14, 40

Virginia Beach Bus Line y. Campbell, 73 EF. 2d 97.

(CA-4, 1934) ........ De perecderdcas Cewseinens 22, 59

West v. United States, 143 F. ‘Supp. 473 (S.D.NLY., >

en DE a be A FOS RUSTED On adE Sek B TERE hese oOo wok 49

Western Fuel y. Garcia, 257 U.S 8.233 (1921) .9, 13, 23,24, 35

, _ StaTures Citep

Lord Campbell’ s. Act, : Spee

9-10 Viet. “Beets Witiaes. md salle Cat

N.J.W rongful Death Act, . 3

N.J.S.A. 2A :31-1 through 6 ........ 3, 4, 13, 23, 35, 38

Revised Statutes of New J ersey, | at

Oe es De ey 39

_ Title 28, U. S. Codé, Section 1254 (1) - 9

Orner AuTHorITIES CITED |

Erie Railroad v. Tompkins and The Uniferm Mari- -

‘time Law (Stevens), 64 Harvard Law Review 246 34

IN THE

Supreme Court of the Huited States, :

October Term, 1958

_ No. 56 |

ys. :

ei : . _

Unrrep New York anv New Jersey Sanpy Hook Prots

ASSOCIATION, a corporation and ‘Uxtrep New York SANDY .

Hook -Pmors AssocIATion; a. a corporation, fey ets

aft E _ Petitioners,

—-against— |

¥ ANNA “Haveckt, Administratrix ‘ad Prosequendum of the .

Estate of Walter’ Joseph Halecki, deceased, and Anna

- Harecxt, Administratrix of the Estate’ of Walter Joseph

Halecki, deceased,

. Respondent.

_ BRIEF FOR THE PETITIONER

Opinions ‘of the Court Below

The majority opinion of the United States Court of,

Appeals for the Second.. Circuit (Cireuit Judge Hand and

Circuit Judge Hincks) (R. 147), and the dissenting opinion °

of Circuit Judge Lombard (R. 154); is were at 251

F, 2d 708.

Jurisdiction

The jurisdiction of the District Gourt was invoked be-

cause of diversity of citizenship, the\plaintiff being a citi-

zen of New Jersey and the de ea New York taal

ration.

The ‘Judgment of the United States \Court of Appeals -

4 for the Second Circuit was entered ‘on January 10, 1958

. (R. 161). Petition for rehearing was denied on January

‘31, 1958 (R. 171). Petition for hearing en banc was denied

| on February 20, 1958 (R. 172). on }

‘Pre jurisdiction of this Court was itivoked under Title

28 U. S. Code, Section 1254.(1). The petition was filed on

- April 28; 1958,-and was ae on June 9, 1958.

» - Questions Presented

1: "Whether ’ ‘an wii: ‘brought pursuant to. a State.

Ww rongfuil Death’ Statute is to be determined by the State -

' rule of contributory negligence or by the pemeeny rule ©

of comparative negligence?

2, Whether a State Wrongful ‘Death Statute may be

extended by:a- Federal Court, to encompass an action for

unseaworthiness, without regard to the substantive law of

- the State?

3. Whether the wievenhy of seaworthiness extends to a

shoreside electrician em; ployed by a sub-contractor, to clean

generators aboard a vessel while it Was: out of operation

in a repair yard? .

ee es

4. Whether a jury. should be eienililio’ to pas infér-

enees when there is a complete absence of probative facts

to support the conclusion reached?

‘The Statute Involved.

The plaintiff one in - thee United States District Coirrt

- for the Southern District of New York to recover damages

under the New Jersey W rongful Death Act,. N.J’S.A.

2A :31-1 through 6, the relev ant section of a reads as

foHows:

ee ‘aaa When Action Lies

When the death of a person is caused by a wrong-

ful act, neglect or default, such as would, if death .

had not ensued, have. entitled the person injured to

maintain an action for damages resulting from the

injury, the person who ‘would have been liable in.

damages for the injury if death liad not insued shall

be liable in an action for damages, notw ithstanding

the death of the person injured and although the

death was caused under circumstances amounting in

law t0'a crime.” ice

Statement

The plaintiff, as administratrix of the Estate of Walter

J. Halecki, brought suit in the United States District Court

for the Southern District of New York, to recover damages

for the 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 defendauts. The

action \ was brought pursuant to the New Jersey Wrongful 2

ae : ye :

Death ‘Act, NJ, S.A: 23 31. 1, 7 she ‘complaint alleged

diversity of NE :

“The tacts which took place were as s follows: | |

“On September 22, 1951 the pilot boat ‘“‘New Jersey’’

wa tursied ‘over ‘to Rodermond Industries, Inc., for the

: purpose -of annual overhauling’ and inspection (R. 122),

which were undertaken by Rodermond in accordance with

an agreement with the defendants (R. 77). At the time of

_ the incitent the vessel was moored at a pier in the repair

yard of Rodermond, North River, Jersey City, New J ersey,

_. and-was out of ‘operation (R. 13). The only employee of the

ot defendants aboard was a watchman (R. 135).

Walter ‘Halecki, the plaintiff ’s decedent was an electyi-

cian employed by K&S Electrical Company (R. 69), a-sub-

contractor. engaged by Rodermond to do electrical work

aboard the shiip. Neither K & S nor Rodermond, both Jer-

sey corporations (R. ‘16), are parties to this action. On:

; September 29, 1951 the’ decedent came “aboard the vessel

together with a co- ‘employee of K & S Electrical Company,

: ‘oné Denald Doidge. These electricians received their in-

structions from their: employer,. K &3B Electrical Company,

which had undertaken to perform electrical work ' on the

; ship, an accordance with specifications given it by. Roder-

“mond Industries, Inc. . (R. 72). These specifications in-

ae. cluded cleaning the generators on the ship, which was the

. work performed by the decedent and Mr. Doidgs. on Sep-

tember 29,1951 (R. xe -73), eee fast 7

Donaid: Doidge, who. had } prev idusly given a deposition,

» for the defendants, testified on behaJf’ 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, i 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 done, were left to his discretion (R. 11-13), and that

the customary method for cleaning generators was by use.

‘of carbon tetrachloride (R. 11). On September 28/ 1951, -

the day before the work was actually done; Doidge and

Halecki set typ the equipment which: was to be used, includ- —

ing air hoses and av electric blower, . supplied by Roder-

mond (R, 12)... The power was produced. by shore gener-

~ ators,.owned by Rodermond, as the *‘New Jersey’’ was

. a dead: ship, i. e&., it. did not produce its Ow n power (R. 12- -

13). ye 3 ' .

/ On the morning of September 29, 1951, the K. & 5 em-

* ployees, under thé supe rvision of Mr. Doidge, set up por-

table blow ers in the engine room where they were working, i

= and also brouglit gas masks with them, as the cleaning of

the | generators was done by, ‘spraying them with carbon

tetrachloride CR. 98- 99). The engine, room “whe ‘re this work

was done was only one ‘level below ,the main deck, and ag ;

doorways: and. the, skylight, were open (R., 6-15). >

ship’s ventilation system Was ope ‘rated by power op a

generator on shore ( R. 7-8).

Mr. Doidge testified that the decedent t did most of the

‘performance «of the work, which continued uneventfully

from 8:30 A.M, to 4:00 P.M. The decedent léft Mr. Doidge .

“without making any. complaint other, than that he ae a

pee ‘uliar taste in his taoutys (R. 10- 11).

‘Mr. Haleck: baament uh at home, ail on October 2, 1951,

Was, admitted to the: Medical Center in esa whe re

a ‘ -

ff f y

. < -

a j : “

actual spraying, and that he wore a gas mask during the: | .

wae

he died on October’ ae: 1951. “The sale reeord aaa 4

- that the ceuse of death was carbon tetrachloride poisoning,

and the record also disclosed that the decedent liad habitu-

ally consumed excessive amounts, of alcohol (R. 17- -18),

Mr. Doidge testified that all of the onlontis and ven-

tilation systems had operated perfectly during the day @.

(R. 12-16), and that in his opinion the ventilation/was ade-. |

quate (R. 13), and also that he and the decedent had used

carbon tetrachloride on many occasions and ‘were com-

pletely.familiar with its properties (R JA) (R. 206).

Robert Gaines, a bio-chemist, testified as an expert on

behalf of the plaintiff, regarding the qualities of carbon

_ tetrachloride, and the degree of concentration necessary

to produce: a dangerous. condition R. 18-19). Mr. Gaines

had. never been aboard the pilot boat “New Jersey te

(R: 28), and his testimony as an expert was based. upon:

the: description of the engine room given by witness, Den-

ald Doidg2, and also upon certain photographs of the en- =

gine room which had been introduced (R. 19). aoe

Mr. Gaines testified. that i a safe concentration of, carbon,

-—_ehetrachloride was 100 parts per million .(R.. 18), aid that

in his opinion, a congentration of 20,000 parts per million

existed in the Ng of the pilot boat ‘‘New Jersey aa

(R. 23). Upon cross-examination, Mr. Gaines admitted that ~

.the concentration of carbon tetrachloride would depend”

upon such factors as the horse power of the ventilator

motors (R, 28), the location of the ducts, the-size «: nd. angle

of the fan blades (R. 30), the location of exhaust vents, the

sige and- arrat ngement of portable blowe FS and air hoses

_ (R. 28), 2 lie condition of the gas mask used (KR. 30).

_ The witness | further testiiied - ‘that ‘these factors, which

’ A

‘

porn, i re ie him, were ‘essential in estimating sores x

concentration, (R. 31). Ne REET a Read <a

The defendants introduced the t toatianesiy of William 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. efficient ‘to me

perform the function for whith it was designajed (R. 40).

The deferidants also produced as ah expert witness, Dr.

Milton Helpern, the New York State Medical Examiner,

who emphasized. that a person who drinks to excess has a

strong pre- disposition to carbon tetrachloride poisoning

(R. 37). Dr. Helpern reviewed the medical records of the

decedent, and Stated, that in his opinion, Mr. Halecki’ s his-°

tory of alegholism created a susceptibility to a slight, X-

posure of the substance. (R. oy). ns ee \

‘The case was tried be fore the Honorable Edward Wein-

fe ‘Id and 4 jury in December, (1996, and Jenuary, 1957, and

resulted in’ a jury verdict in favor of the plaintilt i in the

total amount of $655,000 (R. 64). After judgn nt was en-

tered, the. defendants filed a Notice of Appeal to the Vnited

States Court of knead ‘for the Second € ineuit (R. 67).

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

Appeals for the Second - Circuit ou November ot, i957,/.

before Cireuit Judges Hand; Lumbard and Hineks. On

January 10, L958, the- opinion of the Court of Appeals was |

handed down and judgment: enters ~ The majority, con-

sistmg of Circuit Judges Hand sind Hineks affirnied. the

| judge nt of the- District ( ‘ourt Jian 747), and Cire uit Judge

L umbard disse mie (TR. 4; 04). f

The majority’ opinion delive red ‘by Circuit Jider Hand

held that the decedent pe rformed the type of work which —

entitled him to the warranty of.seaworthiness, and that

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 that the record below was insufficient to .

support: the j jury verdict.

The dissenting opinion ‘of Cireuit Judge 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 disagre d with ‘the majority’ 's view

that a maritime claim brought pursuant to the New J ersey

_ Death Statute was not subject to the defense. of contribu-

tory negligence. 2 ris ,

Subsequently, on Janusty 24, 1958, the petitioner filed -

a petition for re- hearing (R. 163) and a petition for hearing ;

en banc (R. 169), together with a motion to-stay the man-

date. The petition for re-hearing was denied on January

31, 1958, with Circuit Judge Lumbard dissenting. The peti-

tion for hearing en banc was denied on February, 20, 1958,

again over the dissent of Circiit Judge Lumbard. The

motion to stay the mandate was unanimously granted on

February 27, 1958. The petition for a writ 6f certiorari 7

was filed on. April 28, 1958, and was granted on Fune 9,

1958. eee /

fe ‘

ew,

SUMMARY OF ARGUMENT —

POINT I re

- The State rule of einialindiary negligence should be

‘applied to an action. under a state wrongful death act.

-This respondent sued under the New Jersey Wrongful |

Death Act, as the General Maritime Law contains no pro-

_. vision for a death action. Her rights, as the adminis-.

a U.S, 199 (1886).

tratrix of a fatally injured shore worker, are therefore

derived solely from the state statute. Lindgren v. United

States,.281 U. S. 38 (1930). (eae.

Admiralty Courts recognized that the General Martime

. Law has been supplemented by State. Death and Survival

Statutes, which supply. rights not giv en by Maritime Law.

Western Fuel v. capes 257 U. S. 233 (1921) ; Just w!

ae i. hambers, : 312 U..S. 383 ere

The question then arose as to per ee Federal Courts ;

would enforce these state created ‘rights in accordance

with State. or maritime rules. This Court has decided that.

_ the validity of state created rights would be determined in

accordance with’ state eI NS ‘The Harrisburg; —

. Avo

tt has een specifically held that suits: Seouuh under 1 a

state wrongful death act must be subject to the limitations

centained in the state aah which created the right. W ‘estern

Fuel v, Garcia, 257 U.S 3. 233 (1921); Levinson v. Deupree,

345 U. S. 648 (1953).

The pertivler question in the instant case is | whether

.the mafitime rule of comparative negligen nce or the State

principle of contributory negligence should be applied to

an 4-‘ion under a wrongful death act. An explicit answer

has been. given by the various Circuit Courts of Appeal,

which have almost uniformly applied the state rule of con- —

tributory negligence to ‘actians brought to.enforce state

given rights.

Graham v. Lusi Ltd. 06 ¥: 2d 223 (CA-5, 1953) Hartford

Accident Indemnity Company v. -Gulf Refinery Company,

‘\e 230 F. 2d 346 (CA-5, 1956) ; ‘Lee v. Pure Ou Compens. 218

F. 2d 711 (CA-6, ae y

Of particular significance 3 is ‘the decision of Hill v. Ww ater-

man, 251 F. 2d 655 (CA-3, 19% 98), in which the Third Cireuit

decided that ‘contributory ne gligence should be a defense .

to an action brought under the New Jersey W rongful

Death Act.

| Hill was decided by the Third Circuit shortly after the |

| Halecki decision was handed down. The Second Circuit i in

is Halecki had relied upon the holding in Skor gaard v. The

— M/¥. Tungus, 252 F. 2d (CA-3, 1957), in finding. that |

the New Jersey Death Statute encompassed unseaworthi-

- ness. Howevert, the’ Halecki decision took the additional

/ step: of: shelving | vomparative negligence, which was ex-. -

pressly rejected by the Third Cireuit in Hill v. Waterman.

“The Courts have followed the general rule of deter-

mining the rights of litigants in aécordance with the sub-

stantive law of the jurisdiction in whith, each right origi-.

nates. Equal protection has been given to state and federal

¢ created ren * /

vA :

Garrett v. Moore McC svenauh, 317 (if S. 239 (1942):

11 4

There is no question that contributory negligence is a

complete har to recovery in New Jersey. Blaker v..The Re-

ceivers/of the New Jersey Midland Railroad Company, 30

N. J. Eq. 240 (1878). £3 :

The, decision of this Court in Pope and Talbot v, Hawn,

346 U. S. 406 (1953), has been cited as authority for apply-

ing the maritime rule of comparative negligence _ to the

instant.case. However, Hawn was an-injured but living

plaintiff, and it is not disputed that his rights, to sue for

| negligence and unseaworthiness, were given by Maritime

law. Hawi, unlike Halecki, was not required to rely ona

state created right, and therefore was fot bound. by state

limitations. ae : o ee ed

The right of this respondent was created by the state -

‘death statute, arid was not rooted in federal maritime law.

Again, the substantive law to be applied in ea¢h case

depends on the origin of the right,

The Hawn decision Was consistent with this’ principle,

and, is not authority for applying the maritime compara-

* tive negligence rule to an action brought under a State

. Death Statute.

Moreover, the nature of the right give en by a Wrongful |

Death Statute is completely different from. the rights

_ given a living claimant by the General Maritime Law.. An

injured person sues for his own damages, inchuding his

pain and vuffering, lost income and medical expenses. <A -

Lord Campbeil’s Act, on ‘the other hand, giv es toa dege-

dent's d yendents the right to sue for their own damages,

consisting of the loss A suffered be-

* cause of the death. :

pe Bee iies

‘The, distinction: between these rights is emphasized by .

the existence of both wrongful death statutes and survival

statutes, which preserve the rights a decedent had prior

to.his death. It is significant that this claimant sued only.

under the Wrongful Death Act of New Jersey, and not.

under the New Jersey Survival Statute. |

Litigants will not réceive equal protection of the law

unless their rights are détermined in acéordance with the

- jurisdiction where they originated. The obligations of this

defendant dre imposed: ‘upon it by state law, which. would

also be.the source of that defendant’ s rights. The applica- cs

tion of the maritime rule, of comparative negligence |

would deprive this and other marine defendants of a de- —

fense given, to every other party mned under the state

' death statute.

Persons engaged in the maritime industry thereby be-

come the only class of litigants to bear the obligations i im-

‘posed by state law without the protections of that law.

Moreover, ‘a’ person suing under the Wrongful Death .

Act because of the.death of a maritime employee would -

receive preferential tre&tment over.other claimants, suing .

“under the same statute, as a result‘of fatal i injuries suffered *

- ashore.

: POINT II

~ The New teats Wrongful Death Act does not give

a cause of action for unseaworthiness.

There is no cause of action for wranatal death’ under

the General, ‘Maritime Law, The Harrisburg, 119 U.S. 199 .

(1886), and a. claimant: seeking damages for maritime

injuries resulting in death may sue under the Ww rongful

Dewth Act of the state within: whieh the accident occurred.

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

This claimant sued under ihe New J ersey Wrongful |

Death Act; N.J.S.A. 2:3;-1 th®ough 6, for pécuniary dam-

ages resulting from the death of the decedent, and can only -

rely on a rights Geated 4 state law.

“It is "the posftion of the petitioner that the New. tie

Wrongful Death Act does not afford aright to sue for un-’

seaworthiness. The language of . the: statute, the nature of

'. the rights to be enforced, the intent of the legislature, and

the applicable decisions all fail te support the interpreta- -

a of the respondent. = :

The language of the statute gives an action based on ‘act,

? neglect or default?’, and the Halecki opinion “held that”

these words encompass unseaWworthiness. However, the

elements of unseaworthiness are fundamentally different

from those of negligence, which depends on such factors as

lack of due diligence, notice and control. None of these

‘elements are necessary -to eae unseaworthinéss. Seas

| Shippiva v. Sle Fg 328 U.S. 85 (1946); Alaska Steam- -

ship Co., Inc. v. Petterson, a7 U.S. 396 (1954) ; and

; a : . ee

@: wu. 4

\ Boudin v. aids Brothers Steamship Co. ., Inc., 348 U. 8:

336 (1955).

\ It has alee been argued that the decedent’s dependents

should receive the same right to sue for unseaworthiness

that he would have had if he had lived. This argument ig-

fores’ the ‘basic difference between the rights of an injured —

but living party, and the rights given | to his ne:

An injured litigant ‘has a maritime eight to sue for his.

own damages, consisting. of his pain and suffering, lost ©

income, and medical expense. However, his dependents

have a separate right, to recover their damages, caused by _

the decedeft’s death. This cause of action, to recover.for .

loss of anticipated support, does ‘not exist at Maritime Law,

and does not come into being until the decedent’ s death.

Curtis v. Garcia, 241 F. 2d 30 (CA-3, 1957). . 2

The fact that the New Jersey Wrongful Death Act was

not intended to preserve a decedent’s rights f¢r his depen-

dents is demonstrated by the existence of.a Separate New

Jersey Survival Statute. This Act preserves the already

existing rights of* the decedent, while the W rongful Death -

. Act eréates a new cause af action, which did not exist

under mceaval Maritime Law.

- Just v. Chambers, 312 U.S. 383 (1941) *

‘Turon v. J. & L. Construction’ Company, 8'N. J.

543, 86A. 2d 192 (Supreim + Court, N. J. 1952).

In considering whether New Jersey Legislature intended

to include unseaworthiness within ‘the meaning of the ©

Wrongful Death Act, it is important to bear in mind that —

_ the Act, in its present form, was enacted in 1937, and was

"patterned upon the British Lord Campbells’ Act ‘of 1848.

The ‘protection of the warranty of seaworthiness was ex-

tended to,a non-seaman for the first time in 1946, by the _

decision of this Court in Sieracki v. Seas:Shipping Com 7

Therefore, at the time this ys was passed, shore workers

had no. right to sue for unseaworthiness. The legislatare _

could not have intended to include in the Statute a right

which did not exist at the time the law was enacted.

- The New Jersey Courts which have considered the Wrong-

‘fil Death Act have consistently confined its application to

negligence situations. This has been true even where the

- facts would support a claim of: unseaworthiness. Moran ©

v. Moore. McCormack Lines, (1944) 131 N.J.L. 332, 35A.

2d 415; Santa Maria v. Lamport & Hoit Line, Ltd. (EA.

1938) 119 N.J.L. 467, 196 ae 706.

iSuicivid. the Wedersi Courts, in considering similar

- statates of other states, have uniformly held that they

‘ apply to actions for negligence, and not to unseaworthiness.

' Graham: ' Lusi, 206 F. 2d 233 (C A-5 5, 1953) ; Lee v..Pure Oil:

_ Company, 218 F. 2d 711 (CA-6, 1935) : Byrd v. Napoleon -

Avenue Ferry Company, Inc., 125 F. Supp. 573 (E.D. La),

227 F. 24-958 (C'A.5, 1955), cert. den. 351 U.S. 925. :

a - POINT m

3 The warranty at seaworthiness does not aatinia to

Itt is the Sajieeliaal 8 position that Halecki, an Ae

cian eniployed by a. sub-contractor to clean generators,

was not doing the type of work which oe him t¢ the

varrepy of seaworthiness. :

‘This doctrine | was - first sitar to nonseamen ve this

“3 Court i in Seas Shipping Co. v. Sieracki, 328 U. S. 86.(1946).

‘Theré it was held that. ngshoremen, engaged in loading.

a vessel, are performing eamen’ ’s work, and that they are

* therefore entitled to the same. protection. ‘The Court rea-

-soned that: a shipowner should not be allowed to avoid lia-

bility to those engaged in ship’s service by arranging to ©

have the work done by independent contractors.

The declaions which followed Sieracki expanded. the

-~warranty of seaworthiness to include, not only longshore-

men, but other. harbor workers, whose duties, like those of _

Hy Asi were performed in the service of the ship.

Tn each instance, the ‘determination depended upon ‘the |

type of work. done by the injured person, ‘and was not.

- based on the name given to his calling or trade. _

This: criterion was followed by this. Court in Pope ¢:.

Talbot v. Hawn, 346 U. S. 406 (1953). Hawn “was a car- .

penter, employed by an indepefdent contractor to repair

a grain loading equipment so that —— of the vessel

could continue. . tel :

| “Mr. Justice Black, writing’ forthe sniguctiy: of this

Court, emphasized that Hawn’s work: was preparing the

om for the earriage of cargo, and that his function was

similar to that of a lengshoreman. In giving Hawn a

cause of action for unseaworthiness, the Court stressed

that his work was connected with the operation of the ship,

| This Court expressly refrained orca a general exten-

sion of the warranty of: seaworthiness to: cover all shore- °

side workers or’ repair men. The test eontinued to be the

nature of the injured person’s We Ft. 4

sn a ¢

The lower Court decisions have regularly pasar this ..

test. ‘The warranty has extended t rpenters like Hawn,.

who was preparing the ship to receigcargo, and also to

_ ship’s-cleaners, whose -function was to clean the vessels’

_ eargo compartments or, tanks in preparation for loading.

_.Torres v. The Kastor, 227 F. 2d 664 (CA-2, 1955) ; Craw-

= v. Pope. €& Talbot, Inc-, 206 F.. 2d 784 (CA- 3, 1953).

On the. otior hand, whieh the work done by the injured

‘person was not in the ship’ 8 service, the Courts have de- | sie

clined to extend the warranty. The funetion of the worker

was examined in each case, and no eause ‘of action for -

unseaworthiness was given where the eaten were not those —

traditionally performed by. seamen. !

Thus, the warranty has been withheld from repair yard

employees, engineers, and ship’s riggers, whose jobs were

specialized dnd involved mechanical or structural | repairs.

» Berryhill v. Pacific Far East Lines, Inc., 238 F. 2d 385

(CA-9, 1957); cert. den. 1 L. Ed. 2d 1537; Petersen v. United

‘States, 80 F. Supp. 84 (E.D.N.Y. 1947); Meyers v. Pitts-

_ burgh Steamship Company, 165 F.2d 642 (CA-3, 1948).

Circuit. Judge Hand, who wrote the majerity opinion in |

Halevki, agreed that the test to be observed was the nature

of the: work performed. However, he stated that he saw

no difference between the work done by Halecki and that -

done by Hawn. . : ty

It is respectfully submitted that Halecki ’s ie was com- .

pletely unlike that done by Hawn, or by any other worker. .

. to whom the warranty of seaworthinéss has been extended.

Halecki-was a trained and specialized electrician, who

ordinarily worked. ashore. The very nature of the task of.

~ cleaning generators required that the ship be out of oper- -

ation, and the power was in fact off when Halecki worked,

- on the ship. ~ ny :

Moreover, Haledki’ s job required ‘spegial equipment,

_ owned by his employer, which was engaged by the repair —

yard as a sub-contractor, because the work was so special-

ized that the repair yard was itself not equipped to perform |

eS 3 ess | Se ag | ago.

In extending the doctrine to apply to Halecki, the major-

ity opinion characterized the decedent’s work as ‘‘clean-

. ing the ship’’. However, Halecki’s work of removing -

grease from the ship’s generators by’ spraying them with

_ carbon tetrachloride was totally anlike the work done by _

ship’s cleaners, who were hired to clean the vessel’s cargo

compartments i in ‘preparation for the receptjon of cargo. |

The’ dissenting opinion cf Circuit Judge Lumbard in: :

Halecki took particular e ption to the characterization |

- of Halecki as.a ‘‘ship’s cleaner’’, which he described as

‘. a play on words. He emphasized that-Halecki, an outside .

specialist, did work which had never been done by seamen.

Judge Lumbard also referred to the inconsistency shown

“by the result in Berge. v. National Bulk Carriers Corp.,

ty ate

ay 3 2 a

“951 F.2d 717 (OA, 1958), cert. den. 2 L. Ed. 24, 1066,

which was decided by the same panel of the Court of Ap

_péals for the Second Circuit, on the same day as the Haleckt

decision was handed down. The Second Circuit, again speak-.

ing through J udge. Hand, affirmed the dismissal of the

‘ complaint of Berge, a shipyard rigger, and found that he |

-. was not entitled to the protection of seaworthiness.

Further support for the contention that Halecki was’

snot doing seamen’s work is found by a comparison with

“Berryhill y. The Pacific Far East ‘Lines, 238 F. 2d 385

> (CA-9,1957), cert. den. 1 L. Ed.'2d-1537. In refusing to ex:

tend the warranty, the Court pointed out that. Berryhill, a

repair man, was working. on ‘the ship’s propeller shaft, and

that the vessel's propalgien machinery was necessarily out

of eperation.

The nature of Halecki’é work was also’ es that it

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

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

_ by seamen. |

The Berryhill decision ie Jeenonsttated that a -ship-

owner ‘does not warrant the seaworthiness of equipment

“not usually furnished and necessarily required by the

in Pettersen v. Alaska Stedmship Co., 205 F. 2d 478 (CA-9,

1953). There the owner was held liable for the unseaworthi-

. ness of a, block which had been brought aboard the ship

by the stevedoring company for use- in loading the vessel.

However, the Ninth Circuit in. Berryhill declined to, hold

the owner responsible for a defective grinding wheel which

had been furnished by the shipyard where the vessel was

being repaired. He distinguished between the bldck used:

in the Didiiniei. case, which was siinilar to ship’ 8 equip-

ments and machinery like the grinding wheel. ee

- Therefore, it does not seem that the Peltorsén Yootrine

was intended to hold’ a shipowner liable for the-inade- _

quacies of specialized equipment brought aboard by sub- -

contractors. Liability has been imposed ‘in *Haleckt be- \

} cause of the alleged inadequacy” of the ventilation equip-

ment, incluuding portable blowers, fans, air hoses and gas.

' masks, all of which were brought aboard by the decedent, -

= himself. None of this equipment, except the vessel’s own

permanent ventilators, was owned or supplied by the vessel,

‘and none of it was connected to the operation of the vessel.

_ POINT IV

)

| ‘Sean failed to establish the existence ofa ;

defective condition.. —

Regardless of the various legal issues discussed in this

_ brief, petitioner contends that upon the trial there was a

complete failure of proof vf the-existence of either negli-

gence or unseaworthiness. It has been argued. that the

decision of this Court in Schulz v. Pennsylvania Railroad ~

Company, 350 U. 8S. 523 (1956), was authority for sub-

mitting this case to the jury. However, a comparison of the

facts discloses thatthe Schulz doctrine has’ no application |

in the instant case. es ‘

- Although there were no witnesses to Schulz’ joule the

record contained evidence of several dangerous conditions

which could have ‘caused the fatal accident. This Court

*. death.

21 Hes: , . : ey

held that ‘thie jury ‘should ore been permitted to decide

which of several possible eaiases had ‘brought about. the |

Laure

* However, the H hecki réeerd did not contain: proof of

the existence of any dangerous condition, and the jury

was first allowed to speculate upon the existence of a de-

fect aboard the petitioner’s vessel, and then to further

- surmise that: this nappened condition caused the decedent. t's

a a j . s

The i issue in Halecki was the adequacy and condition of

a ventilation system~on the vessel, as it existed on the

day when. the decedent worked aboard.* The only factual ©

_ witness on behalf of the claimant was: thedecedent’s co-

worker, who testified that the ventilation system was ade- -

quate, and was operating efficiently, - | }

‘The plaintiff’s expert witness testified. that he had never

been aboard the vessel and that he was without knowledge

of any factors which he admitted were necessary to form

an opinion of the conditions s_whi¢h existed, such as the.

dimensions, arrangement, ation and Cold: tion of the

equipment used. | Futthermoye, he ‘specifically admitted on

cross examination that he did not know whether the ven-

tilation system ‘aboard the ship was inadequate.

“Although Schulz and other eases have demonstrated that

a jury should be permitted to decide which of several

possible inferences is the most reasonable, it has always

been held that there must be some evidence upon which |

to base the inference. Lavender v. Kurn, 327 U. §. .645

(1946). es .

Meseovie, it is ‘basic ‘that a ‘hypothetical question must

be based upon facts which are in evidence. Petitioner

contends that the plaintiff’s. experts’ testimony should.

~ have been excluded because of his admission that he could

not ariswer without facts which were not within his, knowl- ~

edge, and upon which no testimony had been received. *

' Virginia Beach Bus Line v. Campbell, 73 F. 2d 97 (CA4,

1934). 9

The majority déhalen in H sail disposed of that portion |

of the appeal which was based on insufficiency by stating

. that the competence of the plaintiff’s expert witness was-

within the discretion of the trial court, and cited cases.

where the qualifications ¢ of the experts had been questioned. ,

No question concerning * the witnesses’ qualifications

have been raised by the petitioner, who contends that the

record did not contain evidence sufficient to form a, basis

for the expert’s opinion, and that this insufficiency was

admitted by the witness himself. pee a

Rsptuanntd the action should have been diamlesed.

_ ARGUMENT |

POINT. ry ate

‘The State rule of outta: negligence should be ‘

applied to an action under a state wrongful death act,

(a) The Rights of Litigants should be Determined by the

' Substantive- Law: of- the Jurisdiction in which Each

| Right Originates.

This respondent, as the ‘wlininbetiratsis of a fatally

injured’ shore worker, brought an:action based solely on _

the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1: :

through 6, and any rights which she may have are derived ’

from that statute. Resort to the state act wads necessary .

beeause it has been ‘firmly established that the General

’ Maritime Law contains. no provision for a death action.

The Harrisburg, 119 U- 8. 199 (1886).; Lindgren v: United

Staies, 281-U. S. 38 (1930), The source of the respondent’s -

j rights was therefore clearly not the General Maritime Law. _-

However, persons seeking damages for death resulting

from Maritime tort have. been permitted to rely upon rights.

given hy the state within which the alleged wrongful act

was committed, and Admiralty Courts have recognized

7 state statutes and the rights which they supply. The Gen-

eral Maritime Law has been supplemented by the various’ -

state death and survival statutes, and it has been recog-

nized that the state law ¢aereby supplies rights not found . |

in Maritime Law. Just v. Ch, ambers, 312 U.S. 383 (1941);

Western Fuel v.wGarcia; 5% U. S. 233 (1921) and The

Hamilton, 207 U. S..398 (1907). : ;

‘ After it had been determined that Federal Courts would

enforee these new rights which had been created by. State.

. Law, the question then arose as to whether their validi

ae would be-deterniined by state or maritime rules., This

Court considered the source of the rights, and held that

state substantive law should apply. .

In the Harrisburg, supra, -the Supreme Court of the -

United States unanimously ruled ‘that an action brought.

under a state death statute was necessarily restricted by

the State Statute of Limitations. After holding-that the ~~

~ claimant had no cause of action at maritime law, and that -

his only right came from the State Death Act, Mr. Chief |

Justice Waite, stated at page 214:

“a would seem ‘clear that, if the avis sides

. the statute as a rule of right to be administered,

within its own ‘jurisdiction, it must -take the right’

subject to the limitations, which have been made

part of its existence... .’’

A similar fact situation was considered in Western Fuel

‘y. Garcia, 257 U. S. 233 (1921), where this Court reversed

a judgment in favor of a libelant who had sued under a

| State Wrongful Death Act, after thé ‘expiration of the,

_——State Statute of Limitations. Mr. Justice McReynolds, in.

enforcing the one year State Time Limitation, held that |

_ state law may modify or supplement Maritime law without

interfering with its uniformity.

Again this Court looked to the origin | ‘of the right in

determining the substantive law-to be applied to an action

under a state Wrongful Death Statute in Levinson v.

‘Deupree, 345 U. S. 648 (1953), and held that ‘‘a time

—Y

—

7 ee

~ limitation deemed attached to the right of action creatéd

by the state is binding i in the’ federal forum’? (p. “a

“his question has frequently arisen in | the variéus Circuit

Courts of Appeal which have: almost uniformly followed. \

_ the rule that admiralty courts will apply substantive state —_

‘ Jaw when invoked to protect rights given by the State. A —

- statement. typical ofthis position was made by the Court of

Appeals for the Fifth Circuit in Graham v. A. Lust_Ltd,— sn

206 F. 2d 1d 223 (CA-5, 1953), which: ‘was brought under the.

~~ Florida Death Statute. It: was stated at page 225:

“We: are in no doubt that the appellant’s right of

action under Section 768.01 N. S.’A., like other rights

of action arising’ in admiralty under Lord Camp-

bell’s Act and similar acts, is to be enforced accord- .

ing to the principles of the Common Law, and con-

tributory negligence and the exercise of due care

are absolute’ defenses thereunder. Without this -

statute, the appellant could not maintain her en

because ‘the prior maritime law conferred no ri

upon the personal representative of a deceased

Maritime employee to recover indemnity for his -

fr death.” a )

- The same Circuit made similar decisions in. Hartford

_ Accident & Indemnity Company v. Gulf Refinery Company,

230 F. 2d 346 (CA-5, 1956); and Byrd v. Napoleor Avenue

Ferry Company, Inc., 125 F: Supp. 573 (E. D. La., 1954), °

aff’d 227 F. 2d 958 (CA-5, 1955), cert. denied 351 U. S. 925:

Identical results were reached by the Sixth’ Cireuit in

Lee v. Pure Oil Company, 218 F. 2d 711 (CA-6, 195 5); and

_ by the Third Cireuit in Klingseisen v. ‘Costanzo Trans-

portation Company, 101 F. 2d 902 (CA-3; 1939); Curtis v.

Garcia, 241 F.2d 30 (CA-3, tnt and Hill v. Ww aterman,

251 F. 2d 655 (CA-3, useeh :

Ne rights arising from admiralty law in accordance with mari-

“ Parenthetioally, Hill was decided “y the Third. Circuit

shortly after the Halecki decision was handed dowa. The —

Sécond. Circuit in Halecki had relied heavily upon the

- Third Circnit holding in Skovgaard v. The M/V Tunguss

252 F, 2d 14 (CA-3, 1957), in finding that. the N. ‘J. Death

Statute. encompassed unseaworthiness. However, the

Halecki decision took the additional step of applying com-.

' parative negligence, which was expressly rejected by the :

.Third Circuit in Hill. v. Waterman, supra, Z

the. Courts have consistently applied the substantive

law of the jurisdiction which created-the right, whether

state or maritime in origin. It is apparent that the force of

the rule.is felt in both directions, and that state rights, as

well as federal, will be protected.

For example, Garreti v. Moore-MoCorwiith, 317 U. S..

239 (1942), involved an injured seaman, suing. under the

Jones Act, in the State Court of Pennsylvania. Garrett’s

right. clearly originat in the General Maritime. Law, and ©

it'was held’ that S courts must enforce substantive -

time principles. The opinion, delivered by Mr., Justice -

Black, demonstrated the Court’s intention. to protect sub-

stantive rights rooted instete law, as well as those created

by Maritime Law. It was stated at page 245: 2 ‘

«The ocuitinnt objective of legislation ani juris-

prudence is to assure litigants full protection for all

' substantive, rights intended to be’ afforded them by

the jurisdiction. by which the right itself originates.

Not so long ago we sought to achieve thiswesult with

respect to enforcement in the federal courts of rights

. created or governed a State law (Erie Railroad Co.

WV. Tompkins, 304 U. S. 64). And Admiralty Courts

hn invoked to protect rights rooted in state law,

endeavor to determine the issues in accordance with —

ze the —_— law of the state. "

The Garrett opinion. sutented with apparent approyai: = et

‘Erie Railroad -v. ‘Tompkins,. 304 U.S. 64 (1938), as did

Pope & Talbot v. Hawn, 346-U. S. 406, (1953) Erie Rail-

‘rood, which: ‘outlined -the relationship between state and

federal law,. ‘also involved the validity to be. given’ by a

federal diversity court to a defense afforded by state law.

Stated briefly, it was held that federal ‘district . diversity

courts must try state created peas in accord-

ance with state laws. - - 3 :

This principle. is not inconsistent with this Court’ S

holding that maritime rights must not be subordinated to

state common law. Southern Pacific Co. v. Jensen, 244 VU. S.

205 (1917). There is no contradiction among these

decisions, as each right is enforeed in “ accordan& . with

its origin. cae

. Therefore, petitioner. Fespectfully, submits ‘that Halecki’s |

rights should have been decided. in accordance with the

state. law which created those rights. It is settled law in

New Jersey that contributory negligence i is a complete bar

to recovery. Blaker v. The Receivers of the New Jersey

Midland Railroad Company, 30'N. J. Eq. 240 (1878); .The

New Jersey Express Company v. Nichols, 33 N. J. L. 434

(1867); Donus v. seer Service Railway, 102 N. J. L. 644

(1926), ie

rie aE Teuiiiid: supra, made it. clear that

the judicial decisions of state Jaw are to be as binding as’

the legislation of a state. It was stated at page 78 of the

Erie Railroad opinion; erat

2 “Except j in matters ociuetial by federal cotton

re by acts of congress, the law to be applied‘ in any

case is.the law of the state. An ether the law of

. the state shall. be declared by its‘ legislature . in a

_ statute or by its highest court in a decision -is not a

matter of federal coneern.’’

|(b) The Decision in Pope and Talbot v. Hawn did not

Change the Rule that the Source of a Right must |

- Determine the Law to be Applied. :

Cireuit Jaige Hand, in ‘the Halecki majority opinion,

; agreed that contributory negligence had been a complete

defense to an action brought under a Lord Campbell’s Act .

hecause of a matitiine tort (R. 152). However, referring to —

dictum in ‘O’Leary v. U. 8; Lines, 215 F. 24 708 (CA-1,

- 1954), Judge Hand held that this principle had

changed by the ruling of this Court in Pope and Talbét-v.

Hawn, 346 U. §. 406 (1953),.where a carpenter sued for’.

injuries sustained aboard ship. It was found that: Hawn’s -

‘right to sue for negligence and unseaworthiness was rooted

in. Federal Maritime. Law, and that the Federal Rule of

~ comparative negligence should be applied. Particular

reliance was placed’ upon the following language of the

majority opinion in Hawn, pages 409-410:

_ The right of. recovery for unseaworthiness: and

negligence is rooted in Federal Maritinie Law. Even

if Hawn were seeking to enforce the state created .

remedy for this right,-federal maritime law would

be controlling. While states may sometimes supple-

ment Federal Maritime policies a’ state may not

deprive a person of any substantia! admiralty rights

as defined by acts of Congress, or interpretative ©

opinions of this Court.’’ ;

Mr. Justice Black, who deliyered the Hawn opinion, cites

as his authority for the above statement the case of Garre?

v. Moore ‘McCormack, 317 U.S. 239: (1942).. That opinion, -

which was also written by Mr. Justice Black, distinguished

| between rights. originating in Maritime Law and those

rooted in state law and held, that substantive rights are to

be enforced in accordance with the jurisdiction in which

the right originates. This statement, which we have quoted

previously i in this brief, emphasized that admiralty courts

will protect~rights rooted in state law as well as those ©

created by Maritime Law. :

These statements, when read iigitlie. leave nd doubt |

that Mr. Justice Black did not intend that an action under

a state wrongful death statute should be eonfrolled by the

principles of the General Maritime Law.. os

Byrd v. Napoleon Avenue Ferry Company, Inc., 195 P.

Supp. 573 (E. D..La., 1954), aff’d:227 F. 2d 958 (CA-5,

. 1955), cert. denied 351 U.S. 925. . +

The petitioner: respectfully contends that the Hawn

\decision, and the statément quoted above, are completely

consistent with the prior rulings of this Court, : with

the position taken by this petitioner. No change w

in the principle that a right i is to he enforced in accordance °

‘with the substantive ‘law of the one. in which it. ~

originated. . =e

Agajn, the test is the origin of the Fight. es was an

injured but living plaintiff, and it is not disputed that his '

right to sue for negligence and unseaworthiness was giv en

by maritime law. “As such, the extent of his right was

correctly measured by & admiralty rule, of comparative

negligence. : Weck

» &, Pies .

made- -

. death, and this right could not ‘come into: existence until

“SES

ees 4 30 =

‘Hawn, unlike Halecki, was. not required to rely upon a

‘state created right, and therefore was not bound by. State

limitations. It is interesting to note that the sentence of

, the Hawn opinion ‘immediately oo the portion

quoted i in Halecki, stated + .

: Hawn’ s complaint asserted no ‘claim created by or

eeeng out of Pennsylyania law.”’ (Page 409) | .

“The iunpondent? s right i in Halgokt is masa different

from that of Hawn, both in origin and in hature. The |

state death statute gives. the decedent’s ‘family a. right to

sue..for the pecuniary loss it suffered: as a result, of. the

. after death. Hawn’s right, to sue’ for’ his: own pain and ©

: suffering, lost income,and other damages, while living, was

clearly, given by the General Maritime Law. :

There is nothing. -incongruous in. applying comparative

"negligence to the right of a living claimant, and in apply-

_ ing contributory negligence to the rights of his-dependents. «

‘The State Wrongful Death Act creates @ hew right of

~ action, n of f for the injury to the deceased, whose own right.

- came from the Maritime: law, but for the injury to those =

who suffered loss by reason of th death. Curtis v. Garcia,

241-F. 2d 30 (CA-3, 107).

Therefore, it seems clear that Mr. J ustice Black was not -

referring to a-State Death Action in the statement quoted:

in Halecki. ‘‘Even if-Hawn was seeking to enforce a state

created remedy for this right, Federal Maritime law would

be controlling. > (R. 153)

‘ye

Again, Ahe “right”? to sue for inneitions injuries origi-

nated in admiralty, and Maritime law would be controlling, .

e °

no matter what. remedy Hawn used to etiforse that right. .

Hawn could have sued in a state court, under the savings —

. to suitors clause. Moreover, if he had died, his estate: -could

have preserved ‘his maritime rights by resort to the ‘State

Survival Statute. Just v. Chambers, 312 U. S.'383 (1941).

In either case, the origin of Hawn’ = rights would remain

maritime, and the use of the remedy would not.affect. the

: application of Maritinie law. Therefore, this statement is

not inconsistent with the petitioner’ s position. ‘

‘Survival statutes, including that of New Jersey, Revised

Statittes of New Jersey, 24 :15-2; N J. S.A. 2A :15-2, afford

-a remedy for-enfércing already existing rights, to recover.

for damages suffered by the decedent prior to his death.

These Tights vest in the decedent’s estate, and have their:

, origin in the Gencral Maritime Law. It is completely con: .

_ sistent to measure them .by the admiralty. ag of com-

"parative negligence. Curtis v. Garcia, supra. :

The’ very existence of both wrongful death statutes and

‘survival statutes emphasizes that an injured person ’s own ©

rights are distinct from the right of his family to recover .

. for their damages, resulting from his death.+ The survival

statute merely preserves an existing right. originating .in |

General Maritime Law, while the death act creates a new ~

right, which did not previously-exist. It is significant that

Halecki sued only under the wrongful death act of New

Jersey, and not under New J ersey Survival Statute.’

- The effect of the Hawn decision was considered by the _

Third Circuit i in Curtis’v.. Garcia (supra), and later by the

“majority opinion in Haleckt. The Curtis opinion at page

34, caus out the distinetion between Hawn’ 8 rights and

er eae

ik l fers 32

_ ‘those of the administratrix, isa statement which would be

fully applicable to H alecks: 3

‘‘Hawn had a right - of ition, independent of any

Pennsylvania law, because his injury resulted from -

_ + a maritime-tort and was not fatal. Here, the i injuries

- were fatal and neither the administratrix nor those.

~' for whose benefit her claim under the wrongful death

statute is asserted had any: right of action, under.

- maritime law, to recover damages for the decedent’s

death, even though it resulted from a maritime tort.

She did not seek to enforce ang maritime right ac a

State created remedy. .

The test is whether the right is one” r rooted in the 3

general maritime law or one rooted in the state law.

When the origin of the right has been determined,

the court, federal or state, must apply the law of

that jurisdiction i in which that right originated. This:

plaintiff, in seeking recovery under the wrongful

death statute, undertakes the enforcement of a right -

which is neither rooted in nor recognized by the

maritime or the common law, but is wholly state ie

- ereated.’’

The Halecki decision referred to dictum contained in the

eee opinion in O’Leary v. U. 8: Lines Company, 215

. 2d 708 (CA-1, 1954). The dissent of Judge Hartigan

in aa case thoroughly reviewed the authorities, and took

sharp exception to the majority’ 8 ‘interpretation of Hawn.

A clear distinction was drawn between the rights of Hawn

which were “rooted in maritime law’? and those of claim-

ants under state death statutes which are state created.

; Therefore, it is the position of: the petitioner that Pope —

and Talbot v. Hawn, supra, which was the sole authority

relied upon by the majority in Halecki in applying com- -

parative. mapligeaes, has not changed this court’ 8 aes 5 of

Po, ae

«33

eaheaihie tights rooted in state aeiy The vinbhe of Htigante:

are still-to be enforced in accordance with the substantive

law of the jurisdiction in which those rights originated, and

more specifically, the rights of parties tofan action under

a state death act should be determined by the: state rule

of contributory. ee:

: (c) Litigants will not. Rective Send Protection of the Law —~

Unless Their Rights are. Determined by. Their Grice.

"Tt has been suggested that ‘dicen to the siuelgles -

of determining’ rights in accordance with their origin would

bring about ‘inequitiés and lack of uniformity. However,

the facts of the & alecki case demonstrate that the reverse

is true. : 3

The obligations of this detendant are imposed upon it

| by state law, which, in justice and ‘reason, d also be

. the source of the defendant’s rights. “The re of

__ the maritime rule of comparative negligence would deprive

this and other marine defendants of.a defynse given to

every other sia sued under the state death statute. ©

Persons engaged in maritime industry thereby become

the only class of litigants to. bear the obligations imposed 3

by state law without the protections contained i in that law.

It is respectfully contended that state law should not be

applied piece meal with reliance only on that portion which

aids one party. The rights of defendants should be Pro.

~ tected as zealously as the rights’ of claimants. :

Conversely, the decision of the majority in Halecki would

_ clearly. prevent the equal application of the state law to all

claimants. A pe ‘son suing under the Wrongful Death Act

- because of the death of a maritime mgs would receive

benefits not’ given to a et suing under the same statute,

whose decedent*was injured ashore.

This incongruity was pointed out in O'beiey % v. U. 9.

Lines Co., supra, in the dissent of Judge Hartigan, who

referred to the Harvard Law Review article entitled Erie

- Railroad v..Tompkins and The Uniform General Maritime ©

Law (Stevens), 64 Harvard Law wave 246. The article

stated at page 266:

“As the state statute—adopted a eibisirsike— re :

-ated the rights of the parties, the state law should

be referred to in order to determine the validity of

the claim, even though these rigs are derived from

death resulting from a maritime tort. A contrary |

‘result will enable the admiralty courts to apply

maritime rules to the State created right—such as

the rule for divided damages instead of the defense

of. contributory negligence. As a result, parties as-

_ serting rights under the statute arising from a mari-

time tort would get preferential treatment’ as com-

’ pared to parties claiming rights under the same

‘ statute because of a terrene tort.’”’

POINT ¢

The New Jersey Wrongful. Death Act lone not give

a cause of action for unseaworthiness.

(a) The Chetesanis Rights Are Derived Only ans State

Law, As The General Maritime Law Does Not. Provide ©

For a Wrongful Death Action. -

It is not. “Giaputea that there is no cause of action for.

_ wrongful déath under the General Maritime Law. The

Harrisburg, 119 U. S. 199 (1886); The Hamilton, 207 U. 8.

398 (1907); Lindgren v. United States, 281 U. 8. 38 (1930).

_Itis also firmly established that a claimant seeking dam-

ages for maritime injuries resulting in death may sue

SS under the wrongful death act of the state within which the ©

' aecident occurred, and moreover federal courts have been |

given jurisdiction of suits under state death statutes.

Levinson v. Deupree, 345 U.S. 648 oo Western Fuel .-

; Company v. Garcia, 257 U. 8. 233 (1921). -

’ This claimant, therefore, could only rely upon vights

created by staté Jaw, and brought an action pursuant to the

New Jersey Wrongful Death Act, N.J.S.A. 2A :3-1 through.

6. The administratrix sued ‘only for-pecuniary damages

" resulting from the death of the decedent, and did not bring

an action under the New Jersey Survival Statute.

_Aside from the questions of the decedent’s right to the

warranty @f seaworthiness, which is discussed elsewhere

in this brief, there is the issue as to whether. the New

Jersey Wrongful Death Act is broad enough £o encompass

a death claim: allegedly resulting from unseaworthiness.

Th determining the scope of this statute, consideration

must be paid to all available guides, including the language

legislature, and. the applicable decisions.

(b) The Language Of The Statute Is Not Broad Enough To

_ Encompass Unseaworthiness.

The majority opinion in Halecki, in holding that au, un

seaworthiness claim could'be brought under the New J erséy

of the statute, the nature of the right, the intent of the .

—

Wrongful Death Act, found that the words ‘act; ‘neglect :

or default’’ contained in this statute are broad enough to

include unseaworthiness. In order to rationalize this inter-

pretation, it appears necessary to consider “‘unseaworthi-

ness’? and “negligence”? as ayacnomoes terms.

Cre

However it has long been recognized that the elements

_ of unseaworthiness are fundamentally different, from those

ae of negligence. It is not appropriate to review here the judi-

evolution of unseaworthiness liability, but a cursory

_ consideration of the decisions demonstrates. the distinction.

3 ‘Seas Shipping v. Sieracki, 328 U.S. 835 (1946) has often

been quoted as an authority:for the proposition that un- —

seaworthiness .is distinct from and not dependent upon -

negligence. Mr. Justice Rutledge, in discussing the nature

pe,

of unseaworthiness, at page 94, stated :

Tt ij 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 imposes, the liability is

neither limited by conceptions of negligence nor con-

tractual in character. oe io ; ey

The establishment of Siamese on the wart of a defen-

: dant depends on such facfors as the lack of due care, failure .

to act reasonably, notice and control. However, none of

these’ elements are essential in proving unseaworthiness, |

which is a completely distinct type of liability.

) Although: there. are many fact situations which can spell -

out either negligence or unseaworthiness, the terms can-

not be used interchangeably. This was .demonstrated in

The Osceola, 189 U. 8: 158 (1903) which recognized unsea-

worthiness liability, and at the same time denied recovery:

for negligence. As the concept of unseaworthiness devel-

; should be: necessary to «

oped through successive defisions, it became clear that the

courts did not intend that the elements of. negligence

tablish unseaworthinwss. -

. t 7. &.,

'. Any similarity to negligence was eliminated by this

Court in Mahnich v. Southern Steamship Co., 321 U. S. 96

(1944), when it was established that a shipowner’ s duty

to furnish a seaworthy vessel is absolute, not predicated

¥ on negligence and not satisfied by: the exercise of due out.

gence. é .

. Moreover, unlike a plaintiff seeking to prove negligence,

‘a party suing for unseaworthiness need not establish that

the defendant had notice of the defective condition.’ This ©

distinction was pointed out by Chief J udge ‘Denman of the

‘ United. States Court of Appeals for the Ninth Circuit in

. Lahde v. Society Armadora del Norte, 220 F. 2d wt ih 9,

1957).

-- Judge Denman rete upon the decision of this Court j in

Boudoin vy. Lykes Brothers SS Co., Inc., 348 U. S. 336

(1955), in which liability for assault was imposed on an

unseaworthiness theory, although there was no evidence

that the shipowner could have known of the vicious 8 char-.

acter of the assailant. 8 ;

, , Another traditional component of negligence is the fac-

‘bor of control. A defendant cannot be held liable for negli-_

gence unless it was in control of the premises or the appli-

ance, involved. Often cited for this principle is the New

York case of Cullings v. Goetz; 256 N. Y. 287 (1931), in “

which Chief Judge Cardozo states: ‘Liability i in tort is_

an incident to occupation or control. we

In Caldarola v. Eckert, 332 U. 8. 155 (ise), this. Court

also _stated that liability for negligence could arise only

when there was possession and control of the premises on —

' which the injury: occurred. However, control is not an

essential element in establishing unseaworthiness, accord-

ang

deb

9 |

ing to Alaska SS Co., Inc. v. Pettersim, 2 205 F. 2d 478 (CA-9,

1998), aff’d 347 U. 8. 396 (1954), i in which this Court af-

~ firmed judgment in favor of the libelant, a stevedore in- —

jured by defective equipment brought on board the vessel ;

by the stevedoring company. The Ninth Circuit, again

speaking through Chief Judge Denman, agreed that control |

of the vessel had been given up by the shipowner at the |

time of the accident, and specifically ruled that the vessel _

owner was liable for unseaworthiness, even though not t in

control of the ship. es 3

Therefore, petitioner " reapestfully conténds that to in-

clude a suit for unseaworthiness in the purview of the New :

~ Jersey Wrongful Death Act:would be to ignore the basic .

distinction between unseaworthiness and negligence.

Act Are Distinct From Those Of A Living Claimant. .

~‘Considering farther the language of the Statute, counsel =

for the respondent has attached significance to the use of

"the words, ‘‘such as would’’,‘hsed in the following context:

‘*When the death of a person is caused by a wrong-

ful act, neglect \pr. default, such as would, if death

had not ensued, have entitled. the person injured ©

to maintain an action for damageseresulting from .

_ the injury, the. person who would have been. liable

in damages for the injury if death had not ensued —

shall be liable in an action for damages, notwith-

standing the death of the person ‘injured and al-

though the death was caused under circumstances

amounting in law to a crime.’’ Ni J. Wrongful Death

Act, N.J.S.A. 2A:31-1 through 6. tee

Counsel argues that the decedent would have had a cause.

- of:action for unseaworthiness if he had lived, and there- :

. fore, these words were intended to give that cause of action

voli 1 eae

t@the. decedent’s dependents. -

/ . This argument disregards ‘the basic difference between

the rights of a living party, injured by a maritime tort,

“and the rights given to the. dependents ofa decedent. An

. injured litigant has a maritimé right to sue for his. own .

damages,- consisting of his = and suffering, m7 income

and medical bills. :

@ However, those dependent upon: a : haces person are

‘given by statute rights which did not exist, either at Mari- ©

time or common law. ‘This cause of action, to recover the

Joss of financial support suffered by the family, does not

come into existence. until the decedent’s death, and is

given, not to the estate, but to the dependents, Curtis v..

Garcia, 241 F. 2d 30 (CA-3, 1957).

The fact that the New _ Jersey Wrongful Death Act Was .

not intended to preserve | a decedent’s right for his depen-

dents is demonstrated by the existence of a separate New

Jersey survival statute, upon ‘which this’ claimant did not

rely in the complaint.

ned *

* This survival statute, ‘Revised Statutes of New Sosa

ove 15-2; NuJ.S.A. 2A :15-2, states:

\. «Exeeutors and Administrators may nai an-action

_ for any trespass done to the person or property, —

real or personal, of their testator or intestate against

the. trespasser, and recover their damages as: their

testator or intestate would have had if he was dt

ing.’? . i

A cause. of action, is thereby given to ‘the estate of a

__-decedenit to recover the damages the decedent himself suf-

fered prior to his death. A fatally injured person’s Own -

right to recover for his pain and suffering, and other dam- |

- ages, would in the absence of the statute, die with him.

Just v. Chambers, 312 U. S. 383 (1941). No new rights

are created by survival statutes, which merely supply a

remedy for enforcing already existing rights, Soden v.

- Trenton & Mercer Fraction Company, 101 N. J. L. 393, °

127 Atl. 558 (1925); Hickman v. Taylor, 75 F. Supp. 528,

- aff’d 170 F. 2d 327 (CA-3, 1948), ‘cert. den. 336 U. S. 906.

A Wrongful Death Act, on the other hand, creates a

_” new cause of action, which did not exist under-the General ©

Maritime Law. This statute gives the beneficiaries a re-

covery for the loss of anticipated support which they suf- _

fered because of the decedent’s death, and has no relation-

ship to the decedent’ spain and other damages suffered

befare he died. Turon v. J. @ L. Construction Company, 8

eS J. 543, 86 A. 2d 192 (1952).

The British Lord Campbell’s Act (9-10 Vict. C. 98) |

which was the niodel for the New J ersey and other death

'. statutes, contains almost identical language, including the |

_ “such as would’’ phraseology relied upon by libelant-

- respondent’ s counsel. However, it has been held that the

“British Act creates a new right for the beneficiaries, and

does not merely preserve the injured person ’s own rights.

The distinction between wrongful death acts and survival

statutes is defined by the English Court in.Blake v. Mid-

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

16 Jur, 562 (1852). eer Aegis

Accordingly, it is respectfully. submitted that the bi

guage of the statute, including the ‘‘such’ as would”’ clause,

Pe ive

fails to support the libelant-responderit’s contention that ° -

the Wrongful Death Act encompas es the right to sue for

‘unseaworthiness. -

(d) The hi Jersey Laghiatere Could Not Have. Intended

The Wrongful Death Act To Include Unseaworthiness.

. Legislative intent is of course.an important guide in .

“determining the scope of a statute. A consideration of the,

date on which the New Jersey Act was passed makes it

difficult to argue that the New Jersey State Legislature

could have intended that the Act include a right to sue for

unseaworthiness, te ,

The statute-was enacted in fe ene in 1937, and ©

was patterned almost verbatim upon the British Lord:

-Campbell’s Act of March 1848. Even at the time of the

Law’s most recent enactment, the right to sue for unsea-*

worthiness belonged only to. seamen, and not to shore

workers. This right to a seaworthy vessel was extended

to a non-seaman for the first time in 1946, by the decision.

of this Court in Sieracki v. Sea Shipping Company, 328 -

U. S. 85 (1946). |

Therefore, the ond Circuit in Halecki attributed to the. .

New Jersey: Legislature-an intent to include in the statute

a right which did not crist at the time the Law was en-

-acted. The Legislature then could not possibly have antici-

‘pated ‘a death action, by the dependents of a shore worker,

| based upon a breach of the warranty of uriseaworthiness.

This fallacy was referred: to in a dissenting opinion of

Circuit Judge Hastie, in Skovgaerd v. The M/V Tungus,

252 F. 2d 14 “(CA- 3, 1957), which involved the same issue.

7 Hastie stated at page 20: . S|

PD. coma sf

wren Mays apse y

; : : : \

“Thus, to construe the New Jersey Statute as

applicable to the present case, requires not only

' the inference that the New Jersey Statute was in-

tended to create rights in accordance with Admiral-

ty concepts of liability as they existed when. the

legislation was passed, but also that subsequent —

modifications of Admiralty concepts by the Federal

Court routinely become : a ‘part of New Jersey policy =

~ and law.’ —

(e) The Courts Have Not Interpreted The Various Lord

‘Campbell’s Acts As Encompassing Unseaworthiness.

| A final and essential criterion in interpreting the State’s

statutes is the.decisions of the New Jersey Courts which

have considered the scope of the Act. Judge Hastie’s dis-

, sent in Skovgaard, supra, gave great emphasis to the

their own statute. His review of the precedents demon- «-

‘strated that the New Jersey Court had consistently con- —

Stewart v. Norton (1951),.6 N. J. 591, 8 A. 2nd:111; and

‘DeCicco v. Marlou Holding Co.” (1948), 137 N. J. L. 186,

59 A. 2nd 227, Judge ‘Hastie also referred to two New

_ Jersey decisions relating to actions brought under the New

Jersey Wrongful Death Act, as a result of fatal accidents .

- occurring‘aboard ships. Both cases ruled that the liability.

_ of the shipowner depended upon proof of negligence.

Moran v. Moore McCormack Lines (1944), 131 N. J. L. 332,

35.A. 2nd 415; and Santa Maria v. Lamport & Holt Line,

Ltd. (EB. & A. 1938), 119 N. J. L. 467, 196 Atl. 706.

Going beyond the New J ersey ‘decisions, it is found that

‘the precise point had been decided i in cases arising under

Ny | ¢ ~- ; ? 43

“the Lord Campbell’ 8. Acts of other States, all. of hich a are

similar in wording to the«N ew J ersey Statute. ,

“The question of whether i a claim for unseaworthinese: can

be maintained under a State Death Statute was explicitly

". answered in the negative by the United States Court of

Appeals for the Fifth Circiit in Graham v. Lusi, 206 F. 2d

223 (CA-5, 1953), where, an action under the Florida Death

Statute was considered. The decedent was a longshoreman

whose fatal injury occurred as a result of a latent defect

in ship’s equipment. It was specifically stated at page 225:

: ‘There is a complete absence- of.-merit. in’ appel-

‘lant’s attempt to avoid the’ foregoing defenses by

invoking a right of action for unseaworthiness which, —

being a right of. action the deceased might have

maintained had he simply been injured and lived,

is clearly not preserved by the legislative enactment |

under hos appellant ‘proceeds.”?

- This rule was also followed by the Fifth Gireuit : in Hari-

"ford Accident & Indemnity Company v. yi Refining Com-

pomy, 230 F. 2d 346 (CA-5, 1956), and in Byrd v. The Na-

poleon Avenue Ferry Company, Inc., 125 F. Supp. 573

(KE. D. La.), 227 F. ad 958 (CA- 5, 1955), cert. denied 351

U. S. 925.

- The United States Court of Appeals for the Sixth Cir: -

cuit made a similar finding in Lee\v. Pure Oil Company, —

218 F. 2d 711 (CA-6, 1955), which involved a death action .

brought pursuant to the Tennessee Wrongful Death Stat-

ute. After pointing out that the Generdl Maritime Law -

gave no cause of, action’ for wrongful death, and that any —~

recovery niust. come from a State or Federal Statute, the

Court stated at page 713:

44.

“Tt: is ‘a oxstended ‘that any Federal ‘Statute

conferred a substantive right of action for wrongful

death in this case..The right was conferred by the

“. “Statute of ‘Tennesseé allowing recovery only in the

event of the appellee ’s negligence. ’’

' Accordingly, this claimant should not have been per- .

mitted to maintain an action for err: g)

! POINT Ill

The warranty of seaworthiness does not extend to -

Xe (a) Only. Those Doing’ Work Traditi nally Performed By —

\ Seamen Are Protected By The ty Of Seaworthi- :

“iso before the Court of Appeals for the Second Cireuit :

in Halecki was the question as to whether the decedent, a

shoreside electrician, was entitled to the warranty of sea-

~* worthiness owed to seamen. Stated differently, was Hal-.

ecki the type of shoreside worker to whom the protection

of séaworthiness was extended by the decision of this Court

in Seas Shipping Company v. Sieracki, 828 U.S. 85 (1946) 2

That decision was ‘the first major extension of the war-

ranty of seaworthiness which had’ previously applied only —

to seamen. It was \held that longshoremen are entitled to

~~ the rights of seamen because they perform a sailor ’s work.

The basi¢ for, expanding the doctrine of seaworthiness was

/ the similarity between the work-done by Tongshoremen and

seamen, as indicated by the Court’s statement at page 99:

had . Historically. the work of loading and un- .

loading is the work of the a S service, i aerenene :

-until-recent times by members of the crew. : For

these purposes he (the stevedore) is, in ann a sea-

_ Inan because he is doing a seaman’ 8 work and: in-

curring a seaman’s hazards. gain )

' The Court reasoned. that a shipowner should not be al- ~

- lowed to avoid liability to those engaged in ship’s service

by arranging to have the work done we independent ‘con- ©

tractors. : ,

Therefore, a review of the dectaten ons following Sieracki

is necessary to determine the meaning given to the ef 7

pressions ‘“‘seamen’s work” and “‘ship’s servite’’, and ‘to.

ascertain how far the warranty of seaworthiness i is to be

extended. Q-

_ Sieracki was a longshoreman, and the cases which: fol-

_ lowed consistently held that loading and discharging cargo

was ‘‘ship’s work’® and those performing it were entitled

to a seaworthy vessel. As-stated if Sieracki, this task had

been traditionally ‘performed by seamen, and the men who

did that work have been given the same protection.

Strika v. Netherlands Ministry of Traffic, 185 F. 2d 555 _

_ (CA-2, 1950), cert. denied 341 U: S. 904; Lauro v. U. S., .

162 F. 2d 32 (CA-2, 1947) ; M ollica v. Compania Sud-Ameri-:

cana de Vapores, 202 F. 24-25 (GA-2, aa denied

345 U. S..965. | . eee ee

The application of the rule is jess “below in the cases of

other harbor workers, such as ships’ cleaners, repairmen —

and carpenters, However, the Courts have continued to

examine the nature of ‘the injured person’s work, and its

relation to the service of the ship. The determination for

each case has not beén based on the name of the party’ Ss

anes, but upon the type of work he did.

Poe , i y 2

;

= ee

A clear expression of: this rule was as by the Trial —

. Judge in Berge v. National Bulk Carriers, Inc., 148 FP.

- Supp. 608 (8. D. N. Y., 1957), aff’d 251 F. 2d.717 (CA-2,

1958). Referring to Berge, a shipyard - tigger, omer .

Murphy stated at page 610: , n

‘“The test then is not the name given ‘to plaintiff’s ?

calling or trade, but the nature of -his work, and

viewéd in this light it is abundantly clear that the

plaintiff was not pérforming.usual seaman’s work |

_ Since the whole rationale of Sieracki rests on the

premise that a.shipowner cannot escape its absolute

: obligation to provide a seaworthy vessel by contract-

ing to have a third party perform thé services tra-

. ditionally, performed by seamen, it becomes appar-

ent that once the third party performs services dif-

~ ferént from those usually performed by seamen, ‘the

‘ warranfy of seaworthiness which was enarag ps

-designed to protect seamen need no longer apply.”

This criterion was affirmed by this Court in Pope Talbot, |

Inc. v. Hawn, 346 U. S. 406 (1953), which is often cited as -

an extension of the Sieracki doctrine, However, a review

of the inion indicated that it was consistent with the

_ eases holding that a claimant’s right, to seaworthiness de-

pends upon the similarity between his work and that done .

by seamen. sa ae

. Hawn. was a carpenter employed oe an eoeabiek con-

a vessel which had. been loading a'cargo of grain. The

J loading operation: had been temporarily interrupted be-

cause Of a minor defect in the grain loading equipment,

and Hawn was engaged in repairing this equipment so.

tractor, and at the time of his accident was working aboard —

that the ading ‘soul ‘iontinde: It had been sinned on °

‘behalf’of the shipowner that Hawn was not a stevedore’.

. like .Sieracki, and that the warranty of | seaworthiness -

_ should not extend to him. However, Mr. Justice Black,

writing for the majority of this Court, emphasized that

_ Hawn’s work involved preparing the ship for the carriage

of cargo, and that his function was therefore similar to

tint of a stevedore. It was stated at page 413:

“‘Sieracki’s legal protection was not .based on the

name ‘stevedore’ but on the type of work he did and >

its - relationship to the ship and to’ the historic doe-

trine of seaworthiness. The ship on which Hawn

was hurt was being loaded when the grain loading

equipment developed a slight defect. Hawn was put

to work on it so that the loading could go on at once.

~ There he was hurt. His need for protectfon from

_ wnseaworthiness was neither more nor jess than

- that of the stevedores then working with him on the

ship or of seamen who had been, or who were about °

to go on a voyage. All were subjected to the same

- danger. All were entitled to like treatment under

_ law.” es ig ;

Bawa! s work had been previously divas

Court of Appeals for the Third Cireuit at 1

where it was stated:.

: dua by the

F. 24

“Hawn was... . rendering service necessary ir, n, the

performance of thes] ip’s business of. carrying

_ cargé. The difference yetween Hawn and the long:

' shoreman in the Sie oki ‘case is at most, one of |

slight degres. ” (Page 803) - :

‘Hawn’ 8 duties were further described by thé opinion of

the District Court which stated, 99 Fed. Supp. 226 at page

229: Le et ; ; ;

‘The consideration given by each opinion to the relation-

7 48

“The doctrine of seaworthiness scaled. to plaintiff,

_ whose duties had a direct relation to the proper load-

_ ing and handling of the ship’s tee in i caciacia

for a voyage.” |

- ship between Hawn’s work and the loading of cargo dis-

closes the importance . attributed to that connection.

_ The opinion of ' this Court cxicenly refrained from a

general extension of the warranty of seaworthiness to cover

_ali shoreside workers or repair men. The emphasis ‘placed

* upon the similarity’ ‘between Hawn’s work. and that of

_ Sieracki. appears to indicate strongly an intention to in-

elude in the expressions ‘‘seaman’s work’’ and ‘‘ship’s

service*’ only those: tasks which are involved in some way

' in loading or preparing the vessel for the reception of

cargo, or in the actual operation of the ship. In other

* words, the warranty applies only to those whose work i is

mag to that of seamen.

. Pe

A: review of lower Court decisions demonstrates that

this distinction has been followed. In Torres v. The Kastor,

‘227 F. 2d 664 (CA-2, 1955), the warranty of seaworthiness

was extended to a person known as a ship’s cleaner. At

the time of his injury, Torres was engaged in cleaning the

' vessel’s cargo compartments in preparation for the load-

ing of new cargo. Therefore, Torres’ work, like that. of

Hawn, was directly connected with the carriage of cargo,

and was considered seamen’ s work”, within the meaning

of Steracki.

Liability for unseaworthitiess was ‘imposed i in Crawford

- vy, Pope & Talbot, Inc., 206 F. 2d 784 (CA-3; 1953), which

involved a ship’s cleaner who was injured. while cleaning

the vessel’s deep tanks. The Court pointed out that at the

very time when: Crawford was so employed, crew members -

‘were doing the same work, and that both should have oe

' game protection. :

On the other hand, the Courts have duties’ to extend -

the Sieracki doctrine to cover shoreside workers net per-

forming ‘‘seamen’s work’’,’i.e., work related to the car-

riage of cargo. The claimant in West v. U nit States, 143 |

Fed. Supp. 473 (S. D. N. Y., 1956) was a marine engineer -

employed by a repair yard. It was held thatthe work per-

formed by West was not of the type ordinarily performed

by seamen and that the action did not therefore fall within

‘the doctrine of the Sieracki and Hawn cases. ged

The Court of Appeals for the Third Circuit held that a

i rigger employed by a shipyard was not entitled to the pro-

tection of seaworthiness in Meyers v. Pittsburg Steamship

: Eyneett: 165 F. 2d 642 (CA-3, 1948). |

. Reference to the relationship between the type of work

and the loading of cargo was made i in, the Court’s opinion

in Petersen v. United States, 80 Fed. Supp. 84 (E. D. N. Y.,

1947), which also involved a- shipyard employee, injured

aboard a vessel. It was stated at ‘page 88: |

‘*Since libelant was not a member of the crew, or.

- a stevedore engaged in loading: cargo, but an. em-

ployee of a contractor repairman, he was not en-

- titled to a seaworthy ship on which to work.’’

. More recently, the Court of Appeals for the Ninth Circuit

considered the question in Berryhill v. Pacific Far East

B Line Inc., 238 F. 2d 385 (CA-9, 1957), cert. den. 1, L. Ed. 2d

1537, and refused to extend the warranty of seaworthi-

ness to cover a shipyard employee injured while the vessel.

‘was undergoing repairs. Judge Barnes, expressing the

ee |

5 ous opinion of the Court, ned ‘the decisions

of this Court in Hawn, Petterson and Rodgers v. U. 8.

Lines, 347 U. 8. 984 (1954). It was pointed out that all

of these claimants were injured while engaged i in ‘ship’ ~

work”’, ie., loading and unloading.

(b) Halecki Was Not Performing Work Traditionally,

Done By Seamen. .

Judge Hand, who wrote the aidatties opinion in

Haleeki, agreed that the test to be observed was the nature

of the work performed. He referred to Guerrini v. U. S.,

167 F. 2d 352 (CA-2, 1948), in which he, speaking for the

Court of Appeals, had refused to apply the Sieracki

doctrine to the libelant, who had been injured while clean-

ing boilers aboard«a ship.. However, Judge Hand found

that his opinion was changed by the holding of this Court inf

Pope & Talbot, Inc. v..Hawn, supra, and further stated-that

he could not seé a distinction betweew the -work done by

Halecki and Hawn (R. 150). -

However, it is respectfully submitted that a comparison

of the facts in each case demonstrates that. Halecki’s work

was compleiely unlike that done by Hawn. As we have

pointed out; this Court emphasized that Hawn’ 8 work in

repairing loading equipment was like that of a stevedore,

and was direetly connected with the- service. of the ship.

: However, it seems:evident that Halecki was not perform-

ing work traditionally done by seamen. He was a trained .

and specialized worker, an electrician who ordinarily

generators required that the ship be out of operation, and

the vessel’s power was in fact off when Halecki worked.

on the ship. .

¥ Halecki’s job-could not be performed while the ‘ship’s

power was on, and. it Tequired special equipmént, which

was brought aboard by the decedent and his co-worker

(R. 12) (R. 82). The work was so specialized that the.

repair yard engaged fo overhaul the vesses! was not itself

equipped to perform it, and therefore the decedent’s em- | i

ployer was engaged by the repair yard as an electrical sub-

. contractor (R. 16).. “a

Certainly the duties of Halecki had no relation to the

loading and handling of cargo, nor was it work which had

ever or could have been performed by seamen.

It is respectfully submitted that the ‘majority opinion in

Halecki misunderstood the nature of the work performed

by Halecki, and that the warranty of seaworthiness was |

: erroneously extended. The opinion characterized the deee- -

dent’s work as “cleaning the ship’’, although the deeedent .

was an electrician, employed by a subcontractor, and was

engaged to perform specialized work aboard the ship while

’“The ship’s cleaners”? to whom the’ warranty was -*

tended in other cases were men whose duties were, like that

of Torres, to clean the ship in preparation for the reception.

| of cargo. ;

The fallacy in hibition Halecki as a ship’ s cleaner

was emphasized . by the dissenting opinion of Judge

Lumbard, who’ contended that the warranty of seaworthi-

‘ness should not be extended te workers such as Halecki:

: ee Lumbard stated (R. 458) :

- “My bieihionn: ‘say that this work was merely clean-

ing a generator and, as cleaning propulsion ma- _

chinery i is a kind of work a seaman would normally

_ 52

do, cleaning a generator is seamen’s work and those

who do it are entitled to a warranty of sea worthi- |

ness. This assimilates spraying with carbon tetra-

chloride to all cleaning as if it.werg harmless and

common place; it is-a play on words which by a

characterization avoid dealing with a différence in

means which completely: destroys the, validity. of the

syllogisms. Because seamen may be able to do some

kind of cleaning does not make seamen of those

who do angther kind of cleaning which seamen have

never done and cannot do; nor. does it supply any

reason why an outside specialist should be treated;

or needs to be treated, like a seaman.”’ a

Judge Lumbard 's dissent also vifarced to the interesting

parallel between Haleckt and: Berge v. National Bulk

’ Carriers Corp., 251 F. 2d 717 (CA-2 1958). Berge was a

_ rigger employed’ by a shipyard which was engaged in

- installing bulkheads aboard the defendant’s vessel. Among

the numerous points of similarity between Berge and the

case at bar was the fact that both vessels were tied up at

piers in ‘repair yards. Moreover, officers of both vessels

were aboard in a supervisory capacity, although the work

in both instances was pérformed ved the repair yards and

their sub-contractors.

The Trial Judge found that the services performed by

Berge were different from those usually done by seamen,

and that consequently the warranty of seaworthinegs did

not apply. The appeal to the Court of Appeals for the

Second Circuit was argued ‘before’ the same panel which

decided Halecki, and the Berge decision was handed down

on the same day. 3

The Second Circuit, again sonaltine through J wigs

' Hand, affirmed the dismissal of the complaint, and found

that Berge was not ae to the protection of seaworthi-

ness. |

In commenting upon the. inconsistency hiimaieeihed or

the different results reached by the same panel in the two

cases, J udge Lumbard stated in his dissent (B. 159) :

“*What Halecki did was no more the kind of work

that the crew of a vessel was accustomed to do than

was what Berge was doing. Indeed, it was less so. -

One might characterize Berge’s work as lowering a

heavy load into the hold, a normal seamen’s duty

_ done without abnormal risk of harm. Halecki’s

_ work was entirely novel and foreign to'what seamen

‘had ever’ done and far more dangerous to anyone

| _” who might be aboard. As.in Berge, the work re-

- quired the ebssation of aco s operations and .the

removal of the crew.’ a ae

Commenting further pte the hature of Halecki’ s ‘work,

udge Lumbard stated (E. 157) =|

““Halecki risked al? the Kaards of the sea as one

ight experience them. on a Saturday in late

‘September while the ship was made fast to a bulk-

head in Jersey. City. He was not a seaman, he was

not: doing what any crew-member had ‘ever done on

this ship or any where else in the world so far.as we

are informed. Whatever reasons there-may be for

extending) the’ ‘warrauty of seawcrthiness to steve-

_dores or other, harbor workers who ‘work on. beard, -

they do not: pply | to those employed to do a special

job of such a\dangerous 4nd unusual nature that it

is ‘veyond os the ak of ship and shipyards, .

d/ exclusion of -the créw,

- 3

he hazardous oT no

Further support for the contention that Halecki was not :

‘doing’ seamen’s work is found by a ‘comparison with

Berryhill v. Pacific Far East Lines, Inc., 238 F. 2d. 385

“(CA-9, 1957), cert. den. 1 L. Ed. 24 1537 in which the Ninth

-Cireuit had found that the plaintiff was not doing work

which entitled him to the warranty of seaworthiness. The:

- Court pointed out, that Berryhill, a repairman, was work-

ing on the ship’s propeller shaft, and that the vessel’s pro- -

pulsion machinery was necessarily out of operation.

The circumstances 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 ap could be Gone by

seamen. | }

(ce) A Shipowner Does Not Warrant The Seaworthiness Of /

Equipment Not ronnie With The Cyenie Of The

Ship. ; ;

The Alalecki opinion also ‘eeheved to Pettersen v.

Alaska S.S, Co., 205 F.2d 478 (CA-9,; 1953), as authority

‘for imposing liability for unseaworthiness in the instant

case. In Pettersen, this Court affirmed the ‘opinion of

Chief Judge Denman of the Ninth Circuit, who held that

the ship was liable for a defect in a block, which ‘had been

_ in loading the vessel.

The limitations of the Pettersen decision were pointed

‘out by Judge Barnes of the Ninth Circuit in Berry-.

hill v. Pacific Far East Line, supra. There the defective

equipment was a grinding wheel furnished by the shipyard.

Judge Barnes declined to impose ws and» sss :

out that the equipméii considered in Pettersen was 4 |

snatch block, used in loading. He stated at page 387:.

| “This equipment took the place of equipment u usu- |

ally furnislied and necessarily required by the ship. —

It was ship’s equipment necessary to enable the

crew to perform ‘‘ship’s work’’, ie., loading and

‘unloading. . . . Appellant asks_us to step one fur-

. ther pace toward an absolute liability’ of the owner

of a vessel for defects existing in equipment that

the ship could do without, that the owner may riever

have bought or even see, or have had any reason to.

know it existed.’’ 3 :

. A review of the Stine} in Halécki: dininnebiwhis that the

Berryhill’ principle and not that ‘of Petterson should be

‘ applied here. Liability has been imposed because of the

alleged inadequacy of the ventilation equipment .in use.

aboard the vessel. This equipment consisted of portable

’ blowers, fans, air hoses, gasmasks and tanks of carbon

tetrachloride, ‘all of which were brought aboard the vessel

by the decedent and-his co-worker. None of this equip-: .

ment, except .the vessel’s own ventilators, was owned or —

_supplied by: the vessel, and none of it was connected in

any way to the operation of the vessel. |

.It does not ‘seem that the Pettersen doctrine was in-

tended to hold a shipowner liable for the inadequacies of

* specialized equipment brought aboard by subcontractors,

for use in an operation: which could only be conducted

_while the ship’s power was off, and which was not con-

nected in any, way to the service of the vessel.

‘ °

POINT IV

Respondent failed to. establish the existence é a

defective coneition,

Regardless of the various legal issues heretofore dis-

_ cussed in this brief, , petitioner contends that-upon-the tri

there was a.complete failure of proof of the existence of

either Hegtigenee-or-unseaworthiness, and that_the case —

shonld mot have been submitted to the jury. Although the

sufficiency of evidence is not ordinarily a matter which

this Court wishes to review, it is felt that the absence of

valid testimony ofi this. point is ‘so complete that-a reversal

and dismissal is justified, even at this time.

The petitioner does not maintain that the mere neces-

sity of speculation on the part of the jury. indicates

-that the evidence is insufficient. This principle was dem-

a onstrated by the decision of this Court in. Schulz v. Penn-

. sylvania Railroad Company, 350 U. S. 523: (1956). How-

ever, a comparison ‘of the facts indicates that the author-

ity of Schulz has no application to the Halecki case.

Schulz met his ‘death by drowning. Although han were 7

“no witnesses, the record contained evidence of several

negligent or dangerous conditions which could have caused

the decedent’s death. This Court held that the j jury should -

have been permitted’ to. decide which of. seyeral possible

causes had brought about the accident.

However, the Halecki record did nat contain proof of

the existence of any dangerous condition, and the jury was

first allowed to spetulate upon the-existence of a defect

aboard the petitioner’s vessel,,and then to further éur-:

death.

The issue in Halecki was the adequacy and condition of

a ventilation system, as it existed aboard the @essel on

mise that this supposed condition caused’ the decedent’s .

the day when the decedent worked there. The sole factual

witness on behalf of the claimant was Donald Doidge, who

was the decedent’s co-worker. . Doidge, who had previously

given a deposition for the defendant, testified that ‘the

| portable ventilators and other equipment. were assembled

properly, that the ship’s ventilation system, which was

powered from shore, was operating efficiently, and that

he was satisfied: that the ventilation was adequate for the

job (R. 11-15)..-

In addition to the testimony of Mr. Doidge, the claim- -

_ ant relied upon Robert P. Gaines, a bio-chemist, who *p-

peared as an expert witness (R. 18).

Although Doctor Gaines had never ents aboard the

vessel in question (R. 28), he was ‘permitted to answer

hypothetical questions based upon the general description

of the engine room contained in witness Doidge’s testi- —

mony. Over the objection of. defendant’s counsel, Doctor

Gaines stated that there was a dangerous concentration

of carbon tetrachloride present in the engine room, and

‘moreover that the ventilation system. was Inadequate

(R. (22-24).

)

However, ‘upon cross examination,s Doctor Gaines ad-

mitted that his“calculation did not take into consideration

essential factors such as the power and location of the /

portable blowers, the arrangement and pressure of the

air hoses, the power and. blade size of the fans, and the |

power and construction of the ship’s ventilation system -

58_

(BR, 28-31). Most significantly, ‘Doctor Gaines specifically

admitted upon cross examination that he did not know

. whether the ventilation system apeard the “= was ade-

- quate (R. 32).

_ The defendant had introduced testimony that Halecki’s

death from carbon tetrachloride poisoning was due to his

‘susceptibility to even a slight exposure far below the gen-

erally accepted safe,margin.. This testiniony,. given by

‘ Doctor Milton Halpern, the New York State Medical Ex-

aminer, established that a person who: habitually drinks to

excess could be fatally injured by a slight and ordinarily

harmless exposure (R. 37-38). The record also showed =

the decedent erank excessively (R. 18).

It is apparent that the appellee’ 8 claim and the jury

verdict were based upon inverse reasoning. The evidence

disclosed that the decedent died of carbon tetrachloride

poisoning, and the j jury was permitted to speculate that the

death was caused by a defective condition aboard the

vessel, although the record contained no evidence that

such a defect existed.

Although Schulz and other cases have dicsianataiale that

a jury should be permitted to decide which of several

‘ possible inferences is the most. reasonable, it. has always

been held that there must be some evidence’upon which. to

base the inference. In a decision of this Court, made in

Lavender v. Kurn, 327 U. ‘S$. 645 (1986), it was stated at

page 653: eee

“«Whatever facts are in dispute or the evidence is

such that fairminded men may draw different infer-

ences a. measure of speculation and conjecture is

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

59 ose ee

settle the dispute by choosing what seems to them to

be the most reasonable inference. Only when there

is a complete absence of probative facts to support

the conclusion reached Goes a reversible error

appear. la ;

7 PP ie Ve

Iti is a cae pr of evidence that a hypothetical ciiadians

must be based upon facts which are in evidence. Petitioner

contends that Doctor Gaines’ testimony should have been

excluded, because .of his admission that he could not

answer without facts which were not within his knowl-

gdge, and upon which no testimony had been received. In

Virginia ‘Beach Bus Line v. Campbell, 73 F. 2d 97 (CA-4.

‘cei "the rule was stated as follows at page 99:

“Tt would be reversible error to permit the answer

6f an expert witness to a hypothetical question

which assumes the existence of facts” ‘Upon | which

' no evidence i is offered.”

A succinct expression of a plaintiff’ s burden. to estab-

lish affirmative evidence was made by this Court in Moore

v. Chesapeake and Ohio Railroad Company, 340 U. S. 573

| (1951), where it was stated at page 978:.

“Speculation cannot supply | the place of proof. ‘sg

The thajority opinion in Halecki disposed of that. portion

of the-appeal' which was based on insufficiency by stating

that the competence of ~the plaintiff’ $ expert. witness was

within the discretion of a trial court. The cases cited for

this holding involved instances where the qualifications of

“the experts had been questioned (R. 149).

_ The: petitioner respectfully, submits that. the majority

. miffinterpreted this phase of the appeal, as. the’ qualifica-

tions or the competency of the expert witness was not ques-

tioned. The appellart’ ‘contended that -the record did not

contain evidence sufficient to form a basis for the expert’s

. Opinion, and that this insufficiency was admitted by the wit-

ness himself. Accordingly, it is the position of the peti-

tioner that the evidence not only failed. to- establish a

causal connection between the decedent’s death and a de-

fective condition aboard the vessel, but also did not estab-

lish that any defective condition in fact existed. Tomes,

the action should suciis bees Semioned.

. CONCLUSION |

For the reasons stated it is respectfully submitted that:

the judgment of the Court below should be reversed, and _

that the action should be dismissed. In the alternative the

‘ease should be remanded to the District Court: for a new

trial. \

a submitted, .

Lawrence J. Maroney

«+ Counsel for Petitioners _

‘ ee 67 Wall Street -

- aes New York 5, New York

Be. oh ea

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