# Brief for the Petitioner — United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0126%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Petitioner - **Published:** January 1, 1959 - **Citation:** 358 U.S. 613 ## Text ; ee 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. a ae wa go ww a ___ —— ‘BRIEF FOR THE PETITIONER x4 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 a 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 —*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. a. ¥ _ 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? ar 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? \ x ‘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- ig 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 % x * a ‘ - ff f y . (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 © ship. Reference was made to the decision of this Court 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: 20 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 . ° 22 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 — 95 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. : (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.’”’ ms 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 . — ae 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. ne 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. &., 37 '. 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- if Hi i} ang deb 9 | a 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. (c) The Rights Given By The New Jersey Wrongful Death . 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 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.” | af - 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 49 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 worked ashore. The very nature of the task of cleaning © generators required that the ship be out of operation, and the vessel’s power was in fact off when Halecki worked. on the ship. . 51 ¥ 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 it was out of operation. - © 3 SM ’“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 4) 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. | } i) (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 brought aboard ship by the stevedoring © company for use _ 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 : 85 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-: 57 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 i 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 - 4 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.” gs 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0126%3A3. Public record. Not legal advice.