Brief of Libellant Respondent in Opposition to Petition for Writ of Certiorari — United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki

> LIBRARY ——_ [iia Supreme toot os.

$ FIL dD

oe: \ REME COURT. UU. S. ;

Fo eer cath airtt cen ty |) MAY 28 1968

IN THE

rem Court of the United States aes

OcroBER Term, 19

No SZ

<—~——

hg

Unirep New York axp New Jersey Saxpy Hoox Piwors

ASSOCIATION, a corporation and Unirep New York Sanpy

Hook Pitots AssocuTion, a corporation, —

2 : Petitioners,

—against—

Anna Havecki, .Administratrix ad Prosequendum ‘of the °

Estate of Walter Joseph Halecki, deceased, and ANNA

Haeckt, Administratrix of the Estate of Walter J oseph |

Halecki, deceased,

Labdlentstesnenien.

_ BRIEF OF LIBELLANT-RESPONDENT IN

OPPOSITION FOR PETITION FOR

a WRIT OF CERTIORARI

hk A

NaTHaN BaKEr

Counsel for tiimaddtat

1 Newark Street

Hoboken, New Jersey

BeanarD CHAZEN | |

Micron GaRBER |

On the Brief j

\

Ae tern TS PCR I DE PP I ASE A SESE DSC SO

INDEX’ *

Counter-Statement of Questions Presented CUR Lee

EE BE A RET SEB Oi ee ETE CT

Point 1.

‘Two Courts of Appeal have interpreted the New

Jersey Wrongful Death Act to apply the standards

of maritime,law in accidents which- occurred on

the navigable waters: within the geographic juris-

diction of the State of. New Jersey and there are

no: -eonflicting decisions on this interpretation of

New Jersey law os Se RS URL AOA 2 ROME A eee

POINT ie ae a : “aA

The interpretation by the Court of Appeals of the

PAGE

a

New Jersey. Wrongful Death Act is fully congistent —

-with the plain: sins inte the statute and the New ..

, Jersey decisions interpreting the statute 0... ane

Poste nie 7: ,

The deceased, was entitled to a seaworthy. vessel .

at the time of his death ........ ve ah Ser REA ee ee Meee -22

. -Point IV

- There was no disagreement in the Court of Appeals:

concerning the fact that the evidence would SUD.

port a verdict based on negligence iether cidlecine/ cae

» Coxcl_yrsiox , ( note Pil es “;

Coxcit ADE IL BEE ot aE ety SEO a 65

A bee

7

ii’

~Tasie or Cases:

3 ara ae PAGE

_ Anderson v. Lorentzen, 160 F. 2d 173 (2 Cir. 1947) .. 25

Bastedo v. Frailey, 109 N. J. L. _ 162 i 621 a &

SSE RRR OE Been ee a 18

Burns v. Bethlehem Steel Co., 20 N. J. 37, 118 A, 2d

I ON sa hc i adnceeasenieserns movesencenennentnnbeens a

_ Consolidated’ Traction Co. v. Home, 59 ; ae L. 216,

35 A., 899 (Supr. a 18

Coulter v. New Jersey Pulverizing Co., 11 N. J. Misc.

5, 163 A. 661 (Supr. 1932) ...,..... Sack ae tS Ss 18

Curtis v. Garcia, 241 F. 2d 30 (3 Cir. 1957) Rc mnooneceweten ate) f

Gill v. United States, 184 F. 2d 49 (2 Cir. 1950) . Seidl 16

Greco v. Kresge,.277 N. Y. 26, 12 N. E. 2d 557 (1938) 19

Guerrini v. United States, 167 F. 2d 352 (2 Cir. 1947) 25

Gannarson v. Robert Jacobs Inc., 94 F. 2d 170 (2 Cir.

1938), cert. den. 303 U. S: 660, 58 S. ‘Ct. 164, 82 L. Ed. -.

1119 (1938) ranle fe en Oe EELS AUTEN ace ON er

Haggerty v. Central Railroad. Co., 31 N. J. 1: 349

. (Supr/ 1865). ............ sissiteicianeneobtilsprisichidepdnapiaaang Mencia: - 20

_tinlecki v. United New York and New Jersey S.. H. P. vee

Ass’n, 251 F’. 2d 708942 CO, TOY rinses 15.

Hartman vy. City of Brigantine, 42.N. J. Super. 247,126 «#,

6 2d 224 (App. Div. 1956), aff'd 23 N, J. 530, 129

ee ee RED hes cele eee

es v: Waterman, 251 F, 24-655 (3 Cir. 1958) Pete é

Judson v. Peoples Bank & Trust Company of West-

: field, 17, N. J. 67, 110/ A. 2d 24 (1954) eecsccaceesnec 19

Just v. Chambers, 312 U. S. 668, 61 S. Ct. 687, 85 L. Ed.

008 (1941). senate Bch rae ements cant Ae

ii

PAGE

Kernan v. American Dredging Co., 355 U. S. 424, 78

S. Ct. 394,"

Lavender v. iteel 327 U. S, 645, 66 S, Ct. 740, 90

ics RE NNO rh 245

Levinson v. Deupree, 345_U. S. 648, 73 §. Ct. 914,

97 L. Ed. 1319. (1953) SES Soe nsasensntovovenqerantnnoetegei owen 1 we

‘Murphy v. Board of Chosen’ Heichabdlers of ‘Mercer |

- County, 57 N. J. L. 245, 31 A. 229° (Supr. 1894)... 20

Disars v. United States ie Co., 215 F. 2d 708 (1 Cir.

1954), cert. den. 348 U.S, 959, 75 S. Ct. 360, 99, L. Ed.

WE TR nee ee ea ee ee - 20

Old Dominion 8.8. fe Gilmore, 207°. S. 398, 28

S. Ct. 133, 52 S. Ct 264 (1907) . srsesieemneencone 9 16

Orez v. American President Lines, Ltd. 154 Fed. Supp. NY

241 (S. D. N.. Y., 1957) . RGA EROS

Pope & Talbot v. Hews, 346 U. S. 408, 748 <a

‘98 L. Kd. 143 (1953) conewe- oe Pe cccccesescceesesescnsccossce “is 20, 21, 2 22

— v. H. E. Moss, 159 F. 2d S42 (2-Cir, 1947) £25

Schulz v. Pennsylvania R.. Co., 350 U: 8S. 523, 76.8. Ct:

608, 100 L. Ed. 668 (1956) BA Fee Rr SOR Sere a at i

Seas Shipping Co. v. Sieracki, 328 U,/S. 85, 66 S. c th

$72, 90 L. Ed. 1099 (1946) ....... errant wet oe

Skovgaard v. The M/V Tungus, 252 F. 2d iy (3 Cir.

_ 1987) sdidceghod 3 ree eae aa Ena Seictilesbincabossess 15, Mi, Iss

The Devona,. 1 Fed, 2d 482 (D. C.: ‘Me: mee). 2

The H. S. Ine. No, 72, 130 F. 2d 341 (3 Cir, 1942) .:.. AG

De, Bad, (1958) nn neat laaeige | TE

}

iv’

PAGE

Western Fuel Co. v. Garcia, 257-U. S. 233, 42 8. Ct.

89, 66 L.Ed. 210 (1921). ............ EELS. Ee aa ETO -15

a © aang S.S. Co. -v. Nacirema Operating Co., ——

__U. 8. —, 78 8. Ct. 438, — L. Ed. — (1958). 25

‘SraTuTE:

OR aT

; ae ;

y

‘

In THE

Supreme Court of the United States

October TERM, 1957

.

‘Ze

‘© No, 955

. : . ; ;

Unirep New York, anv “New JERSEY Sandy Hook ‘Pots ‘,

AssoclaTION, a corporation. and Unitep New ‘York Sanvy

' Hook P1LoTs AsaociaTion, a corporation, a

; Petitioners,

i aie ;

Ansa HAaLeckl, Aduiniatyattis ad’ Piccsmbiuns of the

Estate .of Walter Joseph Halecki, deceased, and ANNA

Hatecki, Administratrix of the Estate of Walter J ae }

Halecki. deceased, —

ee

BRIEF OF. LIBELLANT-RESPONDENT | IN

~ OPPOSITION F OR PETITION FOR

* WRIT OF CERTIORARI |

/

ie

Counter-Statement of Questions Rresented

_ Whether ‘a state may, in. enacting & remedial statute

‘permitting recovery for wrongful death, ‘incorporate by —

' reference the standard of ‘liability under maritime lsw |

- which existed for the benefit of the deceased if he had lived,

’ where such deceased was injured and died on the navigable

" waters of the United States and within the: geographic

jurisdiction of a state? ; ey Ae

Whether a shipowner_ is under a duty to provide a sea: ~

worthy vessél.to an electricidin who comes on board a vessel]

oe

to clean some electrical equipment during” its annual over-.

haul, which consisted of painting; making minor repairs,

changing lines, working on the engine room, etc., part of

which overhaul is done by the ship’s crew at: the same time

_ while the ship is afloat in navigable waters?.

Statement of Facts *

This -petition involves an. affirmance of an appeal from a

_ judgment rendered in favor of plaintiff following a jury

verdict for $65,000.00. The plaintiff sued on behalf of the —

‘ next of kin of a decpased employee | of an independent

contractor, who died as a. result of carbon tetrachloride

inhalation on defendant's vessel. Plaintiff bases ag action

on negligence and unseaworthiness.

On or about ‘September 24, 1951 the defendant con-

tracted with Rodermond Industries, Ine. of Jersey City,

New Jersey to liave certain work ‘done on the Pilot Boat

“New ‘Jersey ” (P89a) [all references in the Statement of

de: Facts, are to the appendix in the Court of Appeals].

The list of items: for work .to be done_was. admitted

in evidence as Exhibit 5 and also Exhibit 6 (Péa; Pila).

It provided in part (P89a) : ; eee

“Crew, to remove: sat réplace the 8 cylinder heads

for the port and stbd generators.

. Contractor to remove the:eight (S) heads to the ship,

disassemble same, grind in the valves, thoroughly clean

out the head, reassemble and ‘return to vessel. Stone

commutators to rémove high spots and ridges and cut

clean to mica all segment bars. aie and adjust brush

riggings and brushes. j oe

Spray clean with carbon te trachlo ride the armature and.

field windings to remove all traces of dirt and film.

Close up and prove in good order,” (Italics ours.) ‘

ay

/ \

3 7%

Mr. Doidge the foreman for the istenien of the de-

ceased, testified that with reference to the above quoted

item he had consulted with the chief engineer on the boat | ;

(P7a). They agreed that the carbon tetrachloride work

which had been specified i in the contract would be done on.

Saturday, “September 29.1951 east He also testified

(P8a): . ae

“Q. Did you discuss pa diate of: the use of this

carbon tetrachloride with the chief. engineer ‘at that

time? A. I don’t think so. We: just take those things.

for granted. We knéw what it was all about.

‘ The Court: That is the reason you discussed fix

ing a particular time when to do,the work? —

The Witness: That is right, your Honor.”

The captain of : the: defendant’ s vessel was in court but

he was not called upon td testify (P79a). ‘The plaintiff had

read parts of the testimony on deposition that Captain

Haley kad given during the presentation of the plaintiff’s

case (P6la). He had.testified that he was the captain of

the New-Jersey on September 29, 1951 (P6la). On that

date the vessel was located at Rodermond Industries in

Jersey City for “the annual overhaul” (P62a). Captain

Haley testified smnong other things (P63ay:

“Q. When you brought it there, was it brought by

you and the officers and your complete crew? A. That

is correct, sir, and the Marine Superintendent was.

aboard, too., © | =e

Q. When you say the marine superintendent, the -

marine. superintendent of what company? ..A. Of our

organization:” | ya | d

a . 4 eR e @..”

. “Q. What took place when you first brouglit the

‘vessel into’ Rodermond Industries pier in Jersey City?+

_ A. Well, as far as I can recollect, we went up to see

" the yard superintendent and also. the different—what

. do they call them, various " superintendents and snap- -

pers or bosses like they say in the shipyard. We dis--

cussed what we were going to do with the vessel.”

f i ‘i + we * a & j

“Q. Just tell me what you did in yreference to the

vessel. A. We were moored in Rodermond Industries,

and I was on board every day during the working

hours.” : He

“Q. And what were the work hours? A.. From 7.30.

rptil anywhere up to 5, 6 or 7 o’clock at night.

Q. And that was every: day while it was at the -

' Roderniond {ndustries - ‘pier? A. With the exception |

‘of week-ertds, naturally. © Ugo UE cen

Q. During the period of time that you were aboard

the vessel while. it was at Rodermond Industries pier,

during the working hours that you have’ described,

what were your duties aboafd the vessel er what did

you do aboard the, vessel? A. Usually when you go

into a yard like this gou have a certain amount of deck

work to do, like painting, and fixing up minor repairs,

a generat overhaul of the deck departinent, renew lines

and take care of the general appearance of the ‘vessel,

‘the, bridg¢, the galley, the mess-hall, your rooms, you «

‘paint them, and so forth. * é .

Q. Who would do that? A. That would be the deck | 3

__ department.

Q. You mean the déck’ department of the vessel! A.

“Of the vessel.

-Q. That has tie ead to do with. Rodéermond Indus-

tries? A. No, sir.’

; i e+e os

.:.

“Q.: During that period of time when it was mm the

— Rodermond Industries yard, during that perjod around

September 29, 1951, could you tell us what the skeleton

officers and crew“consisted of that remained .aboard

.the vessel to the best of your recollection? A. To my

best recollection I had myself, who, as I reéall, was

the only officer in the deck department, and ‘then |

» had approximately four or five deck men.

- Q. And the engine department? A. We do not have

anything to do as far as the engine poet. Do you Want

me to elaborate?. 3

Q. I will also ask you: to go into the engine e depart.

> ment, officers and crew of the engine departinent. A.

We had the full complement of engineers and engine

room crew aboard.

°Q. During tha®period of time? A. That is , correct.

‘Q. What wer@the engineers and. the engine’ room

crew doing in general aboard the vessel while it Was in ~

Rodermond Industries during that period of time? A..

~ They were maintaining the engines and any other spe- ;

‘| cific work that we.had to take. care of.

\ Q. Were they also present during the. night hours, °

\\ the engine department? A. In some cases you would

have. men: sleeping aboard the vessel at night.

Wy. ‘During that period of time while the vessel was

at Rodermond Industries shipyard did the engine de-

partment have an officer and crew during. the night

hours? A..As a standby or as a watelj? What do: you

mean-by that? ts sian tae

Q. Anyway at all. A. Well, at night, yes, I will

say that there was somebody that represented the,

engine department aboard the vessel on most of the /

occasions.” | | '

wa

4

2

\.

"He testified (P67a):

“Q.° What. was’ your job or what were your Wuties -

during that period of time when the Rodermond Indus-

tries were doing some repair work, what did you have

to do with reference to the vessel while that repairs

work was going on? A. Well, the repair work. was

represented by the-marine superintendent who during

the working hours inspected and went around the ves-

sel to see that the different jobs were being done. and

discussing the jobs with the snappers, and taking a_

general interest in that nine” work mae was being

done by. Rodermond Industries.”

He testified ( P69a) +

“Q. Then during this entire time while Rodermond

Industries were doing their werk, their repair work,

you have your own deck érew on: the vessel. doing

certain maintenance work and painting work and so

' forth on board the vessel? A. That is true,. yes, sir.

Q. Did your deck ‘crew do-that work only the five

working days of the week, or did they do, such work

‘on Saturdays and Sundays, if you recall? “A. If it

was necessary they: would work / on a Saturday or a

‘Sanday. . :

“ / Q. Did your deck erew work on September 25, 1951,

'/ which was a Saturday? A.-I liad one man there.

_ Q. Who did you have there? A. Walter Thompson.

Q. What was his. sapocnuadat A. He was to maintain

a watch.”

He testified (PT0a) :

«Q. And the inspection of the vane while it was at

Rodermond Industries would also. bé under your juris-

diction? A. Mine and the marine superintendent.

a FA :

fo *

Q. And if either you or’the marine superintendent

discovered any unsafe con!) uons aboard the vessel it

would be up to you or Shes: _ see that they were cor-

rected? A. Well, naturally,”

&

co

On cross-examination: by. his own attorney, he stated

(P72a): aA ;

©, Captain, can you tell me the purpose for which

the ship was put into Rodermond Industries? A. For

the annual overhaul.

Q. Just briefly what did that consist of! ? A. Tone

consisted of deck and engine work.

Q. Repairs and overhaul? A Repair. ‘and over--

- hauls, yes. - : 7

Q. Was that work done under your orders? A. No,

sir. ;

Q. To your knawledge was it aces under any orders

of any -of the members of the Pilot Association? A.

Under the orders of the niarine superintendent. .

Q. When you say under the orders of the marine

superintendent, yon mean in accordance with the spe-

“cifications? A. That is correct. ms

Not only did the defendant: fail té call the Captain of

the vessel as a witness, but it failed to call the Chief

Engineer of the vessel either although he was still em-

ployed by them (P80a). Nor did the defendant call its

“Marine Superintendent to testify although he was still

employed by them (PS8la). In fact it didn’t call any wit-

ness except Walter C.. Thompson, the-man’ who. was on

°

watch and its medical and engineering eee. who did. .

_ not have direct knowledge of the Dy cag use

‘The deceased was 40 years

(Pla). He had a wife and three infant children (Pla).

He was an electrician employed by the K & S Electrical

serene

at the time of his ee

~ abové the engine room floor and, tied to a -rail: (PJ

and Doidge abbey a blower ‘bdloaging- to ‘Rodery

Industries on board the vessel on Friday for use on S

day '(Pl5a). It was placed. in position about -7 or 8 feet

*. The Chief Engineer. ef the vessel had been present’ on

Friday *when Doidge made aeepeeniiots: and pbut the

blower in position ye P16a). Ray

On Friday’ ‘Doidge ha sprained his oats (P2902), Con-

° "sequently on Saturday be found that he couldn’t hold a

_ spray gun and: press the trigger on it because of the condi-

‘tion.of his wrist. The deceased took over the spraying

and Doidge just | helped him “move ‘the stuff around”

(P29a). Doidge did spray for, two or three minutes. be-

fore he gave up (P29a).. Doidge went down into the engine

“room while the deceased: sprayed but later on he didn’t

go down every time with the deceased (P37a). The de-

-eeased would spray for 15 or 20 minutes and would come

out of the engine room, ‘Then’ he’d repeat: the ptoredare:

(P30a). Mr. ‘Doidge. testified (P30a) :

2), During the- time: that: he was, ‘Spraying in the

-engine room, you stayed on top of the deck? A. At

. first I stayed dow n—the first two or three times down

there. I stayed down with him altogether. Then, as

_ the'can got higher he could‘hove it a little himself and

~ then I wouldn’t go down quite as much, - would just

look 1 in from the top of the engine Toom.’

Mr. Doidge and the docoaned siaxtad So work . about

8:30 am. on Saturday morning (P28a). They started

spraying about 8:45 or 9:00. a.m. (P28a). They stopped

-for‘lunch at noon for- about half an hour and then they

resumed, work until about 3 00, or 3:30 P. m. ( P30a). They

both left the vessel. the deceased. complained of a ‘pee aliar ; ;

taste in his mouth” (P3la). The defendant’s crew member

‘who had been on we‘ch testified, that “at ‘the end of the

day one of the fellows just said he wasn’t feeling well” ach

*(P78a). Mr. Doidge testified that the dec oe? had been a

| sober man on the job (P3la). ’

Both- Doidge and the ‘deceased. acid tres vas ‘ae

supplied by K & S Electric Co. (P27 . They were ‘regii-

lar Army surplus’ gas masks (P27a). kdze checked the

gas masks before they used them (P36a). Hé stated that

saw the deceased working below he wore a

‘mask (P38a). Mr. Doidgeé also testified on cross-examina-

tion that. the gasthasks were not defective because the.

Police Department had checked thé masks after the acci-.-

. dent and he received a report: from them (P42a; P43a).

The cause ‘of ‘death. of the. deceased was admitted.

During the cross- -examination of defendant’s medie al ex-

pert, the trial court asked (P84a) =

“The” Court: The autopsy ‘diagnosis was death from.

carbon tetrachloride poisoning. Fou, are in agreenient

with that?: ~~, . : :

The Witness : Yes, sir. | -

The Court: 1 think everybody is in agreement on

_ that. Is there any question about that?

Mr. Mahoney: The de fendant doves not take issue °

. with that, ee Honor.”

- ‘The great danger involved in the use of carbon tetra.

“chlo ide’ in a confined place without proper “ventilation

SSanc P34a; P4la; P45a ; Pd0a ; P82a;

P86a).’ SS Se ah ek

Dr. Robert te Gaines was called. upon to” téstify for

plaintiff. He had a Ph.D. in chemistry and-was a bio-

chemist with specialty in toxicology ‘and publie safety.

- er site ty

' . water; that it had a boiling point: of 77 ‘degrees Centi-

‘. - the toxicological process. by which .the~chemical affected

10

(P46a). He testified that carbon tetrachloride is a- member

of the methane series in organic chemistry; that it had a

spgifie gravity of 1.54 which means it is heavier than’ °

grade which meant that it was “rather volatile” (P46a).

Carbon tetrachloride is about. 5 times heavier’ than air

_ (P58a). nays }

‘He’stated that at one time it was wid as a ‘medicine

to eliminate worms but this was discontinued when it was ©

discovered that this was a “toxic substance.” It then

became popular in siamalion with. fire extinguishers be-

“eause. it was a non-conductor of electricity and could be

‘used where electrical devices were involved. However it

was found that: these fire-extinguishers when used ‘in,

‘confined places caused poisonings and warning labels were

subsequently affixed to them (P47a). It was discovered —

that carbon tetrachloride was an ideal, _ econoinical, and

efficient solvent where grease was involved and ‘it came.

into more general usé. Then it was:-discovered that em-—

_ ployees in industries where the chemical was in wide use

began to develop complaints. Studies were then made by’

public health authorities about 20 years ago and it was.

found that the chemica! could be used if “@@equate ventila-'

tion was provided” (P48a). A concentration of 50 t eet

parts per million. of carbofi: tetrachloride was co msidered

safe (P49a).. Dr. Gaines also developed o> ne eyes

——

the human body (P49a). He testified that. exposure or

inhalation of carbon tetrachloride in an amount bey ond

the safe concentration would be “obviously harmful and

deleterious” (P50a). The concentration stated by, the ex-

pert represents | weight -per unit. volume and reflects the

concentration of ‘strength ( P5la; “P52a).

Dr. Gaines testified that in view of the fact that carbon

tetrachloride i is about five times heavier than air it: would

sink to the bottom:of the engine room and ‘have the greatest

concentration there (PQ3a). The blowers would merely

act to agitate or stir up the air-in-the engine foom rather —

than replace it or remove it (P53a). Proper ventilation —

_would require ventilating ducts at floor level.(P56a). ~

- Doidge testified that the engine room was approximately

40 feet long, 30 feet wide and about sala ik (D5a).

He stated that they: had used 8 gallons’ of caMon tetra-

chloride (D6a). Dr. Gaines computed on the basis of these

dimensions and without- considering the displacement by

machinery. in. the room. that. this involved ‘21,600 eubie

feet of air (D22a). He testified that temperature varia- |

tions except where the freezing point is reached would '

‘make very little difference ‘i in volatization (D23a). Taking

a _ temperature of 25 degrees Centigrade as an average

temperature, Dr. Gaines concluded that in a space 40 by

30 by 18 feet, eight gallons of carbon tetrachloride sprayed

in six hours would produce a concentration of 20;000

parts per million (D23a). There was’ machinery in this

‘room (P82a; P83a). This, as a matter of physical fact,

would increase the. concentration and the danger. This

wotld produce at least 200 times the allowable safe con-

‘centration (D24a). Dr. Gaines testified (D32a) :

“The Court: The actual concentration in the area,

of eourse, would depend upon the effectiveness of the

ventilating units; is that correct?

_ “The Witness: "And the ainount ‘of material present.

“The Court: When you say the ainount of material )

present, I don’t follow that. r ‘

The Witness: That ‘is, whether they used a pint

bottle or a gallon bottié, or five gallons.

‘The Court: Well, to ‘put it more specifically, oe

thought my, question was clear, you gave a figure of

_ 20,000 parts per million. Is it correct to suggest that —

CPE Re 12° aN ee oa Wer

= : . oe OL TEN

-- that‘is the maximum whic does not take into account

any of the’ ventilating item contained i in that?’

The. Witness: Yes. :

_ The Court:* Because in réaching that figure you ex- ;

eluded all ventilating factors.

‘The Witness: Yes, I used that in a confined area.

' ‘The Court: And accordingly the actual concentra-

tion per million in that engine room would depend —

upon the effectiveness ‘of the ventilating units?

‘The Witness: Yes, and we believe that we used

those measurements without allowing for displacement

_ by equipment.” nee

Fiiaves he also testified (P59a) : pasa

“Q. The Court will ask a question at this time. Of

, course, your answers were based upon the hypothetical

information given to you when Mr. Baker questioned .

you. He déscribed these various items of ventilation.

A. Yes, sir.

Me. And L take it to that content, at sail your answer

was based upon a hyphotheti eal state of facts? A. Lim-

ited within that, yes.

Q. Counsel just asked you whether or not you knew

that these various items were functioning properly and

you said you didn’t know! A. Of course not.

Q. I say to you-now that the evidence in the case

is that all these items were operating properly and

functioning properly on the day in question. That.is

the testimony of Mr. Doidge. Would that make any

_ difference in your answer as to the extent of con-

centration on that day in that area? I want-to_assure

-. both counsel it is their duty to object to the question

if it should be objected to. | + yee

Mr. Mahorey: No objection. [ understand that ;

is the evidence. _ :

13 : Leena.

_—.~

A: If his Honor pleases, | ‘recall two doors being on

the. side at about eleht feet above floor level. That

door would be the only factor in the testimony or in

the items introduced as being somewhat efficacious in

. removing the vapors, because that was low down, near

to the floor. ° gee

‘The cireulating fan would have. no bearing on the

‘removal of the vapors. It would merely act asa ¢ir- .

culating agent. The air hose, which was supplied near

. the operator’s face, would have no effect at_all on the _

diminution. or the increasing of the concentration. I

recall now an exhaust. pipe “ sucking air out of this

‘room, and I believe that would have—and I do- ~ say

that—without any hesitation I ‘say that that would be

instrumental in diminishing the concentration’ in the

room, but as to how much I cannot say.

I recall a hose near the ceiling as coming in with

fresh air. That, sir, would be very little because it

would be merely blowing i in fresh air which would be

increasing ‘the concentration at the lower level: -

-. Then the two skylights that are open again would

have no effect on Ventilation, but it would have on

dilution because we must bear in mind,-sir, that this |

vapor is.more than five times heavier than air, 5.3 or .4.

I said three times heavier before, and I meant five.’

-Therefore your. concentration would be increased

_ near the floor level and gradually increased as it goes

up. 1 would say that all .the items that” were enl-

merated by both attorneys would have some effect, _

especially the doors and your exhanst. The others’

would have a negligible effect. Do I answer the ques:

wceins sir?” -(Ttalies ours. )

The defendant’s expert engineer on cross-examination,

confirmed Dr. Gaines’s opinion (PS6a): |

ob aa

“Q. te your opinion, was that: system adequate.to

_ Temove :ca)‘bon tetrachloride from the engine Teem!

A. In my opinion it was not.

: Q. And why do you say ‘that, Mr. Finkenaur? . A. i

don’t see how you could expect any ship’s ventilating

system to take eare of those noxious gases that are

‘introduced, and particularly those that are heavier

than air and lie down near the bilges. You would have

to. have a special blowing device to stir-that air up

and permit it (to eireulate- eut- with the_rest- of hei

exhausted air.” |

The jury vebaceel a verdict for $62,500 for the pecuniary

loss tu the wido w and dependent children and for $2500 for

conscious pain and suffering of the decedent (P69a). De-

fendant moved to set aside the verdict, for judgment not-

withstanding the verdict and for a new trial. All motions

were ‘denied. ,

The jodicment was affirmed in the Court of Mines

Judge Learned Hand wrote the majority opinion. Judge

Hincks agreed with Judge Hand, while Judge Lumbard —

chaneenee.

5

Se, |)

Two Courts of Appeal have interpreted the New Jersey

Wrongful Death Act to apply the standards of maritime

slaw in accidents which occurred on the navigable waters

within the geographic jurisdiction of the State of New

Jersey and. there are no conflicting decisions on this

interpretation of New Jersey law.

a.

~

Two Courts of Appeal, in the Seen Cirewit- and. —

Third Circuit respectively, which handle a large volume of

‘maritime cases, after lengthy and thoughtful argument

and consideration have agreed that the New Jersey Wrong-

ful Death Act permits an action based on unseaworthiness -

and applies: maritime principles of tort’ liabiity Where

the deceased, if he had lived, would have had a right to

recovery on such principles of liability. Skotgaard v. The

M/V Tungus, 252 F. 2d 14 (3 Cir 1957) ; Halecki v. United

New York and New Jersey S. H. P. Ass'n, 251 F. 24.708

‘(2 Cir. 1958). This court in-Kernan vy. American Dredging

Co., 355 U. S. 424, 78 S. Ct. 394, L. Ed. (1958) in footnote 4

of Mr. Justice Brennan’s opinion referred to the opinion of:

the Court of Appeals in the Skovgaard case with apparent

approval indicating in said footnote that the reasoning of |

the court in the Skov gaard case Was consistent with the de-

‘cisions of this court in determining thre remedy available for °

death occurring on navigable waters. In addition, the de-

cision of the Court, of Appeals in this case written by Judge

Learned Hand is consistent with and logically follows the

decisions of this court ip Pope é Talbot v. Hawn, 346 U.S.

406, 148. Ct. 202, 98 L. Ed. 143'(2953) ; Levinson v. Deupree,

345.U. S. 648, 73 S. Ct. 914, 97 L’ Ed! 1319 (1953) ; Just v.

Chambers, 312 '. S. 668, 61 S. Ct. 687, 85 L.. Ed. 903° (1941) ;

Western Fuel Co.w. Garcia, 257 U.S, 233, 42 S. Ct. 89, 66

L. Kd. 210 (1921) Old Dominion SS. Co. v. Gilmore, 207.

| See eens |

_ UL S, 398, 28 S.Ct, 133, 62-S. Ct. 264 (1907)-Parsuant ti

these decisions it is clear that although maritime law does

not give the next of kin of a deceased a right. to recover

under the maritime law itself, the maritime law will adopt

and enforce. a state wrongful death act to supplement the

general maritime law.

. The petitioners do not: quarrel.apparently with the con.

struction of the New Jersey Wrongful Death Act whieh.

would permit reeovery for negligence. This has . been

established for several years. Gill v. United States, "184 -

F.2d 49 (2 Cir. 1950); The H.,S. Inc. No. 72, 130 F. 2d 341

(3 Cir. 1942). On the other hand the plaintiff does. nut

claim that the maritime law, by itself, gives a remedy to

the next of kin for wrongful death. The issue in this case

‘is not whether the? maritime law .permits recovery for

wrongful death but ‘whether the New Jersey Wrongful

Death Act when adopted and enforced as part of maritime

law will use the same test_of liability as the deceased would

-have had if he had lived. The issue, as framed and de-

cided by the majority in the Court ‘of Appeals, involved

a construction’ of a state wrongful death act rather than

any alteration or departure from existing decisions of this

court.

The defendants tee a that the decision of the Const 6 of -

Appeals interpreting the New Jersey Wrongful Death Act

is in conflict with the decisions of other federal courts.

None of the decisidns referred to in the petition involve

. the New Jersey Wrongful Death Act. It is possible that the

Wrongful Death. Acts of other states may receive a much

more narrow interpretation than the one involved in this

’ ease because of state court décisions narrowly construing

’ such acts or because of: GRersnees in the wording of the

oaneee.

?

?

= , 17

4 “4 be

a

| —4y the Peimiyivania a statute, 12 mee Penna., Statutes

Anno. §1601, the test of liability is merely set forth as

“unlawful violence or negligence” rather than “wrongful act,

neglect ‘or default” as set forth in the New Jersey statute.

ers the Pennsylvania does not employ the “such —

* test of the New Jersey statute which incorporates the _

a of liability. based on the rights of the deceased_ 2 =

a

Med red rere

Under such circumstances the Court of Appeals for the

Third Circuit may consistently reach one result under the

‘New Jersey Act; Skovgaard:v. M/V Tungus, - 252 F. 2d 14

_ (3 Cir. 1957) and a different result under the Pennsy lvania: -

statute. Hill v- Waterman, 251 F. 2d 655 (3 Cir. 1);

«6 Curtis v. cribs 241 F. 2d 30 (3 Cir. ee

POINT I

The interpretation by the Court of Appeals of the =

New Jersey Wrongful Death Act is fully consistent with

the plain language of the statute and the New Jersey

decisions: interpreting the statute. — |

. The constuction of the. Court of Appeals in holding

that the New Jersey W rongful Death Act-incorporated the

_ same test of liabjlity as would be applied if the Aeceased

had lived was consistent with the plain language of the

Statute and with the decisions of the New Jersey courts.

N. J. S. A. 2A: :31-1 provides in part:

“When the death of a person is caused by aw aagti

act, neglect or default, such as would, if death had

not ensued, have entitled the person injured to main- |

tain an action for damages resulting 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, * * * “ ss pecauis ours. ) i

—

| att i is the test of liability which , would. ap ly if the de.

iz case stated:

18

The courts of New Jersey have. consistently held: thai

the test of: liability under fhe New: Jersey Wrongful Death

ceased had lived. ‘In Consolidate Traction Co. v. Home,

59 N. J. L. 275, 35 A. 899 (Supr. 4 1896), Chief Justice.

yf Beasley. had stated in interpreting the New Jersey ‘Wrong.

/, fal Déath “Act at page 900 of Atlantic: :

Lf Ts From these extracts from the statute it

will be at once pérceived that in this suit, founded

“upon. it, as in all others of .the same class, but two

questions-are-raised, and but two can be raised upon

the record, viz: ‘First, could the deceased, if he had

survived, have maintatned an action? And, second,

this being so, what pecuniary loss has fallen on his

| ie next of kin by reason of his death? oF on, (Italies

ours. )

\ The above is quote | with approval in Bastedo v. Frailey,

109 N: J. L. 390, 142 A. 621 (KE. & A. 1932). In view of

the above, the Court of Appeals properly held‘ that the

. test of liability, ic., the right to maintain an action w

determined by the rights the deceased would have had if

‘he had lived. See also lter v. New. Jersey Pulverizing

Co., 11 N. J. Mise. 571 A. 661 (Supr. 1932), where it:

was held that suit could not be brought for. wrongful

-' death where’ the Statute of Limitations had run before

'. the death of the deceased, because “the statute only gives

an action if the deceased had one.” Not. only is:the nature

‘and extent of the liability under the New Jersey Wrongful .

Death Act made co-extensive with the liabilfty the de-

ceased could have alleged if he lived, but the broad word-

ing of the statute permits recovery for unseaworthiness -

as well as negligence.

Judge Staley, writing for: the majority in ‘the Skovgaard q

o

ee

al

» ton * dey 1

;

: : on 7 4 ‘

, ? ‘

+ 3 7 ‘= A

= ° ° U

. ° . ; .

‘ 2 ; 6 7

- s F =

. : ‘

"te ’ 3 F -—

é ; : ° . se

Phe pe Seer : : ; ; : < *

‘ : ; .

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'

19, ai

“We hold that failure to provide a seaworthy vessel

in the case before us is such ‘wrongful act; neglect

or default’ ds will allow recovery under the New Jer-

. sey Wrongful Death statute.” =. os % gee

" Judge Learned Santi in . the H alecki case ‘held ee refer-

ence to the New J ersey ‘Statute ‘and ‘the Ww arranty of,

seaworthiness (Pet. 28a) :

“ “** * Wehold that ‘neglect and ‘default? both cover

: a breach of the warranty.” Pay: | aw

: The. epnelusions of dudge Staley pe cag tas

hand are amply supported. In Judson v.- Pec les Bank & ..

. Trust Company of Westfield, 17 N. J. 67, 119 A. 2d, 24

- (1954), in constructing the meaning of the ‘wrongful ,

act, neglect or default” of joint tortfeasors Mr. Justice

Brennan held that the phrase included all torts of c@yn-

mission and omission. See also Burns y. Bethlehem Steel

Co.,.20:N. J. 37, 118 A. 2d 544 (1955), where the words

“wrongful act, neglect, or Afaylt” i in a limitations statute

were held to include a cause of action for personal injuries

whether. the action was based on Pert or contract pee. ;

in Orez Vv. American President Lines, ‘Ltd., 154 Fed.

Supp. 241 (S. D. N. Y. 1957),..1 the phrase “wrongful aet,

neglect, or default” as used in the New Jersey statute of

limitations was held to include a claim based on unsea-

- worthiness. The same phrase in in she New York Wrongful

- Death statute has been veld f6,. yinclude ‘an action based ‘on —

a warranty of fitness for use. Greco v. Kresge, 277 N. Y.

96,.12.N. E. 2d 557 (1938). The construction given to

the New. Jersey Wrongful Death Act by the Court of

Appeals was reasonable and in full accord with the deci-

sions of the courts of New Jersey interpreting the act.

No New Jersey case directly or indirectly stands for the

¥ -proposition which petitioner urges this court to ad 6

|

Pac cele

: ther buttressed by the fact that the New Jersey courts’

- ence to a hay h. or arbitrary one. If the construction/of -

. the Court of Appeals properly ‘gave the statute a fair and

ke construction given by the Court-ef{\ Appeals is fur. *

_regard the New Jersey Wrongful Death Act “entirely and

in the highest sense remedial ‘in its nature.” Haggerty v.

Central Railroad’ Co., 31 N. J. L. 349 (Supr. Ct. 1865), .

In construing it, “the rule is to avoid all subtle inventions —

and evasions for the continuance of. the remedy” and “the -

duty‘of the court is to.add force and life to the cure and

remedy.” Murphy v. Board of Chosen Freeholders of

Mercer Countg; 57 N. J. L: 245, 31 A. 229. (Supr. Ct. 1894),

See also Hartman v.- City of Brigantine, 42 N. J. Super.

247, 126 A. 2d 224 (App. Div. 1956), aff’d 23 N. J. 530, 129

A. 2d 876 (1957). Aside:from the rule of construction that -

a remedial statute is-to be liberally construed: the court

_ also must adopt a reasonable and fair construction in prefer-

the Court of Appeals is rejecfed\hen an absurd. situation

would arise. Where a deceased died ona vessel in navigable

waters of the United States and within the geographic |

area of a state his survival cause of action would ‘be de-

termined under matitime law , Pope & Talbot, Inc. Vi bl awn,

346 U. S. 36, 74 S. Ct. 202, 98. L. Ed. 143 (1953), while

, the wrongful death action would be determined by analogous

‘state law applied to situations on land. Cf. Comment of

Judge Woodbury in O’Leary v. United States Line Com.

pany, 215 F. 2d 708.(1 Cir. 1954), cer. den..348 U. S. 939, ©

75 S. Ct,360,.99 L. Ed. 735 (1955). In the absence of any’

direct statement in the statute or any cohstruction by the |

New Jersey courts that such an absurd situation was a -

_ desired purpose of the New Jersey Wrongful Death Act,

reasonable construction.

Obviously the purpose of the

of -liability which would ha

had lived, In this respect the ne

t is to incorporate the test

existed ‘if the deceased

f kin are given neither .

greater or “smaller rights than the deceased. In a ease where

“the deceased died as a result of injuries received while a_

business invitee in a ‘retail store, the law relating to the

rights ‘and duties of business invitees and storekeepers

would apply. By the same logi¢swhere the deceased died

-as a result of injuries received on navigable waters within

‘the boundaries of a state the law, relating to the rights

and duties of shipowners and those ‘who come~on board .

would apply. Since Pope & Talbot, Inc. v. Hawn, cited 3

" supra, the law applied would be the niaritime law of the’

United States. It would.be unreasonalile to conclude that‘ __

~ the legislature ‘of New Jersey intended it otherwise par

ticularly in view of the referral. nature of the statutory’

language. ei aens. Ss

The New Jersey Wrongful Death Act does not have any

language in it setting forth either contributory negligence. _

or assumption of risk as defenses to an action brought

under it. ‘Judge Learned Hand in the Halecki case held :

specifically (Pet. 30a) .

\ * * * and we hold that the New Jersey statute should

it aeceepted—the exemption of contributory negligente

as a bar.”

be construed as taking over as a part of the ok |

Folge Learned Hand's determination in the Halecki’

ease is cénsonant with a reasonable interpretation of the

New Jersey Wrongful Death Act. The test of liability is

eoextensivt regardless of,whether the deceased had lived

and recovered for ‘his personal injury or dies and ‘his next

of kin sue. It would: require a finding of unreasonable

logic on the part of the New. Jersey legislature in passing

a remedial statute to hold that a widow’s claim could be -

barred by contributory negligence, however, slight ‘it may

be,-but that. the deceaféd, if he had lived:could have re- -

—_

.

=

22

“eovered. The legislature did not intend oaih & result. ‘lt

did not specifically. set forth such defenses. Instead it used

a “referral test” for the very purpose of avoiding. such an

anomoly. See The Devona, sicher 2d 482°(D. C. Me. 1924)...

POINT mm al

' The deceased was entitled to a seaworthy vessel at

the time of his death. Bee,

Judge Lanvasd Hand. in discussing the question of .the

duty of the defendants to supply the deceased with a a

: worthy vessel stated. (Pet. 26a) ;

re ee

We can see no distinction between the ‘iil

af the decedent in,the case-at bar and that of the plaintiff

. in Pope & Talbot: v. Hawn, supra. (346, U. S. 296), -

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

. test is whether the «work is of a kind that traditionally

. the crew has been accustomed to do, and as to that it

- Hawn, supra.

_As oh be- ‘expected, so shadowy a line of demares-

ee Ty

| For example, i Read v. United States, 201 F. 247

- the Third Circuit“held that the warranty extended ‘ea a

‘business -guest’ who was doing ‘part of the work of

| . changing a ‘Liberty’ ship into a transport, while the -

Ninth Circuit i in Berryhill vy. Pacific Far East Line, 238

F.2d 385, cert. den. 354. U. S. 938, refused relief to a

‘workman who was engaged in ‘major repairs,’ as these -

were described in the District Court (138 Fed, Supp.

a

makes: no difference that the means employed have ;

£5 changed with time, or whether defective apparatus was

. brought aboard and was not part of the ship’s own.

gear. Since the deceased was cleaning the ship, we hold

that it was- within the doctrine af oe & Talbot v.

aie “2 4. Beene eae Sg j = > A .

_ oa ante ’ ’ : aii? ; ; 2: a. a he

°

§ 859). ‘ the alien: in Berge : Vv. - National Bulk ‘Car- as es

riers, Ine. (148 Fed. Supp. 608), decided herewith,

we shall state the reasons fhat impel us to prefer the -

_ decision of the Ninth Circuit, but it is not necessary —

. fo pass ‘on that, question here, because as we have said,

' the work did not involve any structual changes in the

-" ship, but was of a kind that was part of the crew’s

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

general overhaul. We start thereforé with ‘the conclu-.

sion that it was proper. to leave to the jury, not only

5 the issue of negligence, but that of. unseaw orthiness.”

(itahtes: ours.) —

eo

2

The Aefendar.:’ S vessel i in the present. Case, was getting -

“annual overhaul” at the time‘of the accident. The defen-

dant's witness, Walter: C. Thompsen, characterized the

. “annual overhaul or the annual repairs” (p. 76a) :

£

| “A. Well it consists of painting the boat, whiny i minor

—!: repajrs, changing the ‘lines, working ‘on the engine

_ room, and so forth.” ( Italics ours.) :

The vessel had remained in.the water at Rodermond In- .

- dustries- for about three weeks (pp. 15a; 75a). The captain |

"of the. vessel was on board the vessel every day (p. 64a). .

In addition there were four or five. deckmen on board

and .the -full complement of engineers and eagine reom

. erew on board (p. 65a). Some men slept on board the vessel

(p. 65a): According to the specifications the ship's crew .

were to “remove and place the 8 cylinder heads” on. the

very generators the deceased cleaned (Vp. 89a). vd rgb s

erew worked during the’ “annual overhaul”. alongside of

the: contractors and the work was done under the orders

and’ supervision of defendant’s Captain, Chief Engineer

and Marine nnn: (Pp. 9a; 10a; 67a; 68a; 70a;

_

v t ‘

a po -

> 24

y

~ “Q

The use _ of electrical equipnient on hint a weil is of

comparatively. recent origin. However, the electrician on

‘board a modern vessel serves ds important a functioh in the

“ability of the vessel to navigate as any other member of

’ a yeésel’s crew. The agreement between the N ational Mari-

time Union of America and various companies and agents

in. Atlantic and Gulf Coast Ports of June 16, 1956 lists.

the following specific unlicensed pérsonnel classifications

under the agreement: “Electricians,” “Watch Electricians,”

“Day Electricians,” “Second Electrician,” “Deck Elec.

trician,” “Maintenance Electricians.” This illustrates the ~

fallacy in the contention of the deféndant that the work of

the decedent was not work ‘traditionally performed by

seamen.” .Modern vessels are large and complex mechan-

‘isms. Even those vessels that are not electric motor ships

use large quantities of electrical equipment for lighting and

other functions on a ‘vessel.’ Obviously, whatever their

designation, each. such vessel must: have one. or more mem-

‘bers of the crew who are trained to inspect, clean, and. main-

tain electrical equipment on board. Sometimes a particular

vessel may not have a crew member sufficiently skilled to

perform eertain types of electrical work, which could other-

wise be performed by 4 competent member of the crew

. if one were-on board. This does not. operate to make ihe

work any less work “traditionally performed by seamen.’

» ‘The fact that the owner may seek to have certain types

of maintenance work’ done. by a contractor employee and

“seeks to have it done with the advantages of more modern —

divisions of labor” to use Mr. Judge Rutledge’s words,

“does not minimize the hazard and should not nullify his

protection.” Seas Shipping Co. v. Sieracki, 328 U. S. 85,

66 S. Ct. 872, 90 L. Ed. 1099 (1946).

The peculiarities’ of maritime conditions: apply to elec-

tricians as well as ta other members of the crew. It is the

requirement of working in confined places and in the peculiar

_ conditions caused by: the limitations of space, machinery,

gs

25

ad structure, inherent i in n the ‘design of a wessel that creates

special risks. Rosa

°-

POINT nia

‘Vie: was, no disagreement in the Court of Appeals"

_ concerning the fact that the evidence would — a

_ verdict based on negligence. ‘

There was no disagreement i in. the .Court of Appeals con- -.

cerning. the fact that there was sufficient evidence which

would warrant-a recovery on the ground of negligence.

Judge Lombard based his dissent on the issues of unsea-

worthiness and comparative negligence. He did not state -

that he would have dismissed the complaint entirely but.

rather“that he would have remanded the case for a new

‘trial on the issue of negligence only. He. could come to this

_ conclusion’ only if he felt that there was evidence from

which a jury could conclude that the defendants were negli-

gent (Pet. 39a). Therefore ‘the trial judgé and the three

judges of the Court of. Appeals who reviewed the record in

this case all agreed that there was suficient evidence. from.

which a jury could find-_that. the defendant had been negli-

gent. - - ey

The intesdinte had an affirmative non- delegable duty to

provide a reasonably safe place to w ork: See Weyer-

hacuser 8.8. Co. vy. lanai Operating Co. ee pe.

78 S. Ct. 438, ae” ae (1958); Gunnarson v.

- Robert Jacobs, Inc., Ze F., 2d 170 ‘(2 Cir. 1938) cert. den.

_— 303:U~. S. 660, 58 S. Ct. 764, 82 L. Ed. 1119 (1938); Guerrini

_v. United States, 167 ¥. 2d 352 z Cir. 1948); Anderson v.

Lorentzen, 160 F. 2d 173 (2 Cir. 1947) ; Puleo v. H. E: Moss,

159 F 2d 842 (2 Cir, 1947),

The factual findings in this death case were amply sup- | -

ported by the evidence and were within the province of —

A.

5

° 26 |

the jury.. Schulz Ny, Pennsylvania R..Co., 350 U. S. 523, 76

S. Ct, 608, 100_L. Ed. 668 (1956); Lavender v. Kurn, 327

U. S. 645, 66S. Ct..740, 90 L. Ed..916 (1946).

CONCLUSION

ue The petition should. he denied because

(a) The issues were fully and completely presented and

- argued in the court - ‘below ang were. correctly Ge

cided. —

(b) The issue basically involves the interpretation 2of

the New Jersey W rongful Death Act and the inter-

pretation of the court below is’ supported by the

language of the statute and the decisions of the

New Jersey courts to the extent they are applicable.

+ (ce) The decision of the court below logically follows and

' is fully consistent with the decisions of: this ‘court

and the’ decisions of ot#er courts dealing with the

interpretation of other state acts gre not in conflict

therewith. ;

Dated: Side, N. J.

May ~,.1958. .

Respectfully submitted,

NaTHAN BaKER |

Counsel for Respondent. -

1 Newark Street

aa . Hoboken, N. J.

Bernaap CHazen, Esq.’ - |

Mitton Garser, Esq. fF daca heees

On the Brief | °