# Brief of Libellant Respondent in Opposition to Petition for Writ of Certiorari — 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%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief of Libellant Respondent in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1959 - **Citation:** 358 U.S. 613 ## Text > 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 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 : : ; ; : . F . ' 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 | ° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0126%3A5. Public record. Not legal advice.