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

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| JAMES R. BROWNING; Clerk

Supe Court of the United States

-OcTOBER ie 1958

- : No. 56

~Unsrrep New York anv New §ersey Sanpy Hoox Puors .

AssocIaTION, a corporation and Unrrep New York Sanpy

Hook PiLors ASSOCIATION, a corporation,

: Petitionore,

<-signipst— Fae

ANNA Mlaxgcas, Administratrix ad -Prosequendam of the

Estate of Walter Joseph Halecki, deceased, and Anna .

Havecki, Administratrix of the Estate of Waltér Joseph ° -

Halecki, deceased, |

; ene ‘Respondent:

BRIEF FOR RESPONDENT -

a 5 , ¢

. Natwan Baker

Counsel for Réspondent

~} Newark. Street

_ Hoboken, New Jersey -

Baker, GARBER & CHazen Saf) ie

Attorneys for Respondent -

Berwarp CHazen és

* Mitton GaRBER iets ; :

On the Brief

a TABLE OF rece |

acute S : -

Counter-STaTEMENT oF JURSTIONS PRESENTED ....... feed

- CountTER- sraseney F Facts -...... Sscanipicical ia Ba ee OSA

Summary OF Poa EE TERR EOE © Oe as

| Power I:

' The plaintiff's invents husband: was entitled to

a seaworthy vessel and she could recover for his -

death resulting from the failure to supply. @ a sea-

NI issn echieeprrcthlseniesig incarcerated

(a) The deceased was ‘engaged in performing 7

“ship’s work” and entitled to the warranty of

seaworthiness.................: Eines. tpupedieliesinecidiees

_ (b) The Wrongful Death Act of the State of New

Jersey N. J. S. A. 2A:31-1,et seq., permits re-

covery for such “wrongful act, neglect or

default, such as would, if death had not en-

“sued, have entitled the. person. injured to main-..

‘tain an action: for ee ee ws

ee Gees ane

The duty of the vessel to. provide the diensnued with

‘ a seaworthy vessel and appliances was absolute

and non-delegable jetlilelcieiael aniebvvsniinibamorpeansiciinss

Pome ll: : fi

The duty of the. vessel to wantin the deceased

-with a safe place to work and to exercise due caré

for his safety was continuing and non-delegable

Poixt IV: ; ;

= The “rule. of comparative negligence was properly

applied i in the present action Sunaietinereett nenetsinorunniettinte

we tee ee e's ae

ON ,

OO Se 0 eh, a ae

: PAGE

— v: : oe

The evidence supported findings of both negli-

gence and unseaworthiness and these issues were _

properly submitted to the jury ............. scathanmaianaibenis 54

| Cemeaasinon Berd Kido ake ae a an ‘61

"PABLE or Cases

- Amador v. A/S J. Ludwig Mowinckels Rederi, 224 F, 2d

437 (2 Cir. 1955), cert. den. 350 U.‘S. 901, 6 S. Ct.

NZD, MOD Ts, Thk. TO (ROG aac seccensscceesennesisentes 40

Amerocean Steamship Company -v. Copp, 245 F. od

Pes tt: ENR Ce ee eS solicit.

* Anderson v. Lorentzin, 160 F.. 2d 173 (2 Cir. 1947) aii 42

So v. National Balk Carriers, 251 F. 2d 717 (2 Cir. :

I csibbciscich scisachccc= a tesa hese an eascabcnaleise ackig wiieepdltpichise tes 25 ||

Berryhill v. Pacific Far Fast Line, 238 F. 2d 385 (9

Cir. 1957), aff’g 138 F. Supp. 859 (D.°C. Cal. 1955)

ert. den. 354 U. S. 938, 77 S. Ct. 1400, —— L Ea.

meee (IDBT) soesecelniees stb eichibieitedacianasegiokdeles exiailoe 25

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

im Oe. 2}... eorin iet sealants . |

Carianni v. Schwenker, 38.N. J . Super. 350, 118 A. 2d =

Re i Ss TOD esis iin cist . 32

" Cetofonte v. Camden Coke Co., 78 N. J. L. 662, 75 A.

OUR IY irate dc cnscnc a tstinetmcsnerinscnnchnidsngiotdateonnnce 31

Chelentis v. Luckenbach S.S. Co., 247 U. S. 372, 384,

38 S. Ct. 501, 62 L. Wd. 1171 (1918) eneeccceeceeeeectsnee 51

"Chesapeake & Ohio Ry. Co. v. Richardson, 116 F. 2d.

860 (6 Cir. 1941), cert. den. 313 U. S. 574, 61S. Ct.

, 901, 86% Md, 1881 (Wat) 60

‘Coulter v.. New JerSey, Pulverizing Co., 11 N. J. Mise.

5, 163 A. — (Supr. Ct. — plies isan EEL A OL 30

iii et

: Cay pees We i

Cox v. Roth, 348 U.S.. 207, “209, 75 S. Ct. 242, 99 L. Ea.

SAM OMB) cc ewimrerreetcrere at.

Crawford v. Pope & Talbot, Inc., 206 F. 2d 784 1 Cir. ane

1953) sevsncecennneeesnneeesnanenesnnengvnneestnnnecesnecenantennsaineteanee 19,27

Despar v. Starved Rock Ferry Co., 342 U. S. 187, 2 S.

Ct. 216, 9@'L. Ed. 205 (1951) Se gee a,

Sides ¢ Moore- Setincinank: Lines, 352 U. S. 521, 77 i

S.Ct. 457, 1 Le Ed. 2d SIV (1957) coneceeeencenieesentcnnnonee 54

Fodera v. Booth American Shipping Co., 159 F. 2d.795 oe

ee Cir. —g BpeeeY weseteceseeeneneeneneee paneyeniee 7 BS Lalset 43

Gill v. United States, 184 F. 2d 49 re Cir. 1950) ....28, 38, 42

- Giordiano v. City Commission of Newark, 2 N.: J. 585,

67 A. 2d 454,)458 (1949) ....... eGinncacnaiosianeemen - 47

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

‘Greenwood v. John R. Thompson,’ 213 Ill. Seis 371

PN ES he Rt en ee ee Nearer 36

Grein v. Imperial Airways Ltd., 1 K Be 50; "(1936) aoe

eee. 36

Grillea v. United States, 232 F. 2d 919 ( 2 Cir. 1956) .... 40

Guerrini v. United States, 167 F. 2d 352 (2 Cir. 1948) 42 .

Gunnarson v. Robert Jacobs Inc., 94 F. 2¢ 170 (2 Cir. .

1938), cert. den. 303 U. S. 660, 56.4, Ct. 764, 82 L. Ed. -

1119 (1938) ......... <a SSS snaieioneeeean ticagcertepomyss 43°

aggerty v. Central Railroad Co., 31 N. J. L. 349

Seu Ct. 1865) ...--..-receeveninctsncceoesecserensncnsegyasseeceenssencesniores 31

Haleeki v. United, N. Y. & N. J. Ship. Ass’ n, 251 F. 2d

OB (2 Cir:- 1958) .....---n2scnsennnencssnsceeseanserssenterncecsecness 14, 33, 55

Hartman v. City of Brigantine, 4 42 N. J. Super. 247,

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

129 A. 2d 876 (1957) ......-........- PE eye RCE EN 31

Hill v. Waterman, 251 F. 2d 655 (3 Cir. 1958) Sa Saaiaeots ® §6§3.

* iv

Hoff v. United States, 87° F. Supp. 909. @. C. Wash.

décided Sept. 30, 1958) .....S... ade 32 33

PAGE

1949) 44

Honeycutt v. Wabash Railway Co., 355 U. S. “494, 7

8. Ot. 398, —E. Ed. — (1958) 54

\ Seabee v. Watson & ‘Siete: 2 K. B. 193 (1909) . es a ae

: _ Johnson Line v. Maloney, 243 F. 2d 293 (9 Cir. 1957) ... 40

Judson v. Peoples Bank & Trust. Company of West-

field, ITN. J. 67,.110 A. ad 24 (1954) 34

Klimaszewski \ v. Pacific-Atlantic Hhtsatndhty Co., 246

F, 2d 875 (3 Cir. 1957) : : 40

x Klingséisen v. Costanzo Transp. Co. mer. F. 2d 903 (3

Cir. 1939) . —-~2:

¢ Louis’ ‘Schlesinger Co. v. Rice, 4 N. J. 169, 1 A. 2d 197

(1950) tec 34

Martucci v. pe Co., 58 F. Stein. 707 (D. C.N. J. ’ 33

‘+ McFall v. Compagnie Maritime Belge, 304 N. Y. 314, _.

107 N. E. 2d 463 (1952) 40

-Meny v.: Carlson, 6N. J. 82, 77 A. 2d 245 (1950) cpaise . 42

Mofan v. Moore McCormack Lines, 131.N. J. L. 332, 36

A. 2d 415 (Sup. Ct..1944)- 38.

Murphy v. Board of Chosen Freeholders of Mercer -

County, 57 N. J. to 245, 31 A. 229 (Supr. Ct. 1894) 31

Oakes v. Graham Towing Co, 135 F. Supp. 485. (D. es

Pa. 1955) ss . 2

= O'Leary v. United States Line Ga: 215 °F. 2d 708 (1

- ‘ Cir. 1954), cert. den. .348 U. S. 939, 75, 8. Ct. 360,

99 L: Ed. 735 (1955) -...:. i — 60

‘Oroz v. American President Lines, “154 F. jap: ‘a i"

(S. D. N. Y. 1957), aff'd —— F., aa. ———. (2 ae

3 PAGE

--Paulmiier v. The mee ER. Co. 34 N. J. L. 1 (Sup. (

-Ct: 1870) a eaininginieomeemeiers 30 .

Petterson v. Alaska 88. Co, 205 F. 2d 478 (9 Cir.

1953), aff'd per curiam 347 U. S. 396, 74 S.Ct. $01,

98 L: Ed. 798 (1954) ....2-:-2-ccseccoeteecteeteee f 39

- Pinion v. Mississippi Shipping Co., 156 F. “Sapp. 652

2 I Te TIE Yr sieiningceoeeitennscmscnnkobchenepionnpertpnaneninnnstonsaroran 99 ‘

Pioneer Steamship Company v. Hil, 927 So 2d 262 (6 ..

5g MIR I a weecenecewverwecenengetstcereentennnter cnet 27

Pope & Talbot Inc.. v. Hawn, 346 U. ‘§. 406, '74°S. Ct. *

- 202, 98 L. Ed. 143, (1953), ere * 198 F.'2d 800 (3 Cir. |

— = i aratacampacigemibedi 17, 18, 20,

3 24,48,49 .—

Paleo v. i E. Moss, 159 F. 2 842 (2 Cir. 1947)-<...... ' 42

Raidy v. United States, 252 F. 2a 117 (4 Cir. on

cert. den. 356 U. S. 973, 78 S. ~ 1136, ape Ed.

/——_ (1958) SSS EE EIR ES SER OE 20

Read v. United States, 201 F. 2d 758 (3 Cir. 1952)... sais ae

_ Roche v. St. John’s Riverside Hospital, 96 Mise. 289,

160 N. Y. S. 401 CM) a 161 e Y. S. 1143. (App.

= ‘Div. 1916) Di Janeaaeneciecs renreesetneeetenneee 36 .

Basdtemeria v. Lamport & Holt Line Ltd., 119 N. J. L.

467, 196A. 706 (EB. & A: 1938) 22222. eeeeeecceeeeeees 38 -

‘Seas Shipping v. Sieracki, 328 U. S. 85, 66 S. Ct. 872,.

90 L. Ed..1099 (1946), affirming 149 F. 2d 98 (3 Cir.

2 cee ar ...17, 18, 1920,

SS coe ears. eae eee 92.24, 33, 36,

37, 39, 40,43.

‘Schulz v. Saneaabianie Railroad Co.; 350 U. S. 523,

76 S. Ct. 608, 100 L: Ed. 668 (1956) ............. 3 54

‘} Skovgaard v. The M.V. Sheen d 252 F. 2d 14 (3 Cir.

a | Weenie Sehr saeieense tis Hotes Mecneneer eee ma rane 14, 34, 53

Sprague v. Th Texas Co, 250 F. 2d 123 (2 Cir. 1957) ..39-40

Sullivan vy. Dur saa oe datas 36

‘

ape . 2

selilg met N vi

: | PAGE

The ea 1F. 2d 482 (, re Me. 1924) sesecorsesechqeeeeee 46, 51°

The H. S. Inc. No. 72, 130 F. 2d 341 (3 Cir. 1942)............. 36

_. Torres v. The Kastor, 227 F. 2d 664 (2 Cir. 1955) ........ 27

ea Troupe v. Chicago D. & G. Bay Transit Co., 234 F. 2d

253 (2 Cir. TOGG) .-.-<neorcevcorscoreessiessneesersors 37

esas 9. J.&L. Const. Co., 8 .N. J. 543, 86 A. 2d 192.

(1952) | c cone . 81

Union Carbide Corp. v. Goett, 256 F. od 449 (4 Cir.

1958) ae : a lam 95

Weinstein v. Blanchard, 109 N. J L. 332, 162 A. 601

(E. & A. ) 33

West v. United States, —— F. 24— (3 Cir. 1958) 27 :

Weyerhaeuser Steamship Co. v. Nacirema Operating

Oo, 305. U. 8. 568, 78 8. Ct. 488, mm La a, me,

(1958) ...... 45

Wilburn Boat Company v. Fireman’ 3 Fund: patra

Company, 348 U. S. 310, 18 8. Ct. 368, 99 L. Ed. 337.

(1955) vee — Se: |

Yanow v. Weyerhaeuser Steamship :Co., 250 F. 2d 14

(9 Oy. 1958) ......... ha , ' 39

| SratuTes Crrep: ;

N. J. s. A. 2A162 protean ie

-N.J.S. A, 2A :31-1 et sea. ate § sesereetdB, 29, 34, 46, 52

N. 5.8, A. 24:580-1 et eq, .. - So ae

12 Purdon; Penna. Statutes Anno. SS 1601 . 68

a ; OTHER Crrarrome

La Deas. Merchant Ships ( ie aa Maritime Prévs, |

1955) | .......... REAL IN ss DOPE HI OS al 20

Proceédings of the Merchant Marine Council, United

States Coast Guard, Vol. 12, April 1955, #4 ............. 21

IN THE

Se Court of the Bnited States

f | OcTOBER TERM, 1958

No. 56

Utsrrep New Yous anp New Jersey Sanpy Hoox Pots

AssociaTIon, a corporation and UniTep New York SANDY .

--Hoox Prtots Association, @ corporation, |

Sede Petitioners,

—against— — Bites Bb) .

Anna Hixecxr, Administratrix ad Prosequendum of the

Estate of Walter Joseph Halecki, deceased, and AwNa

Hatect, Administratrix of the Estate of Walter Joseph .

Halecki, deceased, ) ®

F - Respondent:

—" es

ws FOR, RESPONDENT

- Couniertietemsent of Questions Presented

eS Whether a state, in enniting a Wrongf wi Death Act,

may refer the standards of liability/4o the standards to be

applied if ‘the deceased had lived which, in the~<

accident on navigable waters of the United States, vial

be the general maritime law?

a: Whether the words “wrongful act, nnalant 6 or default”

as used in the New Jersey Wrongful Death Act include an —

‘action based on unseqworthinass ? :

3. Whether the New Jersey. Wrongful Death Act, which

does not specify in the statute what defenses, if any, . are

available under its terms but uses a referral test, for lia-

bility thereunder, incorporates ay Maritime Law et of

applied to an action by the deceased if he had lived?

” 4, Whether or not an electrician was entitled to a sea-

worthy vessel, where ‘he was doing maintenance work on |

. navigable waters ‘in a vessel with a captain and crew on |)

board who had participated in sych work ahd the work y

was within the range of work traditionally performed by |

* geamen with oo as electricians? - i

Guam ee oe OES [

On or about September 24, 1951 the petitioners contracted P

with Rodermond Industries, Inc. of Jersey City, New Jer- F

sey to have certain work done on the Pilot Boat “New p

J ersey ”” (P89a).

“Crew to remove and replace the 8 inane heads |

for the port and stbd generators.

Contractor to remove. the’eight (8) heads td thé pwn

disassemble same, grind in the valves, thoroughly clean |

out the head, reassemble and return to vessel. Stone

commutators to remove high sputs and ridges and eut

clean to mica all segment bars. ..Clean and adjust brush

_riggings and brushes. ~ : nies

Spray clean with carbon ietrachloride the armature

and field windings to remove all‘traces of ¢°-t and_film.

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

Mr. Doidge the foreman for the employer. of the deceased,

testified that with reference to the above quoted item he

had consulted with the chief engineer on the boat (R. 73).

' They agreed that the carbon tetrachloride work ‘which had

been specified in the contract would be done on Saturday,

September 29, 1951 (R. 74). He also testified (R. 74):

comparative negligence where such Rule would have been 4

Eee The list of items for work to be Pana was admitted in

evidence as Exhibit 5 and also Hxhibit 6 (R. 73). It f

provided in part (R. 146): |

eee

3 :

“Q. Did you discuss the danger 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

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

for granted. We knew what it was all about.

--The Court: That is the reason you discussed fix-

ing a particular time when to ‘do thegwork?

- The Witness : That isright, your | onor.”

he was not called upen to testify (R. 137). The plaintiff

had read parts of the testimony on deposition that Captain

‘Haley had given during the presentation of the plaintiffs

case (R. 121-130). He had testified that he was the captain.

‘of the New Jersey on September 29, 1951 ( 121). On .

that date the vessel was located at Rodermond Industries

_ in Jersey City for “the annual overhaul” (R. 122). Captain

_ Haley testified among other- things (R. 123).:

_“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.” * 3 - . pene

Q. When you say the marine superintendent, the

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

organization.”

~ or bosses like they say in the shipyard. We discussed .

«Q. What took place when you first ‘brought 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 snappers . ;

what we were going to do with the vessel,”

ats

ee +¢# . . -

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

vessel. A. We were moored in Rodermond Industries, °

cand I was on board every day during the working

hours.”

* e’: @ eee

é p

eye

“Q. And what. were the work hourst re From 7:30 @

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

Q. And that was every day while it was at the &

Rodermond Industries pier? A. ‘With the exception of :

week-éends, naturally. _

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 aboard the vessel or what did

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

‘into a yard like this you have a certain amount of deck

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

a general overhaul of the déck department, renew lines

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

the bridge, the galley, the mese-hall, your rooms, you 3

paint them, and so forth.

Q. Who would do that? A. That would be the deék -

.department, —

Q. You mean the deck sci waaaton of: the vessel f A.

“Of the vessel.

Q. That has nothing to do ‘with Rodermond Indus-

‘tries? A. ‘No, sir.”

@ : . 7 sd ee

«Q. During. that period of time when it was in the ©

Rodermond Industries yard, during that period 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 recall, was

. the only officer in the deck department, and then I 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 goes, Do you want

.me to elaborate?.

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

ment, officers and crew of the engine department. A.

We had the full complement of engineers and engine

_ room crew aboard;

_ Q. During that period of time? A. ‘That i is correct.

Q. What were the engineers. and the ‘engine room

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

. 5 , ®

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 ours, '

the engine department? A. In some cases you would

have men sleeping aboard the vessel at night. -

Q. 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 watch? What do you -

_ mean by that?

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

that there was someboily that represented the engine

department, aboard the vessel on most of the occa-

sions.” are

“He t&Stified (R. 126) :

yp «Q, What: was your job or what were your duties

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 vessel

to see that the different jobs were being done, and dis-

cussing the jobs with the snappers, and taking a gen-

eral interest in that particular work that was. being -

done by. Rodermond Industries.” .

He testified (R. ae

“Q. Then during this ‘entire time while Rodermond

Industries were doing their work, their repair work, ~

you have your own deck crew onthe vessel doing cer- .

tain 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 Sunday.

: Gy

6.”

* Q. Did your deck crew work on September 29, 1951,

which was a Saturday? . A. I had one man there.

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

- Q. What was his position? A. He was to maintain

_a@ watch.” — 7 Heese 7

- He testified (R. 129): a a ae

~ “Q. And the inspection’ of the vessel while-it was at

Rodermond Industries would also be under your juris-.

diction? A. Mine and the marine. superintendent.

_ _Q. And if either ydu or the marine superintendent

discovered any unsafe conditions aboard the vessel it

would be up to you or him to see that they were cor-

« rected? A. Well, naturally.”

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

a ae ae

“Q. 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 off A. That

consisted of deck and engine work.

Q. Repairs and overhaul? A. Repair and overhauls, |

yes. . ;

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

sir’ ; = eye

' -Q. To your knowledge was it done under any. orders

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

Under the orders of the marine superintendent.

_ Q. When you ‘say under the orders of the marine

superintendent, you mean in accordance with the speci- —

fications? A. That is correct.” (Italics ours.)

Not only did the defendant fail to 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 (R. 138). Nor. did the defendant call its’

Marine Superintendent to testify although he was still

employed by them (R. 139). In fact it didn’t call any wit-

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

watch and its medical and engineering experts who did

not have direct knowledge of the situation.

The deceased was 40 years old at the time of his death

(R. 68).. He had a wife and three infant children (R. 68).

He was an electrician employed by the K & S Electrical

Company (R. 69). In September of 1951 he worked under

Donald Doidge who, was a foreman (R. 71). The deceased

and Doidge brought .a blower belonging to ‘Rodermond In-

dustries on board: the vessel on Friday for use on Satur:

\day (R. 81). It was placed in position. about 7 or 8 feet

bove the engine room floor and tied to a rail (R. 82). The

ief Engineer of the vessel had been present on Friday

sition: (R. 76; R. 82).

On Friday Doidge had sprained his wrist (R: 93), ' Con-

| sequently. on Saturday he 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” (R. 93).

. Doidge did spray for two or three: minutes before he gave

~ up’ (R: 93)., Doidge went down into the engine room while

the deceased sprayed but later on he didn’t go down every

time with the deceased (R. 94).2The deceased would spray

for 15 or 20 minutes and would come-out of the engine

room. Then he’d repeat the procedure % 94). Mr. Doidge

, testified (RB. 94) :

“Q. During the time that he was spraying in, the:

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

first 1 gtayed down~the first two or three times down

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

the can got higher h¢ could move #t a little himself and

then I wouldn’t go down quite as much. J would just/

look i in from the top‘of the engine room.’

when Doidge made preparations and put the blower in |

Mr. Doidge and the deceased started to work about 8:30

a.m. on Saturday morning (R. 92). The} started spraying

about 8:45 or 9:00 a.m. (R. 92). They stopped for launch

at noon for about half an hour and then they resumed work

until about 3;00. or 3:30 p.m. {R. 94). They both left the

- vessel. The deceased complained of-a“peculiar taste in his |

, mouth” (R. 95): The defendant's crew member who had

. been on watch testified that “at the end of the day one of

the fellows just said he wasn’t feeling well” (R. 136).

Both Doidge and the deceased used three gas masks |

supplied by K & S Electric Co. (R. 91). They were regular

Army surplus gas masks. (R. 91). Doidge checked the gas

masks before they used them (R. 99). He stated that °

- whenever he saw the deceased working below he wore a

' mask (R. 101).: Mr. Doidge ‘also testified on cross-exami-.’

nation that the gas masks were not defective because the

Police Department had checked the masks after the acci-

dent and he received a report from them (R. 105; R. 106). -

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

ing the cross-examination.of defendant’s medical expert,

the trial court asked (R. 142):

“The Court: The autopsy diagnosis was eit: from

carbon tetrachloride —. Yor-are i in agreement

with that?

The Witness: Yes, sir.

The -Court: I think seereedy 3 is in agreement on

that. Is there any question about that?

Mr. Mahoney: The defendant does 1 not take issue

with that, year Honor.” |

The great fanger involved in the use of ented. tetra-—

chloride m a confined-place without proper ventilation was

not disputed (R. 74; R. 97; R. 104; R. 108; R. 112; R. 143).

In petitioner’s brief it is stated that “the decedent drank

excessively” (P. br. 58). This statement is not accurate. |

9 ):

| > a " ‘

“Mrs. Halecki denied her husband was a drunkard (Tran- *

script P30). Mr.- - Doidge testified (R. 95):

“Q. How was he'with weference. to being sober? Was

he sober or not on the job? A. I_never seen him take

a drink. Of course he was like any man, he would

' - like to take a drink once in a while, like ‘any man, but

in the approximate six years I knew him I never saw

him under the influence of liquor or anything else.

Q. Was he sober on the job? A. Very, very.”

_ The defendant's own expert had conceded on cross-exami-

, ‘nation the weakness of the assumption: defendant asserts

(R 142):

“Q:. And from the autopsy findings as you exninined

- . them was there any evidence of any alcoholism? A.

(Ne response.)

Q. Is there anything like that i in the report? A. No,

there isn’t anything i in the report that mentions alco-

' holism. There is no reason why the report would men-

tion that unless it had a positive finding to that effect, —

_ but there are many. effects of alcohol that are not evi- ©

dent in any autopsy report.”

2 @ . ‘e * *

“Q. With respect to alcoholism? A. Yes, I would not

insist on that mterpreiation, not mang A seen the

liver.”

‘Dr. Robert. P: Gaines was called aaa to testify for

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

‘chemist with specialty in toxicology and public sufety

(R. 108). He testified that carbon tetrachloride is a mem-

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

a specific gravity of 1.54 which means it is heavier than |

water; that it had a boiling point of 77 degrees Centigrade

which meant that it was “rather volatile” (R. 109). Carbon

tetrachloride is about 5 times heavier than air ( _ 115).

He stated that at one time it was used as a medicine to

eliminate worms but this was discontinued when it was

_ discovered that this was a.“toxie substance.” It then be-

came popular in connection with fire extinguishers because

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 use in confined

places caused poisonings s and warning labels were subse-

quently affixed to them (R. 109). It was discovered that

_earbon tetrachloride was an ideal, economical, and efficient

solvent where grease was involvéd and it came into more

. general use. Then it wag discovered that employees 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 chemical could. be used if ‘adequate ventilation was

_ provided” (R. 111). A concentration of 50 to 100 parts —

per million of carbon tetrachloride was considered safe

-.: (R, f11). Dr. Gaines also developed in his. testimony the

toxicological process by which the chemical affected the

~ human body (R. 112). He testified that exposure or in-

halation of carbon tetrachloride in an amount beyond the ©

safe concentration would be “obviously harmful and dele-

terious” (R. 112). The concentration stated by the expert: -

represents weight per unit volume and reflects the concen-

tration of strength (R. 113). :

Dr. Gaines testified that in view of the fact that on To

- tetrachloride is about five times heavier than air it would

_ sink to the bottom of the engine rooni and have the greatest

. concentration there (R. 115). The blowers would merely |

act to agitate or stir up the.air in the engine room rather __

than replace it 6r removVe it (R..115). Proper ventilation

would require ventilating ducts at floor level (R.117).-

Doidge testified that the engine room was approximately |

40 feet long, 30 feet. wide and about 18 feet high (R..5).

He stated that they. had used 8 gallons of carbon tetra--

chloride (R. 6). Dr. Gaines computed on the basis of these

dimensions and: without considering the displaéement by

machinery in the room that this involved 21,600 eubic feet

of air (R. 22). He testified that temperature variations

except where the freezing point is reached would make

very little difference in volatization (R. 23). Taking a

temperature of 25 degrees Centigrade as an average tem-

perature, 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 (R. 23). There was machinery in this room |

(R. 140). This, as a matter 0.’ ‘ physical fact, would increase

the concentration and the danger. This would produce at

least 200 times the allowable safe concentration (R. 24).

ee Gaines testified (R. 31): :

“The Court: The actual eonquutration in a area, of |

course, would depend upon the effectiveness of the

ventilating units; is fhat correct? -

ent..

The Court: Ww en yau say the amount of material

présent, I don't follow that:

The Witness: That is, whether they “used. a pint

bottle or a gallon bottle, or five gallons.

‘The Court: Well, to put it more | specifically, I

thought my question was clear, you gave a figure of

20,000 parts per million. Is it correct to Suggest that |

_that is the maximum which doe¢ not take into account

any of thé ventilating items contained in that? : ne

_ The Witness: Yes.

~The Court: Because in reaching that figure you ex-

cluded 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?

a°

The Wi itness : And the amount t of material pres-

’

12 f :

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

‘ those measurements without allowing for Giaplacement

. by equipment.”

However he also testified (R. 119):

“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 described these various items of ventilation.

A. Yes, sir. .

Q. And I take it to that extent, at least, your answer

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

ited within that;fyes.

Q.. Counse just asked you wheties or not you knew |

that these various items were functioning properly and

' you said you didn’t know? A. Of course not.

Q. I to you now that the evidence in the case is

that all these items’ were operating properly and func-

tioning properly on the day in question. That is the

testimony of Mr. Doidge. ‘Would that make any differ-

ence in your answer as to the extent of concentration

on that ir in that area? I want to assure both counsel

it is their duty to object to the — if it should be

objected to.:.

Mr. Mahoney: No objection. I understand that is 7

‘the evidence.

A. If his Honor pleases, I recall ie doors chin on

the side at about «ight feet above flocr level, That

‘door would be the only factor inthe testimony or in

the items introduced as being semewhat efficacious in

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

to the floor. . :

- The circulating fan would have no bearing on the

vemevel of the vapors.- It would merely act as a cir-

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 instru-.

ast

Lae ae

mental in diminishing the concentration in the room,

but as to how much I cannot say. art.

I recall a’hose near the ceiling as coming. in with

fresh air.. That, sir, wotjd be very: little because it

- would be merely blowing 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. I would say that all the items that were enumerated

'* by both attorneys would have some effect, especially

the doors and your exhaust. The others would have

-a negligible effect. Do: I answer the question, sir?”

The defendant’s expert engineer on cross-examination

confirmed Dr. Gaines’s opinion (R. 145): a

“Q. In your opinion, was that ‘system adequate to

remeve carbon, tetrachloride from the engine room?

_ &. In my opinion it was not. a.

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 care 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 devide to stir that air up and

- permit it to circulate out with the rest of the exhausted -

air.”

Judge Weinfeld fully and fairly.set forth all the issues

‘in his charge to the jury. The jury returned a verdict for -

$62,500 for the pecuniary loss to the widow and dependent

_ chiidren and for $2500 for conscious pain ‘and suffering

of the decedent (R. 64). Defendant moved to set aside the

verdict,.for judgment notwithstanding the verdict, and

for a new trial. All motions were denied (R. 65).

14 gs

‘Judge Learned Hand, writing the majority opinion, af-

firmed the judgment of-the District Court. Halecki v.

United New York and New Jersey S. H.P, Ass’n, 251 F.

2d 708 (2' Cir. 1958). After reviewing the evidence he .

‘stated that there was sufficient evidence to support a find- ~

ing of negligence (R. 150).. Apparently. Judge Lombard,

Who dissented, did not disagree with this part of the opin-

- ion for he would have granted a new trial on the issue of

negligence (R. 160): Referring to the case of Skovgaard

v. The Tungus, 252 B. 2d 14 (3 Cir. 1957) the court held

that the. words of the New Jersey Wrongful Death Act

' - ineluded by definition an action ‘based on a bréach of the

warranty of seaworthiness (R. 152). Judge Learned Hand

stated as to contributory negligence a. 153) =

wove, Although, as we have said,. we.are not dealing

with ‘federal maritime law,’ we should remember that.

so far as we can we ought to construe the statute .so

‘as to avoid capricious and irrational distinctions. We

leave open whether New Jersey. is without power to.

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

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

-_it confers upon the next of kin; but the courts of that .

state have never passed upon the question, and to deny

, the exemption to the next of kin seems.to us to the

- last degree capricious and irrational. * * *. Obviously, .

the answer is not certain; we myst do as best we can

with what we have, and we hold that the New Jersey .

statute Should be construed as taking over.as a part

of the model it accepted the exemption. of contributory

negligence as a bar.” Cone -

| This court has granted certiorari (R. 172).

. . . =

. ° * .

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15 eee

Summary of Argument

"The deceased, if he had lived, Louie: have had his rights’

and duties with: relation to petitioner’s vessel, which was

not on the high seas but was in the ‘navigable waters of the

United States, determined by the general maritime law.

However, since his injuries resulted in, his death an addi-

tional factor appears. ‘The ‘general maritime law, which

hes no positive rule denying recovery for wrongful death

but merely has a void in the general body of maritime law

on this question, in order to permit a remedy in this situa-

tion adopts and enforces 9/Sstate wrongful death act where .

it would otherwise apply. Where, as in the case of the New

Jersey Wrongful Death Act, it appears that the statute

itself makes the test of liability the rights of the deceased »

if he had lived there is no. conflict between the general

- maritime law and thé state statute. The masitime law would

- determine thé rights the .deceased if he had lived and

hence the state statute Incorporates the general maritime

daw by ‘reference i in this situation.

Only. if it were concluded that the state: -Statute, in spite

_ of its referral language, required ‘the application of state-

law principles of analogous landl situations does the pos- .

sibility of conflict between ‘state law and general maritime

law arise. The New Jersey W rongfyl Death Act does not

present,such a problem. If it did, the eneral maritime law

would adopt only so much of it“as is necessary to fill the

void in the general maritime law and ee would fall in

the face of the: positive rules of maritime\law. The rule

of comparative. negligence is a positive ‘ruledof the mari- S

» time law. ae. ‘ <i SO

The rule of comparative ESR would be Nioiied in

this case because,-the New Jersey Wrongful Death Act

i does not specifically list the defenses which would be avail- °

i able to a person ‘sued under its provisions but 1 uses -lan-

‘guage referring to the right of the’ deceased to maintain

an action if he had lived. In addition, even if thé New

- Jersey statute did provide, specifically for the defense of

contributory negligence of the deceased where an action was

_ instituted by a non-negligent widow and children the gen-:

eral maritime law would apply its own positive rule of

comparative ‘negligenve “rather than the discredited com- |

mon-law rule of contributory negligence.

In addition to the referral features of the statute, it .

uses the words “wrongful act, neglect, or default” which —

are broadly construed in accordance with ‘the remedial

intent of the legislature in enacting the statute. It there-

fore includes an action based on unseaworthiness as well as

on negligence.

The work performed by the deceased, at the time of his

injury was ship’s work. It could have been done by any

.qualifiea member of a ship’s crew. Modern vessels carry

a great deal of electrical equipment on board and have

‘on .board electricians apd other members of the ship's

: engineering. force who operate, repair, and maintain elec- j

- trical equipment. The work done by the deceased in spray

cleaning the armature and field windings to remove traces

of dirt and film on the generators was in the nature. of

-ship’s maintenance. It was in no sense a major repair. -

The vessel remained tied up and in the water. It had both

a captain and a crew. ‘During the period the vessel was tied

up the vessel’s crew worked on the vessel in the same parts

_ of the ship as did the-deceased. The deceased was entitled

to a seaworthy vessel. 7

- ~The failure of the vessel a have: ied ventilation at

the time the deceased worked with carbon tetrachloride

_ pursuant to the specification prepared by the vessel ren-

dered the vessel‘unseaworthy. Furthermore since the offi-

- eers of the vessel knew that the work to be done involved ~

the use of carbon tetrachloride in a confined place and

they knew oy should have known that. it was dangerous in

E confined. places and that the ventilation available was in-

adequate - and rendered the place of work unsafe they

breached a non-delegable duty to provide the deceased

with a safe place to work. -

' The evidence amply meapertad the eniiak of the jury.

! The decision Sg the Court of Appeals should be affirmed.

POINT I

‘The plaintiff's deceased husband was entitled to a

‘anceatliy vessel and she.could recover for his death

| resulting from the failure to supply a seaworthy vessel.

(a) The deceased was engaged in performing “ship's .

work” and entitled to the warranty of semworthiness.

The trial judge stated in his charge to the jury (R. 44):

‘“Halecki as an electrician engaged in cleaning the

generators was performing a function usually carried

out hy a a ship’s crew. Under this circumstance, the

law-imposes upon the defendant, the Association, the

same duty it owed to its regular crew members that

i8, to supply Halecki with a seaworthy vessel.”

The test by which the duty to furnish a seaworthy vessel

.to one other than a member of the crew is judged was set

forth by the United States Supreme Court in Pope & Talbot

Inc. v. Hawn, 346 U. S. 406, 74 S. Ct. 202, 98 L. Ed. 143

- (1953). Mr. Justice Black stated at page 472:

“* * © We reject it again and-adhere to Sieracki.

We are asked, howéver, to distinguish this case from

our holding there. It is pointed out that Sieracki was a

‘stevedore.’ Hawn was not. And Hawn was not loading .

_ the vessel. “On these grounds we are asked to deny

° 48

l protection was not based on the name

'» ‘stevedore out on the type of work he did and its rela-

_ tionship to the ship and to the ‘historic doctrine of

' seaworthiness. wit (Italics ours.)

% 36

‘In.the Hawn case the’ jured workman was a ‘a carpthter.

The court'in the Hawn case had refused to place any limita- - |

tion on the Sieracki case and, clearly advised that the

warranty of seaworthiness did “hat depend on the label

given to a workman’s occupation bufdoes depend on the

relationship of the work done. Seamen have traditionally. @

performed and do ‘perform many tasks whieh” Bre classified 7

as “ship’s work.” These are not limited to loading. and

unloading but include cleaning and maintenance as’ we

The deceased in this case was doing “ship’s work” besauss,

at the time he was injured, he was cleaning certain ship-

board electrical equipment. The specifications refer to the

work the deceased was doing as “spray clean with carbon

tetrachloride” (Exh. P-5, R. 146). This was basically main- |

tenance work, maintenance -work is work traditionally per-

formed by seamen. In fact, the ship’s crew was actually

participating in the cleaning and maintenance work being

doné on the vessel and, gs their share of tlie work under

the specifications, actually removed the 8 evlinder heads

. of the generators which the deceased cleaned (R. 146).

Also, the ship’ s crew. were working on the vessel’s engines.

Donald Doidge testified (R. 75):

> ““Q. And were the. membe rs of the ship’ 8 crews and

officers, were they aboard the vessel pil week? A. ‘Yes,

"sir.

Q. What were they doing aboard the vessel all week?

A. Well, the engine crew were working on the. diesel |

engines down below decks,

Hake the protection.we held the law gave Sieracki.

slight differences in fact vannot fairly justify |

iskinction urged as between the two cases. Sier-- a

Q.: Now what were they doing with them? A. They

were removing the heads on the diesel engines, I don’t

know in reference to what. . 3

- Q. That was the ship’s crew that was doing it? A.

_ That is right, »» ‘ mick | 3

~ Q:. And you saw them working there? A. Oh, yes.”

‘The fact that members of the ship’s erew also worked -

in the area where the deceased worked has significance.

In Crawford vy. Pope & Talbot, 206 F. 2d 784 (3 Gir, 1953)

‘where tank cleaners recovered for the unseaworthy- condi-

tion of a vessel, Chief Judge Biggs ‘stated at_page 790:

«© © © Their work in the. deep ‘tanks were. clearly

‘ship’s work’ within the meaning of the Sieracki case.

At the very time Crawford and Lucibello were engaged -

in cleaning thé deep, tanks in No.1 hold, seamen of the

ship were similarly engaged in. the deep tanks in an’

- adjoining hold: -Had one of those seamen been injured

under circumstances ‘like those before us, he would,

clearly ‘have been entitled to recover. for unseaworthi- —

ness of the-ship. We see. no reason for differentiating

the situation of the present libellants. Moreover, as

our discussion of the unseaworthiness. of the Jones

has indicated, the’ safe’ and. successful completion of

- Crawford’s.and Lucibello’s work was closely depéndent

upon the cooperation of the ship in furnishing needed

appliances. This dependence supports our conclusion *

_ that the doctrine of unseaworthiness covers the injured

parties here.” : |

_ The .basis for the duty to provide a seaworthy vessel to

those engaged in “ship's work” was stated hy Mr. Justice

Rutledgé in Seas Shipping v. Sieracki, 328 U. 8. 80, 66.5.

Ct. 872, 90 L. Ed. 1099 (1946) at page 9D:

_#*** All-the considerations which gave birth tq'the

liability and have shaped its absolute character dictate

that the owner should not We free to nullify it by par-

celling out his vperations to intermediary employers:

whose svle business is to take over portions of the.

ship’s work or by other devices which would strip the

‘men performing tts service of their historic protection.

The risks themselves arise from and are incident in

fact to the service, not merely to the contract pursuant

to whikh it is done. The brunt of loss cast upon the

_ worker and his dependents is the same, and is as in-

_evitable, whether his pay comes directly from the ship-

owner or only indirectly through another with whom

he arranges to have it done.. The latter ordinarily F

has ‘neither right nor opportunity to discover or re-

move the cause of the peril and it is doubtful, therefore,

that he owes to hisyemployees, with respect to these

hazards, the. einployer’s “ordinary” duty to furnish a

safe place to work, unless perhaps in cases where the

oo, perils are obvious or his own action creates them. If

not, no such obligation exists unless it rests upon the .

ownerof the ship. Moreover, his ability to distribute ©

the loss over the industry is not lessened by. the fact

that the men who do the work are employ ed and fur-

‘nished by another. Historically the work of loadirtg

- and unloading is the work of the ship’s service, per-

formed until recént times by members of the crew. * * * |

That the owner seeks to have.it done with the advan-

‘tages of more modern-divisions vf labor does not mini-

mize..the worker’ s hazard; and should not mullify his ©

protection.” (Italics curs:)

The test relating to “ship’s work” set forth in the Sieracki

and reaffirmed in the Hawn case has been broadly -in-

terpreted. "

The work done bv the deceased in this case was tradi-

tionally “‘seaman’s wark.” In any’ modern vessel an elec.

trician or an engineer with knowledge of electricity is a

vital pert of a ship's crew. In La Dage, Merchant Ships

(Cornell Maritime Press 1955) at page 344, the author in

- describing the Engineering Department on @ vessel states:

“*** In the absence of an electrician on the staff,

the Third -Assis ‘tant ‘usually takes. care of electrical

--.. cr :

maintenance. =? * Oe actos ships, Junior Engineers

“aay be employ ed to act'as: assistant watch engineers.

During ‘repairs they assist where-needed. * * *.

: Depending upon the size of: ship, many additional

‘personnel may be required -including a ‘Chief Elee-

trician and assistant electricians,*® **” - :

. There appears in ‘Proceedings of The Merchant Marine .

Gaede United States: Coast Guard Vol. 12, April 1955,

“No. 4 at page 61 an article entitled “Safety antl Mainten-

f “ance of Electrical Equipment. ” The article stresses that on.

every ship, “a routine inspe: tion-and maintenance pregram

“be set up for the proper cave of electrical machinery be-

cause of frequent changes ‘in the crew who eare for and

operate this equipment.” Among other things the article

states at page — es, Me |

° i .

“There are various solvents used for cleaning insu-

lation and windings of electrical machinery _of oily and ©

-greagy deposits. Carbon. tetrachloride. and stoddard.

solvent, or a combination of the two, are. frequentiy |

used for this purpose. Gasoline or benzine should—

never be used for cleaning purposes on shipboard,

~ because of the great fire hazard involved. W hile stod-

dard <olvent is a petroleum produet i it is utilized be-

cause of its high flash point.

Care inust be exercised when using carbon tetra-

chloride because of its toxic effects. Persons working

. with this material must avoid breathing the -fumes.’

For this reason thé area where the cleaning is taking

_° place should be well-ventilated.”

The use of electric&! equipment. on beard a vessel is of

comparatively recent origin. However, the electrician on

- board a modern vessel serves as unportant a function in

the ability of the vessel to navigate as any other member

of a vessel’s crew. The agreement between the National .

Maritime Union. of América and various companies and |

agents in Atlantic and Gulf Coast Portas of June 16, 1956

‘

; 22

x lists the following specific unlicensed personnel classifica-

tions under the agreement: “Electricians,” “Watch Elec-—

tricians;”’: “Day Electricians,” “Second Electrician,” “Deck

Electrician,” “Maintenance Electricians.” This. illustrates

- the fallacy i in the contention of the defendant 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,

‘ auxiliary power, and other functions on a vessel. Obviously,

whatever their designation, each such vessel must Have one

or. more members of the crew who are trained to inspect,

_ clean, and maintain electrical equipment on board. The

fact that the owner ‘thay seek to have certain types of

‘maintenance Ww ork done by a contractor employee and “seeks

to have it done with the adyantages of more modern divi-

sions of labor” to ase Mr. Justice Rutledge’s words, “does

ri minimize the hazard and should not nullify his pater:

n.” Seas Shipping Co. v. Sierackt, supra.

aS test based on analogy of work ‘was. applied i in Pinion

v. Mississippi Shipping Cv., 156 F. Supp. 652 (E. D. La.

1957). In that case’ the libellant, a plumber-machinist,

employed by an independent contractor was injuréd while

on a scaffold replacitig some. salt water pipe on the vessel.

The court held that the scaffolding used, whether furnished

by libellant’s employer or by the vessel, rendered the vessel

unseaworthy and allowed recovery. Judge Wright rejected

the view that the work of the libellant did not entitle him*

to a seaworthy vessel because it did not involve loading

equipment as in’ the Hawn case. He stated at page 657 :

The short answer io this: argument is ‘that

the S.S. Del Mar herself regularly. carries. a plumber-

machinist as a member. of her crew. And a plumber-

machinist is precisely the type of seaman qualified

° to repair or repiace, short lengths of one-inch pipe. —

weee

Gee

If. warranty of seaworthiness applies to landsmen

aboard; a vessel performing work historically per-

formed by ‘seamen, it should certainly be applied to

landsmen aboard performing work currently performed

by.seamen.”

The peculiarities of maritime conditions apply to elec-

tricians. as’ weil as to other members of the crew. ‘It is

thie requirement of working: in confined places and in the

‘peculiar conditions caused by the limitations of space, -

machinery, and structure, inherent in the design of a vessel

that creates special risks. | 3 - .

: This point was raised by the defendant’s attorney when

he crogs-examirfed Mr. Doidge (R. 97): |

\ ° ‘ :

_“Q. Had you, for example, used carbon tetrachloride _

- for cleaning generators in a factory, perhaps?

. im . ea. . : \

_A. When you come right down to it, there is a lot of

difference between doing. it in an engine ‘room and

doing it in a factory, doing it in an engine room on

a ship. | EA BEN cape:

Q. Had you ever used it in a factory anywhere on

shore before this occasion? A. That I don’t know for

sure. I don’t know for sure. Paar

“ Q: Do you think it is likely that. you did, though?

A. It is possible, yes. - ; =

Q. And in sucha place,. wherever it may be, a factory ©

or.a building, would they customarily be equipped with -

any sort of overhead blowers or ventilation system

built into the-building? A. There is no comparison,

sir, between the two.” | ea aes

On the redirect thig-testimony was ‘amplified (R. 103) :

*Q. You were talking about the difference with a

_* factory job. What is the difference between work in

the factory and work in thts low engine room in this

ship? A. Well; usually in a factory or in a place of |

worthiness. He cites Despar v. Starved Rock Ferry ‘Co.

Se en Benoa

business like that, you have much more. air space. Yo

.. have windows all around you - ‘and you have higher.

ceiling space. mor

Q. It is not confined like in the engine room? A.

That’s true, there is no cqmparison.

. Q. Was this a confined area, this engine room? -. :

Well, definitely. 54

The deocaned was entitled to a-warranty of seaworthi-

ness because he was engaged in “ship’s work.” Basically fe

the cleaning of electrical equipment is the type of routine

maintenance work which could be performed by any mem-

ber of the crew who had qualifications as an electrician.

In spite of the language of this court in the Seracki case

and in the Hawn case, the Solicitor General in the brief

- amicus curiae filed herein urges that the test for unsea-

worthiness i is not in comparing the work being done to work

done by seamen. The Solicitor General, apparently wishes

to turn the clock back and establish a test of “coming and

going” to or from a specific voyage for the rule of unsea- :

bat

342 U. S. 187, 72 S. Ct. 216° 96 L. Ed. 205 (1951). This

ease involved a definition of the word “seaman” as used —

in the Jones Act’ gnd did not involve any question of un-.

seaworthiness. In this connection Mr. Justice Jackson ©

stated at page 190 with reference to the facts of that case:

oe *

“«

. The boats were not afloat and had neitlier

captain or crew. * * *”

In the present case the vessel was afloat (R. 133): There

was a: captain and ¢rew on board during the time the

vessel was tied up (R. 124)..Can the Solicitor General

seriously contend in the present case that if.one of the

members of the ship’s engine department had been injured

' while the vessel was tied up, he would not be covered under

‘the Jones Act or have a claim for unseaworthiness because

_ of the Despar decision? To f rame the question, is to answer

‘it. See Oakes v. Graham uci Co., 135 F. See. 485.

— (D.C. Pa. 1955).

_ Among the other cases. cited by the Solicitor General, .

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

385 (9 Cir. (1957) affirming 138:F. Supp. 859 (D. C. Cal. |

1955) cert. den. 354 U. S. 938, 77 S. Ct..1400, L. Ed. (1957)

involved major repairs on a dry -docked vessel. In Raidy

vy. United States, 252 F. 2d 117 (4 Cir. 1958) cert. den: .

356 U. S. 973,78 S. Ct. 1136, L. Ed. —— (1958) the vessel ~

was also in drydock for structural changes. The case of —

Union Carbide Corporation v. Goett, 256 F. 2d 449 (4

Cir. 1958) the vessel was in dry dock for structural changes °

and the crew had been discharged. In each ofthese cases

‘the outstanding feature was. the fact that the vessels were

in drydock for repairs of, a major nature. In the present

‘case the vessel remained afloat. The repairs were not of.

such a substantial nature as-to require drydocking.

The defendant's vessel was getting its “annual overhaul”

‘at the time of the accident. The defendant’s witness, Walter

C. Thompson, characterized. the “annual overhaul or the .

annual repairs” (R. 133) :

“A. Well it consists: of painting the boat, making

minor repairs, changing: the lines; working on the én-

gine room, ‘and so forth.” ae ours. )

The vessel was in navigable waters (R. 80). »

The vessel had remained in the water at Rodermond In-

‘dustries for about three weeks (R. 3; R. 80). The captain

of the vessel was on board the vessel every day (R. 123).

-In addition there were four or five deck men on board and

the full complement of engineers and engine room crew |”

‘on board (R. 134). Some men slept on board.the vessel

~ (R. 125). According to the specifications prepared by the

vessel the ship's crew were to.“remove and replace the 8

-eylinder heads” on tha very generators the deceased

cleaned (R. 146). The crew worked during the “annual

overhaul” alongside of the contractors and the work was

done under the orders and supervision of defendant's Cap.

tain, Chief Engineer and Marine Superintendent (B. 155

R. 76; R. 123 through R. 130).

The vessel on which ‘the deceased was injured ' was not.

withdrawn from navigation in any sense of the word. It

is true that the vessel’s generators were not in operation,

but power was substituted from the.shore and was used

through “the main board of the ship” (R. 7). The vessel’s

ventilating system did work and was in operation (R: 8).

_ The power that came from the shore was used to operate

’ “the vessel’s own equipment” (R. 13). In view of the work

that was- being done the owners of the vessel apparently -

found it “more efficient and perhaps less expensive to use

Fu power from shore rather than use ship’s personnel to oper-

ate the vessel’s auxiliary power sources. This however, |

did not remove the vessel from navigation. It still had a.

_ eaptain and crew who still performed duties on beard the

__ vessel. It was not undergoing such drastic repairs as to

change the character of the vessel. It was going through

an annual maintenance operation designed to prepare the

vessel for its next voyages.

The case of Berge v. National Bulk Carriers, 051 7.

717 (2 Cir. 1958) involved’ tle, virtual rebuilding of the

interior of a vessel. Judge Learned Hand who wrote the

Berge opinion, which was. argued a day after Halecki and

was decided the same day, specifically called attention to

the difference in result in the two cases. He stated at

_ page 718: | . eit ae eee 3

ae * *, the answer depends upon. whether the work on

‘which the plaintiff was engaged was of a kind that the

crew of a vessel was accustomed to perform. * * * ”

ea, |e

The same distinction was recognized in another case

relied on by the Solicitor General. The case of West v.

United Siates, -—— F. 2d.

“moth ball” vessel. She had rio crew on board and. was

being rehabilitated for service (S. G: br. p. 26). Judge

Goodrich. in his opinion distinguished the West case from

a prior decision of that Court of Appeals, Read v. United

' States, 201 F. 2d 758 (3 Cir. 1952). He stated that the

Read case, which found unseaworthiness in ‘favor of the.

employee of a ‘subcontractor : i és

“* * * is distinguishable, from the instant case at least,

on the ‘amount of work vetoed, id

- addition to the Read case, other non- longshoremen,

. Non-crewmen cases allowing* recovery. for unseaworthiness

are: Amerocean Steamship Company v. Copp, 245 F. 2d

291 (9 Cir. 1957) where the employee of an independent

contractor who was dismantling grain fittings, removing

charterer’s property and refurbishing a ship was held to be

“entitled to a seaworthy vessel; Torres v.. The Kastor, 227

-F. 2d 664 (2 Cir. 1955) where it was held that a workman

employed by an independent contractor engaged in clean:

ing loose pitch from a vessel was entitled to a seaworthy

vessel; Pioneer Steamship Company v. Hill, 227 F. 2d 262

(6 Cir, 1955) where it was stated that a shipfitter’s helper

employed by a contractor who- was making; repairs to a.

vessel during its winter layup was “probably within the

broadened class of workers” to whom a duty to provide a

' seaworthy vessel was owed; Crawford v. Pope d& Talbot,

‘ L

Inc., 206 FP. 2d 784 (3 Cir. 1953) where.a duty of sea-

worthiness was held to be owed to employees of a contractor .

hired “to clean the accumulated rust and dirt from’ the

four deep tanks.” ae 4

. The eases in the various Courts of Appeal seem to have -

developed a line of distinction. They, have denied recovery,

(3 Cir. 1958) involved a™:

f < 28

for unseaworthiness where the vessel had no crew on board

or the vessel was in drydock or both conditions existed,

and where in addition, the repairs on the vessel were of a

-. substantial nature and involved either a major rebuilding

or replacing of large parts of the vessel or a basic altera- -

tion of the structure and character of the vessel itself.

There are reasons why, as a inatter-of policy the doctrine

of seaworthiness should extend even to such vessels. How-

ever, this court aved not consider the broader application

of the doctrine.of seaworthiness to sustain the courts be

low in this case because none of these distinguishing factors

are present. The vessel in this case was in navigable

waters. It had a eaptain and crew working on it during the

time it was tied up.. The work done was basically main-

‘tenance work rather than major repairs or alterations, and

it was»work that could have been done by members of a

~ ship’s crew who ‘had qualifications as electricians. Under

the circumstances, the deceased, at the time he was injured,

had a right to a seaworthy vessel.

‘(b) The Wrongful Death Act of the State of New Jersey,

N. J. S.A. 2A:31-1 et seq., permits recovery for si:ch

“wrongful act, neglect or default, such as would,

if death had not ensued, have entitled the person in-

jured to maintain an‘action for damages * afeiieer

‘It has been ‘held that the maritime law will enforce a

cause of action’ for death. based on negligence applying

the New Jersey W rongful Death Act. Gill v. United States,

184 F. 2d 49 (2 Cir. 1950): The maritime law will enforce _

a cause of action for déath based on -unseaworthiness ap- .

plying the New Jersey. WwW rongful Death Act.

This accident happened aboard a vessel docked at Jersey .

_ City, New Jersey [R. 80] and therefore the W rongful

Death Act of the State of New Jersey is applicable.

ee : } Pion ae

The aétion for death in the. case at issue was based on

two distinct grounds of recovery: a for negligence, and

(2). for unseaworthiness,

N. J. S. A. 2A:31- 1 sets forth’ the fallowing test of

liability :

“When the death of a person is caused tie a aw

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 had not ensued shail be liable in an action for |

—— 7e*” (Italics soars

There are two te phrases in ‘the part of the statute

quoted above. The first is the phrase “wrongful act, negle¢t |

- or default.” The other is the descriptive -phrase “such as

would, if death had not ensued, “have entitled the person

injured to maintain an action for. preset

First we discuss the “such as” phrase which directly

indicates that the “wrongful act, neglect or default’ which

_ it describes has the same scope as the “wrongful act, ne-

be glect°or default” which would give rise to an action by

* the deeeased himself:for personal injuries if he had lived.

It is stated in relative terms and it avoids fixing the basis

of liability as. that existing at the time the statute was

enacted.. It. permits the concepts of liability to develop

wit the rights of the individual. This is not the kind of

statute that requires amendment ‘with every new develop-

ment in the substantive law of liability for personal in-

juries. ‘It is rather an act designed to provide for depen-

dents described in the act the same basis of liability as

‘the individual has. It provides for, neither more nor, less.

While the measure of damages may differ in the case of

dependents, the basis of -liability-is coextensive in both’:

wrongful death and personal liability cases. The “such as”

30°

clause establishes that the insielature did niet intend it to

be otherwi ise. Since the accident happened on navigable

waters, the liability of the defendant to the deceased would /

_ be determined by the maritime law. .. ue

“In the case of Paulmier v. The Erie-R. R. Co., 34 N. J. L. :

"151 (Sup. Ct.-1870) Chief J ustice seseandhe had commented

at page 157: ee pe ee

er Tea seems to me that the literal language of the

' statute i is to be followed, that is, a right of action exists

in all cases in which. such right would have existed in

the party injured if death had not. ensued, * * * ”

‘The referral nature of the statate was recognized in

the case of Coulter v. New Jersey Pulverizing Co., 11 N. J.

_ Mise. 5, 163 .A. 661 (Supr. Ct. 1932)..The plaintiffs had -

- brought an action under the New Jersey Wrongful Death

Act where the Statute of Limitation had barred the claim

‘of the deceased before death. The action was dismissed

on motion. ‘After quoting the statute Justice Bodine stated |

at page 661: |

“Tt is, of course, arguable that, since the actions are

separate, the only bar to the action under the Death

Act is the bar contained in the act itself. But the statute

only gives an action if the decedent had one. In the

present cases, the deccdents’ actions were lost by lapse -

of time. Since the decedents had no cause of. action,

their representatives had none. * * * ” (Italics ours.)

It would be an unjust reealt and a. harsh constinetion

to interpret the statute with respect. to some given basis

‘ of liability to say that the deceased, if he had lived and

were totally disabled as a result of an injury, could re-

ceive (in addition to other élements of damage) his past

and future loss of earnings ; while if he died, his widow

and infant children ‘whose lives and happiness depend in.

= part on such earning power would be left remediless

“and in many cases penniless. It would thwart the. svi:

policy of the wrongful death act and certainly would not

give the act the liberal construction intended.

In Haggerty v. Central ‘Railroad Co., 31.N. J. L. 349

(Supr. Ct. 1865), Chief Justice Beasly | had stated in con-

nection with the interpretation of this act at page 350:

“ee oe The design of the act cannot be mistaken.

It is entirely and in the highest sense remedial in its

nature. Its object was to abolish the liarsh and technical

rule of the eommon law-actio personalis moritur ¢um

persona. The rule had nothing but prescriptive jau- -

thority to support it; it was a defect in the law, and this.

statute was ‘designed to remove that defect. It is, there-_

fore, entitled to receive the liberal construction Which

appertains to remedial statutes.” |

Tlie remedial nature of the statute was recognized again

in Murphy v. Board of Chosen Freeholders of Metcer

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

was claimed that the word “corporation” used in the New

‘Jersey Wrongful Death Act was not broad enough to

‘permit actions ‘to be instituted under the act against public,

municipal, or quasi-municipal corporations. This argu-

ment was rejected by the court, sonee Lippincott stating -

at page 231 of Atlantic:

«* * * Tn the construction of a remedial statute, the rule .

is to avoid all subtle. inventions and evasions for the——

continuance of the remedy, et pro privato commodo.

“The duty of the couft is to add force and life to the

cure and remedy, according to the true intent of the

‘maker of the act, pro bono publico.***”: .

See g ; G Fai oe,

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

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

129 A. 2d 876 (1957); Turon v. J & L Const. Co., 8 N. J.°

543, 86 A. 2d 192 (1952); Cetofonte v. Camden Coke Co.,

: \of action which he would have had, if death had not. en-

oe. \

18 N. J. L. 662, 75 A. 913 (1910); Corianni v. Schwenker,

—-88,N. J. Super. 350, 118 A. 2d 847 (App. Div. 1955).

In this case, the deceased would hav had two causes of

action for personal injuries: (1); for negligence (2) for un-

_ seaworthiness. The intention of the legislature was in the

event of his death, to give his dependents the same causes

sued. It follows that the legislative intent was to give to’

the dependents of the: deceased both causes of action (1)

for ——- and (2) for unseaworthiness which he would

_ have had had if he lived.

Keeping in mind the remedial nature of the statute we

now consider the meaning of the phrase “wrongful act,

neglect or default.” If the phrase were intended to be con-

- fined to acts of ‘negligence’ the words “wrongful act” and

“default” fre unnecessary. In construing a statute, courts

do not readily assume that words.in a statute are superfin- .

ous. Both the words: “wrongful act” and “default” i in their

natural. meaning connote something much broader than -

‘mere negligence. Negligence in a legal sense is always a

“wrongful act” and is sometimies the result of-a “default.”

However not all “defaults” constitute ‘negligence, nor do

all wrongful acts fall within that classification.

The construction of these words were an issue in the case

. of. Oroz v. American President Lines, Ltd., 154 F. Supp.

241 (S. D. N. Y.. 1957), In that case Judge Walsh -held

“ynseaworthiness”.to come within the scope of this phrase

as used in the New Jersey Statute of Limitations. | Judge

Walsh stated at page 243:. MO

“The next question is whether tlie analogous New

Jersey Statute of limitations had run. \That statute

is N.J.S. 2A :14-2, and it reads as follows:

‘Every action at law for an injury to ‘the person

caused by the wrongful act, neglect or default of any

person within: this state shall be commenced: within

935.4

2 years next after the cause of any such action shall

have accrued:’ i

The New Jersey courts have held this statute. ‘te be

applicable to all claims for personal injury whether

- based upon tort or contract. In Burns v. Bethlehem

Steel Co., 20 N. J. 37, 118 A. (2d) 544, a rigger employed

in defendant’s shipyard, sued for personal injuries

claiming to be a third-party beneficiary of a contract

’ between his union and the defendant, which he alleged

, Was breached by failure to provide certain safety de-

‘vices. The court held that the two-year statute was

applicable, rather than the six-year statute provided

for contract claims. In so holding it followed Wein-

stein-v. Blanchard, E. & A., 109 N. J. L. 332, 162 A. 601,

a case in which q patient ‘claimed for injuries caused

by the malpractice of a physician alleging a breach of

the contractual relationship with the physician. Al-

though the Weinstein case was decided under ar-earlier

‘statute which was different in form, the Burns case held

- that the changes in the statute were merely as to form,

not substance; that there was no evidence of a legisla-

tive intent to. change the rule of the Weinstein case. .

The Weinstein case was also followed in Martucci v.

Koppers Co. (D. C. N. J-), 58 F’. Supp. 707.

It is, therefore, my conclusion that plaintiff’s action

“would be barred in the New Jersey courts, and conse-

quentiy that it would also be barred in New York courts.

Liability for unseawortiiness is not based upon

fault. * * * The employer’s breach of his obligation

has been characterized as a tort which arises out of

the maritime status or relation..* * * Its original

derivation may be lost in the past. Yet there can be™

no question, regardless of the nature of the shipowner’s

obligation, that this is a claim for personal injury based

pon itsalleged wrongful failure to perform its obliga-

tion. Accordingly, in New Jersey the claim war d be

governed by the two-year statute of limitations.” | tal-

‘ies ‘ours.) ~ | /

; This decision was very recently affirmed. seal ded

Term, Decided Sept. 30,1958, 2 Cir.], citing both Halecki

and Skovgaara. te

iets ‘ 34 A ae | i

Judson vy. Peoples Bank & Trust C Company of Westfield, .

17 N. J: 67, 110 A. 2d 24. (1954) was an‘action based on an

. alleged fraudulent conspiracy. to oust plaintiffs from con-

‘trol of a bank. Among other things the case involved the

application of the New Jersey J dint Tortfeasor’s Contribu-

tion Law, N. “J. S.A. QA-:53a-1 which used the phrase

be “wrongful act, neglect or default of joint tortfeasors.” It

was conceded on argument that the term “wrongful act” is

- most broad and comprehensive. In its opinion the court —

cited’ Léuis Schlesinger Co. v. Rice, 4 N. J. 169, 72 A. 2d.

197 (1950) and defined’ the term as,“any act which in the «

_- ordinary coursé will infringe upon the rights of another to

his damage, except’ it be done i in the exercise of an equal or

2. pA superior right.”. In the course of. his opinion Mr. Justice -

‘ Brenrian referred to the fact that -the same language ap-

pears-in the Wrongful Death Act. He stated at page 35 of

‘Atlantic: © ;

: 9 al i Aiid the- statnte creating a right of action for

ye death by -rongfuk-act, N. J. S, 24::31-1 et seq., N. J.

. . . §. A. gives the: right whenever ‘the death of a person.

igs caused by a wrongful act, neglect or default, such

“as would, if’deatti had not ensued, have entitled the -

person injured to maintain an action for damages re-

sulting from the injury.’ We are aware of ne authority.

in this State which has suggested a limitation of the

right of action under that statute to cases-of death |

resulting from negligence. The statute was adopted

rest -. fronr England, and 23. Halsbury’s Laws of England

oo ne Ed. 1936), p. 691,is- authority—that ‘this term in-

eludes direct acts of trespass tq’ the er. as well as

eriminal acts of violerice.’ Cy ee

Mr. ‘Fustice: Brennan then ama as ; to the role of. the

phrase “wrongful act, neglect or default” in the Joint. Tort-

“feasor’ 's Act at page 36: e or

«© © * The more bensonabls interpretation is that/

eg the expression was included. to. fortify the intended

(35

za comprehensiveness of sections 1 and 2 taken from the

draft of uniform act and leave no doubt that all torts

of commission and omission were within the ambit of

the law.” . Bente ana. «9

The phrase “wrongful act, neglect or default” has been

construed ‘to include an action based on a breach of war-.

ranty of fitness for use under the New York Statute. In >

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

plaintiff's - wife died‘as a result of eating infected pork

frankfurters. purchased from the defendant, The plaintiff's

cause of action for négligence was dismissed: by consent.

The motion to dismiss the cause of action based on a breach .

of warranty Was denied. Justice Rippey speaking for the

me York Court of Appeals posed the i issue at page 31:

“© ** The inquiry here is whether the breach of the.

implied. warranty as alleged in the complaint, negli- -.

gence being disclaimed, was a ‘wrongful act, neglect

or default’ within the meaning of ‘the statute. 2 een

After saiddoesihe ‘Saression of the history and natare’ f

of the’ wrongful. death acts, he stated at page 34:

sl ais At times the same facts may warrant proce-

dure : ex contractu or ex delicto. At such times recovery -

is not conditioned on definition nor measured by a de-

/ termination of whether it is grounded in a violation

of-a duty owing to another or in a breach of a con-

‘-tractual obligation: * ° * Violation of e duty. owing to

another is a wrongful act; breach of a contract.involv-. °

ing violation of duty may be likewise a wrongful act.

Here the duty rested on defendant ta see, at its peril,

that the food was. fit for human: consumption and it is

based on considerations of public health and publie ~~

. “policy, * * * Though the action may be brought solely

P g

for the breach of the implied warranty, the -bréach is a

wrongful act, a default and, in ‘its essential ‘hature, a |

ee, Teil ake . ee

“a

.' “We conclude that the breach of the warranty in

case such as this was‘a ‘default’ or ‘wrongful act’ within

the meaning of those terms as used ‘in the statute not

__—only_as a matter of definition but within the clear legis-

lative intent, *** : a

__ “* ** Apropos are the words of Judge Cardozo in

_ ( the closing paragraph of his opinion in Van Beeck y.

‘Sabine Towing Co. * * * where he refers to the con-

_ 8truction to-be given death statutes. ‘Death statutes,’

he writes, have their roots .in dissatisfaction with the

archaisms of the law which have been traced to their

origin in the course of this opinion. It would he a mis,

fortune if a narrow uf grudging process of construction

were to exemplify and perpetuate the very evils. to be

remedied. * * * There are times when uncertain words

are to be wrought into consistency and unity with a

legislative policy which is itself a source or law, a

new generative impulse transmitted to the legal sys-

mm * °.2* ogee ; )

Cf. also Sullivan v. Dunham, 161 N.Y. 290, 55 N.E.

923 (1900).; Greenwood v. John R. Thompson, 213 Hl. App:

371 (1919); Roche y. St. John’s Riverside Hospital,’ 96

Mise. 289, 160 N. Y. 8. 401 (1916) aff'd 161 N: YS. 1143

* (App. Div. 1916): Grein y. Imperial Airways Lid 1 _* §

+30; (1936) 2 All. E. R. 1258; @. A.; Jackson V.\Watson &

‘Sons, 2 K. B. 193.(1909) ; The-H.'S. Inc. No. 72, 130 F. 24

41 (3 Cis, 1042). - o:.

There is every reason in logie and in justice to consider *

unseaworthiness a maritime tort which is a “wrongful act.

neglect or default.” In Seas Shipping Co. v. Sieracki, 149

F. 2d 98 (3/Cir. 1945) Judge Goodrich after pointing out

that s0 far as “warranty” depended on contract, a steve-

- dore was A. party to a contract, he concluded at page

101: . Jaca (jp

“*° * * And so an injury to a stevedore comes within

the classificdtion of a marine tort. * %* ”

Nae

" . al

‘The United States Supreme Court in the same. casein - |

398 U.S. 85; 66 S.: Ct. 872, 90 L. Ed. 1099 (1946), Mr \:

Justice Rutledge speaking, stated at page 877:

Pyne Ss essentially a species of liability without :

' fault, analogous to other well known instances in our -.

law. Derived from and. haped to meet the hazards °°

which performing the seryice imposes, the liability is

neither limited by conceptions of negligence nor con-

tractua! in character. * * * Carlisle Packing Co. v.

" Sandanger, supra, it is a form 6f absolute duty owing

‘to all within the range of. its humanitarian poliev.”

In the case of Troupe v. Chicago D. & G..Bay Transit Co.,

234 F. 2d 253. (2 Cir. 1956), Judge, W aterman considered

the various theories on which a federal court, sitting on the

civil side, could have jurisdiction of an action hase on

unseaworthiness where an action for negligence under the

Jones Act is also pleated. ‘In considering “pendent juris- -

diction” as a ground he reviewed tife nature of. the two %

theories of recovery, He stated at page 2: 298:

4 a 8°: Te Jon Act elaim for. ei and the

maritime claim for unseaworthiness provide séamien

with two different grounds of relief for the commission

_ of the same wrong. -A judgment en one claim bars a@

« second suit based on the other claim. * * * Since both

- claims are based on the same operative facts, they con-

stitute a single ‘cause of action.’ *.* * Because of the

extremely close relation of the two elaims, and the

virtual identity of their-factual components, it is argu-

able that a federal district court, having properly taken

jurisdiction at law under the Jones Act over the negli-

gence claim, has. jurisdiction at law over the closely —

related unseaworthiness claim. ° ° * ”

In view of the “close relation” of causes of action based

on negligence ‘and unseaworthipess it is difficult to conceive -

_why the broad “wrongful act, neglect’or default” classifica

_tion does not apply to both,/See also the comment of Judge .

{ /

/ ,

yy,

Learned Hand in Gill v. United States, 184 F. 2d 49, 87

(2 Cir. 1950). is .

/Unseaworthiness falls within the broad classifications

of “wrongful, atts” or. “defaults” if not “neglects.” There

_is ho-reason to suppose that the legislature, while using

referral language, intended to exclude “anseaworthiness” .

from. the New Jersey Wrongful Death Act whenever it

would otherwise apply. The broad language of the statute ©

indicates:a contrary intent. The liberal construction “to

which the statute is entitled also compels a contrary result.

It certainly is not just, to deprive dependents of a right to.

recovery which the deceased himself would have had if he

had lived, if the basis of liability is unseaw orthiness, but to

permit recovery where the basis is negligence. .

The petitioner places weight on Moran v. Moore McCor-

mack Lines, 131 N. J. L. 332, 36 A. 2d 415 (Sup. Ct. 1944)

and Santa-Maria v. Lamport é Holt Line, Ltd., 119.N. J. L. -

' 467,196 A. 706 (E. & A. 1938) saying that “in these cases the —

New Jersey courts have, with reference:to the Wrongful

Death Act consistently confined its application to negligence

situations” ie br., 15, 42). In the Santamaria case supra

the plaintiff had won on the theory of negligence for the

death of a worker who had been unloading a vessel. There

was no need for the widow to argue or for the court to

consider any issue except whether to sustain the verdict

based on negligence. The court affirmed the. verdjet for

plaintiff. It is interesting to note that the court cited two.

federal court decisions for the proposition that the owner

__ of the vessel owed the employee of a consignee a safe place

to work. The Moran supra case did not involve a death

action at all. The plaintiff's case was tried en a theory of »

negligence, the Supreme Court of New Ji ersey, then an inter- :

mediate court of appeal, affirmed a non-snit holding that the

plaintiff stevedore had fajled to prove negligence.

In neither case was the doctrine of unseaworthiness urged

upon or discussed by the appellate courts. It must ‘bé re-

membered that it was not ‘until 2 years after the last deci-

siot that this court decided that a longshoreman was ‘

‘erititled to a seaworthy vessel, Seas Shipping v. Sieracki,

328 U. S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). Therefore

no valid conclusion can be drawn from the lack of discussion ..

of unseaworthiness i in either state-court case.

- -'Two Courts of Appeal have accepted the repiduilinnte?

construction of the New J ersey Wrongful Death Act. They

construed it remedial, referral in nature as to liability; and ©

broad enough to-include an action based on unseaw orthiness —

‘as well as negligence. This construction is supported by |

tle decisions of the New Jersey. courts.

Not only was the deceased entitled to have a ‘seaworthy :

vessel at the time of his injury on petitioner’s vessel, but. *

the widow and children of the deceased are entitled to sue

under the New J ersey Wrongful Death Act for a breach of

‘the duty to supply a seaworthy vessel where such br each of

duty resulted i in death. |

POINT II. x

The duty of the vessel to provide the deceased with

a seaworthy vessel and appliances was absolute and

non-lelegable. ==: citer

Where a shipowner owes a duty to provide a seaworthy

vessel to a seaman or other worker on his vessel; it is well -

established that his duty if absolute and non-delegable.

Seas Shipping Co. y. Sieracki, 328 U.S 85, 66 S. Ct. 872,

90 L. Ed. 1099 (1946) ; Petterson v. Alaska 8.8. €o., 205

F. 2nd 478 (9 Cir. 1953), aff'd per curiam 347 U. S. 396,

74'S. Ct. 601,.98 L. Ed, 798 (1954) ; Yanow v..W eyerhaeuser

Sigamehip Co., 250 F. 2d 74 (9 Cir. 1958) ; Sprague v:

“+

eS ee wre :

7 t

The Piste Co., 250 F. 2d 123 (2 Cir, 1957) ; Klimaszewski

v. Pacific-Atlantic Steamship Co., 246 F. 2d 875 (3 Cir.

_ 1957) ; Johnson Line v. Maloney, 243 F. 2d 293 (9 Cir. 1957) ;.

Grillea v. United States, 232 F. 2d 919 (2 Cir. 1956) ; McFall

. Vv. Compagnie Maritime Belge, 304 N. Y. 314, 107 N. E. ad

463 (1952). ” ps =

In tlie case of Ladies v. A/S. J. Ludwig Mowinckels

| Rederi, 224 F. 2d 437 (2 Cir. 1955), cert. den, 350 U. 8S.

901, 76 S. Ct. 179, 100 L. Ed. 791 (1955), a stevedore was

injured by wire coils being discharged. It appeared that

if the cargo had been discharged in one sequence there |

was no danger but if discharged in another order it was _

dangerous.g In holding the ship liable for an unseaworthy

condition, J udge Learned Hand stated at page 440:

“We read Seas Shipping Co. v. Sieracki, 328 v. 8.

85, 66 S. Ct: 872, 90:L. Ed. 1099 as definitely laying. it

down that longshoremen discharging a ship are in the

same position vis-a-vis the ship as members of. her

erew; * * * The stowage was therefore: only condi-

tionally proper, and we do not see how the ship can

escape liability when she allowed a stow, only condi-

tionally proper, to be discharged without fulfillment.

of the condition. * * * Under Seas Shipping. Co. v.

Sieracki, supra, the longshoremen as, pro hac vice

members of the crew, weré exposed to the dangers of

a negligent stow as’long as the condition remained

unfulfilled, What Lunde did was indeed/quite natural

in view of the contract between the ‘ship and the long-

_ . shorenien’s: ‘contract; but it did not fulftll the condition:

Unless we have. misunderstood the doctrine, the: situa-

tion as to the ship’s liability is precisely as though the

crew had been discharging the strips, and- Lunde had

not seen to it that the discharge of the strips at. the

eurlier port had not been made in accordance with what

~ 4ts position in the stow: demanded if its discharge. t was

~ to be safe2’

; . 5 : c . .

The condition of the ship’s ventilating system in the ~

present case was such that, although eaworthy for ordinary

fentilation; it was unfit and unsafé for the use to which it

was put, When, pursuant to the directions of'the marine .

superintendent of the defendant, carbon tetrachloride was.

used in the confined spaces of the vessel’s engine room.

As stated in the Amador case, the deceased was in the _

same position vis-a-vis the ship as members of her crew. —

The defendant’s orders for the use of carbon tetrachloride,

which they knew was:a dangerous chemical in confined

‘spaces, was improper unless the defendant furnished ade-

quate ventilation to remove harmful fumes. This-was. a

condition to be fulfilled by the defendant. Ordering the

use-of carbon tetrachloride in the confined area of the engine

room without the fulfillment of the condition resulted in an

unsafe and unseaworthy conditi ion for which the jury found

the defendant liable..

‘The failure of defendant t to acta adequate: seidiitinn

appliances created the unsafe and’ unseaworthy condition.

The ventilating system was supplied by the vessel. The .

auxiliary blower was supplied by Rodermond. This equip- ©

ment was inadequate for the purpose intended, namely »

‘spray cleaning with earbon tetrachloride, ordered by the

‘defendant. The doctrine of unseaworthiness includes the

failure to supply ope ees.

‘ "fy 3

»4

- 42

Reg etue he POINT IIT

The. line « of the vessel to provide the deceased with

a safe place to work and to exercise due care for his

safety was continuing and maar serageaee. ,

‘The defendant does not dispute the right of the plaintiff

to bring an action based on negligence. The right to re-

cover on this ground, applying the New Jersey Wrongful

Death Act, is established. Gill v. United States, 184 F. 2d

49 (2 Cir.’1950).. The deceased occupied the status of a

business invitee aboard the vessel. As such the defendant

owed to him the duty to provide a safe place to work. This

| duty was continuous and non-delegable.

‘There was ample evidence that the vessel was an unsafe

oy place for the deceased to work. Since the duty of the yes-

sel was non-delegable and persisted regardless of any con-

current duty on the ‘part’ ofthe deceased’s employer or of

Rodermond, the jury was amply justified in finding the

defendant negligent. This is emphasized by the fact that

the defendart specifically, directed the use of a dangerous

chemical as a cleaniitg-agent.

It has been- held by this Court in Puleo v..H.E. Sag 159

fe F. 2d 842 (2 Cir. 1947) that the measure of care owed to a

business invitee ys the same as that owed by employer to

_ his employee. The extent of this duty was discussed by

Judge Learned Hand in the case of Guerrini v. United

States, 167 F. 2d 352 (2 Cir. 1948) where -he hel@ thai a

failure to take affirmative steps to provide for the business

guest’s safety is a bréach of duty. Cf. Menu v. Carlson,

6 N. J. 82,77 A. 2d 245 (1950).

In the cese of Anderson v. Lorentzen, 160 F. 2d 173 (2

Cir. 1947), the plaintiffs, longshoremen, were injured when

.they came into contact with cashew nut oil which caused a

i e

43 | R

dermatitis.- Plaintiffs ‘employer ae of the danger and

_ had a special cream on the dock for the use of’the plain-

tiffs. Among other things, J udge Chase stated at page 174;

- «* * * Apparently the plaintiffs were not told to use

- it and, in any event, neither of the defendants supplied

_ any thing of the next or warned the Plaintiffs: oF the

. danger.

The dilavieateappiante have argued that, since

- the employer of the stevedores who unloaded the liquid

was aware of the danger, they were under no duty to.

warn those who worked for that independent. contrac-

tor: We cannot agree. The defendants-appellants not

- only owed tlie duty to provide, a seaworthy ship on

which these stevedores who unloaded the cargo might

work, Seas Shipping Co. Ine. v. Sieracki, 328 U. S. 85, -

66 S. Ct. 872, butgthey- owed them, as invitees, or busi-.

ness visitors, the duty to provide a reasonably safe

place to do thei® work. Fodera v. oth American .

Shipping Corp., 2 Cir., 159 F. 2d 79%. This duty was ~

’ non-delegable arid persisted despite . any concurrent.

-duty on the part of the stevedoring company. ge esas

In the case of Gunnarson v. Robert Jacobs Inc., 94 F. 2d ¥

170 (2 Cir. 1938) ‘cert. den.-303 U. S. 660, 58 S. Ct. 764,

82 L. Ed: 1119 (1938) tlie accident involved an explosion

of propane gas shipped in a tank on a yacht and used for’

cooking purposes. In reversing a decree which had.-been

rendered against the widow for the death of her husband,

~a-eaptain of the vessel. Among other things, Judge Learned

) Hand stated at page 172: -

' Jong.as it did not leak, and that it would not leak if it

was properly handled. In such cases liability depends

- upon an equation in which the gravity of the harm,

if it comes, multiplied into the chagice of its occurrence,

must be weighted against the expense, inconvenience

and. loss of providing against it.’ The haym may be

so great as to Mepose « an ‘absolute liability regardless

\ . =

ey :

f ee 44

\ ar

: :

.\ Of any’ negligence; in such cases the very activity, _

. though lawful, entails responsibility, and reparation

becomes a cost of the emterptiee,:'s as under workmen’s

compensation. Seats ie F

The great danger involved in using carbon - tetrachloride

was admitted by all witnesses, The jury had ample evidence

which warranted a finding that the defendant was fully

aware of the danger involved. It is to be noted that none

of the ventilation or blower salen used ‘belonged to

the deceased’s employer.

In the casé of Hoff. vy. United States, 87 F. Bei: 909

(D? C. Wash. 1949), a seaman was injured while spraying |

paint on board a vessel. In finding for libelant, Judge

Bowen stated at page 911: ;

“The evidence and a ‘sreposiderance thereof received

_ in this case requires the Court to and the Court does —

therefrom find, conclude and decide that the vessel was

for the purpose of carrying on this spray ‘painting.

work in the engineroom inadequately and improperly

ventilated, resulting in a negligent and unsafe -condi-

‘tion in and about the ship at the place and time when

the libelant and his fellow\seamen were doing the spray

painting work, and that as a proximate result thereof

the libelant and others of his fellow seamen were caused

. to cough and to experienee difficulty in their breathing

- and irritation and i injury to the membranous lining of

their lungs. * * *

- The. preponderance of the évidence i in this case. con-

vinces the Court that spray painting was not cus-

tomarily done upen Liberty ships, that it had been

done on some ships only w hen there was forced ventila-

tion such as was produced by ventilating machines on

/ board the vessel, and that there were no such ventilat-

ing machines on the Bloomquist on ‘which libelant was

working when he was injured. Respondent was: thus

negligent in not providing suitable ventilation in ‘the

Peart

engineroom while libelant was spray painting there.”

Caranen ours. ‘)

Th the case of W eyerhacuser ‘Steamship Co. v. Nacirema -

‘Operating Co., 355 U.S.,563, 78 S.Ct. 438, -—— L. Ed.

(1958) -which involved an action for indemnity between a

vessel and’ ‘stevedoring company, Mr. Justice. Clark com-

mented on the, basis of the original suit by a longshoreman

injured. when a piece of wood from a temporary winch

shelter hit him. He recognized that in the original negli-

gence action, “The test of liability Was based on failure te

perform a non-delegable duty.”

_ The evidence supporting the findings of. the jury are

discussed elsewhere in this brief. The cases establish that

the duty owed was non-delegabie. The defendant directed

the use of a chemical in a confined space which was highly

dangerous to human life if proper ventilation were not

provided. The deféudant knew or should have known that -

the ship’s ventilation. system and the auxiliary blower fur-

nished by Rodermond were inadequate. Its failure. to

furnish adequate ventilating equipment or réquire the con- ‘

tractor to furnish it, constituted a breach of its duty. The _

very dangerous qualities of the chemical to human life

when used in confined areas imposed a duiy on defendant

commensurate with the danger. This duty defendant failed

to perform.

—

. . -

46 Se

nee

_ .. POINT IV |

The rule of itil negligence was properly ap-

plied i in the present —-. /

| The attorney for the petitioners conceded. that the general

maritime law applied in this case. He had stated (R. 80):

“The Court: Mr. Mahoney, is there any question

' but what this vessel was in navigable waters? =:

(58) Mr. Mahoney: I think not, sir. .

Mr. Baker: All right. —

The Court: And you agree that. the general maritime

.. law prevails?

Mr. Mahoney: There is no issue there, ae

Mr. Baker: All right.”

aie on ensue, they take a contrary position and claim |

that the general-maritime law does not apply:

We note that the New Jersey Wrongful: Death <Act, |

N. J. S. A. 2A:31-1 et seq, does not anywhere state that

contributory negligence is a defense to an action under the

act. Cf. The Devona, 1 F. 2d 482, 484 (D. C. Me. 1924).

The substantive law relating to liability is incorporated by

‘reference ‘and is coextensive with the substantive law of.

liability for personal injury. as distinguished from ‘wrong,

ful death. oak ae

It is not questioned that in common- law actions arising

under the New Jersey Wrongful Death Act, common-law’

defenses are applied. The act itself measures liability by the

test of whether or not the deceased, if death\had not ensued,

- would have been able to maintain. arr action. Obviously in

a common-law action, which is what is involved in all the

New Jersey decisions cited by defendant: in its brief, the

common-law defenses would bar recovery.” ‘Logically, there-

fore, in a maritime case, the maritime defenses should pre-|

\vail because the act itself refers to the, sanstantive: selon .

of maritime law in such cases. a

Even as a matter of statutory construction, ‘the courts

By ints a: sang-froid to the New Jersey legislature in

6 to-hold that whereas a serjptiSly injured father and

husband is entitled te a recoverwWu nder the maritime law

even if contributorily negligent, his wholly innocent chil-

dren and wife would be denied such-recovery if he dies

-from his injuries. The legislature has, not set. forth this .

defense in the statute.. Courts do not construe statutes in

such a way as to produce harsh or absurd results. : See -

Cox.v. Roth, 348 U. S. 207,'209, 75.8. Ct. 242, 99 L.Ed.

‘260 (1955) ; Giordiano v. ‘City Commission of Newark, 2

N. J. 585, 67 A. 2d 454, 458 (1949). This statute is a

remedial one and is entitled to a liberal construction.

Therefore under the terms of the New Jersey statute itself,

independently of any compulsion from a positive rple. of —

maritime law, the rights of a widow and children with 3

reference to the. contributory negligence of a deceased work-

“man are coextensive with the rights he would have enjoy ed

had he lived. ' : ety

_. There is another: ground for holding that contributory

negligence is not a-defense under the maritime Jaw where ~

a state wrongful death act is applied. The reason that

maritime law permits a state wrongful -death act to be

applied where certain individuals die as a result of injuries

received on navigable waters. within a state’s geographic

- boundaries is that there is a void in the maritime law on |

‘this point. Congress in the development’ of maritime law

has not afforded any ‘remedy by statute for w rongful death

_ insuch circumstances. While there i isa Void as to W rongful

death this is not true concerning the defense of contributory

' negligence. Admiralty courts have fashioned a strong posi-

' tive rule concerning comparative negligence. While the

_énforcement of a state statute giving a remedy for wfong-

ful death merely ‘fills a void, the enforcement of A state

rule of contributory negligence would collide with the posi-

tive, wel. established rule, of comparative negligence in.

‘maritime law. 3 :

In the case of Wilburn Boat doopany v. Fireman’s Fund —

Insurance Company; 348 U. S. 310,:75 S. Ct. 368, 99 L. Ed.

_ 337 (1955) Mr. Justice Black, im holding that state laws

“could be applied in disputes arising from a maritime insur-

ance policy stated at page 370:

“Since the, insurance poliey here sued on is a mari-

_ time coritract_the Admiralty Clause of the Constitution .

. brings it within federal jurisdiction, * * * But it does.

not: follow, as the courts below seemed to think, that

every term in evéry maritime contract can only be con- -

> ‘trolled by some federally defined admiralty rule. In

__ the field of maritime contracts as in that of maritime

torts, the National Gov ernment has left much requ-

latory power in the States. As later discusstd in more

‘detail, this state~ regulatory power, exercised with

federal consent or acquiescence, has always been par-

ticularly_ fend i in relation to insurance companies and

the eofitr tracts they make.

boo ~—~Congress has not taken over the regulation. of marine

oo; ‘insurance contracts and has not dealt with the effect of

- marine insurance warranties at all; hence there is no-

possible question here of conflict between state law

and any federal statute. But this does not answer the

questions presented, since in the absence.of controlling

Acts of Congress this Court has fashioned a large part

of the existing rules that govern admiralty. And States

can no more override such judicial rules. validly fash-

toned than they can ov erride cts of Congress.* * *”

- (Italics ours.) Sah

What, then, is the substantive maritime law as it-relates

to liability for personal injury? In Hawn v. Pope & Talbot,

Inc., 198 F. ad 800 (3 Cir. 1952), Judge Metaughlin stated

at page 806: | hes iF

Bs eer ee haesiteas advances the flat proposition that

. _ since. it is a diversity action the; Pennsylvania con-

tributory negligence rule which defeate recovery must

be applied. * * *

a “We think that appellant’ s view is incorrect. ey"

On appea! the Siaiciaeiia of the court was affirmed in 346

U. S. 406, 74S. Ct. 202, 98 L. Ed. 143 (1953). Mr. Justice

Black stated at page 408: —

“(a) The harsh rule of the common law under which:

contributory negligence wholly barred an injured per-

son from recovery is completely incompatible with

modern admiralty policy and practice. Exercising its

traditional discretion, admiralty has developed and now

follows its own fairer and more flexible rule which

allows such consideration of contributory negligence in

mitigation of damages as justice requires. Petitioner

presents’ no persuasive arguments that admiralty

should now adopt a discredited doctrine which auto-

matically destroys all claims of injured persons ‘who

nave contributed to their injuries in any degree, how-

ever slight. ;

“(b) Nor can we agree that Hawn’s rights must be

determined by thé law of Pennsylvania, under which,

it is said, any contributory negligence would bar all

recovery in this personal injury action. True, Hawn

was hurt inside Pennsylvania and ordinarily his rights

would be determined by: Pennsyvlvania law. But he-

was injured on navigable waters while working on a

- ship*to ‘enable it to complete its loading for: safer

transportation of its carge by watér.- Consequently, the

basis of Hawn’s-action. is a maritinie tort, a type of ac-

_tion which the Constitution has placed under national

power to control in ‘its substantive as well as its pro-

cedural features. * * *’ * * * And Hawn’s .complaint

__ asserted ‘no claim created by or arising out of Pegn-

\- 4 i

' stivania law. His right of recovery for unseaworthi-

ness and negligence is rooted in federal maritime law,

Even if Hawn were seeking to enforcesa state-created

remedy for this right, federal maritime law would be

controlling. While states may sometimes supplement

federal maritime policies, a state may not deprive ‘a

person of any substantial admiralty rights as defined

in. controlling acts of Congress or by interpretative

decisions of this Court. These principles have been fre-

- quently declared and we adhere to them. tlie (Italics

~ ours.) veh ya

In O*Leary v. United States Line ae F... 2d

708 (i Cir. 1954), cert. den. 348 U. S. 939, 75 S. Ct. 360,

99 L. Ed. 735 (1955), Judge Woodbury reviewed several '

- decisions, including one from this cireuit, and discussed

the question of contributory negligence | wader a state

wrongful death act. He stated at page 711:

«“* * * But these cases were all decided prior to

Pope & Talbot, Inc. v. Hawn,-1953; 346 U. S. 406,

74S. Ct. 202 wherein the Supreme Court of the United

States in a civil action on the law side under the sav-

ing clause for the first time held categorically that the:

rights of a shore worker to recover for persona] in-

juries short of death occurring on a vessel in the navi-

gable waters\ef a state resulting from either the negli-

gence of the shipowner or the unseaworthiness of the

vessel are‘ to be determined by the general maritime

law and not by the law of the state within whose waters

the accident occurred. That case, of. ‘course, is not

squarely in point here, but in the Court’s opinion .346

U.S. at page 409, 74 S. Ct. at page 205 it is said by way

of dictum that ‘Even if Hawn were seeking to enforce -

a state-created remedy for this right (referring to his

right of recovery ‘for unseaworthiness and negligence),

federal maritime law would be controlling.’ Indeed, ~

in our opinion it would be incongruous’ to hold, in

conformity with Pope & Talbot, Inc. v. Hawn, supra,

that the maritime law determined the respective rights

aw . —

of the parties 3 in the event of person(l injuries dont of

death, but that state law determined ‘their. rights in

the event of injuries. resulting in the ultimate conse-

- quence of death. And, it would be even more incon-

gruous to hold, that the ‘husband’s right of action, which

the plaintiff here asserts in her count two under. the

local survival statute, is to be determined under the

‘rule of Pope & Talhot by the maritime law, but that

the right of action arising out of the same .accident

conferred directly upon her by the local dea‘h. act‘ is’

to be determined Dy .local law. Furthermore, as the

Supreme Court pointed out.in Chelentis v. Luckenbach

S.S. Co., 1918, 247 U. S. 372,-384, 38 S. Ct. 501, 62 -

Ed. 1171, the saving clause reveals no. intention tha

liability as well as remedy shall be determined by. the

common law rather than the maritime law, and to apply

state substantive law to determine the rights of the

parties would create divergence in a field where uni-

‘formity has long been considered important. * * * ”

In The Devona, 1 F. 2d 482 (D. C. Me. 1924) the court |

had. before it the Maine Wrongful Death Act which uses

the same key phraseology as. the New Jersey Act: In

denying the applicability .of the common-law. defense of

contributory negligence, Judge Held stated among’ other

things at page 484: ‘ |

“The case at bar also discloses rights distinctly mari-

‘time and ‘recognized by the law of the’ sea,’ without:

regard to thé court where the libelant may seek relief. .

The libélant must take the state statute with its limita-

tion; but the limitation of contributory negligence is

not found’ in the statute. A state court may well find |

that. it cannot settle a maritime case by the common-

law rules of procedure, and must enforce the libelant’s

rights. under the maritime provisions ‘as disclosed in __

the Jensen Case, which has heid that ‘no state has the _

power’ to abolish the well-recognized maritime rule

concerning the mcasure of recoyery,' and substitute

therefor the full indemnity rule of the common law.’ ”

(Italics ours. ). ;

neater 52

—$—+.

There are two distinct sili for holding that contribu.

tory negligence is not a defense to this action under the

New Jersey W rongful Death Act. The first is based on the

interpretation: of the act itself.’ The act does not state

' that such defense is available in an action for wrongful |

_ death. On the contrary, the referral phrase “such as would,

- if death had not ensued, have entitled the person injured

to mnaintain an action for damages” is used, N. J. S. A.

2A: :31-1. This phrase, by referring to the rights of the per-

son injured, if death had not ensued, indicates that not

_ only is the substantive law relating to the nature and scope..

of liability for personal injury incorporated into the wrong-

ful death act, but the defenses are incorporated as well.

There is certainly no reason to suppose the legislature

— intended to give. any better or stronger defense to the re-

spondents where a widow and respec children sue ‘than

- where the injured himself sues.

The second ground is based on the. fact that the injury

occurred on navigable: waters of the United States‘and is

covered by substantive maritime law which supersedes and

overrules inconsistent state law. The doctrine of compara-_

tive negligence is a positive rule of maritime law and is.

firmly embedded in maritime law. There certainly is no

reason why it should be replaced by a harsh and incon-

sistent state doctrine,

In this connection we note that Klingseisen v. Costanzo

Transportation ‘Co., 101 F. 2d 903 (8 Cir. 939) cited by

defendant, held that in an action under maritime law apply-

ing the Pennsylvania Wrongful Death Act, the absolute -

defense of contributory negligence would be ‘applied. In

that case the deceased was drowned in a collision between

his own boat and a steam boat. -No issue of unseaworthinéss

was: involved. Since this case involved an application of

a Pennsylvania statute and its interpretation by Pennsyk

’ yania courts it is not controlling i in an fikeeweetuiion of a

New J ersey statute. :

The petitioners state in their brief that i in Hill v. Water-

man, 251 F, 2d 655 (3 Cir. 1958) the Court of Appeals de-

_ ¢ided that contributory negligénce should be a defense to

‘an action brought under the New Jersey. Wrongful Death

Act (P. br. 10, 26). However, this is entirely incorrect.

The Hill case involved the Pennsy Ivania Wrongful Death

Act which is entirely different from the New Jersey" act «

in its wording. Furthermore the court in per curiam opin-

ion-in the -Hill case cited two other cases in which it had

_ been decided prior to the en banc decision in the Skovgaard.

_ CSC, yet in the Skovgaard case the majority refused to pass

on the question of the defense of contributory negligence

before the court below made’ its factual findings.

In each case the eourt had: dissimilar statutes before

it with different decisions on construction of different state

courts in interpreting those statutes. Consequently the

majority recognized that as a matter of ‘interpretation of a |

state statute the results may differ greatly when the statutes

of different States are considered. to supplement maritime

law. ‘The conclusion of petitioner’s attorney: that in the

Hill case the court found that contributory negligerice was

a defense under the New Jersey Ww rorigful Death Act is in

error. Since the Pennsylvania statute is completely differ-

ent in wording from the ney. Jersey: ‘statute the conclusion

cannot be supported. |

In the Pennsylvania statute, 12 Purdon, Penna Statutes

‘Anno. ss1601, the test of liability is merely set’forth as

“unlawful violence or negligence” rather than “w rongful

act, neglect or default” as set forth in the New Jersey

statute. Furthermore, the Pennsylvania statute does not

not employ .the “such as” fest of -the New Jersey statute

of the deconsell if he had lived...

- submitted to the jury.

‘ . ——-

ee —s a =

which mene the test of liability based on the rights

POINT Y == —

—$—<—<$—$—$ ——

There was ample evidence to support jury findings of

-both negligence and unseaworthiness. On the basis of the

evidence, a good part of which was undisputed, the issues

were properly submitted to the jury. Schulz v. Pennsul-

vania Railroad Company, 350 U. 8. 523,:76 S. Ct. 608, 100

L. Ed. 668 (1956); Ferguson v. Moore-MeCormack Lines,

352 -U. S. 521, 77 S. Ct. 457, 1 L. Ed. 2d 511 (1957);

Honeycutt v. Wabash Railway ,Co., 355 U.S. 424, 78 S. Ct.

393, L. Ed. —— (1958).

The defendant had an affirmative non-delegable duty to

. ,provide a reasonably safe place to work and a seaworthy

vessel. This duty it failed to perform. The law relating

to these duties was discussed. :

The trial court in denying .the motion for’ dipectod’ ver-

_ dict made by the defendant at the close of the case, clearly

‘summed up the evidence submitted (R..145). - i

“The Court: Your statement up to the last moment |

was all right as far as it went. In other words, you

. are recognizing that the ventilating system of the ship:

was inadequate to remove carbon tetrachloride, and I

am sure that there is no point to argue or disagree with

you that a ship perhaps ordinarily is not required to

have a ventilating system that could remove a poison

of that type which is rarely used. The moment that you

specify, carbon. tetrachloride as the chemical to be used

_in cleaning the generator, and it was known that it was

a darigerous substance, then there was,a duty eevtsiady

to see that the: ventilating system was. supplemented’ :

and aided by other methods of withdrawi ing the fumes,

-and that presents the basic question in the case;it

seems to me. Whether the ventilating’ svstem both that.

which_-was-part of the ship regularly and that which

was brought in as. auxiliary equipment. constituted a

sufficiently adequate system in order that the men might

work there with reasonable safety.

I hold there is a question of fact for the jury to aoe

upon. Your motion is denied.”

Judge Learned Hand in réviewing the evidence in this *

case stated (R. 148): | pote

Oe ae ae the’ work was. to clean the chip's )

generators which had become fouled in use, and Roder- .

K. & S. Electrical Company, the emplover of the dece- '

_ dent, Halecki. On the 28th he and Doidge, a4 fellow

ten worker, set up the necessary equipment on the boat.

<< Since she was at the time without any electrical current,

‘\ it was necessary to bring in current from the shore.

' The generators were cleaned by spraying them with

carbon tetrachloride, a volatile | liquid,- whieh will ‘re-

—move all traces of dirt and film’ (fol. 165), but whose ¢

” fumes, unless their density is carefu!ly controlled, may j

» be déadly. The generators were in the ship’s engine-

‘room, one deck below the main deck, and Doidge ‘and

x e. decedent ‘sought to. protect themselves during the

rk, (1) by using gas masks, ‘and (2) by bringing two -

“air hoses” and a “blower,” actuated by the current |

rachloride upon the generators; the other, to blow in

fresh air from the outside. The ‘blower’ was set at the

bottom of the engine-room near | the generators, and

from it ied an exhaust pipe to an Open dodr about. eight

- feet above. In addition, the ship’s permanent ventilat-

ing system was set in’ ‘action by the outside current.

it consisted of: some fans and ‘vents’ at the top of the

engine- room through which .air was drawn in, ‘Thus,

. 56

means of exhausting the contaminated air consisted of

-(1) the hose that was not used to spray, (2) the ‘blower,’

‘and (3) the increase of air pressure resulting from. the

intake of.the ship’s own ventilating system. Besides

this, an open door and ap open skylight led to the air.

A biochemist, familiar with the use: of tetrachloride,

after being told'in detail the size of the engine-room

and the apparatus installed, gave as his opinion that

‘the ventilating system in thie engine-room, even when

supplemented by the 3 egresl brought on board and:

installed by Doidge and deeéased was not ‘adequate -

to.remove the fumes.’ The competence of..this expert

‘to give an opinion was so much within the ‘discretion

of the trial court that only in a. clone ease should we,

overrule its decision.” patents ee

On: the. basis of. the evidence the jury could have found

: * that the defendant specified and ordered that carbon tet-~

rachloride be used in the cleaning in the engine room ‘of.

the vessel; that its engine room was a ‘confined space and

that the use of carbon tetrachloride in such an area without ‘

furnishing proper and adequate ventilating equipment was .

dangerous and would make the engine room an unsafe

place to work. The jury could further have found from

the evidence that the defendant knew or should have known:

that. the ship’s ventilating equipment was inadequate and

would not make the engine room a safe place to work; that

the defendant, ‘by its officers was present when additional |

equipment was placed in the engine room and that they

knew or should have known that this additional equipnient

_ was inadequate and would not make the engine room ‘a

_ safe’ place to work. ;

‘The jury could arid. did find that the delenit: was negii-

gent and that the Vessel and its equipment was inadequate

is and ‘unseaworthy. — :

The evidence discloses that.carbon tetrachloride. was spe-

- cifically ordered by defendant to. be used in.the confined

engine room of the vessel (R. 73; R. 130; R. 146). " Carbsn :

‘tetrachloride is a dangerous chemical (R. 109; R. 116).

It is five times heavier than air (R. 115). Taking into’

consideration the size of the engine room and the-amount’

of carbon tetrachloridé used during six hours, a concentra-

‘tion of at least 20,000 parts per million would bé produced

and be present if it were not properly removed by adequate

. ventilating equipment (R, 23; R. 24; R. 26; R. 27). A con-

centration of 50 to 100 carte per million units of weight

per unit of volume’ was considered a safe concentration

(R. 111). The concentration produced was at least 200 times

the allowable safe concentration,, Because of the weight

of carbon tetrachloride, the greatest concentration would

occur at the bottom of the confined engine room (R.. 115).

The full potential concentraticn was actually greater than

200 times the allowable safe concentration because there

was machinery which” oceupied. part of the space in the

engine room and the concentration was greater at the bot-

tom of the room where decedent worked: Proper ventila-

tion would require ventilating ducts at floor level and there’

were none at that level in the engine room (R. 117). The

auxiliary blower fan and air hose did not remove any

vapors as to: reduce the dangerous and unsafe concentration

of carbon tetrachloride (R. 36). It was conceded by defen-

‘dant’s expert that the éxisting. ventilation system of fhe

engine room was inadequate to remove the accumulation of °

carbon tetrachloride vapors in the engine room caused by

the use of carbon tetrachloride in the place as ordered by

defendant (R.. 144). The Chief .Engineer of the vessel _

knew or should have known of the type and capacity of

the ventilating system on his vessel. He knew that the

deceased was going to work in the confined. area of the

engine room with carbon tetrachloride as ordered by the

defendant and of the dangerous character of carbon tet-

rachloride when used in a confined space without adequate

. : = . ‘s A ice : \ ° 4

ventilation (R. 75; R. 76). ‘The Chief Engineer was not ~

called to testify-although he was still in the — of j

_ defendant (R. 138). .

_ The work which the deceased and his fellow employees: -

were doing, was done in conjunction with thework of. the

. ship’s crew and it was done with thé participation of and ..

under the control of defendant’s officers and agents (R. 75;

R. 76; R. 96; R. 124; R. 125; R. 130; R. 146).

- The carbon tetrachloride was ‘used’ ‘because it was. speci- =

fied by defendant..by name (R. 96). There were safer

substitutes for carbon tetrachloride which could have been

used (R, 97). |

Captain Haley had testified on ‘deposition - on ¢cross-ex-

amination by his own. attorney (R. 190) :

“Q. Captain, can you tell me ‘the sini for which

the ship was put into Rodermond Industries? A: For:

the annual overhaul.

Q. Just-briefly what did that ¢onsist of? A. That

consisted of deck and engine work.

an Repairs and overhaul? A. Repair and overhauls;

yes. ,

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

sir.

Q. To your knowledge w as it done ander any orders

‘of any of the memberstaf the Pilot Association!’ A.

- Under the aie eee marine superintendent.

: Q. When you say under the orders of the marine

_— superintendent, you mean in accordance with the spee-

‘ifications! A. That i is correct.” a.

_ The crew had vemniied on board the vessel and it par-

"ticipated in the work ‘going on, In fact the: specifications

provided with reference to the véry generators on which

deceased was working that “Crew to remove ang replace

8 cylinder heads for the port and stabd. generators” (R.

146). The ventilators belonged to the ship (R. 8), The,

59.

blower. belonged ‘“ Rodermona (R. 81). During the week

the engine.crew of the vessel worked on ‘the diesel engines

below decks (R. 75). The Chief Engineer was present on |.

Friday when Doidge made preparations and. put’ theblower -

in position, to do the work on voaacinasd (R. 76; R: 82).

~ Mr. Doidge had testified (R. -96) :

.*Q. ‘And was tle work ‘being done under the super-

_ vision of the chief engineer, as far as the engine room

was concerned? A. Oh, yes.”

_ He also testified (R. 104):

«Q. With reference to the ‘work w hich y you are doing, |

you. knew, you’ told us, of the dangers of carbon tet-

rachloride, if that correct? A. That is correct.

Q. And isn’t it a-fact that you spoke to the engineer.

_ of the vessel before you used it that Saturday? And -

did you talk to him about the danger of the carbon

tetrachloride, the carbon tetrachloride? A. He knew

about it. - ;

Q. You talked to him about it? A. Surely, That is

the reason we wanted the ship cleared.”

+ ’

The full complement of engineers and engine room crew

remained on board the vessel during the period it was at

Rodermond (R. 124). They maintained the engines and did

any other work that had to be’taken care of (R. 125). At.

| night the engineers usually slept .on board (R. 125). We

have already quoted the testimony of Captain Haley. that

the work on the vessel was done “under the orders of the

marine “superintendent,” ” an employ ee of the defendant.

The defendait failed to produce its Chief Engineer who -

would know of the condition of the vessel; the engine room,

the-ventilatoxss, and the arrangements made with Mr. Doidge ~

for doing the carbon tetrachloride work on a Saturday. -

He was still in defendant’s employ (R. 128)..They failed ~

‘to produce their Marine Superintendent who. was still in

their — (R. 139). They failed to have Captain saad é,

testify although be had been i in court and plaintiff had read

part of his testimony (R. 137). In short those witnesses —

who were in the best position’ to testify to the condition

of .the engine room, the ventilation system, and circum-

stances under which plaintiff perforrned his work were not

produced. In Chesapeake € Ohio Ry. Co: v. Richardson,

116 F. 2d 860 (6 Cir. 1941), cert. den. 313 U. S, 574, 61

S. Ct. 961, 85 L. Ed. 1531 gis Judge Hamilton remarked

"at page 865: get

“#4 * The unexplained. failure of a party to produce : |

a witness under such circumstances is a fit subject for

fair comment and may justify an inference unfavorable _

to the party. in’ default. *.*:* ” en

The defendant’s expert testified that the ship’ s ventilat-

ing system was inadequate for carbon tetrachloride cleaning |

to be done in the vessel’s a. room. He testified (R.

143): | ee emer ige

, ee pe.

-remove carbon tetrachloride from’ ‘the engine room!

_*’ 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 care 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

hgve a special blowing device to stir that, air up and.

permit it to any out with the rest of the exhausted :

air.’

The dangerous character of the carbon tetrachloride in

” the confined space of ‘the engine room was established 2:

the trial. Dr. Gaines testified (R. 116):

“Q. What about the: use of carbon tuteabhdartde in

confined areas? Is tha a safe or dangerous —

- A. In confined areas it is — :

—. o

The Court: What.do you mean by ‘ponfined areas’?

= Bales

_The Witness: ‘Any room where you do not have

° ventilation where the vapors, when ‘they do accumu- .

late, will gradually come down to. the level of the

individdal using it so that he can inhale them, In.-

not and do not escape from the room when it is being

used.” ”

The fact that the decebied died from carbon tetrachloride

poisoning \ was also well established (R. 107; R: 142; R. 143).

Dr. Gajnes’: testimony concerning the inadequacy of the

ventilation, even with Rodermond blower and the ; gas masks _

was not substantially challenged. Plaintiff’s atforney asked

‘a lengthy hypothetical question involving all the pertinent ~

“evidence in the record. Defense counsel: made an-objection .

_ which was sustained. Then the court asked (R. 36) :

“The Court: Tn other words, just rdférring-to con-.

ditions in the engine room as. they ae ei to you

by vounsel, do you have any opinion that-you ean ex-

press with reasonable certainty as to whether or not,

- the ventilating system in ‘that room was reasonably.

: adequate in order to remove the funtes?

The Witness: I have. an opinion. 2

The Court: And what is your opinion?

The Witness: My opinion is that it was not adequate. ie

The Court: All right, that is your opinion. That is

~~ all you want? «.

Mr. Baker: That’s all.”

2. CONCLUSION

The inadequacy of the ship’s venttiotien: system for the.

tise for which-it was, provided was not disputed. The knowl-

edge of. the officers ‘of the vessel of the work to be done by

-the decedsed and the place where it was to be done was not

denied. : | °

The defendant specifically ordered the use.of a chemical

ina confined area, which was highly. dangerous. The ven-,,

—

ae ee hee os

tilating system and auxiliary equipment were not adequate

for the work to be done; that is, spray cleaning with carbon _

tetrachloride. The defendant and its officers knew or should

have known of the unsafe condition created by the .inade-

quacy of thé ventilating equipment. The evidence supported

findings of negligence and unséaworthiness, which issues

were presented to the jury under — charges by the

trial court.

— Pursuant to the scat fe aw set forth in the ma-

Seely opinion of the Court of fants written by Judge

Learned Hand and discussed in this brief the verdict of

the jury is sound both-as } to the law applied and the facts"

presented.

WHEREFORE plaintiff requests that the judgment of the

“3. Court of Appeals be affirmed with costs on this appeal.

Respecif ully submitted, ?

NaTHAN Baker |

Counsel for Respondent —

re Baxer, GarBer & CHazen

_ Attorneys for Respondent —

BERNARD) CHAZEN

Miutron GARBER’

On the Brief

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.