# Brief for Respondent — United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0126%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondent - **Published:** January 1, 1959 - **Citation:** 358 U.S. 613 ## Text | JAMES R. BROWNING; Clerk Supe Court of the United States -OcTOBER ie 1958 - : No. 56 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). 10 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). H 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). yi 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). . . . = . ° * . ‘ . bd . . : \ ’ Ms bed . © « ° . ta - 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. ‘ ““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 19 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: 20 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 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 « oy “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 . , f { / / , yy, 38 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. ae a 39 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: “+ 40 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’ 41 ; . 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 y 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: - s y “¢ 2¢ © It is of no moment that it-was harmless .so ' 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. ‘) 5 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. — vd . . - 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 ‘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, * 49 \ 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 80 ' 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. ). ; 4 4 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 interpreted the Pennsylvania act. Both of these cases 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 = 2 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- . mond Industries spbeontracted this part of the job to © 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 | ftom the shore. One hose was used to spray the tet- © 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 ° 57 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, ° 60 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. “©. ins ‘your opinion, was. that system adequate to -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.- . © other words, thé vapors of carbow tetrachloride can- - 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0126%3A6. Public record. Not legal advice.