Brief for the United States as Amicus Curiae — United New York & New Jersey Sandy Hook Pilots Ass'n v. Halecki

Supreme Court brief1959

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’ Question presented __ --- -- - didiWetasisucwscsecdedses =e

: CONN oi son < ge dose <3 Cry es wa eon inoomaeen i

_- Interest of the United § Adee 3 es Oe ess eek 2d ey S )

- Introduction and Samat y of Argument Ee At dbase nwaeeee 9

PM 53 2s FSR MES Cod Ne oo nda ed dew swen 11

The seaworthiness doctrine does not, and should not,

apply to a vessel which is not warranted ready for

WOU 5 cok cheno ecw be ds welebnidiaseus he |

A. This Court’s decisions in Sieracki, Pope &

Talbot, Petterson, and Rogers cover only —

work performed on a vessel represented as

seaworthy for a voyage - -- -- tk Rp OS ae

_ B. There is no justification for extending the

ce Sieracki doctrine to cover work performed —

. on a vessel while it is not represented as

seaworthy for a voyage but is out. of

; navigation... - «..%:5--.--.-- ere a

Conclusion _ - - - - rasevaeace tee oe Wphase 7 Sues 21

Bs ob San base tees cl acbiedoneds vetee sce qe si pees 22

) CITATIONS :

Adams’ v. Bortz, 279 Fed. 521 bee’ wéuave advaide cada ey

Alaska Steamship Co. v. Petterson, 347 U. S: 396, -

affirming, per curiam, Petterson v. Alaska Steamship —

‘Cet, See Ob Bis a Ke. 7,8, 9, 11, 13, 18

Antus v. Interocean S. S. Co., 108 F. 2d 185_-_.------ 15

- Atlantic Transport Co. v. Imbrovek, 234 U.S. 52__-.- 13

Berge v. National Bulk Carriers Corp., 251 F. ad 717,

certiorari denied, 356 U.S. 958___.-.-21-2---2--- 18, 19

Bernina, The, (No. 2), 12 P. D. 58, affirmed sub nom.

Mills v. Armstrong, 13 App. Cas. 1 P. C_.:------- 2

- Berryhill v. Pacific Far East Line, 238 F. 2d 385, cer-

tiorari denied, 354 U. S. 938... ~ . (2... cece es 16, 20

Berti v. Compagnie De Navigation Cyprien Fabre, 213 ee

F.2d 397. ......-..+------ <Kitnnoseevnsbomece’ - 19

479431—58——1 * a). es neni eee

_ Cases—Continued ie Pose

_ Boudoin v. Lykes Bros. s S. Co., ‘M8U.S Sees 19

|. Butler v. Whiteman, 356 U. S. 271 ERS Ae gee AE Sie ‘14

‘Carlitle Packing Co. v. Sandanger, 259 U. S. 255__-.- 14 -

Curtis v. A. Carcia y Cia, 241 F: 2d 30. -------- aka 2

- Desper v. Starved Rock Ferry Co., 342 U.S. 187... --- 14,16 —

'. Dizon v. The Cyrus, 2 Peters Adm. 407,.7-Fed. Cas.

Ee - 11,20

Doucette 'v. Vincent, 194 F. 2d 834. ae er Sas bis sk haa 20

Gerrity v. Bark Kate Cann, 2 Fed. idinnsceeducwes ee | |

Gonzales v. U. S. Shipping Board, E. F. Corp., 3.F. 2d co

ee eee weaned gteensib scene 15

Graham v. A. Lusi, Limited; 206 F. 2d 223_-.....--- ae

Guerrini v. United. States, 167 F. 2d 352, certorari ‘

= I, HE Wis We ns hoc innnnaes'as osquncscons 8, 18.

Hanrahan v. Pacific Transport Co., 262 Fed. 951----- See

Hartford Accident & Indemnity Co, v. Gulf soil .

* - Co,, 230 F. 2d 346... -... et ERE eee ESS a

Hawn v. American S. S. Co., 107 F: 4. 008........-..

Hill v. Waterman Steamship Corp., 251 F. 2d 655,

pending on petition for a writ of certiorari, No. 147,

ERIE SE a ee ee selaiadsl 2

International Stevedoring Co. v. Haveriy, 272 U. 8. 50 12,15

MacPherson v. Buick Motor Co., 217 N. Y. 382_-- --- os a

Mahnich v. Southern S. S. Co., 321 U. 8.96 ieee pnere 14

Manhat.v. United States, 220 F. 2d. 143, certiorari

2 EP Bis We Os Sows onan +o sp-- cebhnaes - 20

Osceola, The, 189 U.S. 158-..-.----- ae Bee sash 414

Petterson v. Alaska S.-S..Co., 205 F..2d 478... ----..

Pope & Talbot, Inc. v.-Hawn, 346 U: S. 406. -.--.-.. 7,

8, 9, 11,13, 14, 16, 18 |

Reidy - v. United States, 153 F. Sen. 777, affirmed,

per curiam, 252 F. 2d" 117, cortionnes denieds 356

SAMs diiininie dn dacecelaiekendn ows 17

Rainey v. New York & P. S. S. Co., 216 Fed. 449-- “UL

- Rogers v. United States L Lines, ed U. S. 984, reversing Aan

£5 Es EEE cn acceettiats cl ekereesbdgeseccesan. 11, 13

Seat Shipping Co. v. Sieredki, 328 U8. 85... 7,

r 9, 10, 11, 12, 13, 15; 17,19

Seneca Washed Gravel Corporation v. “MéManigal,, -€5.__.

| "= eset ekippanties hake 15 .

Pea ame

Union Carbide Corp. v. Goett, 256 F. 2d 449, mrs

"on petition for a writ of certiorari, No. 307, this Page

Gees Us Sahel ae agn diese culecicdceucs 2,17

United States v. Waterman SHhamehip. Corp., 190 F.2d

DN kas dikasn heeds bada bidandaakedn@nnueas ae

West v. United States, 143 F. Supp. 473, affirmed July

9, NOOO (. A, 8) onsen een enee es 17, 22

Statutes: :

Federal Employers Liability a. 35 Stat. 65, 45

Me stan aaioel ene atcbansciannwoewh in ox . £2

_Longshoremen’s and Harbor Workers’ ‘Casnpeasetion ,

Act, 44 Stat. 1424, 33 U.S.C. 901_.--..- 2 o- 21

Merchant Marine Act of 1920 (Jones Act), 41 Stat.

-' 988, 1007, 46 U.S. C. 688..........2.2.-...- 12, 15,16

1 8 kh a eRe ee eee ee gutsinn anus 12

sth tg Bet OL Ee Oe Ee Teeuecsnanwe hag 3

N. J. Wrongful Death “Act, N. J. S. A,.2A: 31-1.

SEE EE ee Se .. 2, 7,16

"Miscellaneous: ;

Benbow, ‘Seaworthiness and , 9 Miami L. Q.°

PE aK Cher dicccunec ues adusnsane babs wee 12.

Curtis, Rights and Duties of Merchant Seamen (Boston, :

SE ed ibis wk end aac cedodcewne es 11

2 Parsons, Shipping and Aduiréity (Boston, 1869),

i A I et a hg Is ee a atl ae 11

Smith Liability for Injuries to Seamen, 19 Harvard —

a ie i4, 26

Tetreault, Seamen, Scaworthiness and ‘the Rights of

Harbor Workers, 39 ‘Cornell L. Q. 381 (1954). ~~. 12 , 20

gate

7 f x the Supreme dour of the tit ies

Octosen Ten, 1958

No. 56

Unrren New York AND NEW Jus ERSEY SANDY Hoox

‘Priors ASSOCIATION, A CORPORATION, AND UNITED

' New York SAnbDy Hoox ° PILoTs : ASSOCIATION, A

CORPORATION, PETITIONERS .

| ANNA Haxeckt,- ApMInisTRaTRIX AD PROSEQUENDUM |

| OF THE. EstaTeE oF WALTER JOSEPH HALEcKI, De- -

_ CEASED, AND ANNA HALECKI, ADMINISTRATRIX OF THE

; Karate OF WALTER JOSEPH HALECKI, DECEASED ~

ON WRIT OF CERTIORARI To THE UNITED STATES COURT OF

APPEALS FOR THE SECOND be ada

BRIEF FOR cm nm AS AMICUS CURIAE

OPINIONS BELOW .

The judgment of the United States District Court :

for the Southern District of New York, pursuant to

the verdict of a jury, was.entered without an opinion

» (R. 65-66).. The majority opinion,in the United

_ States Court of Appeals for the Second Cireuit (R:

147-154) and the dissenting opinion ‘(R. 154-160) are

- reported at 251 F. 2d 708. |

, (1)

2 2

JURISDICTION

“The ze of the Court of Appeals was entered °

on. J anuary 10,..1958 (R: 161). A timely petition

for rehearing was ‘denied on J [january 31, 1958 (R.

.. 171), and a petition for rehearing en bané was de-

_.nied on February 20, 1958 (R::172). The petition

for a writ of certiorari was filed on April 28, 1958,

and granted on June 9, 1958 (R..172; 357 U. S.

903). The jurisdiction of this Court Tests on 28

we. 8. C. 1254 ( 1).

QUESTION PRESENTED -

The only question discussed in this brief is the

following : | ee

. 1 While the United States takes no position, — in this brief,

with respect to those issues raised in the-petition for certiorari

concerning the applicabilitysof the New Jersey Wrongful Death |

Statuteand the extent to which contributory negligence may limit

or bar recovery thereunder, it has been our view in prior

litigation that, by virtué of 46 U. S. C: 767, the federal

. maritime law applies the state statute according to state —

law not. only as to rights in rem and limitations, but also.

as to contributory negligence, and, therefore, that the state

- rule, and not the admiralty rule as to contributory negligence,

should apply. See United States v. Waterman Steamship

Corp., 190 F. 2d 499, 503 (C. A. 5). Accord; Curtis v.

A. Garcia y Cia, 241 F. 2d 30 (C. A.°8); Hartford Acciderit

& Indemnity Oo. v. Gulf Refining Co., 230 F. 2d 346, 351

{C. A. 5); Graham vA. Lusi, Limited, 206. F, 2d 223 (C. A,

5); see; also, The Bernina (No. 2),°12 P. D. -58, -aftirmed

on ther grounds sub-noim. Mills. v. Armstrong, 13 App. Cas.

1; see also Hill v, Waterman Steamship Corp., 251.F. 2d 655.

(C, A. 3), pending ‘on petition for a writ of certiorari, No, 147,

this Term; Union Carbide Corp. v. Goett, 256 F. 2d 449, 453.

(C. A. 4), pending,on — for a writ of certiorari, No. 307,

this ne. ;

‘Whether a shipowner warrants the “seaworthiness’”’

of a vessel to a shore-based worker who performs .

labér on a ship which is not. ready for a‘ voyage’

- but is out of.navigation and docked in a private |

ea for its annual overhaul and repair.

| < STATEMENT

On September: 2 22, 1951, the pilot boat “New Jer er-

“sey,” owned by the petitioners, was brought into the —

private shipyard of Rodermond --Industries, Inc.

_ (Rodermond), located at the foot of Henderson

Street, North River, J ersey Cit#, New J ersey, for the

» purposes of. undergoing its annual overhaul and re-

pair (R. % 121-122, 124, 148). The overhaul required .

the vessel to be out of operation and in the repairyard

for approximately three weeks (R. 133). During this

period, four or five members of the deck crew, who

wera, brought into. the repairyard with the ship,

painted the ship’s deck; bridge, galley, mess-hall and

-rooms and performed certain minor repairs (R. 124).’ ;

The drydocking and major repairs, to be done by.

‘Rodermond, included in the “List of Repairs” drawn

up by Rodermond on September 24, 1951 (R. 10, 72,

146) an item under the heading “Port & Stbd Gen-

erators,” that the crew was to remove and replace the

eight cylinder heads for the port and starboard gen-

_ erators, and that Rodermond was to ‘“‘remove' the eight

2The “New Jersey” was described as being “about 170. feet

“Jong” with a displacement of 448 gross tons (R. 132). Her

- primary duties were to service pilots for ships entering and.

leaving New York-Harbor (R. 121-122).

- 2 When the ship was in regular operation it ordinarily car-

. ried from seven to ten deck employees! ( R122). >

so ‘

(8) heads to the shop, disassemble saine, grind i in the

valves, thoroughly clean out the heads, reassemble and

return to vessel.. Stone commutators to remove high ——

spots and ridges and cut clean to mica all. segment

bars. Clean and adjust brush riggings and barmahar:” 3

-(R. 146). :

. Under the same Re the ‘‘List of b Repairs,"

prepared by Rodermond further provided (ibid.): © ~

... §pray clean with carbon tetrachloride the arma-

ture and field windings to remove all traces of

dirt and film. Close up ahd prove in good

order.

Since Rodermond’s shipyeisa was not. ‘cialis to

perform electrical work (R. 16), it subcontracted this

_ part of the repair job, which included the’ spraying

of ‘the generators | with carbon tetrachloride, to a

regular electrical: contractor, the K & S Electrical

Company, the employer of the decedent, Walter J.

Halecki (R. 16; 71). ne ,

The K & S foreman,’ Donald Doidge, and the de-

cedent, Halecki, started working on the “New Jersey”’.

on Monday, September 24, 1951. On that date, Mr. ~

Doidge consulted with the ship’s chief engineer as to -.

when the subcontractor’s men could best do the earbon

tetrachloride spraying since*“‘we know it has to be

done when there is nobody else on board ship”’ (R.

73). Doidge had been an electrician for about twenty-

five years, and Halecki had. been working with him |

for. about six years. (R. 3, 71). They had used car-

bon tetrachloride to clean. generators located in fac-

' tories and buildings; their work had also inéluded .

ships (R. 11-12). _— testified he was aware of .

am)

the difference pinion work in a factory aiid in a

‘ship’s engine. room (R. 103).* He thought it unneces- -

sary to discuss with the ship’s chief engineer the —

danger or the special need of ventilation because ‘“We

knew what it was all about”? (R. / 74).

It was decided that Saturday, when nobody an

be present, would be the best time for the subcontrac-.

tor to do the work (R: 73-14).. Pursuant’ to these

| arrangements, Doidge and Halecki made preparations

on Friday for the spraying that would be done the

- following : day (R. 4, 75). - They brought -on board

~and into the ship’s engine room two air hoses and

a high egmpression ventilating blower, equipment

_ which belonged . to Rodermond (R. 4, 81).: One air

- -hosé was to be used to-spray the tetrachloride upon

‘the generator, and. the other, placed underneath the

; generator, was to blow the fumes) away fro

who was spraying (R. 4). The blower. was set so

that it would exhaust foul air out through one of the

two open doorways of the engine room (R. 5). .

‘It was-never controverted that, as petitioners’ expert testi-

fied,.the ship’s ventilating system’ was entirely adequate to ‘per-

form the function of ventilating the engine room with

air while the’ ship. was in regular. operation, but that no ship’s

ve: tilating system would be adequate te deal with the situation

pesuenti during the repairs, involving a substance which set-

tled to the floor where the ship’s ventilating system could not

dislodge it (R. 40, 144) :-—“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.”

* Carbon tetrachloride is a substance which settles to the floor

from which it cannot be dislodged by. _—* ventilating . ie

‘ equipment (R. 111, 115, 117, 121).

470481—58—— 2 “aaa 4

On Saturday. morning, Slecéamiber 29, Doidge and

- Halecki boarded the ‘‘New Jersey’’ to undertake the =

- spraying (R. 6, 9135).. The only’ other person aboard |

the vessel was the watchman, Walter C. Thompson,

who was warned to stay out of the engine room and

to prevent others: from going down there (R. 135).

Doidge and .Halecki brought with them three gas-

masks jand 10 gallons of carbon tetrachloride which

belonged to their employer, K & S Electrical Com-_

pany (R. 6, 9, 91, 99). The masks were checked but

their sufficiency was not tested on this oc casion CR.

99-102). ea

Siewkin the ship’s engines and: auxiliaries. were - |

shut down or “dead” for the entire period that: the

- ship was out of operation and undergoing repair

_(R. 7-8), it was necessary to bring-in current from a

shoreside generator’ to opérate not only the equip-

_ ment that Doidge and Halecki had brought on board |

but also the ship’s own ventilating system which they

kept, properly operating at all times, atthough it

served only to bring in fresh. air (R. 7-8, 12-13).

Similarly, they kept the engine room doors and sky-

_ lights wide open at all times (R. 5-6, 15, 102).

_ Halecki wore a gas-mask and did most o. the spray-

ing. The work began at about 9:00 a. m. and concluded

_at about 3: : 30. p.m. (R. 92, 94) ; it was’ performed ten

to fifteen minutes at a time with - intervening rest

periods of equal length: (R. 10, 93, 156). Halecki be-

~ eame ill the f ollowi ing day and died two weeks thereafter

~ from earbon. tetrachloride poisoning (R. 107, 156),

* This shoreside generator, necessary to furnish ‘power for the

dead ship, belonged to Rodermiond (R. 13).

> Tee :

‘ | ee

- Respondent, administratrix of the decedent’s es-

tate,» brought suit, pursuant to the New Jersey

Wrongful Death Statute, in the United States Dis-

trict Court for the Southern District of New York.

‘The complaint, based. upon two counts, alleged (1).

negligence in providing an unfit place to work for the

decedent; and (2) breach of a watranty of ‘‘sea-

_worthiness”’ (R. 148, :149), The case was submitted

to the jury on both counts, .and the jury found in.

favor of the respondent in the total amount of $65,-

000° (R. 64-65). Judgment was entered accordingly

_(R. 65-66). Che ee tae a hee Naas

- The Court of Appeals affirmed, with Cireuit Judge

~ Lumbard -dissenting, The majority held, inter alia,

that, in view of this Court’s prior decisions in Seas:

Shipping Co. v, Sieracki, 328 U_S. 85, Pope & Talbot,

Inc. v. Hawn, 346 U. S. 406, and Alaska Steamship Co.

v. Petterson, 347 U.S. 396, the warranty of “seaworthi-

ness’’ was properly extended to the decedent in the ¢ir-. -

‘cumstances. The court stated (R. 150-151):

** * We can see no distinction between. the

work of the ‘decedent in the case at bar and

that of the plaintiff in Pope & Talbot Vv; Hawn,

supra (346 U.S, 396), which Was carpenter's.

‘Trepair Work. We think that the test is whether ’

the work is-.of a kind that traditionally the °

: f 3 ?

_erew has heen aceustomed to de, and as to that

it makes no difference that the means employed

* Damages of $62,500 were awarded for “pecuniary loss to the

widow and dependent children”: damages of $2,500. were

awarded for “conscious pain and suffering: to the decedent” (Rh.

66). Proper ebjectians to the charge that the warranty of sea- .

worthiness applied were taken (R. 62). and proper motions; in

arrest of @#lement made (KR. 64).

--have changed with time, or whether defective

apparatus was brought aboard and was not

part of the ship’s own gear: Since the de- —

, ceased was cleaning the ship, we hold that it

was within the doctrine ‘of nems & Talbot v.

Hawn, supra.”

Judge Lumbard, in his dissenting opinion, was

unable to subscribe to the principle that “a shore-

- based: worker who performs any labor on a ship, even

though the ship is out of operation and tied fast to

a dock for ‘overhaiil, should have extended to him a

warranty of seaworthiness merely because the work

which he is. doing can be generally characterized in |

terms of the duties which a seaman could be expected

to perform”. He declared (R. 154) :

It is not enough to categorize Halecki’s work

‘as cleaning. ship’ s equipment. Here the in-

escapable fact is that Halecki, in spraying the

generato?y with carbon tetrachloride, was doing

' something w ich a seaman. could not do, which

no seaman had ever gs 6 and which would

expose the seaman’s life | serious ~— if

he even attempted it.

J udge Lumbard would have sinlliant and viksstindea :

the case for a new trial solely on‘ the issue of

negligéhee (R. 160).

* Judge Hand for the majority assumed that the Second Cir-

cuit’s earlier decision in Guerrini v. United States, 167 F. 2d

352, certiorari denied, 335 U. S. 843, was “wrong” in view of this

Court’s subsequent decisions in Pope & Talbot and Petterson.

Judge Hand, however, did not give weight to the fact that in

* Pope & Talbot the vessel was loading for her voyage and the work

performed was directly related thereto, while in Guerrini, as here,

the work was being performed on a vessel taken out of navigation

for the specific purpose of a repair.

aes

INTEREST OF THE UNITED STATES: .

The United States is directly interested in the basic

issue posed by this tase, viz, whether a shipowner is.

to be held absolutely liable, irrespective of négligence, :

‘for damages sustained by a shore-based worker who

performs labor gnga vessel which is not represented —

to be ready and seaworthy for a voyage but, on the

contrary, is out of regular operatiofi. As the world’s

largest shipowher, the United States has an impor-,

tant financial stake in the resolution of this legal prob-

lem. There are now pending several ¢laims involv-—

ing ‘government vessels, comparable to respondent’ 6

claim. Since the Tni ted States acts as a self-insurer

with respect to many of its vessels, its special inter-

est in this problem is far greater than that of most

shipowners. 3 °

INTRODUCTION AND. SUMMARY OF ARGUMENT

Upon the premise that the decedent, in cleaning

the ship’s generators with carbon tetrachloride spray, .~

was performing work “of a kind that traditionally

the crew has been accustomed to do” R. 150), the

court below has | concluded that, in view of this .—

Court’s decisions in Seas Shipping Co. v. Sieracki,

328 U. S. 85, Pope & Talbot, Inc..v. Hawn 346.

-U. -8. 406, Alaska Steamship Co) v. _ Petterson,

347 «UL S. 396" the shipowner warranted the “sea-

worthiness” of its vessel to the. decedent, although

— eoncedediy ‘the vessel was not represented as ready —

for a voyage but on the contrary was withdrawn from

regular regular operation. It is not our. purpose in this.

~"¢ Affirming, per curiam, " Petiereon v. Alaska Steamship Co.,

205 F. 2d 478 (C. A. 9).

10 2

" brief’ to. dispute the premise of the court below that

cleaning is seamen’s work or to engage in the almost

impossible task of delineating | precisely what work.

the crew has been “‘traditionally’’ accustomed to

perform. Rather, starting with full acceptance of

Sieracki and this Court’s subsequent cases, it is our

aim to show-that the “type of work’? test is not de-

terminative. _of-the problem; that the shipowner’s |

| warranty ofa “seaworthy vessel is for a voyage, with |

all its incidents of loadi ng and unloading, and does

= not: extend to situations, as here, where the vessel is

not ready to go to sea’ but has. been taken out of

operation for the specific purpose of doing, work :

‘directed to ensuring its s@aworthiness upon its sub- |

sequent return to operation. Thus, we show that

the warranty of ‘‘seaworthiness,” as established, by

this Court’s decisions, does not and should not be

extended to situations involving services performed

on a vessel while it is not represented to be sea- |

. worthy for a° voyage, but, on the contrary, is out of

_ operation. We show further that neither historical,

~ nor other considerations, would justify the extension .

of the ship wner’s burden of absolute liability from

vessels ready “for sea and for loading and unloading

in port to those, in the words of Judge Lumbard,

“beyond the shipyard gates” (R. 157). es

ARGUMENT

THE SEAWORTHINESS DOCTRINE DOES NOT, AND SHOULD

NOT, APPLY TO A VESSEL WHICH IS NOT WARRANTED |

_ READY FOR NAVIGATION ©

4. THIS COURT'S DECISIONS IN SIERACKI, POPE 4 TALBOT, PETTERSON,

AND ROGERS COVER ONLY WORK PERFOEMED ON A VESSEL REPRE- .

SENTED AS SEAWORTHY FOR A VOYAGE .

In Seas Shipping Co. v. Sieracki, 328 U. g, 85, “

the Court extended the. shipowner’s absolute war-

ranty of a seaworthy. ship from those, such as -

shippers, passengers ‘and seamen, who are in privity

of contract with the shipowner, so as to bring within

its protection longshoremen,.and other shore-based —

workmen employed by independent special contractors |

who are engaged nonetheless in work incident to—

the loading or unloading of the vessel in the course

of its voyage.” The rationale of this. extension, fore=s..

shadowed by Judge Benedict’s opinion in Gerrity v.

Bark Kate Cann, 2 Fed. 241, 246 (E. D. N. Pay

and similar to that of M acPherson v. Buick Motor Co.,

“217 N. Y. 382, is that the shoreworkers, although not

sel’s seaworthiness for the voyage as were shippers and passengers _

was recognized by Judge Peters in Dixon v. The Cyrus, 2 Péters

- Adm. 407, 7 Fed. Cus. No. 3,930 (D. Pa.), and was early affirmed

by the textwriters. Curtis, Rights and Duties of Merchant Sea-

-« men (Boston, 1841), p- 20; 2. Parsons, Shipping and Admiralty ;

i. (Boston, 1869), p. 78. The classical formulation is found in

| Rdiney v. New York & P.S. S.Co., 216 Fed. 449, 453 (C. A. 9),

where, after discussing the warranty of sea worthiness for the

voyage as applied by this Court i in the case of shippers, the court.

declared: “A fortiori does the sane rule apply to cases where the’

lives of passengers or crew are involved.” For the history of the

doctrine in seamen’s cases see Adams v. Bortz, 279 Fed. 521

(A.%. : :

' 12

in privity of contract, are equally within the repre-

sentation of the vessel as seaworthy for the voyage.

The Steracki .decigion was: further based on the

premise that loading and unloading were part of the

voyage and that, ‘Historically the work of: loading —

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

_ formed until recent times by members-of the crew’’

(328 U. S. at 96)." The Court held, therefore, that’

the shipowner could not escape the consequences of

his traditional - representation of the vessel as sea-

worthy for the voyage by parcelling out to inter-

, mediary employers services incident to navigation

which were traditionally. performed by seamen. “For .

these purposes he- [the longshoreman] is, in short, a

seaman because he is doing a seaman’s work and in-

curring a seaman’s hazards’’ (328 U. S. at 99). bis

The Court found further support for its result in

‘‘the trend and ‘policy’’ (328 U. S. at 97) of its prior

. decisions 'in which longshoremen loading and unload-

ing vessels were treated as “‘seamen’’ and. thus con-

ferred rights of recovery under the Jones Act * (In-

ternational Stevedoring Co. v. Haverty, 272 U.S. 50); —

and in which an injury:to a longshoreman was classi;

4 This factual premise is sharply disputed in Tetreault, ‘ .

man, Seaworthiness and the Rights of Harbor Workers, 39 Piciah

L, Q. 381, 413-414 (1934). A scholarly account of the seaworthi- —

nesg doctrine Is found in _Benbow, Segmorthinese: and Seamen, 9

Miami L. Q. 418 (1955).

2 Thé Merchant Marine Act of 1920, 41 Stat. 988, 1007, 46

U. S. C. 688, extended to “seamen” the benefits of the Federal Em-

ployers Liability Act, 35 Stat. 65,45 U.S.C. 51. By statute (46

-U. S. C. 713), “seaman” includes “ every person (apprentices exy

cepted) who shall be employed or engaged to'serve in ariy capacity

on board.”

fied as a marine tort and thus considered within the

admiralty jurisdiction. Atlantic Pransport Os. v. Im-

brovek, 234 U.S. 52.

In three subsequent decisions, involving. loading or

_ unloading for the course of a voyage, this Court has

reaffirmed its Steracki conclusion. In Pope & Talbot,

Inc. v. Hawn, 346 U. s. 406, a carpenter whose work

involved the repair of a ‘‘slight defect” in the ves- -

-sel’s loading equipment, and who ‘‘was put to work

on it so that the loading could go on at once” (id. at

413), was held to be entitled to recover on the ground

of unsc¢aworthiness. Again, in Alaska Steamship Co,

V. Petterson, 347 U.S. 396, the Court affirmed, per

curiam: and without opinion, a decision of ‘the Ninth

‘Circuit’ granting the protection of the warranty. of

seaworthiness to a longshereman injured by a break- :

ing block while engaged in loading the vessei fora

voyage. And, finally, in Rogers v. United States Lines,

347 U. S. 984; the Court held, again per curiam and

_ without opinion, that a longshoreman unloading at the

; voyage end was equally within the warranty."*

Thus, in each: -of the cases in which this Court _ a

applied the warranty of seaworthiness to non-mem-

bers of the.ship’s company, it is plain that the vessel

was in navigation on a voyage and represented by

her owner as being seaworthy for that purpose, with

the work performed by the particular employe? being

‘directed to the immediate carrying out of the ship’s

voyage ; imp Sieracki, Petterson and Rogers, there was

loading or unloading of the vessel in the execution of

% Petterson v. Alaska Steamship Co., 205 F. 2d 478.

| ™* Reversing 206 F.9d 67 (C. A. 3). erin

her veyage, and in Pope & Talbot the performance of

work related inextricably to the loading for the voyage

itself. In none of these cases had the vessel com-

pleted her unloading and been withdrawn from navi-

gation, as here, for the sateen purpose of making it:

seaworthy for future voyages.” On the contrary, the

vessels were in active navigation on their voyages;

they were held out by their owners as being in all

respects in a seaworthy condition for their voyages;

and this. Court recognized that those who were doing

the work of seamen were entitled, even in the absence’

of privity of contract,. to rely, like crew members, .

upon the owners’ implied representation of the vessels’ —

seaworthiness for their respective voyages.

B. THERE IS No, JUSTIFICATION FOR EXTENDING THE S7KRACKI boc.

‘TRINE TO COVER WORK PERFORMED ON A VESSEL WHILE IT I8 NOT

_ REPRESENTED AS SEAWORTHY FOR A VOYAGE BUT I8 OUT OF NAVI-

GATION

This Court and other federal courts have consist-

ently ree ognized the distinc tion between the legal situ-

ation of a seaman working on a vessel in navigation

on a voy age and one who works on a vessel which has

heen. removed from’ navigation." For example, in

Desper v. Starved Rock Ferry Co., 342 U. S. 187, the

-46 The crew member cases similarly involved éaly the warranty

of the vessel’s seaworthiness for a voyage. Mahnich v. Southern

S. 8. €o., 321 U. S. 96; Carlisle Packing Co. -v. Sandanger, 259

U. S. 255. Cf. The Osceola, 189 U. S. 158, 175, and see Smith,

Liability for I eaten to samen, 19 — L. R. 418, 422-424

(1906).

** The fact thatthe “New Sesser” was in navigable waters while

it was withdrawn from regular operation for its overhaul (R. 80-

81) does not, of course, make it a Ship in navigation. See Butter

_y. Whiteman, 356 U. S. 271. Althéugh the issue of whether a

ship is in navigation is ordinarily one for-the trier‘of fact, idid.,

.13°

Court passed upon the question of whether ‘one doing ..

~ seasonal repair work on a boat after the end vi cis

navigation continued: _to be a “seman” within the

meaning of the Jones Act." - The. decedent, Desper,

~ had been employed duriiig’ the summer months as an

_ operator of one of a fleet of motorboats carr ying sight-

seers. His employment had been terminated and

thereafter he had helped to lay up. the bouts for the

wiuter. He was then reemployed in ‘the spring and

was injured while helpifig td paint, clean and water-

proof the boats.in prepdring them for navigation. At

> the time of the j none of Ahe boats was aftoat,

nor did. they have a‘captain or crew. The Court con-

eluded that, “while engaged in such seasonal repair

work Despet was not a ‘seaman’ within the purview

of the Jones-Act. The distinct nature of the work is

emphasized by the fact that there was no vessel engaged

in navigation at the time of the decedent’s death. All

had been ‘laid up for the winter’, ” Td. at 191. See,

also, Antus v. Interocean S. S. Co., 108 F. 24 185 (C. A..

6); Hawn v. American S. 8. Co., 107 F. 2d 999 (C. A. 2);

Seneca’ Washed Gravel Corporation v. McManigal, 65

2d 179 (C. A. 2); Gonzales v. U.S. Shipping Board, ee

_ E.F.Corp., 3 F.2d 168 (E. D.N. Y.). |

it was neither put to the: jury in this case nor was it ever raise?

by either of the parties in the’ courts below. In any event, we -

do not think that reasonable men. could conclude other than that

_the “New Jersey,” with its engines, and generators dead and its ©

power being supplied by a shoreside generator while indergoing

Tepair, was a ship out of navigation.

7 It will be cemembered, supra, p. 12, that the Court, in

Sieracki, found support for its conclusion that the Tongshoreman

was. to be regarded as a “seaman” in another Jones Act case,

Foneeanapnes cmuntorng Co. v. —e 272 U.S. 50.

We ean perceive no sound distinction between the

status of the vessels and the type of work being per-

formed in the Starved Rock Ferry Co. case and the

status of the ‘(New Jersey” and the type of work

being performed in the instant case. While the vessel

here had not been “‘laid up for the. winter,” it had

nevertheless completed its voyage and been withdrawn

from service fur the purpose of undergoing its annual

overhaul and repair. The repair work being per-

formed was not an incident of ‘the current voyage nor

of a hurried nature as in Pope & Talbot, Inc. Vv.

‘Hawn, supra, 346 U. S. at 412: The overhauling of -

the .‘‘ New Jersey” required its presence in the con-

tractor’ s shipyard for. some three weeks, and the spe-

cialized work. subcontracted out by the shipyard to

the employer of Halecki and Doidge, which took al- -

',most an entire working day, was expressly under-

" taken at a time when no crew but. only a watchman |

_would be aboard. In these circumstances, we submit,

Halecki was no more properly a ‘‘seaman’’ for pur-.

. poses. of a warranty of ‘‘seaworthiness” than was the

worker, Desper, in the Starved Rock Ferry ease for

the purposes of Jones Act recovery.

Although, in many decisions, the mattis have eels

referred to the particular type of work the pa*ticular

employee was performing, the lower courts have rec-

‘ognized implicitly that the status of the vessel at the

- time of the injury is a crucial factor in determining

the nature of the work and the existence of a war-

. yvanty of thé vessel’s seaworthiness. In Berryhill -v.

Pacific Far East Line, 238 F. 2d 385 (C. A. 9), cer-

tiorari denied, 354 U. S.-938, the claimant was a

‘

workman of a shipyard corporation ineiatth in repair #

- of the shipowner’s vessel which was in drydock with »

only a skeleton crew aboard. While repairing the

‘propulsion machinery of the vessel, a grinding wheel

furnished claimant by the shtpyard corporation dis-

integrated causing. his injury. In rejecting the argu-.

ment that the Sieracki rule was applicable, although

the vessel was not. engaged on a voyage, the Court of

Appeals stressed that “the repairs had nothing to do

with loading or unloading the ship’’ and were ‘‘noth- —

ing of.an improvised, hurried nature, done to save the .

‘ship work’ time, but were of sufficient importance to

cause the ship to be drydocked”’ (238 F. 2d at 387).

* In Union Carbide Corp. v. Goett, 256 F. 2d 449

(C. A. 4), pending on petition for a writ of certiorari,

No. 307, this Term, a. repairman was drowned when he.

fell into the water from a barge whicli was not in its

ordinary operation but was modred at his employer’s —

repairyard, and the vessel was ¢laimed te be “unsea- ~

worthy”’ because not equipped with life rings to throw

to him. The court held that the vessel had been

“withdrawn from navigation’? and “The warranty

of seaworthiness does not apply in that situation” —

(id. at 455). See, also,.Raidy v. United States,

153 F. Supp. 777 (D. Md.), affirmed, per curiam, 252

F. 2d 117 (€. A. 4), certiorari denied, 356 U. S. 973.

So, in West v. United States, 143 F. Supp. 473 (E.

D. Pa.), affirmed by the Court of Appeals for the

Third Circuit on July 2, 1958, * the Court of Appeals ©

declined to find that a warranty of seaworthiness was

WA copy of this opinion is set forth in the Appendix, sailan

- pp. 22-26.

ae 18

available to a claimant who was working on board

a vessel which had been deactivated during the Ko-

rean hostilities, and, while alongside a pier in Phila-

delphi with a skeleton crew on board, was being

prepared for service by a contractor. The court ob-

served (Appendix, infra, p. 25): “We do not think

that the [ship] at the time of this accident was a ship

in navigation nor do we think that the work which

[claimant] was doing was seamen’s work sv that the

wartanty of seaworthiness ran to him.”’

The error of the Second Circuit in this case in

failing to consider the status of the “New Jersey’’ as

not represented by her owners as seaworthy for a

voyage but, on the contrary, as a ship withdrawn —

from navigation at the time of the injury * is em-

phasized ;by another decision of that court, entered ri

the same day, in Berge v. National Bulk pee:

Corp., 251 F. 2d 717, -certiorari denied, 356 U. S

ranty af seaworthiness to a rigger, engaged in’ in-

a vessel, who was injured when a defective shackle

pin caused a chain tackle to fall and dislodge him

- 958. In that case, the court held there was no war-

_ stalling a tank bulkhead in the course of rebuilding

from a scaffold. The court, recognizing that the ee

shackle pin, was obviously, ‘in the language. of the

Second Circuit’s earlier decision in Guerrini v. United States,

167 -F. 2d 352, certiorari denied, 335 U. S. 843, refusing to

- extend the warranty of seaworthiness to an employee cleaning

the ship’s tanks while the ship was out of navigation and

in a shipyard, was “wrong” in view of this Court’s subse-

quent decisions in Pope d: Talbot and Petteraip. “See fn. 8,

supra, p. 8. . .

; 19

trial judge, “unseaworthy ”: (251 F. 2d at 718), never-

theless held that there was no warranty of seaworthi-

~ ness to the claimant because “the reconstruction we

~ a ship was not as ainseceted the task of the crew’

(tbid.). .

If the warranty of on ae is not viewed as

of the vessel’s seaworthiness for the voyage, the rig-

’ ger’s work in Berge, as Judge ‘Lumbard noted in

the instant case (R. 159), could. easily have’ been

_ characterized ‘‘as lowering a heavy load into the hold,

a normal seaman’s duty done without abnornial risk’

of harm.’’ This would have been eonsistent with

the characterization of Halecki’ s work in the instant

case as “cleaning.” ‘However, since the ship in Berge

was equally clearly not a vessel in navigation, it

becomes plain, in our view, that the claimant could

not be considered a “seaman” entitled to a war-

ranty of seaworthiness for the voyage. within the.

Sieracki rule. Similarly,. the fact that the vessel

here was withdrawn from navigation at the’ time.

of respondent’s injury should. prevent the finding .

of any warranty of seaworthiness. because there was

‘no representation of’ fitness for a voyage.

-_In all events there is no question but that i in the pres-

MS ent case the. ship’s own ventilating equipment was “‘sea-

worthy” for the purposes of ventilating the-engine.

__ rogm—the only purpose for which it was designed to be

used while the ship was in navigation (R. 40).” At a

| 2» Cf.\Berti v. Compagnie De Na avigation. Cyprien Fabre, 213.

F. 2d 397, 400 (C. A. 2): “The warranty of seaworthiness]

requires only that equipment be reasonably fit for the ase for

which it was-intended.* * *” See also Boudin v. L ykes Bros.

> o

fe oe The

time when. the ship was not in ‘the execution of a

voyage, but out of navigation and undergoing repair,

it was the use of the subcontractor’s equipment—for-

eign to the ship, and, as the record discloses, foreign

to any ship—that brought about decedent’s injury.

In these circumstances, we submit, there is no justifi-

cation for the extension of the warranty of seawor-’

- thiness rangeecncenee 4 made i in respect of a st in navi-

gation on.a voyage.”

‘It should be noted that, even | in the absence of a

respondent?’ 8 decedent—working on a vessel that is

not in readiness for a voyage-—are not without remedy

against the shipowner, the shipyard, or their. em-

ployer. See especially Berryhill v. Pacific Far East

Line, sitpra, 238 F. 2d at 387-388. Actions based

- upon negligence, particularly in failing to furnish a

safe work place, may still be brought against the ship- |

S. 8. Co., 348 U.- ‘S. 336, 339; Doucette v. Vincent, 194 F. 2d

834, 837-838.(C. A. 1); Manha? v. United States, 290 F. 9d

143, 148 (C. A. 2), certiorari denied, 349 U. S. 966; Hanrahan

v. Pacific Transport Co., 262 Fed, 951, 952 (C. A. ae

seamen is’ correlated to that to shippers and passengers and .

made its first. appearance in American jurisprudence in cases

where mariners. were suing for their wages and where the un-

seaworthiness of the vessel “at the commencement of the voy-

age” would ee eee by the mariners. F. g.

Peters Adm. 407, 7 Fed. Cas. No. 3,930

‘at p. 757 (D. Pa); see Tetreault, Beaman, Seaworthiness and

the Rights of Harbor Warkers, 39 Cornell L. Q. 381, 389-390;

Benbow, Seaworthiness and Seamen, 9 Miami L. Q. 418; —

Smith, Liability Serie spel anestot 19 Harvard L. R. 418,

423-424.

, 2

owner ot shipyard.” And thé employer may be pro-

ceeded against under the Longshoremen’s and Harbor

Workers’ ‘Compensation Act, 44 Stat: 1424, 33 U.S. C.

901, or, seeyrrencer ite 4 under applicable state remedies..

CONCLUSION

- The District Court erred ‘in instructing , the jury .

that in the cireumstances of this case the defendant —— | :

had warranted to the plaintiff’s decedent that the ves- _

sel was seaworthy. in ‘respect of the suffici¢ney of the.

ventilating equipment brought aboard by Halecki’s —

employer to supplement the ship’s normal ventilating —

equipment. It is therefore respectfully ‘submitted

_ that the judgments of both courts below should be

reversed.

J. LEE Ri

‘ olicitor General.

Grorce CocHRAN Dovs, .

Assistant Attorney General. ‘

SaMvuEL D. SLADE,

LEAVEN WORTH CoLsy,

sien FARBER,

Attorneys.

| SEPTEMBER 1958.

bed

In this case, it is impossible to tell whether the jury 's ver-

dict was based ori the unseaworthiness count or on -the count

. Charging failure to furnish a safe et em, See the State-

ment, supra, pp. 7-8.

VE "APPENDIX

United States: Court of Appeals for the Third

Circuit

? No. 12,507

a ace iy Kaan ALLEN WEst, APPELLANT

bs ae} v.

UNITED Sixes or. AMERICA, Univen. STATES Devanr-—

MENT OF COMMERCE, MARITIME ADMINISTRATION, RE-_

SPONDENTS |

a. “ ri Vv. ‘

Artiantic Port Contractors, INC., IMPLEADED:

j RESPONDENT oe

APPEAL FROM: THE UNITED STATES DISTRICT COURT FOR

2. THE EASTERN DISTRICT OF PENNSYLVANIA

Argued Tune 2, -1958 ak

& Before Maris, Goopricu and McLav GHLIN,

7 Ciremt Judges. oe

~ >

Opinion of the Court

(Filed July 2, 1958)

By Goopricn, Circuit Judge. a

This is an apped from a judgment for the respond-

ent in.a personal injury case brouglit by thé Jibelant —

against the United Siates ‘as owner of a ship called

“S..S: Mary Austin.’’ The. case is here for the sec-

ond time. - Following the first. hearing, we sent it

back to the district court for a further finding which

has been made, 246. F. 2d 443 ( 3d Cir. 1957). The

' (22) an

« .

x: Fy

case comes to'us after a very competent discussion

- of its problems by the trial judge, 143 F. Supp. 473

(E. D. Pa. 1956), which has already been cited with

approval by other courts.’ _We do not need to state

more .than a brief summary of the facts for the pur-

pose of our‘diseussion here.

The “Mary Austin,’ owned by the United States,

was-one of the ships put in ‘‘nioth balls’’ at Norfolk,~

Virginia, after World War II, During the Korean

. conflict the’ decision wasmadeé to reactivate her and |

‘ she was towed’ from Norfolk to Chester, Pennsylva-

nia, and from Chester brought up and tied alongside

a pier in Philadelphia. The contract for the work _

_ to put the ship back in service was let to a concern

called Atlantié. Port Contractors, Ine. This- “company:

- had full charge of the work. On the day of the acci-

- dent which is the source of this litigation, West, an

engineer, was working i in the low-pressure cylinder of.

the ship’s main engine. He was hit on the knee by a

metal’ piug which came out of an overhead water pipe.

when some other employee,of the contractor turned

con the .water without warning. ‘The plug was evi-

dently loose enough so that the pressure of the water. -

forced it from the pipe. Ww est sues for the. injuries’

- thus received. \

The libelant’s case is in the. usual form for this

ty pe of litigation. U nseaworthiness is charged; like-

wise, negligence in failing to provide plaintiff with |

a “safe place to work.”’ The latter can be treated “~ :

first because its diseussion will take-a very short time.

- On West’s behalf it is urged that the duty to provide |

a safe place to work is absolute: and nondelegable and

‘ Berge v. National’ Budk Citta Inc./ 148 F. Supp. 608

(S. D. N. Y: 1957), affd., 251 F. 2d 717 (2d Cir. 1958) ; ep

v. United States, 153 F. Supy. 777 (D. Md. 1957), aff'd., 252 F.

2d 117 (4th Cir.), cert. denied, 356 U.S. 973 (1958).

hence the United States, as owner of the ship, can-

not escape responsibility by placing a contractor. in

charge of the ship. In other words, we would have,

if libelant’s theory were followed, something like, and

even greater than, the insurer’s ‘liability. for sea-

worthiness which an owner fails to fulfill at his peril.

. But the legal responsibility for the place i in whicha

workman earries dn activities is not an insurer’s lia-

’ bility for safety but responsibility only for the .exer-

cise of reasonable care with regard to the premises

‘but not an absolute one. It is rather a nondelegable

obligation that reasonable care shall be used. This

was pointed out with elarity by this Court in Bar-

bazon Vv. Belships Co., 202 F. 2d 904 (3d Cir. 1953),

and reiterated, by us in Osnovitz v. U nited States, 204

F. 2d 654 (3d Cir. 1953).

So: far as these premises were seuaniad there was’ -

no lack of safety. Even if the plug was loose that |

did. no harm to West or anyone else. The accident to

West came because a fellow employee of the contractor

did a positive and negligent act.. For such. super-

added, affirmative éonduct, the owner of the prensises

is not responsible. See 2 Restatement, Torts § 426

(1934). °

We ‘come then to the ‘vedios of seaworthiness.

_ Here is a responsibility not discharged by the exercise .

- of reasonable care. Mahnich v. Southern Steamship

' Co., 321 U. S. 96. €1944), In Seas Shipping Co. v.

| Steracki, 328 U. S. 85 (1946), this protection, Was eXx-

tended to a stevedore who was doing seamen’: ’s work.’

7 At least the theory was that he was doing seamen’s work

although it is now asserted that the premise is incorrect. “See

Tetreault, Seamen, Seaworthiness, and the Right« of Harbor.

Workers, 39 Cornell L. Q. 481, 413-14 (1954).

et os

We do not think that jhe ‘‘Mary Austin” at the time

of this accident was 4 ship in nayigation nor do we.

| think that the work which West was doing was sea-

men’s work so that the ‘arranty of seaworthiness ran

to him.

Counsel for the libelant insists that anything float-

ing on the water is in navigation although he concedes

that an une ompleted vessel just latinched is: not in

_hayigation See Franke v. Bethlehem-Fairfield Ship-

yard, Inc., 132 F.2d 634 (4th Cir. 1942). But ef.-

United States Vv. Lindgren, 28 F. 2d 725 (mM Cir.

1928). |

The closest ruling’ authority is Desper v. Starved

_ Rock Ferry Co., 342 U. S. 187 (1952). There sight-

seeing boats had been hauled up on the shore for the

- winter layoff. The Court held that the warranty of’

seaworthiness did,not extend to the libelant’s decedent

who was’ fatally injured while engaged in painting

and repairing | these vesseis in preparation for their

seasonal — launching: We do not find in the Court’s

discussion in ‘that ease any such rule of thumb test

as contended for by the appellant: We think the rea-

-son which controls here is that the vessel was out of

-- Service as a ship fully and as completely as a vessel

which has just been launched bert which is not yet

ready for service as a ship. See Harris v. Whiteman,

243 F.2d 563 (5th Cir. 1957); ef. Gonzales v. United

_ States Shipping Bd., 3 F. 2d 168 (E. D. N: ¥. 1924).

“See also Owens v. United States, 1958 Am. Mar: Cas.

216 (S. D. Fla. 1957) (a case similar to ours). It is

not as though the **Mary Austin”’ had finished a voy-

age and was having repair work done before resuming

business again. .This ship had been laid up for,some

time and had to be thoroughly rehabilitated before

getting back to service. She had no crew, eontrary -

» to argume nt made by libelant. There were employees

- of the United § States on the ship. They had roe

no articles and they were there. not as a ship’s crew .

but as inspectors on behalf of the United States to see

. that the work was done - in accordance with the

contract.

‘The same sort of argument piles to the work .

_ which West was doing. It may-be possible to say, as

the Supreme Court has, that a stevedore loading or |

unloading. a ship (Steracki, supra), or a carpenter 3

repairing grain-loading equipment on a ship in active

navigation (Pope & Talbot, Inc. v. Hawn, 346 U. S.

406 (1953)), are performing work of a maritime na-

ture. But this libelant was a shoreside-engineer who |

came on board to work on the rehabilitation job pre- _

paratory to getting the ship back into service. That ~

is not something which bears any resemblance to ma-

rine navigation. — ‘

Each of these cases differs from the next in some -

respects of course. We find Berryhill v. Pacific Far .

East Line, Inc., 238 F. 2d 385 (9th Cir.), cert. denied,

354 U. S. 938 (1957), and Raidy v. United States, 252

-F. 2d 117 (1958), assuming and “adopting the trial

court’s opinion reported in 153 F. Supp. 777 (D. Md.

1957), cert. denied,-356 U. S. 973 (1958), helpful and

very closé to ours. Judge Hand puts it well in Berge

v. National Bulk Carriers Corp., 251 F. 2d 717 (2d

Cir. 1958), ‘‘Obviously there must be some limit, else

the whole fabrication of a new ship would be included

[within the Steracki rule]. ‘We can.only say that the

, ‘Teeonstruction of a ship was not. traditionally the task

of the crew.” Read v. United States; 201 F. 24.758.

(3d Cir. 1953), is distinguishable, from the instant

case at least, on the amount of work involved.

‘The judgment of the district court will be affirmed.

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.