# Brief for the United States as Amicus Curiae — 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%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States as Amicus Curiae - **Published:** January 1, 1959 - **Citation:** 358 U.S. 613 ## Text oi » - INDEX ; s: i : .. Page Guiniaen belee e205 6 ru dcuwee ceahn aoe 1 Pe Ei dcucevesedeseeee 2 ’ Question presented __ --- -- - didiWetasisucwscsecdedses =e : CONN oi son so ‘ 7 (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 6 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), a * 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). 8 --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 11 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 © That seamen were entitled to the same warranty of the ves- 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.” 13 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 & 14 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. 16 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 ‘ 17 e 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 '?” Judge Hand assumed in this case (R. 150) that 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 om 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 warranty of seaworthiness, those in the position of © 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 _ “JIt should be noted that the warranty of seaworthiness to © 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. in ' I 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). al 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 at which work is done.- It is a nondelegable duty © ‘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 26 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 26 - 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. . ©. 8 SOVERBOEHT PRINTING OFFICE, 1888 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0126%3A7. Public record. Not legal advice.