Brief for the United States as Amicus Curiae — Swam v. United States

American Tank Co, v. Reset Oil Co., 108 Kan.

et Heth idenllD ely a

_ Bamfield v. Goole and Sheffield Transport Com- eats

» pany, Lid. [1910] 2.K.B. 94..._.._..__ 2. 88

_ Bisso v. Inland Waterways Corp., 249 U.S. 83. —

Blessington v. McCrory Stores Corp., 305 N.Y.

, a a Pe

Booth Steamship Co. v. Meier dt Oelhaj Co.,

eRe an anil ~. 10,11, 13.

Canadian Fire Insurance Co. v. Wild, 81 :

; Ariz. 202, 304 P. PO i cir sannudes 9

pace, pes Besant ae os

‘* |

oe

> ~

iene eee eal a.

ar 10

7 The d. H. Fisser, U8 428. 4, 6,16

* Deion, United Site Linen Co. 304 F, 2d.

| ek teae Mpoens 1 eles ic,

Ine., 247 F. 2d €26, certiorari denied, 355

a

_ Famous Players Film Co. v. ‘Salomon, 70 NH. |

120, 106 Atl. 282. --..-.---------.------ |

_ Gambino v. ‘John Lucas & Co., 268 App. Div.

1054°84N.¥.8.20988___...-.--.------,-

General Talking Pictures Corp. v. Bhes, et

Hagans v. a <a... .

_ Halcyon Lines v. Haenn Ship: Ceiling & Re-

‘Atting Corp., 342 U8. 282. . ---.- Bhi ies sherpa

Henningsen v. Rloomfisld Moiors, 82 N.J. 358,"

6 a eeeb.. ..-.. - ---

_ Hessler v. ‘Hilkoood Myo. Company, 302 F. 2d

: Hilton. Wagner, 10 Tenn. App. ee

Hoisting Engine Sales Company v. Hari, 237 -

NY. 30, 142 NE. 342. ---- aa arenes

JH. Fisser, The, 358U8. 423_...----------

~ ‘Marcos v. Texas Co., 75 Ariz. 45, 251 P. 24 647_

‘Milwaukee Tank Works v. Metals Coating Co.,

106 Wis. 191, 218 N.W.885.----.-------- i

Pa ©,

-.10-

10:

iM v: v Trawl Rce, Inc., 362 U.S. 530.. 5, 7

Mo Pictures for T.V.v. North Dakota

7 Co. , 87 N.W. 2d 781, 68A.L.R.

‘a PEPER PRG sche dete aR Se M2 1 oe 10

Mowbray v. Merryweather (1895) 2 QB. 640__ 8

~~ Reed v. The Y aka, 373 U.S..410, reversing 307 :

~_ F. 2d 208, reversing 183 F. Supp. 69... 12, 15,16

Ryan Stevedoring Co., Ine. v. Pan-Allantic ae

‘fil Gop 880 8,490... ‘4, 5,616, i7

Schmidt-Hitehcock ‘Contractors v. Dunning, 38

Arig: 360, 300 Pac. ia 10

Shamrock Towing Co, v. Pe or Stee! Corp., 155

Saag Si SR foment ee am “oF

Simmons v. Wichita Coca-Cola Botiding Co. 181

Kan. 35,300 P.20688... 9-10

Standard Oil Co. v.- Boyle, 231 App. Div. 101,

OO Re. Oe 10

-_Thdmpson Spot Welder Co. v. ‘Dickelman Mfg.»

Co., 15 Ohio App. 270________ ah de ebicccidticainicing

Vogan & Co. v. Sudion [009] 6 LT.NS. 435,

16 Times Law Reports 37... 9

W ctiruiits tbiamathig Gang. v Dugan & McNa-

mara, 364 U.S. se 9 oe UE ee OEE 4, 6, 16

Weyerhaeuser S.S. Co. v. Nacirema Co., 355

pe Us. cepa ET ans Pome FE RE - 4,6

— Uaiform Sales Act, Um Lae Anette

(1950 ed.): : to ee

p14 a TI a = aint so piece 8

+ faa

o

Famsworth, Implied Warranties of

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Traria Socrers PER Aston DI Nemmunor, caeare

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relsdbsiioises

ow writ oF CERTIORARI To THR ‘UMITED STATES COURT OF

APPEALS FOR THE. ee ctrovIT.

a

ee

| OPINIONS BELOW

The opinion seth bhai Gale (R. 21-23) i is unre-

oe, ported. The majority and dissenting opinions of the ee

- Court of Appeals for the Ninth Cirenit (R. 43-54;

eat spices icone dah 2d 481.

_ TURIsprOTION

‘ie iadowant f the court of appeals was entered

on October 25, 1962 (R. 64-65). A timely. petition

for rehearing was denied (one judge dissenting) on

December.5, 1962 (RB. 65). The petition for a writ of |

certiorari was filed on February 27, 1963, and granted ;

on April 15, 1963 (R. 66; 372 U.S. 963). The juris-

; Action of this Court rests on 28 U.S.C aCe).

oD

o r = &

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ROE ET PONTE pis

hie Po 5 3 ol. os Deak

aS StS 08

PLL EPL ION

warranty of workmgnlike performance where—

e m3

» (a) the.

ad 4!

On November 19, 1958, the respondent*stevedoring —

o company, pursuant to a. written contract with’ peti-

tioner steamship company, was engag ed in performing

stevedoring services on petitioner’s vessel, the MS

“ ANTONIO PACINOTTI, in thie harbor of Portland,

Sins Oregon. In the course of rigging a Seattle hatch

tent over an open hatch, a longshoreman named Wil-

injured when'a tent rope he was pulling snapped be-

eguse.of a latent defect. Griffith was thrown to the

deck and sustained personal injuries.

oe pursuant to its contractual obligation to supply “all

ae ordinary gear’ necessary for the performance of

-.. expert stevedoring services on its customer’s vessels,

ee as well as.all necessary. labor and supervision (R. 23a).

| _ Under its contract with petitioner, respondent ex- ~

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fitness of its equipment oF for breach of its implied

without fault, has sup-

(b) the stevedore’s employee has obtained a

- recovery from the shipowner on the basis of the

liam Griffith, one of respondent's employees, Was Z

(The tent and the defective rope involved in the mis- —

‘hap were owned by respondent ‘and brought on board

eet, ‘ a :

_ pressly agreed to be hex * * * for injury to

ar death of any person caused hy its negligence” (BR.

reason of the failure of ship’s gear and/or equip-

ment” (R.23b), Re aR

ference .of negligence” (R. 22), and held that peti-

tionet could not recover for breach of an implied war-

ranty of workmanlike service because the contractual

for negligence negated any such warranty. (R. 23).

_ The court of appeals (Circuit Judge Jertberg dis-

' senting) affirmed. While expressing no view as to the

Correctness of the district court’s reasoning,’ the ma-

jority held that a stevedoring company is not liable

for breach of the warranty of ‘workmanlike service”

in the absence of négligence (R. 43-65). /

_ The scope of the. stevedore’s liability ‘for breach

of its warranty of workmanlike service——a liability

4 ? oo

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_" INTRODUCTION AND SUMMARY ©

> ” (his is ‘an action by a shipowner against, a con-

' /° temeting stevedore to recover damages for breach of the

steyedore’s implied warranty of workmanlike service...

The stevedore, a shoreside specialist in shiploading, 7

0

was hired to load and unload its customer's vestels

‘and to supply “all ordinary gear”. névessary for the

_stevedoring operation. In discharging this obligation, ~~

bY

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4 a,

y

- the stevedore brought on board a latently defective

" Tape which broke, <susing: injary:to onp'ef, ity own

ages from the. shipowner for breach of its implied

warranty of the “seawo ’ of the*gear. The

- question presenteds is whether _shipowner cah |

: ‘secure indemnity from the stevedore without showing —

that the stevedore was negligent.

‘The legal principles whieh form the background of

the presen? controversy are well settled. A ship-

- owner owes an absoluteshon-delegable duty to provide.

worthy”’ equipment

a seaworthy vessel and fit or.

for a longshoreman who, in the employ of a. contraet-

ing stevedore, boards the vessel to perform the loading

.or unloading portion of “‘the ship’s work” on behalf

of the owner.. Mitchel] v. Trawler Racer, Inc., 3620.8. i

539; Seas. Shipping Uo. v. Sieracki, 328 U.S. 85, 95.

If the owner engages an expert stevedore ‘to do thgt ;

work and supply the equipment necessary for its

accomplishment, he ‘must still answer to the long-

shoreman if the gear proves unseaworthy;. regardless _

of whether the stevedore is negligent in- furnishing

it Alaska S.S., Corp.’ v. Pettersin, 347: U.S. 396,

_ affirming 205 F. 2d 478 (C.A. 9), Witte the owner )

“eannot recover contribution from a stevedore as a a

joint tortfeasor, Halcyon Lines ¥. Haenn Ship Ceiling :

Ne Refitting Corp., 342-08, 282, he may claim indem:. ”

ity on contractual grounds for any liability he incurs ~

as a result of the stevédore’s inadequate performanee.

_ Ryan Stevedoring Co., Inc.-v. Pan-Atlantic 8.8. Co.,

3 850 U.S. 1247 The stevedore ee ontractual naistite.

007-507 09-2 '

as the Court has spelled out.in several cases, is found-

ed on an implied warranty of ‘workmanlike service,” _

under which the stevedore undertakes to perform the _

Obligations of the contract with pacman

_ Ryan Stevedoring \Co., supra, p. 5; ; Weyerhaeuser

8.8. Co. v. Nacirema Co., 355 U.S. 563, 567; Crimady

y. The JH. Fisser, 358 U.S. 423, 427-428; Waterman

, Steamship Corp. v. Dugan & McNamara, 364 U.8. 421, :

' 423-424. In each of those cases, it appeared that the —

longshoreman’s injury resulted from the stevedore’s

negligence in handling the eargo or im u&ing equipment.

The precise question here is whether, either as part of

the warranty of workmanlike service or in addition

to’ it, there,js an implied warranty that the equipment

furnished by the stevedoré is reasonably fit for its

purpose and free of all defects, including those which _

"ma WOU, SOC be Gegovered in the exercise ‘of prdinary

: care. |

“Gils havens Usltiey ta grounds oom

pro} acetic ate Ihab retort

ee ee ee While the

et tal adkylowldged 18 tatractal baal ofthe

“Gime: it concluded nonetheless thst the standard

of performance required by the warranty was identi-

eal to the standard of ordinary care imposed by the

_. law of torts, We believe, on the contrary, that the

'/ warranty holds the stevedore to striet accountability

| for any defect, latent of otherwise, which renders his

PZ si equipment “unseaworthy.”

ran i Tn support of this conclusion, we urge (1) that the

/. stevedore’s strict responsibility for the seaworthiness

; ee ee tet ete ee

judgment ; .

\

‘Fise to the ’s absolute duty of

demands that the burden of liability for non-negligent

_ shipboard injury be shifted from the owner/to the

stevedore in circumstances where it is he, rather than

: ROR OE TOMEI ON

a arises’ whengver chattels are supplied for a particular oe

. _ Purpose to ‘one who relies on the supplier's skill or 2

b) that the protective policy which gives —

the owner, who is in a position to minimize the risk of .

such injury; and (3) that the prior decisions of this _

Court implicitly,.or explicitly endorse the view that,

cqninst intent detects.

ees Sng wm pr ace

COUNTABLE TO THE FOR ANY DEFEOT,’. |

—an oe ee

- MENT CEE Worry .

ka as part of this implied warranty of worktnnlike serv. :

a ee

hi That the stevedore ‘is strietly aécountable for -

| en one. in the apes he supplies pasta : :

*

_—

oe ee ee Vie os ¢ om erEry wa Peat - sei eaten

- tos content ia: bl. specilgp plication of « basie

‘common law principle. It is well established that a_

_ Tetailer or manufacturer who sells goods for a known

Purpose to.a bayer who relies on his skill or judg-

_ ment makes an implied warranty that those goods are

reasonably fit for that purpose. The warranty of —

fitiess, moreover, is not confined to the law of gales.

It arises also in thé case of leases and other bail-‘

mente—indeed, whenever goods are supplied under a

~ pp octane aw dengan

: “owner who supplies equipment to a:stevedore for use

- im, unloading the ship ‘is liable, on an implied war--

ES _ Fant of fitness, to indemnify the stevedore if defects

* im the equipment cause injury to.one of its longshore-

men employees. Mowbray v. Merryweather [1895} 2

QB. 640; Hagans v.: Farrell Lines, 237 F. 2d 477

(GA,4). ‘Qne who ships goods by common carrier

. impliedly warrants that both the goods (Bamfield v.

«Tt yl 16, a oan; che uel“ <a

wo prin de (go prcr gene (Ae 1 Uniform Laws Annetated

“(1) the buyer, expressly. or by ‘implication, makes .,

known to the seller the particular purpose for which the goods goods .

~ sll or judgment (whether he be the grower bor manufacturer

ok fit for such

: “Bos guealy, Farnewerth, / es Paes eg

Ee 7 i. Le can Cases, 57 Col. L. Rev. 653, 656 tho 18-24):

1. Framer Friedman, Liabitty, 19. ; 8 ALR

so Ia, 2 re

aaa sas co ie

ee

¢ Goole and Shefield Shtiapert Giteipatily, Ltd. feoya.

‘KB. 94). arid the containers in which the godds are S

shipped (astern Motor Kapressv.A.Maschmeijer,Jr., -

Inc., 241 F. 2d 826 (C.A. 2), certiorari denied, 355 U.S.

959; Vogan & Co. v. Oulton [1899] 81 L.T.N.S. 435, 16 -

‘Times Law Reports 37 (C.A.)) are reasonably fit for | i

carriage. One who hires out a crane for use fn lifting x

_ heavy: pipes impliedly warrants its suitability for that aS

purpose and may not recover the stipulated rental ifthe

boom breaks in the course of hoisting the pipes. Hoist- _

ing Engine Sales Company v. Hart, 231 N.Y. 30; 36, 142

NB, 342, A roller-skating rink warrants the fitness

of the skates it rents and is answerable‘in damages

tg a customer who is injured because of a defective

Ge See? © Kew: Lock, Xt Mies. 38 Wi,

ay AN. Y.8. 396. “s

Y Tm the ot'iall, it $6 giiurillp agreed tek the

implied warrazty. of fitness is absolute and is not

avoided hy the facf that the seller is unable, in the

exereise of ordinary eare, to discover the injury using

defect.’ Indeed, it is proper te exclude any. ¢videnée

offered by theYmanufacturer to, show that due care

_ Was used in the nianufacturing process. Hessler v. .

_ Hillwood Mfg. Company, 302 F. 2d 61, 63 (CA. 6);

Ssumone v. Wichita Coca-Cola Bottling Co., 181 Kan.

eg. Jelleff v. Briden, 3 F. 24 671 (CA.DC.);

ae Yank Co. x: Rovers OW Co, 108 Kan G00 0100 ¢

1111, 1113; mage oo v. Bloomfield Motors, 32 NJ. 358, 372,

“161 A. 9a 69, 77; Vz Blessington v. McCrory Stores Corp.,. 3

N.Y. 140, 147, 111 NE. 2d 421, 493; Canadian Fire Insurance

7 (90. v. Wild; 81 Aria, 252; 254, 304 P. 2d 300, 391. See. gener

fiat

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ees rial

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is ‘contract or is merely a

tainers under « contract for the sale of their

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D . z “a at follows from. these principles ‘that a stevedore '

bevause the expert contractor, in addition to providing

_ @oring: operation himself has some opportunity to

observe the equipment in use and to inspect for-la- = =

tent defects. But where, as here, the equipment re-

mains under the exclusive supervision and control of

pang of safeguarding seamen and longshore “ae |

the perils of unseaworthiness which they are

helpless to ward off., Reed v. The Yaka, 313 U.S, 410; °

Santini die iemeataguantneenenies.> In sf

part, that policy is'served by providing compensation to

the injured employee—who, unaided, cannot shoulder _

the costly disability—at the expense of the shipowner,

_ who ean distribute the loss. among the shipping com-

es po “os nat RNA oa oe

We uimit artnet tm mat of yoy,

the economic ¢onsequences’ of nt ship- ~

board injury should be borne: by the stevedore,

sather then hy ‘his shipowner-oustomer, in cases where —

- wteyedore, tit ‘the owner, is ‘the: party ‘who «initially

selects the gear and who, by making appropriate tests,

ean seek out flaws which might not present themselves

to the naked eye. It is the stevedore, moreover, who

e knows the age of the equipment and the actual history _

BOS of ‘its use, and therefore is in a position to set up

Fetirement schedules and conduct periodic retesting

with a view to saving ‘the gear from fatigue and over-

use. Booth Steamship Co., supra, 262 f. 2d at 814-315.

_ The considerations which led this Court to conclude

in Bisso v. Inland Waterways Corp., 349 U.8. 85, that

it would-be unsound poliéy to enforee a contractual

_provisién: whereby a towboat exercising control of a :

towing operation shifted the liability for negligence

to the inert tow or barge likewise support the conclu-

_ sion that ~ incentive to. take . ——

“ ‘ 2 .

/ 14

- eontrol. “(Phe function of the doctrine of unsea-

worthiness and the corollary doctrine of indemnifica-

tion is allocation of the losses caused by shipboard

injuries to the enterprise, and within the several seg-

"ments of ‘the enterprise, to ‘the institution or institu-

tions most able to minimize the particular risk in-

volved.’’ De Gioia v. United States Lines Co., 304

_ B, 2d 421, 425-426 (C.A. 2).. In placing the burden |

"of liability. on the -shipowner, who is powerless to

minimize the ‘risk, rather than upon the stevedore,

| : the owner may be entirely dependent on the testimony

Is of the stevedore’s own employees, and will inevitably

More i however, the stevedore may have sat-

isfied the standard of ordinary’ care, yet still |

" failed to adopt measures, ¢.g., special tests and i

tions, which would have disclosed: the defect. The

. Yule promulgated by the decision below removes any

economic incentive for the stevedore to take those pre-

the law of negligence, may nonetheless be neeessary in

. order t+. assure the stevedore’ 8 ay serine a r safe. paw

~~ . to work. /

‘worthiness of the equipment he brings on board his.

caine’ yemmel ie sanly related to, vesicle e

_mnsaannicaniy sa atid the pasty dnactnal

who is mot, ‘the court below failed to give effect to :

cautions whieh, though they may not be réquired by *

* 49 tee stevedore’ s atvict nigenlidieg for the sea- -

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this basic maritime policy. ee

lit in sit semower. that the ‘stavedone here swan not °+-

| found negligent. Where ‘equipment ‘is at

-_ll'times.within the exclusive of the stevedore,

ss

be. hard, put /to show negligence even where it exists.

"EB | ;

be part of, his warranty of workmanlike service. It

Ww

is ‘not surprising, therefore, that the decisions of this

. Court relating to that warranty foreshadow the result

. we urge here. Indeed, in-Reed v. The Yaka, 373 U.S.

410; ‘decided only last Term, the Court stated that a

shipowner could recover over from ‘a stevedore’ for:

breach of warranty even though the injury-Causing

: defect. was latent and the. stevédore without fault. .

A longshoreman had been: injured when one of the

planks of a wooden pallet on which he was standing :

” broke because of a defect." The Court held

. that the longshoreman’ 8 ployer; which had chartered

the ship and elected to do its own stevedoring” work,

could be held liable to the ‘longshoreman for unsea- .

. worthiness despite the provisions of ‘the Longshore-

men’s.and Harbor Worker’s Com ‘ion Act which,

on their face, make exclusive: the employer’ 8 duty to

pay’ compensation under the Act:’ The Court justi-

* The district court found that the sale cause of accident

was the latent defect in the pallet; it did not any negli-

| gence on the part of the stevedore. 183 F. Supp. 69, 71 (ED.

Ve ' The scat tlie dn Chit Wc gl ne

/ whether ajo Mantoeiioenaeild growed fooregtion:

the: vessel-and recover for olay ems The court of appeals,

after concluding that the of the ship was absdived.- from —

liability since it had ed the ship to the longshoreman-

employer and. that the reman-employer was saved from

< liability by the provisions ‘of the Longshoremen’s and Harbor

pensation Act, eld that no-libel in rem could be _

- against the ship since there was no underlying per-

whether an in rem 1 against ship is allowable in the

absence of underlying personal liability or the question whether

the owner of the shi vt was relieved from liability for unsea-

. . , Z

P fat Taye Z ’ od

to support the in rem action. 307 F. 29d 203.

reversed, not reaching either the question

2 :

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|:

POR a

PE ote 16 ees a

‘detamaiabair cite inte sat ae

ground that the employer would haye had to bear the —

same economic burden if it had! been an independent —

; - glevedore bined by the shipowner, observing (p. 414):

seu sk Dee: eek AL thes ath

' tioner’ here had been employed to do this par- —

_ tieular work by an independent stevedoring com- _

- pany rather-than direetly by the owner, he.

could have recovered damages for his injury

from the owner who could have then under -

- Ryan shifted the burden. of the recovery to peti- .

Bh ~ ait gona, Peg as a mom Clonal

‘added} 0".

Although that shale was not, perhaps, necessary

| to the decision, it was an important step in the Court’s

reasoning and was appareritly ‘concurred in by the two

. dissenting Justices (Mr. J ustice Harlan and Mr.

Justice Stewart):

Furthermore, the Court pointed’ out i in ‘ye Steve ;

, doring Co., Inc, supra, 350 U.S: 124, 133-134, and:

" pepeated in both Crumady, supra, 358-U.8.. 423, 428—

429, and Waterman S.S. Corp.,.supra, 364 U.S. 421,

- 424, that the stevedore’s warranty of workmanlike

service is “comparable to a manufacturer’ $-warranty

4: of the soundness of its manufactured product”’—a

warranty which, as we e shoWn (supra, pp. +10) is

‘absolute. €" es qos I ‘gan

> If, therefore, the stevedore’ 3 warranty is compa-

rable to the manufacturer’ s, as.this Court has repeat-

edly stated, it too must* give rise to strict liability.

“worthiness when it’ chartered the ship. It'was the view that’

the longshoreman ‘could. recover against his employer, and this.

a eee ee 373 US. at 415-16. .

ee

ao

*

| Tin siteinnb ta a timiniia tthe etibniicéndhen

that the stevedore’s warranty has been described as

“one to perform contractual obligations to his customer oe

“with reasonable safety’? or “‘in a reasonably: safe. —

manner.” Seti gin dtnewidoring Co., supra, 350 U.S.

at 180-184. That standard has nothing to do with the _.

. “reasonable man”? test pertaining to n

_ 'stevedore’s duty is not to supply equipment which he

“yeasonably’”” believes to be safe, or w he has.

| taken “reasonable” steps to make safe, but equipment

The

‘which in fact is “reasonably” safe. It is ngt the

degree of care, but the degree of safety, which is -

less than absolute. This distinction was clearly ex-

- plained in Mitchell v. Trawler Racer, Inc.,.362 U.S. -

- 539, 550, which described -the shipowner’s duty to:

eee aces seaworthy vessel as follows: ;

‘What las bop. sid’ snot bo suggest that

_ the owner is obligated to furnish an. accident-

‘free ship. The duty is absolute, but it is a

. e duty only to furnisk#e vessel and appurtenances .

. Teasonably fit for their intended “use. The

standard is not perfection, bat puabbaiable fit-

A

‘for her intended service. Boudoin v. Lykes

‘ v. Bros. 8.8. Co., 348 U.S. 336, .

By the same token, the stevedore’s warranty of work.’

_ manlike service amount to an undertaking not to’

_.@reate hazards which would render the. ship. :

unseaworthy..

.

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$5 , .

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- Ness; not a ship that will wéather er every con-

: . ¢eivable storm or withstand every ry imaginable —

“a2 is peril of the.sea, but a vessel reasonably suitable —

ier 3 For the foegning reason the judgment of the cot

oe ee aoe CEES TE, | |

pW ar C " Ancmmito Cox, ij

| -Joun W. Dovaas, “f

by wig. 3 -ata Assistant Attorney General. Z

io “pee - Frank Goopmay, | acy

ont sic Assistant to the Solicitor General:

it

i

=: ~ é €.S. GOVERRMENT PRINTING OFFICE. 1965

ll .