# Brief for the United States as Amicus Curiae — Swam v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0020%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States as Amicus Curiae - **Published:** January 1, 1964 - **Citation:** 379 U.S. 852 ## Text 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 . _" 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 TF L¢ is t oe 4 a, y - the stevedore brought on board a latently defective " Tape which broke, 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- - F / s PA 4 ‘a i ‘ cee I 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 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.. . . . . . e . * oe ’ . ’ E ‘ . . é ‘ ‘ y . “ , Y . ~ ‘ ° 4 : c . $5 , . . é . - 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 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0020%3A06. Public record. Not legal advice.