Opinion — Usner v. Luckenbach Overseas Corp.

is deemed desirable, a syllabus (headnote) will

is done in connection ‘with this case, at the ta

A, aris syllabus Wy +4 -) yd the Decisions for

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SUPREME COURT OF THE UNITED STATES

Syllabus

USNER v. LUCKENBACH OVERSEAS CORP. et at.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 47. Argued November 18, 1970—Decided January 25, 1971

Isolated, personal act of negligence by a fellow longshoreman result-

ing in injury to petitioner did not make shipowner liable on

ground of unseaworthiness of vessel, as injury was not caused by

ship’s condition, appurtenances, cargo, or crew. There is a “com-

plete divorcement of unseaworthiness liability from concepts of

negligence.” Mitchell v. Trawler Racer, Inc., 362 U. 8. 539, 550.

Pp. 3-7.

413 F. 2d 984, affirmed.

Srewart, J., delivered the opinion of the Court, in which Burcer,

C. J., and Wurre, MarsHatu, and Buackmun, JJ., joined. Dove-

Las, J., filed a dissenting opinion in which Buack and Brennan, JJ.,

joined. Har.an, J., filed a dissenting opinion.

SUPREME COURT OF THE UNITED STATES

No. 47.—Ociosprr Term, 1970

Joseph Charles Usner,)

Petitioner, On Writ of Certiorari to the

v. } United States Court of Appeals

Luckenbach Overseas| ‘or the Fifth Circuit.

Corporation et al.

[January 25, 1971}

Mr. Justice Stewart delivered the opinion of the

Court.

The petitioner, a longshoreman employed by an inde-

pendent stevedoring contractor, was injured while en-

gaged with his fellow employees in loading cargo aboard

respondent’s ship, the S. S. Edgar F. Luckenbach. He

brought this action for damages against the respondent

in a federal district court, alleging that his injuries had

been caused by the ship’s unseaworthiness.

In the course of pretrial proceedings the circumstances

under which the petitioner had been injured were fully

disclosed, and they are not in dispute. On the day in

question the ship lay moored to a dock in New Orleans,

Louisiana, receiving cargo from a barge positioned along-

side. The loading operations were being performed by

the petitioner and his fellow longshoremen under the

direction of their employer. Some of the men were on

the ship, operating the port winch and boom at the No. 2

hatch. The petitioner and others were on the barge,

where their job was to “break out” the bundles of cargo

by securing them to a sling attached to the fall each time

it was lowered from the ship’s boom by the winch oper-

ator. The loading operations had been proceeding in

2 USNER v. LUCKENBACH OVERSEAS CORP.

this manner for some time, until upon one occasion the

winch operator did not lower the fall far enough. Find-

ing the sling beyond his reach, the petitioner motioned to

the flagman standing on the deck of the ship to direct

the winch operator to lower the fall farther. The winch

operator then lowered the fall, but he lowered it too far

and too fast. The sling struck the petitioner, knocking

him to the deck of the barge and causing his injuries.

Neither before nor after this occurrence was any difficulty

experienced with the winch, boom, fall, sling, or any other

equipment or appurtenances of the ship or its cargo.

The respondent moved for summary judgment in the

District Court, vnon the ground that a single negligent

act by a fellow iongshoreman could not render the ship

unseaworthy. The District Court denied the motion,

but granted the respondent leave to take an interlocutory

appeal under 28 U.S. C. § 1292 (b).!. The United States

Court of Appeals for the Fifth Circuit allowed the appeal

and, reversing the District Court, directed that the

respondent’s motion for summary judgment be granted.

413 F. 2d 984. It was the appellate court’s view that

“*Ti]nstant unseaworthiness’ resulting from ‘operational

negligence’ of the stevedoring contractor is not a basis

for recovery by an injured longshoreman.” 413 F. 2d,

128 U.S. C. § 1292 (b) provides as follows:

“When a district judge, in making in a civil action an order not

otherwise appealable under this section, shall be of the opinion that

such order involves a controlling question of law as to which there

is substantial ground for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate termi-

nation of the litigation, he shall so state in writing in such order.

The Court of Appeals may thereupon, in its discretion, permit an

appeal to be taken from such order, if application is made to it

within ten days after the entry of the order: Provided, however,

That application for an appeal hereunder shall not stay proceedings

in the district court unless the district judge or the Court of Appeals

or a judge thereof shall so order.”

—

USNER v. LUCKENBACH OVERSEAS CORP. 3

at 985-986. We granted certiorari, 397 U. S. 933, because

of a conflict among the circuits on the basic issue pre-

sented.?

The development in admiralty law of the doctrine of

unseaworthiness as a predicate for a shipowner’s liability

for personal injuries or death has been fully chronicled

elsewhere, and it would serve no useful purpose to repeat

the details of that development here.’ Suffice it to recall

that from its humble origin as a dictum in an obscure

case in 1922,* the doctrine of liability based upon unsea-

worthiness has experienced a most extraordinary expan-

sion in a series of cases decided by this Court over the last

25 years.* The Court’s decisions in some of those cases

have been severely questioned, by dissenting Justices and

* Compare Candiano v. Moore-McCormack Lines, Inc., 382 F. 2d

961 (CA2); Alezander v. Bethlehem Steel Corp., 382 F. 2d 963

(CA2); Cleary v. United States Lines Co., 411 F. 2d 1009 (CA2);

and Venable v. A/S Det Forenede Dampskibsselskab, 399 F. 2d 347

(CA4), with Grigsby v. Coastal Marine, 412 F. 2d 1011 (CA5), and

Tim v. Aimerican President Lines, Ltd., 409 F. 2d 385 (CAQ).

*See Mitchell v. Trawler Racer, 362 U. 8. 539; id., at 550 (dis-

senting opinion of Frankfurter, J.); see also, Gilmore and Black,

The Law of Admiralty (1957), pp. 315-332; Tetreault, Seamen, Sea-

worthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381.

* Carlisle Packing Co. v. Sandanger, 259 U. S. 255. There it was

said, “[w]e think the trial court might have told the jury that with-

out regard to negligence the vessel was unseaworthy when she left the

dock . . . and that if thus unseaworthy and one of the crew received

damage as the direct result thereof, he was entitled to recover

compensatory damages.” 259 U.S., at 259.

* Mahnich v. Southern S. S. Co., 321 U.S. 96; Seas Shipping Co.

v. Sieracki, 328 U. S. 85; Pope & Talbot, Inc. v. Hawn, 348 U.S.

406; Alaska Steamship Co. v. Petterson, 347 U. S. 396; Rogers v.

United States Lines, 347 U.S. 984; Boudoin v. Lykes Bros. S. S. Co.,

348 U. 8. 336; Crumady v. The J. H. Fisser, 358 U.S. 423; Mitchell

v. Trawler Racer, Inc., 362 U. S. 539; A. & G. Stevedores v. Eller-

man Lines, 369 U. S. 355; Gutierrez v. Waterman S. S. Corp., 373

U. 8. 206; Waldron v. Moore-McCormack Lines, 386 U. S. 724.

4 USNER v. LUCKENBACH OVERSEAS CORP.

by others, on the basis of history, reason, and logic.° The

present case, however, offers no occasion to re-examine

any of our previous decisions. We may accept it as fully

settled that a shipowner’s liability for an unseaworthy

vessel extends beyond the members of the crew and in-

cludes a longshoreman like the petitioner." We may

accept it as settled, too, that the shipowner is liable though

the unseaworthiness be transitory,* and though the in-

jury be suffered elsewhere than aboard the ship.* But

these propositions do not dispose of the case before us.

For the question here goes to the very definition of what

unseaworthiness is and what it is not.

A major burden of the Court’s decisions spelling out

the nature and scope of the cause of action for unsea-

worthiness has been insistence upon the point that it is

a remedy separate from, independent of, and additional

to other claims against the shipowner, whether created

* See, e. g., Mahnich v. Southern S. S. Co., 321 U. S. 96, at 105

(dissenting opinion of Roberts, J., joined by Frankfurter, J.), Seas

Shipping Co. v. Seracki, 328 U.S. 85, at 103 (dissenting opinion of

Stone, C. J., joined by Frankfurter and Burton, JJ.); Pope & Talbot,

Inc. v. Hawn, 346 U.S. 406, at 419 (dissenting opinion of Jackson,

J., joined by Reed and Burton, JJ.) ; Alaska Steamship Co. v. Petter-

son, 347 U.S. 396 (dissenting opinion of Burton, J., joined by Frank-

furter and Jackson, JJ.); Mitchell v. Trawler Racer, Inc., 362 U.S.

539, at 550 (dissenting opinion of Frankfurter, J., joined by Haruan

and Whittaker, JJ.); Gutierrez v. Waterman S. S. Corp., 373 U. 8.

206, at 216 (dissenting opinion of Hartan, J.); Waldron v. Moore-

McCormack Lines, 386 U. S. 724, at 729 (dissenting opinion of

Wuire, J., joined by Hartan, BRENNAN, and Srewart, JJ.).

See also Gilmore and Black, The Law of Admiralty (1957), pp.

315-332; Tetreault, Seamen, Seaworthiness, and the Rights of Harbor

Workers, 39 Corneil L. Q. 381.

* Seas Shipping Co. v. Sieracki, 328 U.S. 85.

® Crumady v. The J. H. Fisser, 358 U. S. 423; Mitchell v. Trawler

Racer, Inc., 362 U. 8S. 539.

® Gutierrez v. Waterman S. S. Co., 373 U. S. 206.

_— =

USNER v. LUCKENBACH OVERSEAS CORP. 5

by statute*® or under general maritime law." More

specifically, the Court has repeatedly taken pains to point

out that liability based upon unseaworthiness is wholly

distinct from liability based upon negligence.** The rea-

son, of course, is that unseaworthiness is a condition,

and how that condition came into being—whether by

negligence or o‘herwise—is quite irrelevant to the owner’s

liability for personal injuries resulting from it.

We had occasion to emphasize this basic distinction

again in Mitchell v. Trawler Racer, 362 U.S. 539. There

the unseaworthy condition causing the plaintiff’s injury

was & ship’s rail made slippery by the presence of fish

gurry and slime. The trial judge had instructed the

jury that the shipowner could be held liable for this un-

seaworthy condition only upon a finding that the slime

and gurry had been on the ship’s rail for a time long

enough for the respondent to have learned about it and

to have removed it. The Court of Appeals affirmed the

judgment for the defendant shipowner, holding that at

least with respect to “an unseaworthy condition which

arises only during the progress of the voyage,” the ship-

owner’s obligation “is merely to see that reasonable care is

used under the circumstances . . . incident to the correc-

tion of the newly arisen defect.” 265 F. 2d 426,432. We

reversed the judgment, holding that the trial and appel-

1° F. g., the Jones Act, 41 Stat. 1007, 46 U.S. C. § 688. The peti-

tioner in the present case was fully covered, of course, by the pro-

visions of the Longshoremen’s and Harbor Workers’ Compensation

Act, 33 U. S. C. § 901 et seq.

\ E. g., maintenance and cure. See Calmar S. S. Corp. v. Taylor,

303 U. S. 525; Waterman S. S. Corp. v. Jones, 318 U. 8. 724; Farrell

v. United States, 336 U.S. 511; Warren v. United States, 340 U. 8.

523.

” E. g., Seas Shipping Co. v. Sieracki, 328 U. 8. 85, at 94: “(T]he

liability is neither limited by conceptions of negligence nor contract-

ual in character.”

6 USNER v. LUCKENBACH OVERSEAS CORP.

late courts had been wrong in confusing liability for

negligence with liability for unseaworthiness. What has

evolved in our case law, we said, is the “complete divorce-

ment of unseaworthiness liability from concepts of negli-

gence.” 362 U.S., at 550.

Trawler Racer involved the defective condition of a

physical part of the ship itself. But our cases have held

that the scope of unseaworthiness is by no means s0

limited. A vessel’s condition of unseaworthiness might

arise from any number of circumstances. Her gear might

be defective,’* her appurtenances in disrepair,‘ her crew

unfit. The number of men assigned to perform a ship-

board task might be insufficient.'"* The method of load-

ing her cargo, or the manner of its stowage, might be im-

proper.’ For any of these reasons, or others, a vessel

might not be reasonably fit for her intended service.

What caused the petitioner’s injuries in the present

case, however, was not the condition of the ship, her ap-

purtenances, her cargo or her crew,"* but the isolated,

personal negligent act of the petitioner’s fellow long-

shoreman. To hold that this individual act of negligence

rendered the ship unseaworthy would be to subvert the

fundamental distinction between unseaworthiness and

negligence that we have so painstakingly and repeatedly

emphasized in our decisions."* In Trawler Racer, supra,

13 Mahnich v. Southern S. S. Co., 321 U.S. 96.

14 Seas Shipping Co. v. Sieracki, 328 U. 8. 85.

18 Boudoin v. Lykes Bros. S. 8. Co., 348 U.S. 336.

16 Waldron v. Moore-McCormack Lines, 386 U. S. 724.

11 A. & G. Stevedores v. Ellerman Lines, 369 U. S. 355; Gutierrez

v. Waterman S. S. Co., 373 U. 8. 206.

18. No member of the ship’s crew was in any way involved in this

case.

1° The petitioner’s reliance upon our summary Per Curiam reversal

of a judgment for the shipowner in Mascuilli v. United States, 387

U. S. 237, is misplaced. There a longshoreman had been killed dur-

ing a loading operation aboard a Government vessel when, under the

USNER v. LUCKENBACH OVERSEAS CORP. 7

there existed a condition of unseaworthiness, and we

held it was error to require a finding of negligent conduct

in order to hold the shipowner liable. The case before

us presents the other side of the same coin. For it would

be equally erroneous here, where no condition of unsea-

worthiness existed, to hold the shipowner liable for a

third party’s single and wholly unforeseeable act of negli-

gence. The judgment of the Court of Appeals is

affirmed.

It is so ordered.

strain of the opposing pull of two winches, a heavy shackle parted,

recoiled, and struck him. The petition for certiorari posed three

questions: (1) Did a prior unseaworthy condition come into play

by the tightline condition? (2) Did the negligent handling of proper

equipment by the longshoremen create a dangerous condition render-

ing the vessel unseaworthy? (3) Was the vessel unseaworthy be-

cause the longshoremen were “not equal in disposition and seaman-

ship to the ordinary men in the calling,” as was found in Boudoin v.

Lykes Brothers, 348 U.S. 336 (1955) ?

Our Per Curiam reversal cited two cases: Mahnich v. Southern

S. S. Co., 321 U. S. 96, and Crumady v. The J. H. Fisser, 358 U. S.

423. Mahnich involved a defective rope, Crumady a defective winch.

It seems evident, therefore, that it was the first question posed by

the petition for certiorari to which the Court gave an affirmative

answer.

_——

SUPREME COURT OF THE UNITED STATES

No. 47.—Ocroser Term, 1970

Joseph Charles Usner,

Petitioner, On Writ of Certiorari to the

v. United States Court of Appeals

Luckenbach Overseas} for the Fifth Circuit.

Corporation et al. |

[January 25, 1971]

Mr. Justice DovGuas, with whom Mr. Justice Buack

and Mr. Justice BRENNAN concur, dissenting.

While petitioner was working on a barge loading cargo

into a hatch of the ship, he was injured as a result of

the negligent operation of a winch. The winch was

part of the ship and the winch operator was a member

of the crew of the stevedores. The injury was caused by

a lowering of a sling which carried the cargo too quickly

and too far, injuring petitioner.

Prior to the 1970 Term the judgment denying recovery

would have been reversed, probably out of hand. We

held in Mahnich v. Southern SS Co., 321 U. S. 96, that

the obligation of an owner to furnish a seaworthy ship

extends to seaworthy appliances. We also held that the

owner was not insulated from liability by the “negligent

failure” of his officers or members of the crew to furnish

seaworthy appliances. Jd., at 101. In Mahnich, the

staging from which the seaman fell was an unseaworthy

appliance because of the defective rope with which it

was rigged. There was sound rope on board but defec-

tive rope was used. The fact that the mate and boat-

swain were negligent in selecting defective rope was held

to be no defense.

In Crumady v. J. H. Fisser, 358 U. S. 423, a winch

was not inherently defective as was the rope in Mahnich.

But it was used in a way which made it unsafe and

dangerous for the work at hand. While the rigging

2 USNER v. LUCKENBACH OVERSEAS CORP.

would take only three tons of stress, the cutoff of the

winch, “its safety device,” was set at twice that limit

Id., at 427. And so the rope sling broke and injured

the seaman. The vessel which paid the damages was

allowed to recover over from the stevedores whose

negligence with the winch made the vessel pro tanto

unseaworthy.

In Mascuilli v. United States, 387 U. S. 237, negligent

use of a winch in a loading operation so obviously made

the vessel pro tanto unseaworthy that we reversed out

of hand a judgment of no liability citing Mahnich and

Crumady.

What we said in Mitchell v. Trawler Racer, 362 U. S.

539, 550, about the “complete divorcement of unsea-

worthiness liability from concepts of negligence” related

to a condition which made the vessel not “reasonably

suitable for intended service.” Yet alongside that con-

ventional type of unseaworthiness there developed the

concept of unseaworthiness resulting from operational

negligence.

Indeed, the doctrine of operational negligence which

causes unseaworthiness has had a sturdy growth. Chief

Justice Stone, writing for the Court in Mahnich, showed

that this doctrine goes at least as far back as The

Osceola, 189 U. S. 158, decided in 1903. See 321 U. S.,

at 101-104. The intervening decision of Plamals v. Pinar

del Rio, 277 U. S. 151, which looked the other way was

decided in 1928. It was around that case that Justices

Roberts and Frankfurter turned their dissent, saying

that unless the Court followed precedent “the law be-

comes not a chart to govern conduct but a game of

chance; instead of settling rights and liabilities it unset-

tles them.” 321 U.S., at 112. They added:

“Respect for tribunals must fall when the bar

and the public come to understand that nothing that

has been said in prior adjudication has force in a

current controversy.” IJd., at 113.

USNER v. LUCKENBACH OVERSEAS CORP. 3

Justices Roberts and Frankfurter bitterly expressed

that view in Mahnich when Pinar del Rio was overruled—

a freak decision not in keeping with mainstream of the

law that had come before.

Changes in membership do change decisions; and those

changes are expected at the level of constitutional law.

But when private rights not rooted in the Constitution

are at issue, it is surprising to find law made by new

judges taking the place of law made by prior judges.

Up to today operational negligence has been one sturdy

type of unseaworthiness.* I would let it continue as the

prevailing rule unless Congress in its wisdom changes it.

*The Second Circuit adopted the view that while one act of

operational negligence would not make a vessel unseaworthy, unsea-

worthiness did result if the negligent act was incident to a con-

tinuous course of operation as where a wrong hatch cover was

used, Grillea v. United States, 232 F. 2d 919, but not by an isolated

act as where a boom was carrying a dangerous stress due to a

negligent act. Puddu v. Royal Netherlands, 303 F. 2d 752. The

difference in the two cases was stated as follows:

“A ship is not unseaworthy because it has glass in a window which

might be broken. The injuries of a seaman who negligently breaks

such a glass are not the result of unseaworthiness, nor are the

injuries of a seaman who is cut by the falling glass. But injury

incurred in stepping on the broken glass does result from unsea-

worthiness.” Jd., at 757.

The Second Circuit, however, refused to follow Grillea after our

Mascuilli decision. Candiano v. Moore-McCormack Lines Inc.,

382 F. 2d 961; Alexander v. Bethlehem Steel Corp., 382 F. 2d 963;

Cleary v. United States Lines, 411 F. 2d 1009; Tarabocchia v. Zim

Isreal Navigation Co., 417 F. 2d 476. The Fourth Circuit followed

suit. Venable v. A/S Det Forende, 399 F. 2d 347; Lundy v. Isthmian

Lines, 423 F. 2d 913.

Only the Fifth Circuit in the instant case and in Grigsby v. Coastal

Marine Service, 412 F. 2d 1011, and the Ninth in Tim v. American

President Lines, 409 F. 2d 385, stood against the rule of Mascuilli.

—_ RITE AOE

SUPREME COURT OF THE UNITED STATES

No. 47.—Ocroser Term, 1970

Joseph Charles Usner,

Petitioner, On Writ of Certiorari to the

v. United States Court of Appeals

Luckenbach Overseas| for the Fifth Circuit.

Corporation et al.

[January 25, 1971]

Mr. Justice Haruan, dissenting.

Past decisions of this Court have expanded the doctrine

of unseaworthiness almost to the point of absolute li-

ability. I have often protested against this development.

See, e. g., the cases cited by the Court, ante, p. —, n. 6.

But I must in good conscience regard the particular

issue in this case as having been decided by Crumady v.

The J. H. Fisser, 358 U. S. 423 (1959), even if prior de-

cisions did not inexorably point to that result. As my

Brother Doucuas states, Crumady cannot justly be dis-

tinguished from the case before us. Much as I would

welcome a thoroughgoing reexamination of the past course

of developments in the unseaworthiness doetrine, I fear

that the Court’s action today can only result in com-

pounding the current difficulties of the lower courts with

this area of the law.