Appendix — Berge v. National Bulk Carriers, Inc.

13

Opinion 5 8

UNITED STATES COURT OF APPEALS

For THE Soon mobrr |

| No. ‘ghee Term, 1957.

(Argued November 22, 1957 Decided January 10, 1958.)

> Docket No. 24673

8

| Gurwieix Berar,

A e

—v.—

Nanoxal. Bute Gan Corp. and Topp SHrryrarps Corp.,

7 Appellees.

Before:

Hann, Bine and ‘icin:

Circuit .

Appeal by the plaintiff from a 3 of the Distriet

Court for the Southern District of New York, Murphy, J.,

presiding, dismissing his complaint in an action to recover

for personal 1 8 8 8 N

Jack Sranneax for the e

; Victor. 8. CionAROwICA te National Bulk Car-

riers Corp., appellee. :

Parmok E. Ginsoxs for Todd Shipyords Corp.,

1

14

Opinion

Hann, Circuit Judge:

This is an appeal from a judgment for the defendant en-

tered by Judge Murphy in an action to recover for personal

injuries. At the conclusion of the evidence the parties

agreed that the only issue to be submitted to the jury was

the assessment of damages, the question of defendants’ lia-

bilities being reserved for determination of the court, Upon

the following facts, Judge Murphy held that the plaintiff —

who was a rigger employed by the defendant Todd Ship-

yards had not proved his claim. The ship, Bulklube,

was a tanker, owned by the National Bulk Carriers, Tae). |

‘which in 1952 decided to reconstruct her and rebuild her

in accordance with thy standards by the United States

Coast Guard and the American Bureau of Shipping as a

ship of general carriage. The owner made a contract with

Todd Shipyards Corporation to take the vessel to its own

shipyard and rebuild her in accordance with approved ©

plans and specifications. This work required removing her

decks, burning out partitions and bulkheads which divided

her into twenty-three tanks, making new bulkheads and new

partitions, putting them in place, renewing the longitudinal.

and deck beams, reconditioning her engines, boilers, steer-

ing gear and all other machinery. As stated in Judge Mur-

- phy’s opinion, the work amounted „to a virtual rebuilding

of the interior of the vessel.“ The accident happened be-

cause while the plaintiff and several other men were work-

ing below deck in one of the tanks of the ship, engaged in

installing a tank bulkhead in place of the former one, he

stood upon a scaffold about 15 feet above the bottom of

the tank and was pulling a hoist to raise the new bulkhead

into position. During this operation the shackle pin be-

_ tween the hoist and the under-deck ‘‘padeye’’ broke and the

chain part of the fackle fell hitting the plaintiff and dis-

15

Opini

: lodging him from the scaffold; the shackle pin was after-

wards found to be sheare din half, and Judge Murphy held

that it waa unseaworthy es was.obviously true.

85, and those-decision eres toned ‘As we said,

| Halecki v. United New York & New Jersey Sandy Hook

hande ee eee eee

ö „„ abrication of a new sh

: Ween ote ee pconstrut 7

tradi lly the task of the crew. Berryhill v. Pacific F

Fast Line, 238 Fed. 24 985 (C. A. 9), cert. den. 354 U. S.

3 938, is not in conflict with what we believe to be the correct

test, e disagree with Read v. United States, 201 Fed.

2d 758 (C. A. 3).

Judgment affirmed.

LumBarn, Circuit Judge (concarring) :

I concur in the result for the reasons set forth in my dis-

senting opinion in Auna Halecki v. United New York and

New Jersey Sandy Hook Pilots Association filed this day.

(458)

Sovrmmnr Dueruct oy New Yorx

= Cie, 96-282.

o-

GuyNiaix Bence,

Plaintiff,

Nationa Bux Carriers, Inc. and Topp

Surrvargpe Conr.,

D

0

APPEARANCES:

Haney H. Lrrsto, Ess. Attorney for Plaintiff, (Klonsky &

Steinman, of Counsel).

Faeventox H. Cuxntronam, Esq, Attorney for Defendant

National Bulk Carriers, Inc., (Victor S. Cichanowicz,

Esq., of Counsel).

Gaur & Locus, Rea, Attorneys for Defendant Todd

Shipyards Corp. (Patrick J. McCann, Esq., of Counsel).

Moweny, D. J.

In its final form, this is an action for ‘personal injuries

brought against National Bulk Carriers, Inc. on the theory

of unseaworthiness only. National Bulk in turn sues Todd

Shipyards Corp, alleging that Todd is obliged to indemnify

_ it, should it be held liable to plaintiff. 5 —

After trial, but before submission to the jury, all the

parties agreed that the court should reserve to itself three

factual issues, to wit, (1) whether or not defendant Na-

tional Bulk Carriers retained control over the vessel, the

S. S. Bulklube; (2) whether or not the shackle pin was

defective, and (3) if yes, whether or not this. was the

proximate cause of the accident. The case was given to

_ the jury solely on the question (459) of damages. A ver-

dict of $100,000 was returned. After trial motions were

made by both defendants to set it aside as being excessive.

The legal issues awaiting decision by the court relate

to whether or no the warranty of seeworthiness applies to

— plaintiff and whether or no defendant Todd is obli-

gated to indemnify defendant National ‘Carriers.

Most of the facts were undisputed. National Bulk Car-

riers, the owner and operator of the tanker S. S. Bulklube,

entered into a contract with Todd whereby the latter was

to perform certain rather extensive repairs, including

renewals of the transverse and longitudinal bulkheads,

for a contract price of $981,133. The vessel was delivered

to Todd on June 22, 1952, and returned to its owner De-

cember 19, 1952. On the date of the accident it was tied

up alongside a pier in Todd's shipyard.

By. the terms of the -coritract, the work was to be car-

ried out under the supervision of and to the satisfaction

of representatives of the L. S. Coast Guard, American

Bureau of Shipping and Owner.“ In this connection, the

vessel’s former chief mate was aboard every day from

8 A.M. to 5 P.M. acting as Assistant Repair Supervisor.

Sleeping quarters aboard ship were available for his con-

venience if he chose to use them. He had not signed ar-

ticles and was paid a weekly salary the same as defend-

ant’s other shoreside emplovees. National Bulk Carriers’

not agree to same, in 80 far aa they undertake to impose

any liability or any obligations to take out or maintain

insurance beyond the liabilities or the obligations to insure.

imposed upon us by law.’’ The specifications were ac- -

cepted subject to the above condition.

On October 31, 1952, the date of the accident, plaintiff

was employed as a rigger by Todd. He and several other

men were working below deck in one of the tanks of the

Bulklube. The specific task involved the installation of a

tank bulkhead. Prior to the accident the bi 3

leen removed and renewed by Todd. The installation

operation proceeded in the following manner; employees

of Todd welded padeyes to the under-deck, attached

shackles. to them, hung chain hoists from the shackles,

brought the bulkhead from the pier and lowered it into the |

tank, welded padeyes onto the br] l, attached the above

mentioned chain hoists to the ad, raised it 3” to 4

off the deck and set it against the framework where it was

19

8 Opin ion

Erlebe kaka Geisler Bast

‘off and the chain part of the tacklo felt at hitting the

plaintiff who fell from the geld to the deck below. Upon

inspection after the acciderit, the shackle pin was found to

de sheared in half e e to be bright and

shiny.

(461) Upon Gunes 3 facts I find: (1) that at

tte time of the accident defendant National Bulk Carriers

was not in control of the vessel; (2) that the shackle pin

was defective; and (3) that the defective shackle pin was

the proximate cause of the accident.

Thus, plaintiff is entitled to a verdiet if * can .

himself of the y of seaworthiness. The issue of

control is no longer of much importance since the decision

‘of Petterson v. Alaska S. 8. Co., 205 F. 10 (9th Cir.

1953), af d 347 U. S. 396 (1954).

Plaintiff relies pri ly upon Sues Shipping Co. v.

Sieracki, 328 U. S. 85- (1946); Pope & Talbot, Inc. v.

Han, 346 U. S. 406 (4958); and Lester v. United States,

pind 2d 625 (2nd Cir. 1956), cert. granted, 352 U. S.

889 (1956). Steracki was the firat of a series of opinions

extending the benefits of the warranty of seaworthiness to

those. othe ee ee ‘Plaintiff in that case was a

) | ed by an independent contractor, actu- :

ding the vessel at the time of the acci-

i A the problem to be whether the

ahipowier s N ‘of ‘geaworthiness extends to long-

shoremen ‘injured while doing the ship’s work aboard.

At 80 (eanphasis added). In this connection the court

bearer bli e bapa eee eee e amet

by an independent contractor, who was injured while re-

pairing a 3 defect in the grain loading equipment

loading operations. But here again the basis

ion Mr. Justice Frankfurter discussed Sieracki and con-

cluded that ‘‘the decision was based on the fact that long-

shoremen were doing seamen’s work and that therefore

they should be ontitled to a seamen’s remedy. At 415.

The Lester Case involved an électrician employed by the

Marine Basin Co. who was injured upon a dry-docked ves- -

sel while working on the running light panel. The Court

of Appeals reversed the trial judge and denied recovery

on the ground that the ship was not unseaworthy. Plain-

tiff makes much of the faet that the government seems to

have conceded in its brief that a warranty of senworthiness

applied. But the issue was never raised and the Court of

Appeals never discussed it. Had the court held in libel.

ant’s favor there might be some merit in plaintiff's conten-

tion that silence implied assent but since the decision was

in respondent's favor we feel any inference is unwarranted.

Opinion

JJ

C

easily | Je from on which he relied. The

2 ast Lines, 238 F. 2d 385

(9th Cir. 1956) and West v. United States, 1:3 F. Supp.

478 (E. D. Pa. 1956), the facts in which are almost iden-

- tical to those in the case at bar are more clearly analogous.

Both cases in denying recovery stressed, as indeed the

Supreme Court did, that the warranty of seaworthiness

was extended to workmen other than seamen in the tradi-

tional sense of the word, because they were „doing a sen-

man’s work and incurring a seaman’s hazards.’’ Seas

Shipping Co. v. Sieracki, supra at 99.

(463) The test then is not the name given to plaintiff’

calling or trade but the nature of his work, and viewed

in this light it is abundantly clear that plainuff was not

performing usual seamen’s work. Granting that seamen

have historieally, been required to perform some repair

work both at sea and in port, nevertheless, they have never

traditionally been required to remove, renew and rein-

stall transverse and longitudinal bulkheads—work which

amounts to a virtual rebuilding of the interior of the vessel.

Since the whole rational of Sieracki rests on the premise

that a shipowner cannot escape its absolute obligation to

provide a seaworthy vessel by contracting to have a third

party perform the services traditionally performed by sea-

men, it becomes apparent that once the third party per-

forms services different from those usually performed by

seamen, the warranty of seaworthineas which was histori-

eally designed to protect seamen, need no longer apply.

Cessante ratione legis, cessat et ipsa lex. Consequently

the complaint is dismissed.

Tx08. F. Mureny

| | U. S. D. J.

Dated, New York, N. V., February 26, 1987. 9

*

23

UNITED STATES COURT OF APPEALS

No, 94—October Term, 1957.

_ (Argued November 21, 1957 Decided January 10, 1958.)

Docket No. 24551

b Dtn New Tonk axnp New Jersey Sannpy Hoox Pnors

Asso Ton, a corporation and Unrrep New Yourx Saxpy

_ Hoox Pirots Association, a corporation,

| a Appellanis.

Before:

—

Hann, Hixoxs, and Lumsarp,

Circuit Judges.

Appeal by the defendants from a judgment of the Die-

trict Court for the Southern District of New York in favor

24

Opinion

of the plaintiff in an action to recover damages for the

death of the decedent in the State of New Jersey because

of the negligence of the-defendants and of the unseaworthi-

ness of a pilot boat on which he was employed. Affirmed.

Lawrence J. Manoney for the appellants.

NaTHAN Baker for the appellee.

Hann, Circuit Judge:

This appeal is from a judgment for the plaintiff entered

on the verdict of a jury, awarding damages for the death

of the ;!uintiff’s decedent while engaged in cleaning the

pilot boat, New Jersey,” belonging to the defendants. The

complaint was based upon two counts; one for negligence

‘and the other for unseaworthiness, and four errors are

alleged. First, that the evidence was not sufficient to justify

a verdict on either count. Second, that the court erred in

submitting to the jury any question of. seaworthiness.

Third, that the court should have charged the jury that

under the New Jersey Death Statute contributory ne gli-

gence was a bar and not a limitation upon damages.

Fourth, that the defendants should have been allowed to

show that the plaintiff had made inconsistent allegations

in another and pending litigation.

On September 22, 1951, the“ New Jersey,” a pilot boat,

was moored at a pier in the repairyard of Rodermond

Industries, Inc., North River, Jersey City, for annual over-

haul and repairs; the only employee of the defendants on

board was a watchman. Part of the work was to clean the

25

= Opinion

ship’s generators which had berome fouled in use, and

Rodermond Industries subcontracted this part of the job

to K. & S. Electrical Company, the employer of the dece-

dent, Halecki. On the 28th he and Doidge, a fellow worker, 85

set up the necessary equipment on the boat. Since she was

at the time without any electrical current, it was necessary

to bring in current from the shore. The generators were

cleaned by spraying them with carbon tetrachloride, a vola-

tile liquid, which will ‘‘remove all traces of dirt and film,

but whose fumes, unless their density is carefully con-

trolled, may be deadly. The generators were in the ship’ ~

engine-room, one deck below the main deck, and Doidge and

the decedent sought to protect themselv es during the work,

(1) by using gas masks, and (2) by bringing two “air

hoses’? and a „blower,“ actuated by the current from the

shore. One hose was used to spray the tetrachloride upon

the generators; the other, to blow in fresh air from the out-

side, The ‘‘blower’’ was set at the bottom of the engine-

room near the generators, and from it led an exhaust pipe

to an open door about eight feet above. In addition, the

ship's permanent ventilating system was set in action by

the outside current; it consisted of some fans and ‘‘vents’’

at the top of the engine-room through which air was drawn

in. Thus, means of exhausting the contaminated air con-

sisted of (1) the hose that was not used to spray, (2) the

„blower,“ and (3) the increase of air pressure resulting

from tne intake of the ship’s own ventilating system. Be-

sides this, an open door and an open skylight led to the

air. A bige ‘-hemist, familiar with the use of tetrachloride,

after being told in detail the size of the engine-room and

the apparatus installed, gave as his opinion that the venti-

lating system in the engine-room, even when supplemented

by the apparatus brought on board and installed by perder:

and the deceased was not “adequate to remove the fumes.’

| 7 We

Opinion

The competence of this expert to give an opinion was

so much within the discretion of the trial court that only

in a clear case should we overrule its decision.’ The state

law of evidence is no longer the final test of the admissi-

bility of evidence. ous .

tain the methods and manner in which the concessionaire _

or independent contractor carries on his activities, not

only at the time when the concession is let, or the con-

tractor employed, but, also during the entire period in

which the concessionaire or- contractor carries on his

1 United States v. Miller, 61 F. 2d 949, 950 (C A. 2); Tucker v.

Loew's Theatre & Realty Con 149 F. 2d 677, 679 (. A. 2); Trow-

bridge v. Abrasive Co., 190 F. 2d 825, 829 (C. A. 3); 2 Wigmore,

5561. 0 a

2 Leathers Ws Blessing, 105 U. S. 626, 630.

— =

27

Opinion

letivities.“ Being charged with ee ee that 80 dan-

gerous a substance as tetrachloride might be uséd, it was

proper to leave to the jury whether the methods and

gence count.

Juite a different question arises as to the warranty of”

seaworthiness, for, if that attached, it imposed an absolute

liability, if the engine-room was not properly equipped.

Although in a very scholarly analysis of the earlier deci-

sions, it has been recently argued that the maritime law

did not impose such a warranty in favor of seamen,‘ rightly

or wrongly the opposite doctrine. has become so firmly

settled since The Osceola, 189 U. S. 158 (1902) that we.

decline to reconsider the question, All that is left for us

on this appeal is whether the warranty of seaworthiness

extended to the decedent although coucededly he was not a

xeaman, hut as we have said, a business guest“ on a ves-

sel within the navigable waters of 3 Jersey. In Guerrini

v. United States, 167 F. 2d 352 (C. A. 2), the ship, as in the

case at, bar, was moored in Hains alongside a dock; and

the libellant, an employee of a subcontractor, was engaged

in «leaning her boilers and tanks, when he was hurt by

slipping ou a grease spot, We held that the doctrine of Sens

Shinping Co, v. Sieracli, 328 U. S. S5, did not apply. Ho-

ever, that was in 1948 before either, Pope A Talbot v. Hawn,

246 U.S. 406 or_Petterson v. Alaska SS. Co., 347 U. S. 396.

“was decided; it is now clear that we were habe both in

limiting the warranty to those doing lonyshoremen’ s duties

and in supposing that the surrender of control! of the

5

ship was relev ant. We can see no distinction between the

vw

iPG— ——— 8

Restatement of Torts, Vol. II. §344, Comment hb.

4 *Seamen. Sea worthiness and the Rights. of Harbor W hens”

Francis I.. Tetrault, 39 Cornell Law Quarterly, 381.

manner“ or its use were proper. So moun, 155 the negli- zs

28

8 f Opinion

work of the decedent in the case at bar and that of the

plaintiff in Pope & Talbot v. Hawn, supra (346 U. S. 396),

which was carpenter’s repair work. We think that the test

is whether the work is of a kind that traditionally the

erew has been accustomed to do, and as to that it makes

no difference that the means employed have changed with —

time, or whether defective apparatus was brought aboard

and was not part of the ship's own gear. Since the decensed

was cleaning the ship, we hold that it was within the gee

trine of Pope & Talbot v. Hawn, supra. 9

As might be expected, so shadowy a line of 3 ca

will in application produce inconsistent. results, For ex- —

ample, in Read v. United States, 201 F. 2d 758, the Third

„Circuit held that the warranty extended to a business

guest’? who was doing part of the work of changing a

„Liberty“ ship into a transport, while the Ninth Circuit. in

Berryhill v. Pacific Far East Line, 238 F. 20 385, cert. den.

354 U. S. 938, refused relief to a workman who was en-

bnged in ‘‘major repair,“ as these were described in the

Distriet Court (138 Fed. Supp. 859). In the appeal in

Rerge v. National Bulk Carriers, Inc. (148 Fed. Supp: 608), 2

decided herewith, we shall state the reasons that impel 1 a

to prefer the decision of the Ninth Cireuit, but it is not

- necessary to pass on that question here, because as we

have said, the work did not involve any structural changes

in the ship, but was of a kind that was part of the crew 8

work, not only at sea, but when she was laid up fer general ost

overhaul, We start therefere with the conclusion that it:

Was proper te leave to the jury, not only the issue of sot

negligence, but that of unsenworthiness. r

That does not however answer two other e

(1) that the plaintiff is not the decedent, but an adminis-.

tratrix, and (2) that the judge left the detedent’s contribu-

t

Opinion

tory negligence to the jury, not as a bar, but ony in in limita-

tion of damages. It is common ground that the liability

kor breach of the warranty of unseaworthiness does not

survive under che maritime law (The Harrisburg, 119 U. S.

199; Lindgren v. United States, 281 U. S. 38). As to the

maritime tort, 833 of the Merchant Marine Act of 1920

_ (Title. 46, 6688) gave to Lethe personal representatives“ of

n deceased seuman the same, remedies that the deceased

sould have had, had he lived. However, in the case at bur

tune deceased was not a seaman, so that upon both counts

the plaintift must resort to the „Lord ‘Campbell’ s Act”’ of

Few Jersey“ which provides i in general terms: Wben the

death of a person is caused by a wrongful act, neglect or

default such as would. * * have entitled the person in-

jured to maintain an action for damages the person

5 who would have been liable Shall be liable i in an action

for damages. Much controv ersy has arisen over the scope

of the phrase just quoted, making the liability to the next

: of kin depend upon an “act, neglect or default“ of the

putative obligor. When the question ardse in the Third

Lireuit whether these words covered a breach of the war-

eae of seaworthiness, the court in banco by a vote of

four to three held 4Skovgaard v. The Tungus, December

23. 1957) that they did. In spite of the zeal with which the

= ‘contrary has been argued, we think that the majority was

Ne right. Graham v. Lust, 206 F. 2d 223 (C. A. 5) does not

<< ‘actually hold the contrary; though that may have been

the court's opinion. Its decision was based solely en the

bDoint of contributory: negligence, and did not pass upon

tme ruling of the district court that the libel could not rest

3 en breach of warranty. Lee v. Pure Oil Co., 218 F. 2d 711

(. A. 5) held that, even vis-a-vis the decoased, there was

> *

5 N. J. S. A 2A:31-1.

*

30

Opinion

no breach. of warranty, and then went on to say that in

any event his administratrix could not recover. The report

does not tell us what was the language of the Tennessee

statute; but if it was the same as that of New Jersey,

we are not persuaded. We hold that ‘‘neglect’? and “de-

fault’? beth cover a breach of the warranty. “

— Thiere remains, however, the further question: te, —

whether contributory negligence is an absolute defense. Be-

fore the decision of the Supreme Court in Pope & Talbot

v. Hawn, supra, it had heen generally held that when a se-

man before the Merchant Marine Act of 1920, or a shore.

worker thereafter, had been killed because of the negligence

of the ship’s crew in the navigable waters of a state having

a Local Lord Campbell’s Act. contributory negligence was .

a bar to an action by his next of kin. This was as true

when the suit was in the admiralty as in à court of the

state; in short, the bar arising from contribut y negli-

genee was an incident of the liability imposed hy the state,

no matter where suit upon it was brought.“ In Pope € -

Talbot v. Hawn, supra, however, the Court held that con-

trilmtory negligence was not a bar to au sition at law by

a “business guest,” but only limited his dardages, and this

we read to mean that rights arising from faults that occur 85

in navigable waters are exclusively the creation of mari-

time law, and are exempt from the defense of contributory

negligence whether suit upon it is in the admiralty or in

an action at law, state or federal.“ The following language

© Robinson v. Detroit “. C. Steam Navigation Co., 73 F. 683 (6th

Cir. 1896); Ouinetie v. Bisso, 130 F. 825 (5th Cir, 1905); O'Brien

v. Luckenbach S. I. Co., 293 F. 170 (2d Cir. 1923); Klin gseisen v.

Costanzo Transp. Co., 101 F. 2d 902 (3d Cir. 1939); Graham v. 4.

‘Lusi, 206 F. 2d 233 (Sth Cir? 1953); The A. W. Thompson, 39 F.

S15 AS-D. NY, 1889 per Addison Brown, J.); The James M’Gee,

300 ¥.:03. (5. DN. ¥. T9824). S Bao

Cf. Garrett v. Moore. MeCormick Co., 317 U. S. 239,

81

Opinion

we take from the opinion of the majority in that case, pages

409, 410: ‘‘the right. of recovery for unseaworthiness and

~ negligence is rooted i in federal maritime law. Even if Hawn

were seeking to enforce a state created remedy for this

richt, federal maritime law would be controlling. While

states may sometimes supplement federal maritime policies

a state may not deprive a person of any substantial ad-

3 miraltꝝ rights as defined by acts of congress, or interpre-

tative opinions of this Court.“ Although, as we have said,

we are not dealing with ‘federal maritime law,“ we should

remember that so far as we can we ought to construe the

statute so as to avoid capricious and irrational distinctions.

“We leave open whether New Jersey is without power to

take as much or as little of the rights ‘*rooted in federal

maritime law’? as it chooses as the model for the right it

_ eonfers upon the next of kin; but the courts of that state

have never passed npon the question, and to deny the ex-

ea emption to the next of kin seems to us to the last degree

-eapricious and irrational. Althongh it was only a dictum,

the First Cireuit in 0 "Leary v. United States Lines Com-

bann, 215 F. 2d 708, 711, declared that it would be incon-

gruous to hold in conformity with Pope & Talbot v. Hawn.

5 1 supra, that the maritime law determined the respective

7 of the parties in the event of personal injuries short

of death, but that state law. determined their rights in the

event of injuries. resulting in the ultimate consequence of

death. „We dare aware that Curtis v. Garcia. 241 F. 2d 30,

8 36 (C. A. 3) is to the contrary, but as neither it nor O’Leary

v. United States Lines Companu, supra, is authoritative, we

are ‘free to choose. Obviously, the answer is not certain;

we must do as hest we can with what we have, and we hold

that the New Jersey statute ‘shonld be construed as taking

3 4 aver as a bart of the model it accepted the mane soins of

_ contributory. negligence as a bar.

32

Opinion

Finally, the defemdants-complain that the judge refused

to allow them to prove that the plaintiff in another action

had asserted that Rodermond Industries had control of the

vessel. Even though this were an error—on which we do

not pass—obviously it was not of encugh importance to

reverse the judgment.

Judgment affirmed.

Lumsarp, Circuit Judge (dissenting) :

I cannot agree that we must subscribe to the principle -

that a shore-based worker who performs any labor on a

ship, even though the ship is oat of operation and tied fast

to a dock for overhaul, should have extended to him a war-

ranty of seaworthiness merely decause the work which he is

doing can be generally characterized in terms of the duties

which a seaman could be expected to perform, It is not

~ enongh to categorize Halecki's work as cleaning ship’s

equipment. Here the inescapable fact is that Halecki, in 8

spraying the generators with carbon tetrachloride, was

doing something which a seaman could not do, which no

seaman had ever done, and which would expose the se-.

man’s life to serious danger if he even attempted it. |

A summary of the evidence showing how che generators

the absurdity of assimilating this work to that of a sen-

man or of saying that the work is of a kind traditionally —

on Saturday, September 22, 1951 the pilot boat Nen

Jersey,“ owned by the appellants, was turned over to

Rodermond Industries,* Ine. for its annual overhaul and

33

Opinion

inspection. It was moored at the Rodermond repair yard

pier at the foct of Henderson Street, North River, Jersey

City, New Jersey. A list of repairs, prepared by Roder-

mond the following Monday, September 24 provided that

the crew was to remove and replace the eight cylinder

‘heads for the port and starboard generators, and the con-

tractor was to do some work on the cylinder heads. Under

the same heading ‘‘Port & Star Generators“ it was pro-

vided: : \

„Spray clean with carbon tetrachloride the arma-

ture and field windings to remove all traces of dirt

and film: Close up and prove in good order.“

Rodermond in turn subeontracted with Halecki’s em-

ployer, the K & S Electrical (Company, to do certain elec-

trieal work and to spray the generators with carbon tetra-

chloride, since neither ship nor shipyard was equipped or

competent to do this work. The K & S foreman, Donald

Doidge, was at work on the New Jersey from Monday,

September 24, and on that day he consulted with the New

Jiersey's chief engineer as to when the spraying should be

done as we know it has to be done when there is nobody

: ee else on board ship.“ Doidge agreed with the chief engineer

that it should be done on Saturday during the absence of

the erew, since during the week members of the crew were

. working on the chip. : N

. Pursuant to these arrangements, 8 2 “Halecki

3 made preparations. on Friday for the Saturday spraying.

: = Doidge, the shop foreman, bad been an eleetrieian for about

25 years and Halecki had worked with him for about 6

Fears. Not all their work was on ships; they cleaned gen-

re : erators by carbon tetrachloride * spray in factories and

ae 8 wherever the generators were, On Friday they

34

Opinion

brought on board extra air hoses and a 1 3 to

Rodermond. One air hose was used for the spray gun and

the other was used. underneath the generator as an ex-

haust to blow the fumes away from the man spraying. A

high compression „blower“ was placed so that it would

exhaust foul air out through one of the two open door-

ways.

On Saturday morning are 29, according to the

previous arrangement, Duider and Halecki came aboard

to do the spraving. They found only the defendant’s watch- —

man, Walter C. Thompson, and they told him to stay out of

the engineroom and not to let any body down. They brought 8

with them three gas masks belonging to K & S Electric _

Company. Halecki wore a gas mask and did most of the

spraying 10 to 15 minutes at a time with intervening rest

periods of equal length. All the equipment for exhausting 5

the fumes and the ship’s ventilating system were in opera.

tion and run by power supplied from generators on shore.

Halecki took sick the next dax and died two weeks later. =

There was sufficient evidence to süpport the jury’s finding ae

that death was caused by carbon tetrachloride poisoning. es

Despite history and logie, the trend of decisions in cases 5

involving injuries and death on navigable waters, now

further extended by my distinguished colleagues, seems 10

be guided by what Justice Rutiedge has frankly called 5

„humanitarian policy.’’ Seas Shipping v. Steracl „ 38

VU. S. 85, 95 (1946). This 9 seems to be based o Ps

theory that judges are competent to determine that it is es

better that the shipowners should assume all the burdens — 7

because they are able to average them out thro oe

ance_or some form of protection against all the hazards 0! 5

accident which may occur on shipboard to anyone coming

on board. The result. has been a progressive expansion, = :

| a =a.

tion for the jury is the amount of damages.

35

Opinion

both qualitative and quantitative, in the duties and liabili-

ties imposed upon shipowners.’ From a a concept resting on

negligence, seaworthiness has, by judicial development,

become an absolute duty imposing liability without fault.

From a duty running to those we traditionally consider as

seamen, exposed to the hazards and discipline of the sea,

it has been expanded to inelude a multitude of harbor |

workers who report for work in the morning and return

to their homes at night. The burdens of proving lack of

due care and of defending against the bar of contributory

negligence are jettisoned by this judicial legislation. Where

there is the slightest support for causation the only ques-

a

It may be argued that the initiative taken by the federal

courts in imposing absolute liability is justified by their

peculiar historical responsibility for admiralty law. And we

are told that certain harbor workers come within the ambit.

ok the warranty of seaworthiness because a shipowner can-

not escape liability by delegating to others what is tradi-

tionally seamen’s work. Seas Shipping v. Sieracki, 328 U. S.

— 85, 95 (1946). Here we go further. When a lower court

charges on both seaworthiness and negligence toward a

business invitee, we must assume that the only. justification —

for the charge on seaworthiness i is that the shipowner may

Be found liable despite his own duc care. By assimilating

5 certain activities to maritime law, ‘we extend the absolute

5 7 —

4

~ liability of shipowners, in effect, beyond the shipyard gates.

The owner, despite ihe utmost care, is liable. for the ac-

See Feel 8 ä ‘aaa he Rights of Harbor

Workers. 39 Cornell I. O. 381 ( 1954): The Tangled Seine: A Survey

ol Maritime Personal Injury Remedies, 57 Vale L. J. 243, 252

(1947); Gilmore and Ma The law of agra 315-324, 358

(41957). N

Opinion

tivities of a specialist employed expressly because these

activities were beyond the range of experience and ‘com-

petence of the ship's crew. These circumstances rebut the

Contention that the shipowner is nullifying his liability

by parcelling out ship’s work to others.

The anomaly of the result reached here is pointed up

When we consider the restricted liability of the specialist’s

employer, who is in the most favorable position to reduce

the incidence of injury. Unlike the shipowner, the imme-

diate employer’s liability is restricted to the insurance ex-

penses of workmen's compensation or to damages incurred

due to his lack of due care. Although the shipowner was

not Halecki’s employer and this was essentially an indus-

trial injury resulting in the death of a shore-based elec-

trieian, an absolute liability of judicial creation is im-

posed upon the shipowner above and beyond the system

> developed by New Jersey to compensate for industrial acci-

denis. I bad thought that such far-reaching changes in

and legal duties were solely within the province of

rights

eo the elected representatives of the people in Congress and

a not the proper business of judges. The traditional re-

sponeibility of the federal judiciary for admiralty does not

justify such an expansion of liability.

Aualeeki risked all the hazards of the sea as. one might

experience them on a Saturday in late September while

tte ship was made fast to a bulkhead in Jersey City. He

Was not a seaman, he was not doing what any crew member

— —

37

Opinion

= _petence of ship and shipyard, necessitates the removal and

* exclusion of the crew, and requires bringing extra equip-

‘ment aboard for the safe Shs ise of te hazardous

activity.

The case of Berryhill v. Reel Far East Line, 238 F. 2d

385 (9 Cir. 1956) cert. den. 254 U. S. 938, is authority for

the proposition that when the manner of doing the work

is foreign to what the ship’s. crew could do and involves

_ the use of equipment not used or known on ships, there is

no warranty of seaworthiness running to those who are

| injured in the course of doing such work by reason of any

defect in the equipment so used. In that case the plaintiff

was injured by the shattering of a grinding wheel brought

on-board by his employer, Todd Shipyards Corporation,

for use in repairs being made on the shaft keyway”’ on

_» defendant’s ship. The Court of Appeals held there was

no warranty of seaworthiness with respect to the granting

wheel. Judge Barnes pointed out that to hold otherwise

would go beyond the Sieracki, Hawn and Petterson? cases

as the grinding wheel was equipment that the ship could do

without, and the shipowner may never have had any rea-

son to know that such equipment existed. That the kind of

‘equipment used is foreign to the vessel is just another way

of saying that the work done is not the kind of work nor-

mally done by seamen, |

My brothers say that this work ! was merely cleaning a

_ generator and, as cleaning propu!sion machinery is the

kind of work which seamen would normally do, cieaning a

generator is seamen’ s work and those who do it are en-

Co, v. Sieracki, 328 U. S. 8S (1946); &

nS ‘=

346 U. S. 406 (1953); Petterson v. Alaska

S. S. Co., 205 F. 2d 478 (9 Cir. 1953), aff'd per curiam 347 U. S.

390 3

*

ce

Opinion

titled to a warranty of seaworthiness. This assimilates

spraying with carbon tetrachloride to all cleaning as if it

were harmless and commonplace; it is a play on words

which by a chafacterization avoids dealing with a differ-

enge in means which completely destroys the validity of

the syllogism. Becanse seamen may be able to do some kind

of cleaning does net make seamen of those who do auother

kind of cleaning which seamen have never done and can-

not do; nor does it supply any reason why an outside

specialist should he treated, or needs to be treated, like a

seaman.

That such general 8 is not a solution is

emphasized by Berge v. National Bulk Carriers Corp de-

cided this day. There the same panel of this court holds

unanimously that there is no warranty of seaworthiness

to a rigger, engaged in installing a tank bulkhead in the

course of rebuilding a vessel, who was injured when the

shearing. of a defective shackle pin caused a chain tackle

to fall and knock him from a seaffold, What Halecki did

was no more the kind of work that the crew of a vessel

was accnstomed to do than was what Berge was doing. Ine

deed, it was less so. One night characterize Berges work

as lowering a heavy load into the hold, a normal seaman’s

duty done without abnormal risk of harm. Halecki’s work

was entirely novel and foreign to what seamen had ever

done and far more dangerous to anyone who might be

aboard.” As in Berge, the work required the cessation of

ship’ s operations and the removal of the erew.

Passing this point, I must also dissent from the major.

ity’s view that under the New Jersey Death Statute, N. J.

S. 2A:31-1 (1952), a maritime claim, such as Halecki’s, is

not subject to the defense of contributory negligence. »

39

Opinion

There is no basis for saying that the New Jersey legisla-

ture meant to abandon the defense of contributory negli-

gence in such cases and it seems to me there is every rea-

son as a matter of common sense and usual practice for

saying that they did not mean these vases to be on a differ-

ent basis. I would adopt the view of Curtis v. Garcia, 241

1. 2d 30 (3 Cir, 1957). Furthermore, it is difficult enough

for admiralty lawyers and judges to keep up with the

changes and developments in this field without expecting

the members of a state legislature, few if any of whom are

admiralty lawyers, to take over sight unseen whatever may

be held to come along in the kaleidoscope of maritime

richts, as against the doctrine of contributory negtigence

with which New Jersey and her lawyers have long been

familiar. To hold otherwise seems to me to embrace a

pure ficticn for the purpose of ee ‘*humani-

tarian policy."’

To refuse to sistend the warranty of seaworthiness to

Halecki and incorporate by reference comparative negli-

gence into the New Jersey Dea*h Statute would not leave

persons in the position of Halecki’s survivors without a

_ remedy. Besides the remedies against the employer nor-

mally incident to death by industrial accident in New

Jersey, see R. S. 34:15-1, 34: 15.7, 34:15-8, 34:15-9, R. S.

Cum. Supp. 34:15-4, web persons apparently may alter-

~ natively elect to proceed against decedent's employer under

the Longshoremen’s and Harbor Worker's Compensation

Aet, 33 U. S. C. A. 4901 et seg. See Davis v. Dept. of Labor

and Industries of Wa ashingtow, 317 C. S. 249 (1942); Den-

ear v. Tietjen & Lang Dry Docks, 17 N. J. “Super. 76, 85

A. 2d 343 (Cty. Ct. 1951), aff'd 20 N. J. Super. 486, 90 A.

2d 84 (App. Div. 1952). Nor does our refusal foreclose

actions agujust the shipewner ar the shipyard for their

40

Opinion

failure to exercise due care. Indeed such an action was

brought by this appellee against Rodermond Industries

for its alleged negligence in the events which led up to

Halecki’s death. Moreover our reversal in this action ;

would permit retrial of the cause against the ses ne nas 5

on the theory of negligence. “yi

I would dismiss so much of the complaint as relies on a

warranty of seaworthiness, and reverse and remand for a

new trial on the issue of negligence.

y

4a

ry

41

Judgment

UNITED STATES COURT OF APPEALS:

For THE SECOND Cie

At a Stated Term of the United States Court >

5

City of New York,-on_the 10th’ day of ae

ary one thousand nine hundred and fifty -cight.

of Appeals, in and for the Second 1

held at the United States Court us

Present: How. Learnep Haxp

How. CAnROLI, C. HiNeRS

Hon. J. Epwarp Lumsparp

Circuit Judges.

GuNNLEIK Berar, | :

Plaintiff-Appellant,

v. ae :

Nationa Bruix Careers, INC., and Topp Sir vans

CORPORATION,

“>

° 5

oe: >

Nes

Appeal from the United States Distriet Court for the 5

Southern District of New Vork.

This cause came on to be heard on the te of

record from the United States District Court for the

Southern District of New Y ork, alu was argued by counsel. :

Ox CONSIDERATION WHEREOF, it is now hereby ordered, Ses

adjudged, and decreed that the ien of me N 5

Court be and it hereby is affirmed.

= Dun, Pose

a ore:

Defendants ava lte. :