# Appendix — Berge v. National Bulk Carriers, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0198%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1957 - **Citation:** 356 U.S. 958 ## Text 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. : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0198%3A3. Public record. Not legal advice.