Petition for Writ of Certiorari — Goett v. Union Carbide Corp.

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Supreme Court of the United States

OCTOBER TERM, 1960

: No. 2 wae =

LEN GORTT. as ANdministratrix of ghe Estat

Manvis Pari Gort. Deceased,

Pot "ie ve :

bydtinst

PNION CARBIDE CORPORATION,

Pry :

shapetipent ‘

AMHERST BARGE COMPANY,

Ri Spindle

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS.

FOR THE FOURTH CIRCUIT

Biexest Franknis Pacey.

( rtnewed hes} Pufitioner,

Peopies Buitding,

Charleston, West Virginia,

GGoLESTEDS & STEREN FELD,

S. Enpripok SaAMPLINER,

if Counset. -

Harvey GotLpstrery,

nthe Briet

INDEX

. : PAGE

“Apphieation of Harvey Goldstein to permit the use

of Record on Appeal in (ioett vo Union (girbide,

OE cr vene sow kee: Wes 6 was ee at es ral v

Opinions of the Court Below Neste ts ceeeere eC. 1

TONNES Soe ee ia Ae ee eee Te 2

SPUN TINO Co cc ese src ee ease 3

sjsmamicietlied ncminignssadiened CERT TPE T PE RAPP e Le 4

cmmbewnett OF Parts. mrrecrics sss lec eancccclrn 5

Reasons for Granting the Writ ............ PL args 9

Twsee mice tang, LR EN EI 5 EEN ay ta 39

APPENDIX: ;

Findings of Fact and Conclusions é6f Law of the

Distriet Court (Honorable Ben Moore) la

Opinion of the United States Court of Appeals

for the Fourth Cireuit ..................... ia

Judgment CSc ViaSat aie wee ae et em et ISa

Opinion of the Supreme Court* of. the United

PU eo ccarar ets oles ene: pe he ed 20a

Upinion of United States Court of Appeals for

the Fourth Cireuit ...... FRA PA ona sds SARS on

SO Og, eS dla

Cases Cited

Alaska v. Petterson, 205 F. 2d 478, aff'd 347 U.S.

ee ME Oe TIRE TE, ok nl Me ee 22

Anderson v. Laurentzen, 160 F.2d 173 ............. a be

Armit v. Loveland, 115 F. 2d 308 ......... 07. oer (16

Black Diamond v. Steward, 336 U. S. nae =i 26

Becker v.-Waterman, 179 F. 2d 713 ............... 16

Berge v. National, 251 F. 2d 717. ...... Nahe soca cies 22, 23

PAGE

Berryhill \. Pacific, 238 F.2d 385 .............. Ape >

Bisso v. Inland, 349 UL S.85 ...0............ otis 36

Burnet v. Coronado, 285 U.S. 393 ..:............ 36, 37

Calvert, The, 51 F. 2d 494 0.00000... RN ce ee oe 1f;

oe eee ene, OT et 3

Crawford vy. Pope & Talbot, 206 F. 2d 784 .,....... pa

Feinman v. Bull, 216. F.2d 393 20.0.0. 0.0 0. <3 ee ae

Fodera v. Booth, 159 F. 2d 795 ..... ste RE gone leon 2

Gindville v. American, 224 F.2d 746 ........ es wes Is

Goett vo Onion, 256 F. 2d 449, 361 U.S. 340 2... Ag? eae

Guerrini v. United States, 167 F. 2d 352 .......:.. 17,21

Halecki v. United, 251 F. 2d 708, remanded, 338 U.S.

ae ee ee eee ae eee Bia nL Tien 9, 10, 12, 13, 17, 24

Hess v. United Stites, 361 U2S. 314.000... Ree ou

Holley v.S.S> Manfred, 269 F. 2d 317 ........... oe aay ae

sueraog v. Stern, 264 N. ¥. 379 ................... 26

Harrisburg, The, 119 U.S. 199 ............ 30, 31, 32, 34

smperial v. Driik, 234 F.2d 4 ............... Seances 16, 23 -

Just. v. Chambers, 312 U.S. 383. ......0............ - 33

Kermaree v. Compagnie, Pe 0s OEE Sac ie ka cess 11

Klimaszewski v.: Pacific, 246 F. 2d 875 .....- aa aie eon AG

Knickerboeker v. Stewart, 253 U.S.149 ............ 23, 29

Kernan v. American, 355 U.S. 426 ................ 34

LaGuerra vy. Brasiliero, 124 F.2d 553 ........ 12, 16,.19, 20

Lawlor v. Socony, 275 F. 2d 599 ........00...04.. 23, 24

Lester v. United States, 234 F. 2d 625 ..:.......... oe

Lottawanna, The, SS U.S. 558 ....... eee we cee ae 2

Levinsen v. Deupree, 345 U.S. 648 00005. BH

Loucks v. Standard, 224 N.Y. 99 ................. 2h

MacPherson ‘v. Buiek, 217 -N. Y. Sane ied Dae i:

McAllister v. United States, 348 ULS.19 0.00.00... _ 16

MeKnett v. St. Louis, 292 U.S. 230............... 26

Moore-MeCormack v. Amirault, 202 F.2d 893 ........ Pal

Raidy v. United States, 252 F. PR AME ence.

Rogers v. United, 205 F. 2d 57, rev'd 347 US. 984

Romero y, International, 358 U.S en ep a ae

Rossy, S.S Ze eland, 240 F "oc, Se ea era haan

Sanford v. Caswell, 200 F. 2d 8: «He ORE re ye

Skovgaard y, Tungus, 252 F.2d 14, aff'd 358 U.S,

an OR ey a ore ee 12, 13, 15, 23, 2

Seeandbe i, ee, OE RATT cas

Southern v. Jensen, 244 U. S. 205 RY ee eer rete ee

Torres v. Kastor, 227 FY. 2d 664 2.000... Perey awed

Titanie, The, 233 U. S. ect ee ee

Thielbek, The, 241 F. 2d Ag LeR aces Ate Sea ee Sree

Vera Cruz, 10 App. Cas. 59 ................ WR nee Ess

Weissengoff y. Davis, 260 :. ge PURE Pema ita

West v. United States, 361 U.S. 118 20000000000

Western vy, Garcia, 27 U.S - 233 Peet es ere ieaes

Workman v. New York om U De OMcic oe ae 25

7 Hi

PAGE

vew Berne, Li ith oe S| ree 16, 20

New Zealand y, arnmoor, 79 E 368 as BA hints a ea ach 29

Newburgh v. Texas, 227 F. 2d 73 panei . ieee 29

Panama y. Johnson, 289 F. 964, aff’d 264 U.S. 375 |. 16

Palermo vy. Luckenbach, 353 U. S. SRS nea ated ae .. 16, 20

Pieree v. Ford, 199 F: 2d 910°...................., wR

Pittsburgh v. Palo, 64 F. ME wi 16

Poling vy, Poling, 116 W. Va. i, BO Pre roe 26

Pope & Talbot v. Hawn, 198 -E’. 2d 800, aff'd 346 -

eR MO hy oases Sele tee. 12,.15,.17, 22

Quinette v . Bixso, Be Bs MO edie rane eas 27

toto to ts

: > 2

to Cite és

iv sy

Statutes Cited

+ West Virginia Statutes, § 5474(5) 2. 0-707... 4,52

West Virginia Statutes, { 5475(6) ............. ae

ee Oe ae ss Pre Veeee Ss eee ee

SS tO COE er ic ee ee 30

64S OSB le See ered. Eee 20)

6. COR CE isc heer en: rei Vain Clee ee

SCO eras og Set ee CaeGe ie a he

Texts Cited

Benedict on Admiralty, Vol. 1,6 8 pp. 9-41-0000... Be

Hughes on Admiralty, Ch. X, $< 108-110, pp. 224-

MT REED VSS T OL CEH Ro ewa ee ie es herr eee

= bly

Resvatement, Torts, < 334. comment (>): £ 413¢b).

comment (bh); . 415; \ 416, eomment (b): 4° 425.

196. 027. ee na Ty Paine SAE 7

PAGE .

Supreme Court of the United States

OCTOBER TERM, 1960

No.

‘F

Eucen Gorrt, as Administratrix of thy Estate of Marvis

_ Pave Goert, Deceased, ,

Petitioner,

agaimst

Union CARBIDE CORPORATION;

. Respondent,

° agaimst °

. AMHERST Barce Company,

Respondent.

— Saws

APPLICATION TO PERMIT THE USE OF RECORD

ON APPEAL IN GOETT v. UNION CARBIDE, ETC..,

No. 3, October Term, 1959.

State or New “Yous

; . >SS

Cocnty or New York \

Harvey Gotpsters, being duly sworn, deposes and SUVS:

He is of counsel to the attorney for the Petitioner herein.

“his matter was tried in the United States District (Court

for the Southern District of West Virginia, Charleston Divi-

sion, in 1957. The Respondents appealed from a decree in |

tavor of the Petitioner and the United States Court of

Appeals for the Fourth Cireuit reversed and dismissed the

complaitit. .

Petition for writ of certiorari was granted by this Hon-

erable Court and in due eourse, the entire record of prior

proceedings was printed.

vi :

The matter was remanded to the Court of Appeajs for

further decision, which was recently handed downs.

Petitioner is now making application fora writ of eertio-

rari to the Court of Appeals and desires to employ: the

record previously printed for the prior argument of this

matter before this Court.

There has been po further reeord with the exception

ofthe decision of the United States Court of Appeals for —

the Fourth Cireuit and, judgment granted uereon, which

petitioner consents to have printed and annexed to the

record:

None of the parties hereto -would be in any manner

prejudiced by adverting to the record previously used.

The monetary saving to the petitioner would be substantial,

Wuererore, deponent respectfully prays that the reeord

employed in the case of Goett v. Union Carbide Corporation,

etal, No.3, October Term, 1959, be used herein.

Sworn to before me this.°

oth day of July, 1960

. Harvey Goupstery.

Warren Sataui

<‘otary Public, State of New York

No, 30-3711175

Qualified in Nassau County

Cert. Filed in New York County

Commission Expires Mareh 30, 1961

Supreme Court of the United States

OCTOBER TERM, 1960

No.

a mm reece a

MLBEN GoETT, as Administratrix of the Estate of: Marvin

Pach Gortr, Deceased,

Pratitocsnen

F aaiatinst

Unies Canpipe Conporatios.

Pes) btefe )

agaist

> “ res

AMierst Bangk Comrayy, eo

ie ae ( Jo ets Aenean

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES. COURT OF APPEALS

FOR THE FOURTH’ CIRCUIT

Te the. Monorabl. (hig? Sustive and the *

Associate dusttoes ot the Supreme Court.

vt the United States:

Petitioner privs that a writ of COPtLOParl Issue Te rey jew

the judgment of the United States Court of Appeals tar:

the Fourth Cireuit entered in the above matter on April

19, 1960,

Opinions of the Court Below .

The opinion of the United States District Cour! for

the Southern District of West Virginia. Charleston Division

(Honorable Ben Moore), in favor of petitioner is unreported

and is set out in the appendix to this petition at pages

la to 6a.

The first opinion of the United States Court of Appeals,

for the Fourth Cireuit -is reported at 256 F. 2d 449 and .

is set out im the appendix to this petition at pages Ta io 7a.

Upon remand by this Honorable Court! to the United

States Court of Appeals for the Fourth Circuit, a second

opinion of that Court, unreported to date, is set out in

the appendix to this petition at pages 34a to 40a.

Jurisdiction

This aetion, arising out of a maritime tort, was brought

in the United States Distriet- Court for the Southern

District of West Virginia, Charleston Division, as a civil

action predicated upon diversity of citizenship and juris

dietional amount, The action was subsequently transferred

on motion to the admiralty division of said Court.

The decree of the Trial Court in petitioner's favor was

appealed by respondent, Union Carbelo Corporation (here-

Inatter referred to as Carbide), and petitioner eross-

appealed, diter alia, on the question of applicability of the

West Virginia statutory monetary limitation of recovery

ina wrongful death action arising out of a maritime tort.

The judgment ‘of the United States Court of Appeals

tor the Fourth Cirguit, opinion by Distriet Court. Judy.

Thomsen, reversing the Trial Court's determination wiis

entered on May 27, 195s,

A petition for writ of certiorari was granted by this

‘ourt on Mareh 2, 1959,

On Jenuary 18, 1960, this Court vaeeted the judgment

of the Court below and remanded the eause to that Court

tor determination of the following questions:

avert | Whether the West Virginia Wrongful Death

Act, as to this maritime tort, employs the West

Virgmia or the general maritime law concept of

negligence; and, in the light of its determination,

th) whether the district judge's finding as to negli-

Kence ts correct under the proper substantive law”

' the op:nion of this Court, reported at 361 U.S, 340, is set out

in the appendix to this petition at pages 20a tou 33a.

. , . 3

°° * and (¢) ‘whether the West Virginia Aet in-

corporates this ** * { unseCaworthiness) * * * standard

of the general maritime law in death actions involv-

Ing maritime torts.’’

The judgment of the United States Court of Appeals

for the Fourth Cireuit adhering to its prior deeision and

rendering judgment,in favor of the respondent was entered

on April 19, 1960,

The jurisdiction of this Court is invoked under Title

2 U. §. C. 4 1254(1).

Questions Presented

1. Whether, in this aectien for wrongful death under

the general maritime law, the shipowner's’ vessel having

been turned-over to an independent contractor for periodic

overh ul, the shipowner having actual knowledge of a defee-

tive condition prevailing at the time of delivery to the con-

tractor (which defect was not part of the repair work to be

done) and with knowledse of the nature of the overhaul

operation to be performed:

(a) the shipowner was liable in’ failing to provide the

deceased, contractor's employee, a business invitee, with a

reasonably safe place to work:

(b) the shipownér was liable for lack of reasonable care

in tailing to aseertain the Manner and method of. complet:

ing the overhaul operation in safety and to take affirmative

Steps to-correct the known defect, existing prior to delivery

of the vessel to the contractor or to make certain that the

contractor would take such steps to assure correction of

the defective condition? .

2. Whether the shipowner's warranty of seaworthiness

continues with respect to maritime workers employed by a

contractor during a periodie overhaul and “minor repair’?

Operation?

3. Whether? in this action for wrongful death arising out

of a maritime tort, the remedy of the West Virginia Wrong-

. ’

ful Death Act limiting the monetary recovery is so offensive

to traditional principles of maritime law that the admiralty

jurisdiction should decline to enforce it! .

4+. Whether the general maritime law affords a cause of

action for wrongful death?

Statutes Involved

Petitioner, as administratrix, sued to recover morey

damages for wrongful death and personal injuries grounded

upon the Admiralty‘and Maritime jurisdiction, as. supple-

“mented by the Wrongful Death Statute of West Virginia.

§ 547415), which read as follows:

o474. (5) Action for Wrongtul Death. When-

ever the de ane of a person shall be caused by wrong-

ful act, neglect, or default; and the act, neglect or

default is such as would (if death had not ensued)

have entitled the party injured to maintain an action

tu rbeover damages in respect thereof, then, and in

every case, the person who, or the corporation which,

would have been liable if death had not ensued, shall

be lable to an action for damages, notwithstanding

the death of the person injured, and although the — |

death shall have been caused under such cireum-

stances as amount-in law to murder in the first or }

second degree, or manslaughter, ° * °"*

Respondent, Carbide, asserted the applieability of

5 5475(6), of the West Virginia Statutes:

“S0405. ¢6) Party Plaintiff in Such Action;

-Damages; Distribution; Limitation— * * * In every

such action the jury-may give such damages as they

shall deem fair and just, not exceeding ten thousand

dollars; Provided, however, if the plaintiff in such

action shall prove by a preponderance of the evidence

‘nancial or pecuniary loss sustained by a distributer

or distributees of such deceased person in an amount

exceeding the sum of ten thousand dollars the jury

may give such damages as shall equal such financial

or pecuniary loss, not exceeding twenty thousand dol

lars as the total of all damages recoverable in such

action, and the amount so recovered shall not be sub-

ject to any debts or liabilities of the deceased. * * *"

aos

Statement of Facts

The following facts Were set out in the Court of Appeals

first decision, with additional bracketed matter inserted by

the petitioner. :

Marvin Paul Goett, an emplovee of Amherst Barge

Company, while sandblasting a tank barge awned by Union

Carbide & Carbon Corporation, fell into the Kanawha: Rive

and was drowned. The barge had been turned over to

Amherst for repairs and improvements and was nnder

its sole control. Since the barge Was an unmanned barge

[when in transit |,*it had no fife rings or other reseye

equipment.

Carbide was the owner of the CO-204, an unmanned

steel tank barge, with a* flat deck. Except for pipe lines

ithad no superstructure of any kind, but ther’ were kevels

along the outer edges of the deck to assist in Mooring.

It had no railing around its deck and was not COPUL py piee

with any life rings or sissilar rescue equipment. Applicable

Coast Guard regulations do not require that such barges

be equipped with railings or lite buoys [when in transit},

and it is not customary tor such barges to be so equipped

‘|for actual navigation}. The barge and its equipment

had been inspected, certitied and approved by the. Coast

Guard; the certificate of inspection issned on April 1, 1955,

granted permission for navigation as an unmanned tank

barge on rivers and inland Waters tributary to the Gulf

of Mexico, approved for use Without equipment other than

fire extinguishers. [The Trial Court found, as a finding

of fact, that the barge was manned at the time of Goett’s

death (R. 236-237) ]. ee

Amherst owns and operates a repair dock, with marine

ways on the Kanawha River at Reed, West Virginia. In

Oetober, 1955, Carbide contracted with Amherst for a

biennial drydocking, certain welding, repairs and improve-

ments to the barge, including installation of twenty-four

, 6

Butterworth hatches and painting, not only of the deck

and boot topping but also of the bottom and sides, with

peepeteeee for the painting by means of sandblasting.

| "The purchase order contract called for painting and

minor repairs at the total price of $4,712.60 (R. 207).

‘arbide conceded that they were indeed minor in its answer

to plaintiff's interrogatories, =24 (R. 18)]. The work was

to be done?in accordance with Carbide’s written specifica-

tious. A large portion of the painting had to be performed

in drvdock, but the details of the work wer re at the disere-

tion of Amherst, whieh had exclusive control of the barge:

during the performance of the contract, subject only to the

specifications.

In contemplation of such repairs, the barge was delivered

to Amherstgs dock at Heed, West Virginia, on October 2.

Carbide's supervisor of barge maintenance went on board

the barge on the following day with Ambherst's maintenance

superintendent, to point out and diseuss the work that was

to be done. 3

No officer, crewhan, Watehman or other person employed

hy Carbide was left on or with the barge after it) was

delivered to Amherst; it was in the exclusive eare, custody

and control of Amberst on October 5, when Goett) was

drowned. The barge was then afloat on the Kanawha

River, lying along shore, near Ambherst’s marine ways; it

was moored to and against the head of a. digger boat

whieh lay downstream from the barge. The digger boat

was attached to the shore by ao semppermanent ramp

which was the means of acces to the barge from the shore.

A ring-type Hite buoy with a line attached was mounted on

the digger boat.

Gioett, an employee of Amherst, while sandblasting th:

deck surface of the barge, fel) into the Kanawha River

and was drowned. He had beer on the barge on October 4

to move the sandblasting equipment aboard, and began

werk in the morning of October 5. The sandblasting

equipment consisted of a heavy ‘machine sitting on the

deck of the'barge, but movable from place to place, with

two hoses leading from the machine. Goett was holding

the nozzle of one of the hoses in his hands, and was ‘direct-

ing the sandblast against the surface af the deck: while

he walked slowly across it. He was Wearing a canvas hood

over his head and shoulders to protect him against flying

sund from the sand blaster and was also wearing a respira-

tor. He was not wearing a life jacket [coneededly hazardous

to the wearér (R. 154) ], although life jackets were available

ii Amherst’s supply house to any employee who desired. to

wear one while at work. [There was no evidence that

(ioett even knew of their existence, Other employees aboard

the barge had no‘ knowledge of their existence or avail-

ability CR. 58, 60, 65, 67) ]- The great majority of Amherst’s

employees preferred not’ to wear life Jackets, and they

were not required to do so [| beeause of the danger invelved ],

When last seen on the barge, Goett was walking slowly

hackward towards ¢# kevel at the outboard edge of the barge,

A minute later Goett’s fellow workmen on the barge heard

ihe noise of the nozzle thrashing against the side, ran to the

edge of .the barge and looked over. Goett Was in the

river, just outboard of the position in which he was last

seen on the barge. Three men immediately went into the

river to save him, but Goett fought them off [due to panic }

and prevented them from keeping a grip on him. After

several minutes he slipped bencath the surface and was

drowned, About that time, Amherst’s maintenance super-

intendent arrived on the scene and threw a life buoy off

the digger boat into the water, but it was too late.

{The manner of obtaining the life huoy on the digger

boat, which was not thought of by the various workers

in the excitement of the moment (R. 45), was explained by

Martin, Amherst’s superintendent—to run 160 feet from

where Goett fell to the edge of the barge, step from the

'airge to a ramp 12 feet wide, step over a guard rail to a

stuirway of 11 steps and then go 15 feet to the preserver

and finally retrace the eritire route holding the oe er

(R. 101-102). ]

Goett's administratrix filed a civil action against

Carbide in the Southern District of West Virginia based

upon the West Virginia Wrongful Death Statute. [The

‘action Was predicated upon the general maritime law as

supplemented by the remedy afforded by the state Wrong:

‘fal Death Statute] alleging that Goett's death was due

to the failure of Carbide to have rescue equipment aboard

the barge, Carbide brought in Amherst as a third party

‘defendant, alleging that by express and implied contract,

it was entitled to indemnity. {A petition for limitation in

Admiralty was filed by Carbide and was stayed pending

the determination herein.] Answers were filed by Carbide

and by Amherst, denying liability and raising the defense~

of contributory negligence and assumption of risk. On

plaintiff's motion, over the objection of Carbide and

Amherst, the case was transferred to the Admiralty side

of the eourt:

The district judge found as facts: that Carbide should

have foreseen that many of Ambherst’s employees would

- work on the barge; that under these circumstances it.was

negligence for Carbide not to equip the barge with safety

and rescue equipment; that the barge was not seawortliy

at the time Goett was drowned for all the circumstances

in which it was being used; that failure to provide resene

equipment was the proximate cause of Goett's death; and

that Amherst hed exclusive custody, care and control of

. the barge at the time Goett fell therefrom.

The judge concluded: ‘*this case is not one for the ayspli-

eability of the doctrine of liability without fault. I think

this is a negligence case that negligence has been shown

* °° **: that it was the duty of Carbide to furnish workmen

who worked on the barge a safe place to work, and to that

end to provide safety equipment, such as life lines or stan-

chions, tg prevent their falling off the unprotected deck; thet

it was also the duty of Carbide to provide reasonably suit-

able rescue equipment, and to place such equipment in a

position on the barge where it would be immediately avait-.

able in case of need; that Goett was not guilty of any negli-

gence contributing to his death; that Goett did not assume

the risk of the failure of: Carbide to have reseue equipment

ovailable; that plaintiff is entitled to recover $20,000 azainst

Carbide, but that if the limitation in the West Virginia

Wrongful Death Aet did not apply, plaintit® would have

been entitled to recover $50,000: and that Warbide ji< not

entitled to indemnity from Amherst.

Reasons for Granting the Writ

1. The decision of the Court bejow js at varianee with

decisions of this Court and of the several Courts of

Appeals.

In accordance with the remand of thy cause by this.

Court, “61 UL S. 340, the Court of Appeals found thatthe

West Virginia Wronatul Death Aet. as te this maritime

tort, employed the general maritime daw concept of negli-,

cence rother than that of West Virginia. In its applies

tious or admiraléy stindards. the Court then erroneously

limited the duty of the shipowner-ts providing a reasonably

~ safe place to work to business invitees to those periods when

the shipowner had custody and control of the Vessel, hold-

ing that when the vesse! was turned over to the Independent

contractor, the duty of the shipowner was merely to warn

of hidden danger*and latent defects, contrary to the deci.

sion of the Seeond Cireuit in Haleeki v. { mited, 251 F. 2d

‘08, opinion of the Court by Honorable Learned Hand, af-

firmed by this Court, 358 U.S. 613, and of the Third Circuit :

in Feinman vy. Bull, 216 F. 2d 393.

In Halecki the ship had been turned over to the eon-

tractor and in turn to a sub-contractor for the specific job

of dismantling and ove ‘iauiinn the ship’s generators.

Control of the ship was in the sub-contractor to the exclu-

sion of the shipowner. The work necessitated the use of

special machinery and safety equipment. No dist*setion

was made between the duty owed by an employer to its em-

ployees (conceded by the Court below to be to provide a

reasonably safe place to work) and that owed to a business

invitee, Nor did control of the details of the work by the

sub-contractor terminate that affirmative continuing duty of

the shifiowner to provide a reasonably safe place to work.

“The deces ised, was certainly an ‘invited person,’

oy chasiness guest,’ and the shipowner was lable,

not only for the ne gligence of the master, but although

wt work was let out to a subcontractor, also for any -

lack of ‘reasonable care to ascertain the methods and

manner in which the coneessionaire or independent

contractor carries on his activities, not only at the

time when the coneession is let, or the contractor

employed, but aiso during the entire pericd in whieh

the concessionaire or contractor carries on his activi.

ties Being charged with knowledge thatsso danger-

ous a substance as tetrachloride might be used, 1

Was proper to leave to the jury whether the ‘methods

wma manner’ of its use were proper’? (p. 711),

Reversing on other grounds, this Court, oss l. . 615

affirmed the holding of the © ourt of Appeals on the ae

gence aspect of the case,

“As to the.claim based upon negligenée, for which

the New Jersey Wrongful Death Act clearly gives

the right of action, we, agree with the Court of

Appeals that ‘the evidence created an issue that.

could be decided only by a verdiet.”. The defendants

owed a duty of exercising reasonable care for the

safety of the decedent. They were charged with

knowledge that carbon tetrachloride was to be used in

the confined spaces of the engine room. It was for

the triers of fact to determine whether the defend.

ants were responsibly negligent in permitting or

authorizing the method-or mafffer of its use”? (pp.

618-619).

Feinman v. Bull, 216 F. 2d 393 (3d Cir.), was a suit by

amariv: electrician injured by the falling hatch beam. The

ship was being refitted by the plaintiff's enployer, the in-

dependent contraetor, at the batter's dock. Kull had = re-

linquished control of the hatch to thy contractor (p. 394),

The Court declared the shipowner's duty to be as follows:

“Obviously in a diversity suit brought by the

longshore worker against a shipowner based on negh-

wence, as in the case at bar, the shipowner cannot be

relieved of liability when the ship's appliances have

become defective or broken simply because he has -

relinquished control of the vessel to a stevedoring

company. * °.* +The fact that there is a concurrent

duty ow the part of this man's employer would not

excuse the shipowner. from also meeting that obli-

gation of furnishing a safe place to work’ * * * He

must furnish a place that is reasenably safe * * °

(p. 396).

: | ° ;

The Restatement, Torts, fully Supports the view of the

ewner’s continuing duty after divesting control of the

property where there was an affirmative duty to provide

safety. $ 984, comment (bh); > 41315), comment (b); . 415;

#16, comment (b); 6° 425, 426, 427. we

In Kermarec ve Compagnie, 358 U.S. 625. this Court

obliterated the distinctions upheld by the common law in

holding that all persons aboard a yessel for purposes not

inimical to the interests 6f the shipowner were entitled to

the exercise of reasonable care under the circumstances of

each cast,

The duty of a shipowner to provide employees of con-

tractors a reasonably sare place to work has been laid down

time and time again as a governing principle of maritime

1 2 ~—

law.2 Holley v. S.S. Manfred, 269 F. 2d 317, 322 (4th

Cir.); Pope & Talbot v. Hawn, 198 F.2d 800, 803, aff'd 346

U.S. 406; Skoggaard v. Tunaus, 252 F. 2d 14, affirmed by

ghis Court, 358 UL S.5s88; Malecki ve United, 251 F.2d 708,

alf’d 358 UL S. 613, supra, which was not discharged by any

coneurrent duty upon the worker's. employer. LaGuerra

v. Brasiliero, 124 F.2d 555 (2d Cir}; Fodera v. Booth, 159

F.2d 705.(2d Cir.) : Anderson ve Laurentzen. 160 F.2d 173

(2a Cir): Femmman v. Bull, 216 FB. 2d 393 (8rd Cir.). That

responsibility of Carbide to give Goett a reasonably safe

place to work, gs clearly expressed in Halechki v. Unites,

supra, by the, Seeond Circuit and by this Court, was to

continne not only at the time the contract with the con.

tractor was made and the yessel turned over but also ‘‘dur-

ing the entire period in which the concessionaire or con-

tractor carried out his activities’? (p. 711), unreliéved by

any concurrent duty of the contractor.

Carbide, coneededly having ‘actual knowledge of the

absence of any sa¥ety rescue equipment aboard the vessel,

it Was proper to’ leave to the Trial Judge, as the trier of

the facts, the question of whether the manner and method

of the operation was correet, whether Carbide used rea-

sonable care in ascertaining the safety of manner and

method and whether Goett was in fact given a reasonably

safe place to work.

* Since the duty of the shipowner was an affirmative one, the

its product.

series of cases generally grouped together as “product liability cases”

appear to be analogous to the situation herein. Liability for the

most part has been predicated upon the failure of the manufacturer

ot the product to take due care in designing, testing or assembling

The landmark case of Maci’herson v. Buick, 217 N. ¥.

Jp2, tell within that category.

So to did Pterce v. Ford, 190 F. 2d |

10, O18 (by the Court below) which affirmed the well settled rule |

attended to,

that hability for failure to properly perform an affirmative duty was

not neyated by a concurrent or subsequent duty of another to inspect

or provide the safety which the producer or owner should have

Control of the product in another as a limitation of

liability has never seriously been raised as a defense since the

MacPherson case. é

———_— or

oo ‘ .

The District Court having found Carbide negligent, hav- .

ing knowledge of the conditions prevailing and the manner

and method of the operation, in failing to provide Goett

with rescue equipment, in failing to provide him with a safe

place in which to work unqualified by any defense of as-

“sumption of risk or contributory negligence, its determi-

nation should be maintained.

The Court below errotivously confused the question of

control with that of notice. -In the instant ease the ship-

owner coneededly had actual knowledge of the negligent

absence of safety equipment even before the vessel was

turned over to the contractor. As such, the question of

control of the ship at the time of the accident was imma-

terial,

In Halecki v. United, 251 F.2d 70%, supra, the owner's

liability was bottomed not on the issue of control, which it

did not have, but rather on its aetual knowledge of the

conditions which would prevail not only at the time the

Vessel was turned over but at commencement of and

throughout the entire spraying and cleaning operation.

The Court thus declared the owner's (luty to be continuous

notwithstanding the lack of control, unlimited hy the con-

current duty of the employer aud although Halecki himself

Was the expert having full knowledge of the conditions to

be expected. :

Pevtioner submits that in Halecki, as in Goett, the ship-

owner Was not in control of the contractor's operation, that

the operation necessitated the use of special machinery,

requiring specialists aboard the vessel, that despite those

circumstances notice to or knowledge by the owner of the

conditions that would prevail was sufficient to give rise to.

responsibility and ultimate liability.

Skovgaard v. Tungus, 252 F. 2d 14, a death action, in-

volved a pump repairman who slipped and fell into hot

oil. The Court of Appeals, explaining that the shipowner

had notice of the condition, clearly expressed the thought

that knowledge of the defect was sufficient to give rise,to

liability arising out of the duty-to provide a -reasonably |

safe place to work for business invitees.

‘“As to the negligence question, the holding of

the district court that.-no duty devolved upon the

vessel Tungus to clean up the oil spill was predi-

cated upon a finding of fact that the operation of

repairing the pump was conducted by El Dorado, and

that no evidence indicated that Tungus personnel

either supervised or controlled the discharge of the

oil. . :

While it may be true that El] Dorado supervised

the pump repair operation, this would hardly lessen

the duty of the vessel to provide a reasonably sate

place to work, especially since El Dorado’s super-

Vision Was not so complete as to exclude crew mem-

bers from the area. In fact, it was the crew which

first discovered the oil leakage and adopted tem-

porary measures to stop it. The Chief officer of the

Tungus testified that it was the custom to offer the

assistance-of ship personnel to independent contrac-

tors unloading the vessel. The personnel of the

Tungus were well aware of the existence of the oil

spill and the danger created by tt.

The assimilation by Seas Shipping Co. v. Sieracki,

1946, 328 U.S. 85, 66S. Ct. 872, 90 L. Ed. 1099, of long-

shoremen to the position of seamen so far as unsea-

worthiness is concerned did not take away from the

longshoreman his accustomed right to- recovery on

the theory of negligence, ‘Pope & Tatbot, Ine. v.

Hawn. 1953, 346 U. S. 406, 413-414, 74 S. Ct. 202,

OS L. Ed. 143. Engaged in the work of unloading

-the ship, Skovgaard was a business invitee. See:

concurring opinion of Justice Frankfurter in Pope:

& Talbot, Inc. v. Hawn, supra, 346 U.S. at page 416,

74.8. Ct. at page 208; see also Santamaria v. Lam.

port & Holt Line, Err. & App. 1938, 119 N. J. 1. 467.

19 A: 706, It is relevant to note at this point that

. Skovgaard was ¢alled for the purpose of repairing

the pump, not to clean up the oil spill. It is alleged

that his death was caused by the condition of the

deck and tank and not by the instrumentality he in-

tended to repair. Cf. Broeeker v. Arm+trong Cork

Co., Err. & App. 1942, 128 N. J. 1. 3, 24 A. 2d 194.

The duty of providing Skovgaard with a reason-

ably safe.place to work, Hawn v. Pope & Talbot,-

Inc., 3 Cir, 1952, 198 F.2d 800, 803, affirmed 1953,

346 U.S, 406, 74S. Ct. 202, 08 L. Ed. 143,.would not

he lessened even if there were a concurrent duty on

the, part of Skovgaard’s employer. Feinman v.

A. H. Bull Steamship Co., 3 Cir., 1954,.216 F: 2d 398,

While the New Jersey wrongful death statute

_adopts the maritime standard of care, it is silent as

to available defenses, It is not for us in the first .

instance, however, but rather for the trier of fact,

to determine whether the vessel's duty was breached

and to decide factually what defenses, if any, might

be available to the respondent’? (pp. 18-19). ” (Italies

ours.)

im ) P

This Court, 358 U.S. 588, affirmed the lower Court deci-

sion not on‘a control theory but because the owner was

aware of the existence of. the oil spill with its consequent

danger.

In Pope & Talbot v. Han, 198 F, 2d: 800, affirmed 346

U.S: 406, the Court of Appeals placed the negligenc¢e part

of the decisign squarely upon the proposition that ‘The

ahsence of the hatch covers over'a length ef time which

could reasonably be construed as sufficient to have put

appellant on constructive notice of that fact'* * *'*. the

appellant having control of the ship. Thus—control was

an, element which tended to prove constructive notice in

absence of actual knowledge, which would ‘give rise to

responsibility to repair the defect. 3

In Holley v. Manfred, 269 F. 2d 317, involving the death

of a longshoreman killed in a cave-in of potash while un-

loading the vessel, the Court below clearly pointed out the

knowledge by the shipowner of the condition of the cargo as

coustituting-a basis for liability.

In LaGuerra v. Brasilewro, 124 F. 2d 553, a longshore-

man Was injured by falling cargo after the ship was turned

over to the stevedores in a safe condition. The unloading

operation set into mofion an improper stowage condition.

The Court, reversing a dismissal of the action and remand-

ing for a new trial, held. that the safe condition of a ship

prior to turnover did not end the shipowner's duty to pro-

vide'a safe place to, work; that concurrent duty on the-part

of ~ stevedore could not qualify the primaty respon-

thls

behind

‘Thus it thought the ship was turned over to

the stevedores in a safe Condition, and that there

was uo liability on the ship's part. Such a conelu-

sion appears to entail a belief that the consequence-

of impraperly stowed cargo, if not a result of the

ship's construction, are assumed by the unloaders.

In other words, fall responsibility for negligent stow

age falls on the stevedoring company, and it insures,

so to speak, its emplorees against the ship's negli-

genes, Weeannot agree with this conclusion.”

The Trial Judge heid that Goett netther assumed the

risk nor Was contributorily negligent in the matter. The

ruling vas not ‘telcarly crroncous’’, the test of reversal iy

admiraity matters. Meallister v. United States, 348 UL S

19,

The doctrine of sasumniion of risk,-as such, has been

uniformly rejected by the Admiralty jurisdiction. Panama

v. Jobnson, 289 F. 964, aff'd 264 U.S. 3875; Sanford v. Cas-

well, 200 F. 2d 330; Becker v. Waterman, 179 F. 2d 7138:

Armit v. Loveland, 115 F. 2d 308; Séecndbee, 102 F.2d 577;

Pittsburgh v. Palo, 64 F. 2d 198; The Calvert, 51 F. 2d 494;

New Berne, 80 F. 2d 244, extended to maritime workers,

Palermo ©. Luckenbach, 885 U.S. 20; Impenal v. Drltk, 254

F. 2a 4.

The rule that the duty of respoudent to provide a rea-

sonably safe place to work was terminated with its warning

———

of latent defeets (which the Court below held te be unneces-

sary as being patent) was one of common law assumption

of the risk by a workman of 4enown defects rather than a

‘no duty"? rule of-law. The defense is unavailable in this

cause of action applying maritime principles. Where

knowledge. of the defect by the worker does not obliterate

lability, the owner cannot rely upon such knowledge to

“ustain its primary burden of proyiding reasonable safety.

Thus—whtile the duty of an owner under both land and

iaritime principles may rest primarily upon proof of no-

tice of the defective condition, either actual or COUSTTUCTIVGS

the question of defenses available to that owner constitutes

a prime difference between the two systems of law.

fruerrvini v. Unite d States. 164 F. 2d 392, involved an

action by the employee of a subcontractor who slipped in

oll on the deck of the ship in a yard for géneral overhaul.

The District Court had held that the owner had not sure

rendered control of the ship. |

The Appellate Court then held that state law Was .ap)-

plicable (the case was decided prior to Pope & Talbot vy.

Hawn.sepra: Halecki v. United. . upra, and other recent

cases holding that maritime principles would apply}; that

undersNew York law the duty to the libellant was the

_ Same as that of employer to employee. Thus—the Court

defined the basie distinetion between the mere duty to warh

of latent defects and the affirmative duty to provide rea-

sonable safety, and further expressed the thought that the

duty. only to warn was actually predicated upon the com-

tien law doctrine of assumption of risk as a complete bar,

that the lack of the defense in ‘admiralty created a contin-

ine duty beyond the common law veil. In holding that the ©

sipowner's duty went further than merely to warn, the

Court stated:

‘*As we said in that case, the New York decisions

appear not to distinguish the measure of care due

to a ‘business guest’ from that due from his em-

ployer to an employed; and, if so, a failure to use

reiisonable care to provide for the ‘guest's’ safety i-

a breach of duty, even though the danger be ap-

parent. .At times opinions have read as though the

duty was limited to pointing out the dangers and not

including any affirmative provision for the safety

of the ‘guest’ while on the premises. It is not

surprising that this ambiguity should arise, because

jractically it makes no differenee, since even though:

the owner” duty be the broad one, contributory neg-

livenee or assumption of risk is an absolute bar.

However, ina suit in the admiralty the distinction be

comes important, because.if the shipowner owes a.

positive duty te provide a safe place, regardiess of

the openness of the danger, the ‘euest’s* contrib. -

tory negligence is not a bar, but puiv goes in mitize-

tion of damages, This is as true when no statute

provides as when one does. Moreover, whether the

defence as total er partial, depends upon the forum.

Being therefore obliged to deeide whether in New

. York the dyty gees beyond warning the ‘guest’ of

any dangers, we hold that the more common ex-

pression is authoritative, and that the duty is the

same as that of employer.to employee’? (pp. 359-356).

cremdrille wv. American, 224 F. 2d 746. involving. a lone

shoreman Injured while unloading the vessel, suit for hoth

negligence and unseaworthiness was brought for stowing

cargo in an unsafe manner. Affirming the plaintuff’s ver

chet, the: Third Circuit stated: :

‘The suit was based, first. upon alleged necli-

venee of the defendant in the manner Of loading the

cargo and, secondly, upon a charge of unseaworth)

ness heeause of the unsafe manner in which the

cargo was stowed. The defendant asserts broad,

that our decision in Bruszewski v. Isthmian S.S. Co..

INF, 168 F. 2d 720, 1948, certiorary denied 333 U.S.

S28, 68'S. Ct. 431, 92 L. Ed. 1113, settles this case in

its favor, arguing that the danger, if any, was per

fectly apparent and that the plaintiff assumed th

risk when he went to work in the face of such ap

parent danger. We think the Bruszewski case doé-

not stand for any such sweeping proposition as

this. Indeed, it is quite narrow. It means no more

than if a carpenter is called in to repair a hole in a

reot he cannot complain that a reof with a hole in

it is an unsafe place to work. Nor do we think that

it ix fair te characterize the difference between

Bruszewski and Gindville as a mere matter of se-

manties. Gindville did not come to repair” anv’

condition. “He came to help unload a eargo. If th.

“difference is not apparent further diseussion wil!

not mak it so’* (p. 747).

wgsain In Alimoszeushi v. Pacific, 246 F.2d S75. 4 Jone.

shoreman Was injured during thi joadine Operation caused

by slippage of w winch cable.

The appellant complains about the eourt’~ in

struction on assumption of risk. This question need

° not trouble us ‘cither. As in Gindville, we say here

“that one need oniv refer back to Socony-Vaeniin Oi!

Co. v. Smith, 1939, 305 U.S. 424.59 S. C1. 262. 83

L. Ed. 265, to get the rule with regard to the appli-

cation of the doctrines of fassumption of risk and

contributory negligence in a maritiine ease.* The

eXtension of the rule stated in the Secony-Vaeuum

case to lonyshoremen is shown in Pope & Talbot,

Inc. v. Hawn, 1953, 346 U.S. 406, 74S. Ct. 202, os

L. Ed. 145, and the Gindville case. supra. The new

decision of the Sixth: Cireuit in imperial Oil, Ltd.

Vv. Drlik, 234 F. 2d 4. certiorari denied, 156, 252

V. S. 941,77 S. Ct. 261, 1 L. Ed. 2d 236, is squarely

in point with just about every issne raised in thi-

case. A longshoreman oes not assume the risk of

neghaence or unseaworthiness and this is so whether

his action ts based on negligence or unseaworthiness”’

(poS877). (Italies ours.)

In LoGinerra vo Brasiteiro, V4 Fo 2d 555. supra. the

Court further pointed out that the concurrent res polisi-

bility of the stevedere te his ¢inplovees did not evoid the

shipowner’s negligence; that the negligent order by the

stevedore to continue work iti the face of the known danger

Was not an assumption of the risk a~ a matter of law <ibee

the sole choice was loss of the job. The Court therein held

that the question was one of fact for deterniimation by the

District Court: ;

nature af the butkhead with an observation on the

sKilled nature of stevedortng. Even assuming. the

responsibility. of stevedoring companies towards

their employees, and assuming that here the oem-

plover Was negligent towards plaintiff because the

hatch boss required him te continue working under

dangerous circumstances, the neglivencee of the ship

Was not avoided. Both could be cone urre ‘ntly negli-

vent. Ford v. Allan Line S. S. Co., 227 Mass. 109,

116 N. EB. 505: see Deserant ve. Cerillos Coal R. Co.,

Is U.S. 409, 420, 20 S. Ct. 967, 44 Le Ed. 1127.

Certainly we cannot say the comumand of the hatch

boss to continue Work was an intervening cause such

as to destroy the chain of events.

If the element of the hatch boss's control over

the stevedores is to have any bearing, it mist be

in relation to the question oP contr ibutory ne gligence

of plaintiff. This was clearly a question for the jury.

In view of the speed of work in unloading, the deci-

sien of the hatch boss to have the cargo lashed, the

fact that the more obviously dangerous bags had.

been removed, and the order to continue work, we

cannot say as a matter of law that plaintiff should

have stopped work and risked losing his job in order

to avoid the chance that he would be injured.” Under

the cireumsianeces the jury might not unreasonably

conclude that continuance at work was a justifiahle

exercise of judgment on the plaintiff's part’’ (p.

599).

The Court below failed to aceept the settled concept

that there could be no assumption of risk in absence of vol-

untary cholce of safe or unsafe equipment or manner of

performance of work, Palerma v. Luckenbach, 855 U.S. 20.

Nor would continuation of work in the face of gx of proper

or safe equipment give rise to the defense, New Berne.

80°F. 2d 244, 248 «th Cir.); Latiuerra v. Brasileire, 124

| Ban by ts supra,

———

—

Petitioner submits that the failure of this Honorable

Court to review this matter will destroy a half century of

liberal thought im the rharitime field. by foistering an erro-

neous, principle of control as an equation of liability rather

than the well established test of notice, either actual or

constructive. It will enable a shipowner to maintain its

Vessels in a defective and dangerous condition in an in-

dustry already generally considered to be ultra-hazardous,

With the Knowledge that it canmot be held responsible to

those who work in the shipowner's interest during all re-

pairing, overhauling, loading or alischarging of cargo and

all other periods when the vesse] may be in the custody of”

an independent contraetor, A finalization of law in that

forni has been Pejeeted time and time again aml would be

a catastvophic return to the nineteenth century concept of

“Uyremacy of property over human rights.

Purther, failure of this Court to review this issue tay

presage a return to the common law doctrine of duty upon

the owner only to warn of latent defects. As stated in

Guerrint v. United States, 167 F. 2d 352, the so-called ‘*no-

duty’ rule of the owner was nothing more than the recog-

nized common law rule of assumption of risk as a complete

bar, a discredited rule of law contrary to basic maritime

doctrine. As such, the decision of the Court below will

serve to shift the burden of proof of that defense to the

plaintiff in an attempt to prove plaintiff's lack of know ledge

of the defect, necessary to avoid dilution of the defendant ‘s

primary duty under settled principies of maritime law to

provide a reasonably safe place to work.

The shift of that burden to injured plaintiffs in the mat.

itime industries must affect eve ry litigant and will strike

a fundamental blow to recognized liberal admiralty prin-

ciple and procedure,

Peritioner respectfully submits that the decision of the

Court of Appeals should now be reviewed in order to re-

establish the uniformity of deci ‘ision laid down by this Hon-

orable Court. ss

~—-

2. The Court below in answer to this Court’s request

determined that the West Virginia Wrongful Death Act

incorporated the doctrine of seaworthiness-of the general

tharitime law in death actions invelving maritime torts.

The Court, however, adhered to its previous decision that

Goett Was not a person to whom the warranty af seawertlit-

ness ran and that the Trial Judge was in error in finding

the barge unseaworthy. ;

The decision of the Court below destroyed the effect ot

this Conrt's decision in Pope & Talbot v. Hawn, 340 U.S.

406, wherein the doctrine of se “awotthiness was extended

to a carpenter brought aboard a vessel to repair a defeet,

The doetrine was thus extended to all classes of workers:

who were subject to the same dangers as those who sailed

the ships and were entitled tu like treatment. .

Coupled with the Hawn case, Alaska ve Petterson, 200

Fo 2d 47s, aff'd 347 U.S. 396, affirmed that the doctrine

yave rise to a non-delegable duty as a species of strict

liability irrespective of fault in holding that surrender of

control of the vessel for a contractor's operation in dur-

therance of the shipowner’s business did not terminate the

owner's duty to provide the same protection to. those: per-

forming maritime functions as was given to crew members,

regardless of their employment status. See also: Rogers —

v. United, 205 F. 2d 57, rev'd 347 U.S. O84.

The flawn and Pettersen decisions have been consist-

ently followed. The sole limitations of the extension of the

warranty to maritime repair workers concerned tmajor

repair work (structural conversions) which were not tra

ditionally ship's business. Berryhill vo Pacific, 238 Fo 2d

385; Berge v. National, 251 F. 2d 717, and when the vessel

Was not in navigation at the time of the aecident, West v.

United States, 361 U.S. 118,

The werranty duty was enforced in Torres v. Kastor,

oo”

227 F. 2d 664, which involved a worker cleaning the hold

from the effect of a previous carge to make the vessel ready

for a new voyage; as it was to a night watchman in Ross \

S.S. Zeeland, 240 F. 2d 820; to men cleaning the deep tanks

of a vessel, Crawford ¥. Pope & Talbot, 206 F.2d 784+ and

a dock crewman freeing the railroad ties whieh held the

ship in drydock in Imperial v. Drlik, 234 F.2d 4: an elee-

trician who fell-off the de ck while the ship was drydocked

in Lester vo United States, 234 F. Jd 625: a maintenance:

foreman fixing a discharge pump in Skorgaard v. M '

Tungus, 398 U.S. 588, supra; and lastly to a worker falling

from a ladder during minor repairs of a periodic overhaul

in Lawlor v. Socony, 275 F.2d 599. Thus, the decision in

the case at bar is in conflict with determinations of this

Court and various Courts of Appeals and in fact is in con-

iliet with its own previous deetsions,

Narrowing of the doctrine *s applicability solely te

periods of loading and - unboading of vessels for all practi-

ca] purposes: would destroy the remedy avaiable te mari

time workers performing ship's business and permit the

~hipowner to aveid its responsibility of assuring to those

business invitees a seaworthy vessel while in the pe rform-

ance of repairs for the benefit. of the shipowner,

The Court below conceded that the repiirs herein were

of a minor nature, Jesser in extent than in the Berryhill or

Berge cases or in Raidy v. United States. 232 F. 2d 117

tinvelving structural changes), vet negated. the doetrine’s

applicability heeause the operation in progress at the time

of Goett’s death was that af sandblasting rather than load-

ing or unloading of cargo from the vessel, and the control

of the operation was in thee: j.actor, even though Carbide

had actual notice of the defeet. The distinction, petitioner

submits, is invalid and the Court's ruling erroneous. *

The €¢. C. 204 was undergoing its periodié, overhaul.

As such it was never out of navigation, having been. ased

for transit of eargo just prior thereto and was to return

'o such transportation purposes upon completion of the

painting and minor repair work by the contractor,

Petitioner respeetfully submits that Carbide’s duty te

provide a seaworthy vessel Was no less in foree than wher

the vessel was in transit, provided that Goett came within

the elas. of workers performing ‘twork traditionally done

byoinembers of the erew.* United vy. Halecks, 808 US. 615.

The werk to be deme on the vessel, set forth in the con.

tract botween Carbide and Amherst, consisted of sand-

Wasting and painting the vessel and *tminor repairs’? (Pet.

Exh. dl. pp 207). Far aninor repair was the replacement

of batterworth hatches. The entire contract price wa-

$4,712.60, of which 24 hatches at $55.88 per hateh amounted

to ST S47.12.

Croett Was satulblasting the deek of the vessel at the

time of his fall. an operation performed to prepare the deck

for painting, the modern industrial way to take the old

pant dewn to the métadl The seaman has, from time im-

tmemornad, painted his ship: he chas traditionally and con

tipnes teday to chip and scrape. paint from the ship's

saitace preparatory to painting his vessel. .

This Court has seemingly rejected what must be the

contention of the,Court below, that there can be no war-

ranty of sedworthiness in force during peridds of repair.

Seo also: Lawlor ve Sdconu, 275 F.2d 599 (2d Cir.) The

(ror ff cause represents the minimal fact situation of repair,

both im extent and charatter of the work to be done by the-

contractor and its employees. Petitioners submits that ne

case heretofore decided on this issue of scope of doctrine

is expressly in point. See footnote 7, United v. Haleck:,

38 TLS. 618, 618. The rejection by this Court, however,

of the decision by the Court below ean be implied by the

fact that this Court has not limited the scope of the doctrine

to an exclusion of, all repair periods in the several cuse-

-efore it but rather has reached its determination upon

the peculiar facts of each case,

Petitioner respectfully asks that this Court now review

the ease at bar for determination of the question in order

so .

that the many decisions of the various’ Courts of Appeals

may be molded into a uniform principle of law.

3. In its previous decision in this cause this Court did

hot answer the question as to whether the West Virginia

Wrongtul Death Act maximum monetary limitation of. re-

covery was applicable to this cause of action arising out of

a maritime tort, theugh in Mess v. United States, 361 U.S,

$14. the issne was raised though not passed upon as to

“whether a state wrongful death-action might contain

provisions so offensive te traditional principles of mari.

time law that the admiralty would decline to enforce them."’

(p 320), thus raising the question of supremaey of the

general maritime law over state law as an advancement

ef a national purpose in the maritime field in order to

insure harmony and uniformity in its international and

interstate relations. The rights and liabilities of litigants

"arising out of a maritime tort ordinarily depend upon the

acceptance and application of the state statute by the

admiralty, which are controlling wherever suit may have

heen instituted. Western vy, frarcya, 257 U.S. 233, 241. The

admiralty forum must adopt the state statute in every

respeet qualified only by its right as the forum to refuse to

euforce statutory enactment against the policy of the ad-

miralty jurisdiction in its effort-to insure proper harmony

and uniformity in its international and interstate relations,

Lottawanna, 88 U.S, 558: Workman v. New York, 179 U.S.

992; Knickerbocker y. Stewart, 253 U.S. 149.

As stated in Romero . Tuternational, 2358 i. 6 206,

“State law must yield to the needs of a uniform federal

maritime law when this Court finds inroads on a harmoni-

ous system"? (p. 373). .

* ¥ Seemingly not dissimilar to the right of a forum to refuse to

entorce a statute of the lex loci contrary to the public policy of the

form, ;

“In such a case as‘ this it is incumbent upon the Admiralty to

enforce the... (lex loci)... statute ‘just as it would one originat-

(Continued on p. 26)

‘The Distriet Court ruled that the $20,000.00 maximum

“mone tary limitation of the West Virginia statute awas ap-

plicable in actions of this nature.

Ing in anv toreign jurisdiction. Levinson v. Deupree, 345 UU. 5.

tes, O31. Lungjus ge Showuaard, supra, at page 5435.

Restatement on Conflicts of Law, § 612. pages 731-732:

$612. Action Contrary to Pusric Pottey.

No action can be maintained upon a cause of actien’

created in another state the enforcement of which ts) coti-

trary te the strong public policy of the forum.

Comment: '

a. Distinction between policy denyimg access to courts

and policy refusing to apply foreign rule of law. The rule

stated in this Section is applicable when the entire basis of

the claim upon wriich suit is brought is so contrary to the

public policy of the forum that it will withhold altogether the

use of its courts to enforce the claim. .\ distinction is to be

noted between such a policy and the: policy which, while

does not require denial of access to the courts of the forum,

nevertheless requires the courts to apply certain local rule-

in the course of the Rtigation to enforce the local notirt-

concerning the manner and method in which the courts of

that state should function. This latter policy may be called

the procedural policy of the forum. This procedural policy

tliffers from the policy which denies access to the local courts

under the rule: stated in this Section tn the following re-

spect: in the former case, the legal relations between the

parties as determined by: the foreign law will be enforced:

subject to certain limitations imposed by local rules; in the

latter situation’ the state refuses altogether ,to enforce the

legal relations created by the foreign law.”

Poling vo Poling, 116 W.Va. 187 (1935), held that) rights

created or recognized by the /ex oct must give way when in conflict

with law or public pohey of the lex fort. that the public policy of the

latter meant “the law. of the state, wnetiier found in the constitution,

statutes, or judicial records” (p. 193).

See also: MeAnett v. St. Louis, a2 oa eee Loucks vs Stand-

ard, out a be al J Herzog \ Stern, 264 , bs 37! }- He ets s¢ nyoft \

lavis, 200 F. 16 (4th Cir.s; The Titanic, 233 U. S. TAX, a pp. 732-

733. Black Itamonud v. Steward, 336 tH S_ 36.

The Court of Appeals did not specitically rule upon the

issue: since it was unnecessary to its holding.*

Query: Does the monetary limitation set forth in the

West Virginia Statutes, © 547506), contravene the poliey

of the maritinwe law.

Workman ve New York. 179 U.S. 352. a fibel by the

shipowner resulting from a collision between bis vessel,

moored at a City dock, and a City owtied fireboat, involved

@ sovereign, exempt from suit exeept by statutery permis-

sion and whieh, by municipal law, limitesteliability. This

Court upheld the doctrine that che general maritime law. :

a coustrtutional grant ot power, controlled the issue of

monetary limitation: that to permit local law to limit re-

covery would be destructive of the essential charac ‘teristics

and uniformity and harmony of the Ac lnjralty jurisdiction

which would result in the ‘practical destruction ef a uni-

‘form maritime law’*

. The practical destruction uf a uniform maritime

law eas must arise .rom this premise, is made

* The Court below stated generally that the substantive law of the

state invelved must be accepted and cited Quinette vo Bisse. 136 F,

S25, a> controlling the issue of Imitation of damages. Cuimette was

mething more than a statement that the Court favored lookimyg to the

necoveries grarited by the State Courts under similar facts and vir-

cumstances in the assessment of damages. The case did not concern

a monetary limitation under'a Wrongful Death Statute since the sufn

awarded was only $4,000.00.°— . ; ‘

If this Court determines that the “death maxim” was applicable,

that (soett’s sole remedy was pursuant to the Wrongful death

Statute of West Virginia, but that the: statuory maximum recovery

section of the Act was inapplicable. petitioner submits that the cause

should then be remanded to the District Court for further —

ot damages only.

The West Virginia Statute permitted recovery for loss of future

support and for mental anguish of the widow. It aid not permit

recovery for pain and suffering of the decedent prior to death or for

vurture. As such, the District Court finding of damages for Goett’s

, pain and suffering and nurture would be stricken and a further

inding of damages made for the mental anguish of Goett’s widow

Ss e

niainifest When itis considered that it it be true that

the principles of the general maritime law given

teliel for ever character of maritime tort) where

the wrongdoer is subject to the jurisdietion of ad-

miralty courts, can be overthrown by conilicting de-,

cisions of state courts, it weuld follow that there

Would be no general maritime law for the redress pt

Wrongs, as such law, Would be necessarily one thing

Imoone State and one in anothers; one thing in one

Port of the United’ States and-a different thing in

some other Port. As the power to change state Jaws

or state decisions rests with state authorities by

Which such laws are enaeted or decisions rendered, it

would come to pass that the maritime law affording

relief for wrongs done, instead of being general and

ever abiding, would be purely local—-would be one

thing teday and another thing tomorrow. That the

couftision to result would amount te the abrogation

of uniform nraritime law is at once patent. And the

principle by which the maritime law would be thus in

part practically destroyed, would besides apply to

other subjects specially contided by the Constitution

tothe Federal Government. Thus, if the local law

may control the maritime law, it must also govern-in

the decision of cases arising under the patent, copy-

right amd commerce clauses of the Constitution, it

would result that a municipal corporation, in the

exercise of administrative powers which the state

law determines to be governmental, could with im-

punity violate the patent and copyright laws of the

[ nited States or the regulations enacted by Congress —

under the commeree clause of the Constitution, such

a> these concerning the enrollment and licensing of

Vesseds,*° (-}). sn, * © 8

“In doing so, it becomes manifest that the deei-

sions of this court overthrow the assumption that the

local law or decisions of a State can deprive of. all

rights to relief. in a case where redress is afforded

hy the maritime law and is sought to be availed of

ina canse 6f.action maritime in its neture and de

pending-in a court of admiralty of the United States."’

tp. rs

The Thielbek, 241 F. 209, was an appeal in an admiralty

suit by shipowners against each other and against the ( ity

’ of Portland, which arose out of a collision. The decree was

in favor of ont shipowner against the other and the city.

The latter was engaged in pilotage and towage service

under legislative enactment which had in its charter a limi-

tation of liability of $10,000.00. The deeree was for a sum

ereater than the limitation.

The Court, in affirming, held that loeal law or statutes

could not abrogate or limit the amount of damages recover-

able under the maritime law in a suit properly before an

Admiralty Court,

See alao: Southern v. Jense n, 244 UL S. 205, and Knick.

erbocker ve Stewart, 253 U.S. 149, in aa this Court

affirmed the view that the state could not, by legislation,

grant a compensation remedy to maritime workers in dero-

gation of their maritime rights to damages; and Moory-

MeCormack vo Amirault, 202 F. 893: Newburgh v. Teras,

227 FY. 2d 732, and New Zealand-y. Earnmoor, 79 E. 368, in

which the question of iaterest as a part of the recovery

of damages was held to be controlled by maritime prineiples

rather than by state legislation,

While the eases cited do not coneern themselves with

wrongful death statutes, the rule of law would seem to be

‘in point, that a suit existing by virtue of statutory per-

mission, and having a monetary limitation may not enforce

the limitation as being contrary to the avowed policy of

the Admiralty jurisdiction to insure harmony and uni-

formity in the essential characteristics of the maritime law,

Petitioner respectfully submits that the monetary limi-

tation under the West Virginia legislation was unaceept: ible

and unenforceable in this suit for wrongful death arising

ouf of a maritime tort, that. this question, not answered

hy this Court, though present in all maritime wrongful

death cases arizing in sixteen of the States should now be

reviewed and determined.

4. This Court did not, by reason of the nature of its

prior decision, answer the question of the validity of the

decision in The Harrisburg, 9 U.S. 199.

In ISG this Court in The Harrisburg, 119 U.S. 199,

considered the question of whether a suit me cem would he

for the death of the first officer of a vessel off the coast

of Massachusetts. The vessel was registered out of Phila-

delphia. Both Massachusetts and Pennsylvania had wrong-

ful death statutes having a one year statute of limitations.

The suit was brought by the widow Ove years after the

death of her husband.

The Court stated the issues to be:

(a) Whether a death action would lie in Ad-

miralty in absenee of a Federal or State statute;

ih) IP mot, whether an action would lie when a

rigth of action Was given by a State statute, and °°

(ec) If so, whether the State statute of limita-

‘tions would prevail? +1

The Conrt then fully diseussed a number of decisions

which had recently (at that time) determined the question.

Those eases which had decided in favor of an abatement

had done so on the basis of the death maxim under the com-

mon law, those which had ruled against the abatement had

done ston the basis of inherent justice and equity principles

of the maritime law.

Admi* ing that undér Scottish or French law a recovery

would be permitted (pp. 212-213), the Court ruled that

there was no evidence presented of a different death maxim

in the admiralty jurisdiction than on the Jand in any

country, that since the Court had the right only to declare

what the law. was and not what it should be, there could be

no recovery, :

As such, the basis of the Court's decision was that

maritime law was the same as the landside law * and that,

‘although there were numerous cases to the contrary, based

upon justice and the equity ef the situation, the Court did

not have the powér to determine the law upon social policy.

The Harrisburg is the leading case and is, in faet, the °

basis for the doctrine, as we know it today, of abatement of

the cause of action at death under the general.maritime law.

(Causes since Thy Harrisburg, almost without exception when’

upholding this harsh principle, cite it as covering the ques-

tion,

Petitioner respectfully submits that this Honorable

Court should now reconsider this entine question to deter-

mine whether the force and effect of this T2 year old ‘de-

cision should now be negated in light of the vast changes of

moral and legal thought which have permeated every phase

of the general maritime liw since that time. The modern

Admiralty suit was first perfeeted by the Roman law and

ix similar to the civil law as it is still practiced by countries

subject thereto, | :

When the Harrisburg decision is read in light of the

historieal background of the law, it would appear that the

Court was not, duly apprised of the many other saurees of

law from whic h the maritime jurisdiction of the different

nations and American colonies had develope “dl. The Court

logked only to the common law in determining the scope

of the general maritime law, the one legal system which

* Of note was the statement that Lord Campbell's Act of England

did not (at that time) permit | suit in Admiralty, citing lera Crug,

10 App. Cas. 59, which Act has since been revised to permit such

cause of action,

Whether the Court's decision would hiave been the same had the

nglish Lord Campbell's Act permitted a suit in Admiralty at that

time, as it now does, is indeed questionable

The Court did not appear to take into consideration the fact that

seme of the states did not follow the common law. ;

Violently opposed the general maritime law. Tt cannot be

coutradicted that the maritime law was taken by the Fnglish

from the Codes of nat? us which had perfected legal theory

centuries before Enelsh civilization progressed "from au

dge of savagery,

"The principle g! abatement of a cause of action by death

was but a corollary principle arising out of the tort thee-

retms of feudal Maghand that trespass" was of intentional

character and was te Tae reported by the San eve for an eve

deetrine of revenge.” As sucht ttdeath was the great com

fone of strife?

The Court in its Harrishura deeisign readily admitted

that the deetrine Was harsh and unyielding In a system of

law grounded upon equity and justice Tt freely conceded

that a number of eases had determincd that a cause of ae-

tion for wrongful death would lie, based solely upon tec fs

of pighteausness and comipassion for the family of the de

ceased seaman, but felt bound to pursue the pehiew of the

compen daw in the absenee of any evidenee that the flaw

of the sea was different than the law of the latid: “The

C'ootart elicd met aiteripl te tuke Inte cousideration those other

svstems of law, from whieh the general maritime law, a-

we knew it, mest assuredly developed and which, in fact,

pertiitted a catise of action fo continue unhampered by th:

eath of the wronged party. The Court further pointed]

‘

ipliedd that af itefelt free te detertiine the matter eo:

u moet pistiow Gane iv. an opposite comelnsiom ment

t cetpend

i? “yy ded - Nf +lin eerisiait jem ca

.) ae ‘ t. : “fe

=~ 1% | bith aa Voed Werkers 10 th Mrpaa adie

i ’ eiiast ~

I} | beth ers” DLialbulits Vet, 45 1 a y]

’ 4

j. 1 1008 granted the right of elaim by a railroad

worker against his employer for the negligence of said

employer. The Merchant Marine Act of 1920 (the Jones

Act), 46 U.S.C. { 688, extended the rights granted to the

railway employees by the Federal Employers’ Liability

Act to a seaman against his employer. - Neither. enactment

set forth speeifie survivor benefits, The Miramar, 31 F. 2d

764, aff'd 36 F. 2d 1021.

Congress then effected a cause of action for wrongful

death of any person on the high seas, Death on the High

Seas Act, 46 UL S.C. § 76a, et seg.

Passage of the Jones Act in 1920 gave to crew members,

to longshoremen and harbor workers, the right of a cause

of action against their employer. Thus—from that time

and until the enactment of the Longshoremen’s and Harbor

Workers’ Compensation Act in 1927, 33 U. S. (. 6901,

et seq., a’worker such as the deceased herein, had a ecanse

of action for wrongful death arising. out of the negligence

of his employer. The coverage for a cause ‘of action for

wrongful death of all maritime workers was thus complete

whether the accident occurred at sea or on the territorial

waters of a state. °

It was only upon the passage of the Compensation Act,

supr® that the newly legislated right-under the Jones Act

was limited to crew members, as the exception to the

coverage of the created Federal Compensation System.

Just v. Chambers, 312 U. S. 383. was an action for

wrongful death by drowning, arising out of employment

on a yacht in-the territorial waters of Florida. The

Supreme Court, discussed whether the Wrongful Death

Statute of Florida would be recognized and enforced by

the admiralty Courts and stated, concerning the exercise

of the jud‘ciary power in establishing maritime law, that:

‘*The rule of the non-survival of a cause of action

against a deceased tortfeasor has but-a slender basis

in admiralty cases in this court. See Crapo v. Allen.

6 Fed. Cas. (No. 3360) 763; Cutting v. Seabury, 1

Sprague’ 522,525; In re Statler, 31 F. 2d 767, 36 F.

2d 1021; Cortes v. Baltimore Insular L-nes, 287 U.S.

367, 371°" (footnote 4, p. 8s7) .

The Court stated that leading continental states, whose

law had developed from the civil law, permitted a eause of

action arising out of wrongful death. Hughes on Admir-

alty, Chapter AX, Sections 108-110, pages 224-226.

Cor v. Roth, 348 U.S. 207, indicated that this Court

might reconsider the *‘slender basis’’ of the “Admiralty

rule against survivorship of death action if the issue was

properly posed, noting that:

‘* Nevertheless, in considering the harshness of the

rule sought to be imposed under thé Jones Act, we

do note that advancing civilization and social prog-

ress have brought 43 of our States to include in their

° general law the principle of the survival of causes

of action against deceased tortfeasors, and that such

recovery, rather than being exceptional, has now

becorne the rule in almost every common-law juris-

diction. See the discussion by Roscoe Pound on

Death Statutes as Part of the General Law, 13.

NACCA L. J. 188-189 (May 1954)*’ (p. 210).

The Court itself has thus implied that it would consider

Whether such abatement has retained its vitality in view of

the fact that the ‘‘slender basis’’ for the rule of .wnon-

survival in admiralty has been whittled away by legal and

social progress to a point where it should no longer form

a proper support for an archaic rule‘in disrepute for many

years,

In Kernan v, American, 355 U. S. 426, the Court again

appeared to react unfavorably to the effeets of The Harris-

burgh decision, evidenced by a footnote in the decision

couched in terms of what’ seems to be dissatisfaction at

the obvioysly unsatisfactory result of the ahatement

doctrine.

Admiralty is not a derivation of the common-law but

takes its principles from the many legal systems of the

maritime world as adopted and accepted by present day

lega) thought in the United States.

Benedict on Admiralty, Vol. 1, (8, pages 9-11 stated:

“8. Origin of Admiralty and Maritime Jurisdiction.:

Unkke the common law, the American admiralty

is not a derivation of English jurisprudence but of

the general. maritime law adapted to our cireum-

stances and molded by our practice. The admiralty

and maritime jurisdiction of the United States is not

limited either by the restraining statutes or the

judicial prohibit’ons of England—or by the local tra-

ditions of that land—but is to be interpreted by an

original view of its essential nature and objects and

with reference to analogous jurisdictions in other

‘countries constituting the maritime commercial

world as well as the jurisdiction in England. Those

who framed the Constitution andthe lawyers in

Ameri¢a in that day were familiar with the jurisdic-

tion different and more extensive in most of the

original States when they were colonies than was

allowed in England. The general system of maritime

law, which was familiar to the lawyers and statesmen

of the country when the Constitution was adopted,

Was most certainly intended and referred to when it

was declared in that iistrument that the judicial

power of the United States shall extend ‘to all cases

of admiralty and maritime jurisdiction.’ Admiralty

cases are as old as navigation itself and, as they

arise, the law, admiralty and maritime, as it) has

‘existed for ages. is applied by our courts. The gen-

eral maritime law, however, is only so far operative

as Jaw in any country as it is adopted by the laws

and usages of that country. There is no ‘mystic

overlaw.” It is the maritime law as accepted and

received in the Cnited States that governs and,

though the general maritime law is the ground work

of, our own maritime system, it is only by voluntary

adoption and with such qualifications as our juris-

prudence and statutes have made in it that it becomes

our law. It is in this sense—-a sense that contem-

plates both judicial adaptation and legislative modifi-

cation—that it mat be said that the Constitution

36 '

itself adopted amd established, as part ot the laws oi

the United Stattes, approved rules of the genera!

mairitime daw. The precise scope of admiralty jaris

diction is ‘net a matter of obvieds principle oro!

very accurate history” but the jurisdiction is of broad

scope in this country and the progress of our duris

prudence in freetiag the jurisdiction from pre reve

lutionary English restrictions and in giving a cis

tinetive character to our miaritime baw lias been

laatked by the over tiding of carher decisions and bo

qualification or rejection of earlier expressions ol

Judicial theught’* (pp. UTE).

Bisse ve Diland, SAY UL Sod. was noted for its affirm

“tion of this Court's scope of power to determine legal isae +

on the basis of public policy as well as judicial rule, a righ

itevidently felt it did mot have in DSs6,

Burvei \. Coronado, 285 °C. OS. 398, discussed th:

strength of stare decrees delissent opinion of Myr. Justier

Brandets, sinee he eatled for an overruling of a@ prior dec

sion by the Court). With utmost candidness duastie:

Brandeis laid down the rule that sfare dresses should bh

followerl ants when results Would ddleqnately protect th

publie. 3

Nhe OCI ALS is Test, hike tlie ruleol ves ji RY

auniversal, ine xoratie comune. * The rule ot

Jeers, thetioh one tending to eonsisteney and o.

Tormity ot decistonsis net dithesiibe. Whether it <ties

he Followed or eleparted Proto as a question enter

Within the aescretion of the court, whiell is mina

chew oat pheeesTicath eptpetes checetbens

Mertz Vv. Wanna 2p cea i Se

oil teed a itp attotis|

is <i~ ailds Ltiee Ware! poolten, Preareatinee TEE Bebews td tea !

Isrmeore dhipertant that the anplicable ral ot law

settiecd thestre Chast at odes sttheeb riwht. OC oonsiton \

tiotad Bank vi Whites, Dn { Ss f tii

COPE eyeeone dN Ladi e iowhere the errer ps a tna

<eriah= coneern. provided eorreetion ean he dia

i Liitiest | bit 4 ~invelvir lis bey riai |

~ ! Ce ee | atierts Tiere Par five it

I { fer thi] Phry~ GC conuet biie~ cbt

‘

ruled its earlier decisions. The Court bows to the

lessons of experience and the force of better rea-

soning, recognizing that the process of trial and

error, so fruitful in-the physical sciences, is appro-

priate also in the judicial function. Compare Brink-

erhoff-Faris Trust & Savings Co. v. Hill, 281 U. s.

673, O81. Recently, it overruled several Jeading

cases, When it coneluded that the States Should not

have been permitted to exercise powers of taxation

which it had theretofore repeatediy sanctioned. In

cases Involving the Federal Constitution the position

of this Court is unlike that of the highest court of

England, where the policy of stare decisis was formu

lated and is strictly applied to all classes of cases.

Parliament is free to correet any judicial «rror: and

the remedy may be promptly invoked.

The reasons why this Court should refuse to fol-

low an earlier constitutional decision which it deems

erroneous are particularly strong where the question

presented is one of applying, as distinguished from

what may accurately be called imternreting, the Con-

stitution..” (pp. 405-410) (Italies ours)

It would appear that the Federal Courts which haye

found themselves bound by the common law rule ‘of abate-

ment, have only reluctantly come to that conclusion. The

hope of future remedy by judicial decision or legislation of

a doctrine that has no meaning in the law as we kpow it

today has often been expressed. It seems apparent that

this rigid medieval doctrine based upon the ‘*vendetta’’

should have no place in the modern conception of justice

and equity which has, from time immemorial been the guid-

ing force in maritime matters. By-its destruction of claims

b¥ means of construction of a fictional difference hetween

4 Cause of action for a personal injury and one for wrong.

ful death, the death maxini has succeeded in the ereetion of

an artificial barrier to just, equitable and meritorious deter.

minations of death claims.

Surely, Justice Brandeis’ decision in the Burnet case.

supra, gives meaning to the law as the shaping foree of

our nation, alive to the changes and modifications of legal,

thought and governed only by what has been aecepted as

the wise rule of action in the light of experience and th

foree of better reasoning.’

Acting upon what petitioner considers to be a directive

from this Court, this issue as to whether there shall, in the

future. be an abaternent of a cause of action arising out of

a maritinie tort upon the death of ‘the wronged party is

herewith most respectfully presented for consideration,

* While all states have esther wrongful death or survival stature-.

r eth, the folleiving mias have importance m exphuning the destruc

af the uniformity of the maritime law as a result of variation

mothe state legislation :

There are 16 states with Emitaton of maximum benetits In

rach state: the amitatian depends urpen the dependences elem ts

and the relationship of said dependency. Some permet recovery for

. : r

bosratal expenses, some for pain and. suffering. some for mental

anguish of the dependents

ly wold seem that the dependency of the General maritime lav

titer the vartows state statutes, while on the surface appear th

Slevtate the harshness of the common law rule of abatement, hasicalls

faite i dts purpose imsefar as at concerns suits arising out of a

martime tort, since it strikes at the very core of the purpose of the

maritime law, uniformity and harmony om its sessental characteristic

features of cnternational and interstate relatiens,

ed oe

"ae

gf ar F ——— ow

CONCLUSION

A writ of certiorari should be granted in accord-

ance with the prayer of this petition.

Dated: July 15, 1960,

Respectfully submitted,

Bixtst Fiaxnkiin Pad iey,

Counsel tor Petitioner,

Peoples Building,

Charleston, West Virginia,

(ioLDSTEIN & NTERENFELD,

S. EvpripgeE SAMPLINER.

uf Cotanse i,

Harvey GoupsTeis,

on the Brief,

APPENDIX

Findings of Facts and Conclusions of Law

of the District Court (Hororab!= Ben Moore }

The Court: Dam going te make a timding of fact ate

conclusions of law. and in deing so TP die met expect te

diseuss the facts or the law any further than is emeugh to

show an appellate court, 2 the ease should be appeecderd,

the basis on whieh TPorest th findings both of fact wn

The tineing~ of tact. then. are these:

First: There was no safety or reseue equipment on

bare trot Which the plaiatitf fell to his death.

Two: Tt was forreseoubile te cheferdant ‘Union (arbi.

and Carbon Corporation, as its name Was then tm that it-

natne then or tow!

Mr. Lowe: Then. Thats the mate in the case,

Phe Court: Thai in the samdblastins Cope raat ientis Wiireds

they Knew or should have known woule le carried: on ot

the barge by Atmherst Barge Cfmopatiy for the purpose of

the work that was then being cote on the batwe that mats

tien Weuhl work oi the baargwe im the tiatmer. GQoett wae

0 SEH)

WMornihy

dh id ae ee ery vas ; ‘

j ‘ iki } je ints ‘ Hinmcs { - ‘4s ie

. '

, firt | tihart? S fart is iil | { arin { CoP poet i; !

‘ . + ¢ ’ . ox haul “ ‘

estipping the barg WHIRL Peitsonaoyy ett ere 389 i

‘ :

i SilPety tit Versi bipotrie tit

es .

“ °

: eye .9 F ; :

bette Phe bares was tot seaworthy at tT Litt (:

\ rowed Por a ! CUPCUIME =~ Tales }

yer Tpsceed

| ’ ’ g i tad . ¢ ’

\ | 45 a ~1°1]} =

; ; eults ‘ ’ m efesitt

Findings of fact as to damages: the court finds (het

the amornt which is fair and just to cover the intangibte

damages o: the deceased's family, includjng mental an-

guish and bereavement, is the sum of $5,000, that in addi

tion to damages. for those elements the court finds that

the distributees suffered financial and pecuniary loss in sn

amount exceeding, when added to the $5,000, the sum of

$20,000, and that therefore under the rule of law which

| apply to this case the amount of damages that are to tn

included in the recovery: is $20,000.

I find that no punitive damages are proper in this case.

Procecding, as was. suggested, to find what would be

the recovery in case the Hmitation set down by the West

Virginia wrongful death statute is not applicable, I find

these facts with reference to damages: that the reason

ably expected annual earnings of Mr. Goett which would

have been attributable to the expenses of his family rather

than his own expenses, is $1500 a year for the entire ex:

pectancy of thirty-six years; and in arriving at that figure

1 take into consideration the faet that by the time of the

expiration of his expectancy Meg. Goett would be a a

old man and that he could not reasonably be expected, in

view of the general health hazards of hfe, to earn cs

his entire wxpectancy the amount that he earned during

the immediate week preceding his-death, but that he pret

ably would earn an amount for the whole length of time

which would average what he made in the six months be

fore his death, which would mean about $2500 a year, and

1 find that of that sum it would be. reasonable to assume

that he would use-all but $1500 for his own maintenance

expenses; so if he earned $1500 a year for thirty-six years,

he would in that time earn $54,000 applicable to the ex

penses of his family. )

] think that the present worth of that sum cof money

should be ealeulated on a four per cent basis rather thar

a three per cent basis. ‘Calculated: on a four per cent

basis, I find that it amounts to $31,400.

! tind further that the amount which is tair and just

to compensate for the nurture of the deceased "+ daughter.

Who Was hving with him for the period of ber infaney, is

SUMMER, und |} further find that the amount which is fair

and just to compensate for Wie pain and suff ring of, Mr

Goett himself! and ogher intantvble losses whieh are prop

erly coupensable under the rules of admiralty is S600, all

ot Which added together } vroduces a total of SOG as thie

vrand total, which would be a fair and.just award if there

were no limitation as fixed by the West Virginia statute,

Conclusions of law are as follows: 1 fife! that this case

is not one for the applicability of the doctrine of Hatility

without fault. “To think this is acnegiigence case and that

neghiwence has been shown, us | have said. _-

1 conclude that it was the duty of the Union Carbide

and Carbon Corporation under the circumstances of this

case to provide both reasonable safety equipment im order

to’ turnish workinen who worked on the barge a safe place

to work, and Tam thinking in that connection of measures

such as life lines or stanchions, as they are called, to pre

vent falling off the unprotected deek . and it) was also the

duty of Carbide to provide reasonably suitable rescne

equipment, which it was their duty to. plage in’a position:

on the barge where it would be immediately available in

cause of needs

| find further as a conclusion of law that Union Car-

bide and Carbon Corporation is not res} jomsible for ans

“negligence. if such there was, on the part of Amherst

Barge Company in not furnishing to the workmen the life

jackets that made up a greater part of the testimeuny.

Qn the question of contributory negligence my con

clusion is that MP Goett was not guilty of anv negligence

that contributed to his death. I. in explanation of that,

conclude that it is the burden of the one alleging eontritu-

tors newlivence to prove that contributory negligence by a

preponderance of the evidence,

Under the evidence in this case it is quite possible and

just as probable to my mind that Goett may have acci- °

dentally fallen without any negligence at all on’his part as

that he negligently went over the side. There are many

constructions on the deck,.some of them close to the edyze,

‘and he may have struck one of those, afd if he did there

ix no evidence that he was negligent in so doing.

As to the doctrine of assumption of risk, I conglyde

that under the eirenmstaneces of this case Goctt did “not

assume the risk of the danger which caused his death. I

think it ix not necessary to deetde whether he did or did

not assume the risk of falling over the side of the boat. It

was not the falk that caused his death. The cause of his

‘death, as T have found in my findings of fact, was the

failure of Union Carbide and Carbon Corporation to nave

available resene equipment, and that is a risk whieh T con

clude Goett did not assume,

The tinal.conclusion of law is that the plointiff is en-

titled to recover against defendanc Unien Carbide and

urbon Corporation in the sum of $20,000. The other find- )

ings with reference to damages are cut off by my, decision

that the jimitation in the West Virginia stetute applies

to this case, so I make no conclusion of law with reference

to the excess damages except to say that if my conclusion

is correct that the limftation applies, that the pla’rtil® i-

therefore not ertitled to reeover in chis action anything

beyond $20,000,

June 24. 17

Bluefield, Wes. Varetuia

Hares (iolibstern, base. (harles M. Love, bist.

Attourties at Law, Attorney at Law,

wt! ley miwae, Charleston, West Virginia

Vila York 3s, New York

Willjam Par Parrell, Bsa.

Koo Prooklig Pauley, Esq. Atiornes at Law, -

Attorney at Law, Charleston, West Virginia

Charleston, West Virginia

In re: Goett, Adimx. ve Union Carbide & Carbon Corp.

Y. Amherst Barge Company, a Corp.

Civil Aetion*No, 1755

Crenthetmen:

At tie conelusion of the hearing in this ease which was

tried be the Court as a ease in admiralty, plaintiff? was

awarded a judnient of SLOQ0O veainst defendant Union

Curbed & Carhen Corporation. Noe deetsion was made at

that time with referenes to the rizhts.if any. of that defend.

witoaemtinst the thindyparty defendant, Amherst Barge

Company. Counsel for the third-party plainti? and. the

third party deferdant were requested: te tile dade, whieh

thow ditee eleone, .

el connection with the brief ef the third-party plang

til the Comet was asked te make eoetain findings ef fnet

wid conebusions af faw,

. Re pdestinl fitedinae of Taet is as follows:

Phe Conrt Hads that Amherst Barge Compan’ third

patty defendant herein had exeusive enstody, eare uted

metred oof the qomiunie d tank teirge CCo20b bt the time

Abe. Goettplatntinh’.s deeedent, fed) therefrom’

o~ | tow trastkees this finding of faet. deleting therefrom

Mever the werd * yricanmedd 2 the it i- nis cope tien

that the bapee was not at the time an timmanned: bare,

Other requested findings, which T deem to be finding»

of fact but whicheare requested as conclusions of law, ar

to the effect that the third-party defendant was negligent

in not furnishing a life jacket to Mre Goett and requirine

him to wear it while performing his work; and in not ereet

ite stanchions or Fait aroynd the edge ot the deck of th:

barge.

| have already found as a fact that no negligent act

of the third party defendant contributed proximately te

cause the death of Mr. Goett. DT new further find as a fact

that under all the circumstances disclosed by the evidence

the third-party defendant was net negligent im net fur

nishing the life jacket and requiring Goett to wear it. I

further tind that while the preponderance of the evidere

inn opinion, did net shew That the absence of stanehion-

or railitiz contributed. proximately te Groett’s death. the

third-party plaintiff, and not the third-party defendant,

was negligent in not erecting such stanchions or railing.

Having made these findings of faet, counsel are*ad

vised that To have carefully considered the briefs sub

mitted to me, the authorities cited, amd the argument-

tndvle sandy ceneiusion of law is that there i. ne Liaabeality

from the third-party defendant te the third-party plaintst?

arising out of the jadement. herein awarded fo plamit

Ellen Gieett, Administratrix, ete, against defendait Unien

Carbide & Carbon (Coorpeorsaticets, : ‘

ft ie stivgested in, the brief of the third-party plait?

that the court may wish to hear eVidence as te whether

eronet Atuherst purelased the insurance required by its

contract with’Carbide,

Poa oof epinion that the comtract is met im amy sons:

ambiguens, and further, that it is immaterial te the deei=t

of the present controversy whether Atm herst did or did met

purchase said insurance. ; .

Anoorder may he entcred in aceordanee with the Views

' spre seed in this letter,

Yours truly,

is Bes Moone.

lneted States District dade

Opinion of the United States Court of Appeals

for the Fourth Circuit

SNEED STATES UHERT oF APPEALS

se Pon rue Pecese Cineorn .

No. Oss

Usios Cansine Corporation, it corporation, ;

Defendant avd Third Party Plaintitf

» below, Appellant and Cross-Appellee,

tTersts

Eines Goerr. ax Administratrix of the Estate of

Marvin Paul Goett, deeeased,

i Plaintit? below, Appellee

and (ross-Appeliant,

;

tind

AmMitthsr Barnae Combrasy, a corporation,

Third Party Defendant

below, Appellee. :

Choss- Arrears FRoM tHe Uo site Srate~ Disreicr Cocrr ror

rus. Sorrates District or Wosz Vercinia, at CHARLESTON

(Argued April 9, 18 Decided May 27, 158)

Before:

Sospecorr, Chief Judae, Soren, Cigeut! Judge and

Truomses, Destrict Judar. 3

CHartes M. Love (Dayrox, Camesetn & Love, and.

Cuartes R. McEiwer on brief) for Union Carbide Cor-

poration, Appellant and Cross-Appellee ; Harvey GoLpsteis

OE. Frankurs Paviey and S. Evprivge SamMpuiNner on brief)

for Ellen Goett, as Administratrix ete., Appellee and Cross-

Appellané; and Davin D. Jonsson (Jackson, N&LLY, Hout

& O'Farren.. and W. T. O'Farrety on brief) for Amherst

Barge Company, Appellee.

Tuomses, District Judge:

Marvin Parl Goett, an employee of Amherst Bargy

Company, while sandblasting a tank*harge owned by Union

Carbibe & Carbon Corporation, fell into the Kanawha

River ard was drowned. The barge had been turned over

to Amherst for repairs and improvements and was under

‘its sole eontrob.’ Since the barge was an unmanned barge,

it had no life rings or other -reseue equipment. The

principal question to be decided on this appeal is whether

Carbide is liable te Goett’s administratrix either for negli-

gence or unseaworthiness because the barge was not se

equapped. ‘

Carbide was the owner of the CC-204, an unmanned steel

tank barge, with a flat deck. Except for pipe lines it had

no superstructure of any kind, but there were kevels alonz

the outer edges of the deck to assist in mooring. It had no

railing around its deck and was not equipped with any life

rings or similar reseue equipment. Applicable Coast Guard

regulations do not require that such barges be equipped

with rallirgs or fe buoys,! and it is not eustomary for

such barges to be so equipped. The barge and its equip-

ment had been inspected, certified and’ approved by the

Coast Guard; the éertifieate of inspection issued on April

1, 1055, granted permission for navigation as an unmanned

114 USC. A. 63. 46 CER. 31.18-3, 32.01-10, 33.40-5 (now

33 40-} r

oul

tank barge on rivers and inland waters tributary to the

tinltot Mexico. approved Yor use without equipment other

than tire extinguishers,

Amherst owns and operates a repair dock, with marine

ways on the Kanawha River at Reed, Wess Virginia. In

Oetober, To, Carbide contracted with Amherst for a

liounial dryvdoecking, certain welding, repairs and improve:

tents to the barge, including installation of twenty-four

Bbiiterworth hatches and painting, uot only of the deck

and boot topping but alsa of the bottom and sides, with

preparation for the painting by means of sandblasting.

The work was to be done in aceordance with Carbide’s

Written speeifications., A large portion of the painting had >

te be porformed in drydock, but the details of the work

were at the diseretion of Amherst, whieh had exclusive

cuutrol of the barge during the performance of the con-

tract, subjeet only to the specifications.

“dn contemplation of such repairs, the barge was delivered

to Amborst’s dock at’ Reed, West Virginia, on Ovtober 2.

Carbide’s supervisor of barge maintenance went on board

the barge on the following day with Ambherst’s maintenance

superintendent, to point out and discuss the work that was

to be done. ; ;

No officer, crewman, watchman or other person employed

by Carbide was left on or with the barge after it) was

delivered to Amherst; it was im the exelusive eare, custody

and control of Amherst on October 5, when Goett was’

drowned. The barge was then atloat on the’ Kanawha

River, Iving along shore, near Amherst’s marine. Ways; it

Was moored to and against the head of a digger boat, which, °

lav downstream from the barge. The digger boat was

attached to the shore by a semi-permanent ramp, which

Was the means’ of access to the barge ‘from the shore. A.

ring-type life buoy with a line attached was mounted on

the digwer boat.

10a

ee -

Giectt, an employee of Amherst, while sandblasting the |

deck surface of the barge, fell inte the Kanawha River an

was drowned. He had heen on the barge on October 4 to

nieve the sandblasting equipment aboard, and began work

‘nthe morning of October 5. The sandblasting equipment

consisted of a heavy machine sitting on the deck of the

harge, but mavable from place to place, with two hoses

leading from the mathine. Goett was holding the nozzie of

oneoof the hoses in his hands, and was directing the sand

list against the aces af the deck while he walked

slowly across it. He was wearing a canvas haod over his

head and shouiders to shied him against flying sand from

the sandblaster and was also wearing a respirator. fie

Was not wearing a life jacket, although life Jackets’ were

available in Ambherst’s supply house to any employee who

desired to wear one while at work. The great majority of

Amherst’. employees preferred not to wear life jackets

and they were not rquired to do so, When last seen on

the barge, Goett-was walking slowly backward towards a

kevel at the outboard edge of the barge. A minute later

Goett’s fellow workmen on the barge heard the noise or

the nowsle thrashing against the side, ran to the edge of Uy

larce and looked over, (ioett was in the river, just ont

hoard of the position in which he was dast seen on the

barge: Three men dmmediately went inte the river to save

hin, but Goett fought them off.and prevented them from

keeping a gripoon bim. After several minutes he slipped

Itneath the surface and was drowned. About that tin:

Amberst’s maintenance syperintendent arrived on. th:

scone and threw a life buoy off the digger boat inte the

water, but it was too late.

’

lla

Goett’s administratrix filed a eivil action against Car-

bide in the Southern District of West Virginia based upon

the West Virginia Wrongful Death Statute alleging that

“W.Va. Code, 1455." § 5474. [5] Action for Wrongful Death—

Whenever the death of a person shall be caused dy wrongdal act,

chat. or default, and the act. neglect or default as such as would

ivath bad net ensued) have entitled the party mjured te maintain

accom to recover damages tn respect thereof, then. and in every

wh case, the person who. or the corperavoen which, would have

eeu weal death had net ensued, shall be lable to an action for

damages, Notwithstanding the death of the person injured, and

Uthougi the death shall have been catsed under such cireumstances

ceammuntom law te murder in the first or second degree. or man-

clanghter. No action, howeser, shall be mamtamed lw the personal

representative of one who, not an infant, after injury, has compro-

raised for such injury and accepted satistaction therefor previous

hi es emi ;

“€ $475. [6] Party Plaintet in Such Action: Damages. Distribu-

non: Limitation --givery such action shall be brought by and in the

ane of the personal representative of such deceased person, and the

mount Tecovered in every such action shall be distributed to th

parties and im the proportion provided by law: in .relation to the

etubution of personal estate, left. by persons dying intestate li

every such action the jury may give such daniages as they shall deem

hor aud just not exceeding ten thousand dollars: Provided, however,

fothe plamtitf in such action: shali prove by a preponderance of the

aidence financial or pecuniary boss sustamed ty a distributee or

stributees of such deceased person in oan ameunt exceedimyg tie

sam of ten thousand dollars the jury may give such damages as shall

eonal stich financial or pecuniary loss, not exceeding twenty thaw ond

Sollars as the tetal of all damages recoverable ii such action, and the

cunt se recovered shall, not be subject, to any debts or habilities of

mleceased Every such action sho he commenced within two vears

otter the death of such deceased person.”

$8477. [8] When Action: Sot te Abate; Survival of Action for

Mersona’ Injury against Wrongdoer. aime Within Such Yetion Must

te Brought.—Where an action is brought by a person injured for

“nage‘cause'l by the wrongful act, neglect or default of any person

> corporation, aud the person injured dies pending the action, the

son shall not abate by reason. of his death but, his death being

egested, it may be revived in the name of his personal representa-

+ ard the declarat! on and other pleadings shall be amended so as

stern te an action under sections five and’ <ix of this article, an

case proceeded with ayif the action had heén brought under said

tons But ine such case there shall be bur one recovery for the

* & >

me inyury.

12a

Gioett’s death was due to the failure of Carbide to have

rescue equipment aboard the barge. ‘Carbide brought in

Amherst as a third party defendant, alleging that by ex.

press and. implied cogtract, it was: entitled to indemnity.

Answers were filed by Carbide and by. Amherst, denying

falility and raising the defenses of contributory negligence

and assumption of risk. On plaintiff's motion, over the

objection of Carbide and Amherst, the case was transferred

to the admiralty side of the court.

The elistriet judge found as facts: that Carbide should

have foreseen that many of Ambherst’s employees would

work on the barge; that under these cirpumstaneces it wa-

negligenee “for Carbide not to equip the barge with safety -

and rescue equipment; that the barge was not scaworthy at

the time Goett was drowned for all the circumstances in

which it was being used; that failure to provide resene

equipment was the proximate canse of Goett's death; and.

that Amherst had exelysive custody, care and control

the barge at the time Goett tell therefrom.

The judge concluded: ‘*this case is not one for the appli-

cability of the doetrine of liabiljty without foult.. 1 think

this ds a nevligence cuse and that neghgence has been shown

"ee '': that it was the duty of Carbide to furnish workmen

who worked on the barge a safe place-to work, and to that

end te provide safety equipment, such as life lines or,

stanchions, to present their falling off the unprotected

deck: that it was also the duty of Carbide to provide rea-

sonably suitable rescue equipment, and to place such equip

nent in a position on the barge whtre it would be immedi-

ately available in ease of need: that Goett was not guilty of

any negligence contributing to his death; that Goett did not

assume the risk of the failure of Carbide to have rescue

equipment available; that plaintiff is entitled to reeover

$20,000 against Carbide, but that if the lim tation in the

West Virginia Wrongful Death Act did not — ply, plaintiff

would hove been entitled to recover $5€,v00; and that

Carbidesis not entitled to indemnity from Amherst.

boa

The maritime law docs not allow recovery for wrengtul

death. The Harnsburg, WO U.S. 8. In io Congress

adopted anoaet to provide a remedy for wrongful death on

the high seas. 46 UL S. OAL TOD et seq. bat there is ne sim

lar act where the deathoceugrs on inlatel waters, unless the

clair is against the employer of a deceased: seaman ane

Theretare covered hey the Jones Act, 46 UL S.C AL Oss. Thi

Sopreme Couct has held, however, that akiee theaathy taper -

suth. waters results from a maritime tort committed on

navigable waters within a State whose statutes give a right

of vetion on account of death by wréngtul act, the: admiralty

courts will entertain a libel in personam for the damage>

sustained by those to whom syeh right.is given.” Western

Biel Co. vy. Gareia, 257 Ue, 238, 242: Lerinsoa v. Deupree,

345 US. 648, 650. The West Virginia Wrongful Death

Act, like other statutes patterned on Lord Campbell's Act,

has created a new cause of action for the benefit of certain

named beneficiartes, and has not perpetuated the cause of

action which the deceased had before his death. Duwsmere

v. Martaan, 140 W. Va. 357, 84S. E. 2d 137: Galf, CS,

Pods COs SCs, eee. B. beoe Cygntinental Crusuelty

Colv The Benny Shou, 4 Cir, 200 F. “3 246, 248, cert. den.

J4) . Si 992.

The right to maintain such a aut can be enforced in ar-

tiralty only in accordance with the subst tantiye law of the

state whose statute is being BARC The ¢ ndowment must

hetaken cum auere, The Harrisburg; Levinson vy. Dewpre:

Continental Casualty Co. v. be Benny Skou;: Garrett v.

Moore-MeCormack Co. Ine, hy U.S. 239, 245: Curtis

el. Gareia y Cia, 3 Cir., 241 F.2d 30,35. It-has been ren-

erally held that any limitations in the state statute as te

When suit must be brought, or the amount and character of

damages which may be allowed, are binding on the admer-—

alty court. See e.g: Western Fuel Co. v. Garcia; Continental

Casualty Coy. The Benny Skou; Quinette v. Bisso. 4 Cir.

Ian FL S25, cert. den, 199 UL S. 606. A cante of action for

lamages aecrued prior to a decedent's death, whether based

l4a

om unseawofthiness or on negligence, will survive if th

applicable state statute so provides. Kernan v. Ame ried

Dredging Co., 855 .S. 426, at 480, n. 4; Curtis v. A. Garea

i] Cha: Holland v. Sfeag, Inc.. D. Mass., 148 . Supp. LO

Meade v. eget S Dp. N. ¥.,:148 Supp. (06, Ct. ¢

Roth. BAS U.S. 2075 Just ve Chambers, 312 LC. S.. 38s.

t nlike statutes in some states, the pertinent West Virginia

statute permits suc ‘th survival only if an action has been

commenced before the decedent's death, and requires that’

such action be conformed to an action for wrongful death’

W. Va. Code, 1955, £5477. [8]: Raila v. Case, Wey oS

W. Va., 131 F. Supp. 154; Alloy v. Hennis,Ereiaht Lines.

139 W. Va. 480, 80S. BE. 2d old. Of course, no such action

wus filed by Goett.

In the instant case Hability for Goett's death is claimed

on the. basis both of unseaworthinsss and of negligence. |

A. a ae is a oi ision of eens whether asult nde Tu

based on seman Olver .{ f. hee vt. Pure Oi?. 6 Cir.

o18 °F. 3d Til, 714, and Graham vy. A Lust, Lid... 3 Cir.

2g Fb os, with Halecki v. United New York, 2.Cir., 251

F.2d TOS, and Skorgaard v. The M’V Tungus. 8 Cir, 252

I. 2d 14. noting the strong dissents in both Malecki and

Skoraqaard. See also Kernan vo American Dredging Co.

tis not necessary for us to decide whether a suit in ad.

miralty under the West Virginia Act can ever be tase

upon unscaworthiness, because Goett was not a person te

whom the warranty of seaworthiness ran, and because w:

do not agree with the finding of the distriet’ judge that th:

barge Was unseaworthy.

The right to sue for injuries caused hy unseaworthiness,

which seamen have had since The Osceota, 189 U.S. Tos.

was extended to stevedores in Seas Shipping Co, v. Sieracki,

S26 US. 85, 99, because they were ‘‘doing a seaman 's work

and incurring a seaman‘s hazards"*, and to carpent¢rs |

Pom & Talbot v. Hawn, 346 UL S. $00, 413, because :

loa

: /

ship on which Hewn was hart was being loaded when the

grain loading eqnipment developed a slight detect. Hawn

was’ put to work on it so that the loading could ge on at

once. There he was hurt. His need for protection froth un-

seuworthiness Was nhetther more wor Jess than that of the

~tevedores then working with im on the ship or of seqrren

Wihio diad been or were about to vo On a Volare, Al] were

subjeetgd to the sdme danger. All were entitled to like treat

ment under law."?) See"also Alaska S.S. Co. Petterson

nT ey hee S. 306. and Rogers v. United States Lines odr los

sd. We extended the right to a watchman, supplied ty au

tndependent contractor, who Was doing. work yeotcuatiie

done by an officer or member of the crew. Russ. The Zer-

land, 4 Cir., 240 F. 2d 820,

Sinee he decision below, howe ver, this court has adapted

the opinion of Judge Chesnut in Raw vy. United Stat

1). Md., 153 F. Supp. 777, aff'd. 4 Cir. 252 F.2d 117, where-

in he noted that the admiralty doctrine of ubseaworthities>

sprang from a consideration of the particular hazard- at

fecting the crew of a ship in mavigation, Raidy was a slip

vard worker who was performing duties wot withithe eorm-

petence or the cistomary activities of the crew. The shay

was in drydock for structural changes > she was not sub yect

te any of the perils of navigation. The erew had been dis.

charged. The owner masitained no control over the work

being done by the independent contractor other than the

right to inspect to determine whether structural chane-

were being performed in accardance with the specifica

tions. We concluded that Raidy’s status was very differ:

ent from that of a seaman and thaf it was a musnotier’” te

speak of the removable and absent footplate through which

he fellas ‘*unseaworthiness of the Seu ae ae Ol art LS,

See alse Berryhill . Packhe oS Cit. Baek. oso, cert. den.

wot Cls S938: West ve United State 8 ie }). e a.. 143 F. Supe

473: Bae v. National Bulk Carricrs, 2 Cir 251 2a 3

Cf Halecks ve United New York and Sker grand sv. The

Wo Tungus.

16a

¢: ¥

In Steracki, Hawn and Petterson, the vessels were in the

general control.of their officers, loading cargo, when the

longshoremen and carpenters were hurt. Those. cases

hold that an owner’s duty to provide a seaworthy vessel,

with appurtenant supplies and equipment, is not affected by

the relinquishment to another, such as a stevedoring com.

pany, of control of a portion of the ship or of a particular

operation, such as loading.* “In the instant ease, however,

the barge had been temporarily withdrawn from navigation

and delivered into the sole,custody and control of Amherst,

the drydock company. While in extent the work was not as

great as in Berryhill, Berge and Raidy, in character it wa-

the same, because it couid not be done by the regular crew,

but required that the vessel be withdrawn from navigation

and turned over to.a drydoek company having special faeili-

ties and equipment for-the work. The work order called for

drvdoeking of the vessel; without sueh drvdocking the bot

tom and sides of the barge would not have been inaecessible.

The -warranty of seaworthiness does not apply in tha:

situation. |

The barge was not unseaworthy. In its ordinary opera. ’

tions, it was unmanned, and did not require life saving

equipment. It did not become unseaworthy when men went

aboard after it had been turned over to a repair yard under

the circumstances of this case. Lester v. United States. 2

Cir,, 2384 F. 2d 625, cert. den, 352 U.S. &89.

B. Nor was Carbide negligent in delivering the barge to

Amherst without mounting life rings or other safety equip

ment on the barge, or in failing to rescue Goett after he fel!

into tne river, as contended by his administratrix. There is.

of course, a duty on a vessel and hér owners to have life:

saving equipment available to rescue members of her crew

who fall overboard while the.vessekis in operation. Sadler

v. Pennsylvania, 4 Cir, 159 F. 2d 784, and eases cited. A

* See discussion in llaska “S.S. Co. v. Petterson, 205 F. 2d 472,

at 479.

. lia

similar duty is owed to business visitors who come aboard

while the vessel is in the eustody,and control of her officers

or other representatives of the owners. But in the instant

ease Carbide had delivered the barge into.the sole custody.

and control of Amberst. Carbide's duty under, those clr:

cumstances Was to warn Amherst aid ‘its employees-of any

hidden danger or latent defect. There was no hidden dan-

ger or latent defect in the barge. It was the duty of -Am-

herst to supply its employees with a real&o ily sate phace in

which to work. It knew and controlled t{Weonditions of the

work ‘and the equipment which would be used. It was

Amherst's responsibility to decide whether a temporary

railing or stanchions should be ereeted, whether its men

should. be required to weay preservers, and whether and

Where life rings and other rescue ‘equipment should be -

mounted. For negligence in any of these respects it would

be Hable to plaintiff herein for damages, were it not for

the provisions of the ca gecenoneat sand Harbor Workers’

Compensation Act, 33 U.S.C. A. 901-9504 But Carbide

-is not liable to plaititiff ra negligence; it breached no

duty it owed fo Goeétt, Lester v. United States; West v.

United States; Raidy v. United States; 388 Am. Jur. Neg-’

ligence, see. 97; Restatement, dre sec, 340, 343; Harper

and James, The Law of Torts, vol. 2, see. 21.1.

The judgment should have been entered in favor of de-

fendant. This decision makes it unnecessary to pass, on

the qther questions raised by the several parties.

Reversed.

-_ si ~

‘t'nder the terms of that Act Goett's wife and children are cn

titled to receive, without proof of negligence on anyone's part,

Ci aura“ which may exceed the maximum ‘amount recoverable

urider the West Virginia Wrongful Death Act.

18a

Judgment

_ Filed and Entered May 27, 1958.

UNITED STATES COURT OF APPEALS

For THE Fotrte Circvit

No. 7588

—_—

Union Carpipe Corporation, a corporation, Defendant and

¢ Third Party Plaintiff below,

Appellant and Cross-Appe ‘le

VS.

Ex.en Goetr, as Administratrix of the Estate of

Marvin Paci Gorrt, deceased, Plaintiff below,

Appellee and Cross-Appellant,

a nd

AMueRST Barce Company, a corporation, Third Party

; i \

Defendant ‘below,

Appellee.

“4y

Cross-appeals from the United States Distriet Court

for the Southern District of West Virginia.

This cause came on to be heard on the record from the

United States District Court for the Southern District of

West Vi irginia, and was argued by counsel.

Ox Coxsmeration Wuereor, it is now here ordered,

adjudged and deereed by this Court that the judgment ot

the said District Court appealed from, in this cause, be.

and the same is hereby, reversed; that this cause be, and

19a

the same is hereby, remanded to the United States District

Court for the Southern -District of West Virginia, at

’ Charleston, with direction to enter judgcnent in favor of

defendant (appellant and cross-appellee here) in accord-

ance with the opinion of the Court filed herein; and that

the costs on appeal be paid by the oe e and e¢ross-

appellant.

Stmon EF. Sopevorr,

Chief Judge, Fourth Circuit.

Morris A. Soper,

Enited States Circuit Judae.

‘Roszrn C. ‘Titomses,

United States District Judge.

Opinion of the Supreme Court of the United States

SUPREME COURT OF THE UNITED STATES

. No. 3.—Octoner Term, 1959.

oo oO

Eviex Gortt, as Administratrix of the: Estate of Marvis

Paci Gorrr, Deceased,

Petitioner,

e v.

Unxtox Carsipe Corporation and AMuHERstT Bargce Compayy.°

: -- Oo

On Writ of Certiorari to the United States Court

ot Appeals for the Fourth Cireuit.

{January 18, 1960.]

Per Curiam,

, This was a libel in admiralty brought against respondent

Union Carbide Corporation by petitioner, the adminis

tratrix of Marvin Paul Goett. Goett had been an em-

ployee of respondent Amherst Barge Company, which was

engaged in repairing a river barge owned by Union. The

‘decedent was working on the barge when he fell off into

tie waters of the Kanawha River, and, after fruitless

efforts at rescue, was drowned. The theory of the libel

Was that, alternatively, Union was negligent in turning

over the barge to Amherst without its being equipped

with rescue equipment, or that the vessel. was unsea-

worthy, without such equipment: and that the lack of

rescue equipment caused the decedent’s death. The acci-

_dent.had taken place in West’ Virginia waters and that

State’s Wrongful Death Act was relied upon. The Dis.

trict Court found that the vessel was in fact unseaworthy

and that Union was negligent in the respect charged, caus-

ing the death of decedent, and that the ‘decedent was not

2la

shown to have been guilty of contributory ‘negligence or

to have ¢osumed the risk. The Distriet Court bottomed

Union’s hability: on negligenee, and awarded petitioner

$20,000 in damages, the maximum allowable under: the

West Virginia Act, though finding that the actual damages

were substantially higher. On Union's appeal to the

Court of Appeals; the judgment was reversed. 256. F.

ld 44. '

The Court of Appeals held that as a matter of Jaw

Union owed no duty to the employees of Amherst once

the vessel had been turned over to the latter. It aceord-

ingly reversed the District Court's finding of negligence.

It further held, contrary to the District Court, that the

Vessel was not unseaworthy at the time of the accident,

and that in any event the decedent was not a person to

Whom the warranty of seaworthiness was owed. In. the

light of this determination, it did not pass on the. question

Whether unseaworthiness would be in any event available.

asa ground for recovery ina West Virginia wrongful death

action involving @ maritime tort. We granted certiorari.

359 U.S. 923, |

This case was decided in the lower courts before the deci-

sion of this Court in The Tungus vy. Skovgaard, 358 U. S.

OSS, Where it was decided that it was a gestion of state

law as to what is the proper substantive law to be applied

to maritime torts within the territorial jurisdictions of

the States iri wrongful death eases. See Hess v. United

States, ante, p. ——. Under this holding, in a maritime

tort death case, the State might apply the substantive law

generally applicable to wrongful death cases within its

ierritory, or it might choose to incorporate the general

maritime law's concepts of unseaworthiness or negligence.!

Here the Court of Appeals did not decide which standard

' For examples of the general maritime law's concept of negli-

cence, see Kermerac v. Compagnie Generale Transatlantique, 358

US. 625; Pope & Talbot. Inc. v. Hawn, 346 U. S. 406, 409: The

‘tax Morris, -137 U.S. 1, 14-15.

>).

——*

the West Virginia Act adopted. It did ‘not articulate on

what basis it was applying federal law if in fact it was;

there is no intimation that it believed the West Virginia

‘Act incorporated the maritime law's negligenee standard,

and in fact it expressly left open the question whether that

Act incorporated the maritime standard of seaworthiness,

It seems more likely to us to have passed on the negligence

issue as a matter of federal maritime law; it cited only

cases applying the general maritime law's and the Jones

‘Act's concepts of negligence, and general treatises; no

West Virginia authority was relied upon.? The least that

can be said is that it is highly doubtful® which law the

Court of Appeals applied; * and so in the absence of any

expression by it of which standard the West Virginia Act

adopted, we do not believe we ean permit its judgment to

stand after our intervening decision in The Tungus.’

Accordingly, so that the Court of -Appeals, which is

closer than we to matters of focal law, may pass upon

the quéstions of West Virginia law involved fn the iight

of this Court's holding in The Tungus, we vacate its

judgment and remand the cause to it te determine: ‘*(a)

“ The respondent here cites West Virginia precedents in an effort

to sustain the Court of Appeals’ determination.

‘The views of the dissenting opinions here confirm us in our,

doubts. Some ot the dissents take the view that the Court of

Appeals should be affirmed because it undoubtedly decided the point

as a matter of state law, while another is of the view’ that, the Court

of Appeals should be afiirmed because it made sufficiently clear that

it decided the point as a matter of federal law. Our views he between

these two.

* While the Court of Appeals declared that “The right to maintar:

such a sutt can be enforced in admiralty only in accordance with

the substantive law of the state whose statute is being adopted.”

236 F. 2d, at 453, this discussion seems to us probably to have been +»

the context of the monetary limitation of the Act. Certainly ther:

Was na speerfic identification of this statement with the discussion «

whether the négligence finding was justified. And if the statement

taken to Mfean that a State cannot adopt the maritime standard, it

net correct

238

Whether the West Virginia Wrongful Death Act, as to

this maritime tort, employs’ the West Virginia or the

general maritime law coneept of negligence; and, in the

light-ef its determination, (b) whether the-district judge's

finding as to negligence is correet under the proper sub-

stantive law, to facilitate our discretionary. review of the

Court of Appeals* findings as to unseaworthiness, it should

also determine and (ce) whether the West Virginia Act

incorporates this standard Cunseaworthiness) of the geii-

eral maritime law in death actions involving maritime

torts.”’ Cf. Barr v. Matteo, 355 UL S. W715

Vacated and remanded,

* Tue Crier Justice, Mr. Justice Buack. Mr. Justice Dovetas

and Mr. Justice BRENNAN joIn this opimon, but solely under com-

puision of the Court's ruling in Tie Tuagus vo Shotgaard, 338 U.S.

SoS. They beheve that as long as the view of the law represented by

that ruling prevails in the Court, it should be apphed evenhandedly,

despite the contrary views of some of those originall, joining it that

state law as the measure of recovery when it helps the defendant,

asin The Tungus, and ts not the measure cf recovery when it militates

against the defendant, as in Hess v. Uuited States. ante. p. —.

tlowever, ther note their continued disagreement with the ruling in

The Lungus, and reserve their position as to whether it should be

overruled, particularly in the hght of the controver-y application

ot it has engendered among its original subscrbers. See the various

‘eparate opimtons in this case‘and in Afess vo Comited States. supra.

. :

oe i =m

24a

SUPREME COURT OF THE UNITED STATES |

Z |

No, 3.—Ocrosner Tero, 1959.

{

v ‘ j

Eviten Goert, as Administratrix of the Estate of Marvin |

Patt Gortt, Deceased,

Petitioner.

Usron Carpsipe Corporation and AMHERST Barce CoMPany.

ray

On Writ of Certiorari to the United States Court

- of Appeals for the Fourth Circuit.

(January 18, 1960.]

Mr. Jvustice Hartax, whom Mr. Justice Fras Krurter

joins, dissenting, a

I dissent from the Court's disposition of this ease on

the following grounds:

First. For reasons elaborated in my Brother Stewart '-

dissenting opinion, there is no reasonable basis for con

eluding that the Court of Appeals’ disposition of the neg- 4

ligence cause of action did not rest upon state substan:

tive taw, which in maritime wrongful death actions con

trols, The Tunaus vo. Shovaaard, 358 ULS. O88, if, as | ey

pressed in my dissenting opinion in Hess v. United States

ante po -— it dees net impose duties greater than thos:

created by maritime substantive law. :

in any.event, there beimg no sugvestion that the stat.

standards of duty differ in any way from those obtamuin-

under maritime law, the remand of the negligence cau-

of action to the Court of Appeals seems to me to be a nee

less and therefore wasteful procedure.

‘

— = iliioniaalilasacanians

s ¢ . ;

20a c.

Second, As to the unseaworthiness cause of action, no.

one suggests that West Virginia has such a doctrine of its

own. “The Court of Appeals deliberately decidéee (256, F.

- 2d at 454) that it need not reach the difficult question of

whether the West: Virginia Wrongful: Death Statute em-

braced a cave of action for nnseaworthiness based on ted-

eral concepts, because. it found that in any event, under

federal law, the vessel was not unse ‘aworthy, and that the

je itloner Was not one to whom the duty to p irovide a sea-

worthy ship was owing . ;

In resting its decicion on these vrounds the Court of

Appeals exercised the traditional discretion of any eourt

‘to choose What appears to ita narrower and clearer ground

at decision in preference to a broader and more contro-

verted one. The Court does not suggest that the limits

of this diseretion were excedded in this instanee, Ct. Barr

v. Mattes: 855 UL S. 171. In my view we cannot properly

require the Court of Appeals to decide a question which it

intentionaliy and sensibly left open unless we first reverse

that court on the issues which it did decide. This the

Court dees not do. Hence, PE obelieve there is no justifi-

cation for remanding the ease on this score.

26a

* SUPREME COURT OF THE UNITED STATES

‘

No. 3—Octoser Tern, 1959.

_ -———-t(

ELLEN Gorrr, as Administratrix of the Esiate ef MArves

Pact Geerr, Deceased, Petitioner,

Uxiox Carnpipe Corposation and AMHERST BarGe ComMPayy..

i oe

Qn Writ of Certiorari to the United States Court.

of Appeals for the Fourth Circuit.

é - (January 18, 1960. |

«Mr. Jestice Wairrraker, dissenting. °

. iam persuaded that the Court of Appeals has made

sufficiently clear that it thought this diversity, admiralty,

death case was governed by the general maritime law, as .

remedially supplemented by the West Virginia Wrongful

Death statute, and properly decided it on that basis.

The Court's opinion says that The W/V Tungus v. Skov-

qaard, 398 U.S. OSS stdecided that it was a question ot

state law as te what is the proper substantive law te he

_ applied to maritime torts within the territorial jurisdiction

of the States in wroneful death cases, fand that] [ulnder

this holding, in a maritime tort death ease, the State might

apply the substantive law generally-applicable to wrongful

death cases within its territory, or it might choose to in-

corporate the general maritime law‘s concepts of unsea

worthiness or neghgence."* T do net understand the Tun

qus case to so holly and if such a holding was intended by

itsoanther or by ans of the Justices whe jomed it, it dor-

Ret sav so :

It seems te me that the substantive legal rights az |

liatilities invelved in this admiralty ese are not in any

gion

) apg

=~iid

true sense governed by West Virginia law, but rather, are

within the full reach of exclusive admiralty. jurisdiction

and are to be «measured by the standards of the general

maritime law, Aermaree ve Compagnie Generale Trgns-

utluntiqgue, d0S7UL S. 625, G28, as remedially suppleniented

by the West Virginia Wrongful Death statute. See The”

Although state Wrongful Death: statutes are not ones

of survivorship and are generally spoken of as creating a

new cause of action for death, it seems rather clear that

the West Virginia Wrongful Death statute. like most

others, creates a cause of action only in the sense of pro-

viding a remedy for death resulting from an act made

wrongful by other laws—vhether common, statutory or

tnaritime laws—which would have redressed the. wrong

“if death had not ensued."* W. Va. ode, 1931, 6 5474 65).

And when, in a case encompassed -by the terms of the -

State's Wrongful Death statute, admiralty ‘tadopts** such

statute, it does so only to afford a remedy for a substan-

tive Cause 0” action’ created by the maritime law which,

“it death had not ensued,** would have redressed it.

It is true that when admiralty ‘tadopts’’ a State's

Wrongful Death statute ‘it must enforce it as an inte-

erated whole with whatever conditions and limitations the

creating state has attached.’’ (The Tungus, supra, at O92.

But the West Virginia Wrongful Death statute, like most

such state statutes, apart from preseribing whe may prose-

cate the acdon, the time within which it must be brought,

and the measure and limit of recovery, has attached only

the condition that the wronefual ‘tact, neglect om default,

to thaintain an action to recover damages in respect there-

of (it. deat hae an etentneed | °° m: Sa; Code, 131,

M474 (5) Surely this means that the act, neagtect or de-

fait. must be such as would. wieder other laws —whether

COMMON, statutory, or acitime laws have entitled the

Party injured to recever eluamages tn respect thereeaf cit

loath bad not ensued."*

28a

Adoption by samiralty of such a remedial statute can.

not be permitted to, and does not, so expand the essentia!

purposes and characteristic features of the general mari.

time law as to interfere with its proper nation-wide har-

mony and uniformity, Southern Pacific Co. v. Jensen, 244

U.S. 205; TRestern Fuel Co. v. Garcia, 257 U.S. 252, 242.

By such jadoption, admiralty takes over only the remedy,

wafforded for death by the State's Wrongiul Death stat

ute—albeit the whole thereof. It does not thereby aban-

don the noncenflicting substantive admiralty law) which:

gave rise to the right of action that it would have enforced

‘if death had not émsued.** In such a ease, the real and

substantive right in suit is still the one created by, and

to’ the extent not conflicting with the adopted Stat

Wrongful Death statute—is governed by, the maritin:

law. i

This is what I understood the Tunqgus case to mean -

wher IT joined it, and re-examination of it confirms tha:

conclusiom. IT submit there is not a word in it to th

contrary. And this conclusion is buttressed by the dissent

in that ease! Although this Court has many times am!

uniformly held that the maritime ‘law creates no caus:

of action for wrofigful death, and that,’in cireumstane +

like these, admiralty ‘‘adopts”* the State’s Wrongful Death

Act, the dissent in Tungus said, in effect, that ‘admiralty,

would merely look to see whether the State had enact!

a wrongful death statate and, if it haa, would not ‘adopt

that act but would put it-aside and fashion its own reme\!)

for wrongful death, 358 U.S... at 608-609, which, T though

“and still think, is contrary fo this Court's eases holding

that the maritime law does not create a cause of activ

for wrongful death and that, in actions for wrongful deat!

arising on the territorial waters of a State, admira!*.

“adopts” the State's Wrongful Death Act cum onere.

: 2a

I believe that the opinion of the Court of Appeals makes

reasonably clear that the court regardedsthis case as gov-

cerned by, and that it applied, the general maritime law as

remedially supplemented by the’ West Virginia Wrongful

Death statute. I also believe that the court correctly

concluded that the maritime doctriné ‘ef unseaworthiness

was not applicable, and.that respondent was not guilty

of negligence causing or contributing to cause the death

of petitioner's decedent,’ because, as it found, the barge

was both withdrawn from navigation for extensive repairs

and completely out of respondent's control—points: we

thoroughly explored and decided only the other day. ‘West

v. United States, 361 U.S. 118. I would affirm.

30a

SUPREME COURT OF THE UNITED STATES

No, 3.—Octoner Term, 1959.

Euiex Gorrt, as Administratrix of the Estate of Marvis

Paci Gortt, Deceased,

Petitionrr,

Usios Carpipg Corporation and AMHERST BarceE CoMpany.

o-—

Qn Writ of Certiorari to the United States Court

of Appeals*for the Fourth Cireuit.

\January 18, 1960.)

Mr. Justice Stewart, dissenting.

In this wrongful death action it was incumbent upon

the Court of Appeals to apply the substantive law of West

Virginia. The Court today finds it ‘thighly doubtful”

whether the Court of Appeals did so. I entertain no such

doubt for the following reasons: (1) This Court's **inter-

vening decision’'' in The Tungus v. Skovgaard, 358 U.S.

OSS, announced no new -principle, but simply restated a

doctrine well established in this Court. (2) Long before

the decision in The Tungus, this doctrine had been spe-

cifically, recognized as the law in the Fourth Cireuit.

(3) The express language of the Court of Appeals’ opinien

in the present case makes clear that the court under-

1 The judgment of the Court of Appeals in the present case wa-

entered May 27, 1988. The decision of this Court in The Dungus

was anuounced February 24, 1959.

—

3la

stood that its function was to apply West Virginia law,

and that it did so,

Our decision in The Tungus simply reaffirmed a prin-

ciple articulated in many decisions of this Court. T's

principle, compendiously stated, is that admiralty enior ces

“the obligatio’ created by “a state wrongful death action

‘as it would one originating in any forgign jurisdiction.”"

Levinson vy. De upree, 845 U.S. 648, 652. See The Harris-

burg, W9 U.S. 199; The Hamilton, 207 U.S. 898; La Bour-’

quqne, 210 UL S. 95; Western Fuel Co, v. Garcia, 257 UL.

2a3.e Under this weight of authortiy it could be pre-

sumed that the Court of Appeals for the Fourth Circuit

would recognize, as other federal courts have recognized

whenever the specifie question has arisen, that the right to

recover for wrongful death oceurring on the navigable

Waters of a State is to be determined by reference to

state law.s

But there is no need to indulge in such a presumption,

heause ‘the Court of Appeals for the Fourth Circuit, sev-

vral years before the present case was decided, manifested

a thorough understanding of the cortrolling | doctrine

- The law took a different turn with respect to state workmen's

c mpensation laws. See Southern Pacific Co. v. Jensen, 244 U.S.

208. Such legislation was differentiated from state wrongffl death

statutes because of .the greater burden imposed on shipowners by

heavy penalties and onerous conditions” of the compensation stat-

utes, and because of the “novel remedies incapable of enforcement

van admiralty court.” Anickerbocker lee Co. v. Stewart, 233 U.S.

+a. 166. More than 15 vears ayo this Court pointed out that

(Tjhe Jensen case has already, been severely limited, and has no

vrality. bevond that which may continue as to. state workmen's

compensation laws.” Standard Dredging Co. v. Murphy. 319 U. §.

306, 309. Cf. Daz sd v. Départinent of Labor, 7 Ais avs 349: Hahn

‘Island Sand & Gravel Co., 358 U. S. 272.

‘See, ¢. a. “ta ve Wilson Line of Massachusetts, 242 F. 2d 414

“CON Ast Cir.) Caited Pilots Assn. v. Halecki. 251 F.2d 708 CC. A.

Curtts v. af. Garcia y Cia., 241 F.2d 30 (C. A. 3d Cir.) ; Graham v.

ust, Ltd., 206 F. 2d 223 1C. A. Sth Cir. : Lee ve Pure Oil Co.,

eis F, 2d 711 (C. A. 6th Cir.).

32a

exactly in accord with the principles confirmed by this

Court last Term in .The Tungus. In Contimental Cas-

ualty Co. v The Benny Skou, 200 F. 2d 246 (C. A. tth

Cir. 1952), a suit to recover for. a death occurring on. board

a ship in the territorial waters of Virginia, the court held

that the action was. barred by the. one-year limitation

contained in the Yirginia Wrongful Death Act. The

court's reasoning Was unambiguous::*'The right of action

WRich appellant has songht to enforce is one created solely

by the Virginia statute. .... *Virginia has bestowed upon

admiralty a right to grant a recovery not previously pos-

‘sessed by admiralty.* The endowment must be taken cus

were, As appellant grounds his aetion upon the Virginia

statute, he is obliged to accept the statute in its entirety a-

construed-by the Virginia court of last resort.) 200 FL 24.

ai 2), ;

even if the Court of Appeals for the Fourth Cireuit

had net previousty expressed such a-clear understanding

that cases like these are controlled by the substantive las

of the State. TP think that its opinion in the, present case.

standing alone, unambiguously shows a recognition of the

duty to apply the substantive'‘law of West Virginia. Whe:

the court said seems to me quite clear: ‘*The maritime lav

does not allow recovery for wrongful death. ... The righ:

to maintain such a sait can be enforced in admiralty ons

in secordanee with the substantive law of the state whos

staiute is being adopted. The endowment must be taken ;

cum ontre” 256 F. 2d.at 453. This Court's suggestion

that the above language was confined to the issue of tle

monetary limitation upon damages in the West Virgins

statate is to me entirely unconvincing. because the Court

Appeals never reached the question of damages.

1 |

Even if Dwere ablé te agree that iti uncertain wheth-

the Court of Appeais decided this case under standard-

state or federal faw. T still eould not join in the Court’

judgment.) Far even if the Court of Appeals mistaker

applied substantive standards of federal maritime law,

no purpose could be served by remanding this case unless

it were shown that the state law is somehow more favor-

uble to the petitioner. But there has been no showing—

nor auy suggestion—that the law of West Virvinia is in

any way more favorable to plaintiffs than the genera!

martime law. Contrast Hess ve. United States, ante,

p—.

A remand of this ease is equally pointless on the issne

of whether, as a matter of West Virginia law, the state

death statute incorporates the maritime duty of providing

a seaworthy vessel. The district judge found that the

barge Was unseaworthy, but went on to bold that **thisx case

is not one fer the applicability of the doctrine of liability

without fault."" The Court of Appeals expressly refrained

from deciding whether the West Virginia Wrongful Death

statute has imported the maritime concept of unseaworthi-

ness, finding that the circumstances of this case were not

such as 10 impose liability under that concept, even if

incorporated in the state statute. The court found as a

’ fact that the barge was not unseaworthy, and held as

matter of law that in any event there could be no warranty

of seaworthiness with respect to a vessel withd rawn from

navigation and delivered into the sole custody and control

of a dry dock company for the purpose of major repairs.

(hdy last month we unanimously held that thie view of

the scope of unseaworthiness lability is correct. West v.

United States, 361 U.S. 118. There is no point in requir-

ing the Court of Appeals to make what would therefore be

so completely irrelevant an inquiry into an elusive question

of state law,

] would affirm.

‘Indeed the case was sabmutted to us upon the contrary assump-

The petitioner's argument was pitched upon his contention

should overrule The Harrisburg VW Ss 1) se that his

rors vould he determmed under federal law. The respondent relied

aon West Viegima decisions in urging affirn.ance

34a

oe of, United States Court of Appeals —

for the Fourth Circuit |

UNITED’ STATES COURT OF APPEALS

For tHe Focrru Ciecvit

No. 7OS88

—

Union Carsipe Corporation, a corporation, Defendant and

‘Third Party Plaintiff below,

Appellant and Cross-Appelles,

VS.

Eiies Gorrr, as Administratrix of the Estate of

Manvis Pari Gorrt, deceased, Plaintiff below,

Appellee and Cross-Appellant.

and

Amuenst Banck Company, a corporation, Third Party

Defendant below, ;

Appell: '

Cross-APPEALS FROM THE UnNitep States District Count

FOR THE SOUTHERN Dusrrict oF West VirGinia, AT

CHARLESTON. Ben Moore District JUcpbGE.

Ox REMAND FROM THE SUPREME COURT OF THE

Unitep STAaTEs

(Argued, March 28, 1960. ° Decided April 19, 1960

fae

Before:

SopeLorr, Chief Judge, Sover, Circuit Judge, and

Tuomsen, District Judge.

Harvey Goupsteix (Ernest Fraxkuis Patcuey and S.

EvpripGe SaMPLINeEk on brief) for“Ellen Goett, as Ad-

minixtratrix ete., Appellee and Cross-Appellant.

~ CHar.es M. Love (Cuarues R. McELwee on brief) tor

Union Carbide Corporation, Appellant and Cross-

Appellee.

Davip D. Jonnxson (Jackson, Keviy, Hott & OF arnecy,

and W. T. Farreuy on brief) for sAmbherst Barge (‘om-

pany, Appellee.

Tuomsky, District Juige:

The Supreme ‘Court has remanded this case, Goeftl v.

Vrion Carbile Corp. 361 U.S. 540, so that this court may

determine three questions, stated by the Supreme Court as

follows: ‘

(a) Whether the West Virginia Wrongful Death

Act, as to this maritime tort, employs the West Vir-

ginia or the general maritime law concept of negh-

gence; and, in the light of its determimation, (1)

whether the district judge's finding. as to negligence

is correct under the proper substantive law. To

facilitate our discretionary review of the Court of

Appeals’ findings as to unseaworthiness, it) should’

also determine whether the West Virginia Act in-

corporates this standard of the general maritime

law in death actions involving maritime torts."’

The facts are fully stated in the original opinion of this

court, 256 F. 2d: 449, and are summarized in the opinien

of the Supreme Court.

The — v. Skorgaard, 358 U.S. oss, and Cows

Pilots Assn. Halecki, BOS VS. 6138, as interpreted

a maysrity if the’ Supreme Court in Goeff and in Hess

Cnited States, B61 US. $14. held that ‘in an action to

wrengtul death in state territorial waters the conduct <0

to give rise to Liability is to be measured mot under s

miralty’s standards, but under the substantive standard:

the state law.’ S61 US. at clo. Under this holding

a maritime tort death case, the State might apply the ~

stantive daw generally applicable to wrongful death cn

within its territery, or ito muaght choose ta incorporate =

etpernl maritime daw 's concept. of Gnseaworthitess or 4

heenee." S61 UC. S. at Ade. P

Tri duis clissents an dfs ss ated Cooe th, Qed So celb aned ode

Mero Justices Whittaker. who was ome of the magerity of

in Shorauard amd Halecks. has stated that he does 1

terpret Stevqgaard ih the mactimer quoted above, ame tie

eitidieatedd that de believes such causes are woverned bey

eeneral federal mia®itime daw as temeedially supypbemien’

by the State's Wrongtnul Death Vet This brings bo:

close to the prrsition ot the foar justices Whe dissente 4

Shogadrd and Haleck: and concurred ‘cunder compulsier

in ess amd Goeth dtis net for us to resolve this probier

and ap the view we take of the law it would make no

ferenee in cur answer to question ob) whether we fe

the rule stated in the ‘Opénion of the Court’ in Mess as

in feoett or the rule suggested by Mr. Justice Whittaker

his dissents,

There is no Wert Virginia case in point, although

Supreme ‘ourt of West Vi itginia has held that its Wre:

ful Death Act should be Liberally construed. Richardt:

Riverside Lron Works, 56 W. Va. 510, 49S. E. 437. We

have cotsidered the arguments on both sides so well

Veloped in the majority and minority opinions of the Secon:

Cireuit in Haleck?, 251 F. 2d 708, and of the Third Ciren*

ava

“in Nkoerqaard, 252 F. 2d 14, which construed a statute

essentially similar to the West Virginia Act. See also Holly

VSS. Manfred Stansfield, 4 Cir. 260 F.2d Oty, amd State

AS Nabella, DD. Ma, 176 FL Supp. 668, noting that the

construction of the Virginia and Marviand Acts was aided

by comparatively recent amendments to those Nets, giving’

the right te proceed in rem against a ship. There is no such

provision in the West Virginia Net: that is an element te

ie comsiddered, but itis not ebnelusive, sinee this is met oat

actions in’ rem. ; ee

The West Virginia statute: ike tuest wrongful death

statutes, provides basieally that if death is caused bw a:

act. negleet or defanlt which would have emtithed the angtred

party to maintain an action if he hack lyed then the porse:

whe world have been Hable for the injury will be liabli

under the statute for the death. Tf Goett had survived te

could have brought an aetion against Ureon Carbide in the

Weet Virginia courts for‘the alleged negligence and un

seuworthiness, and his right to recover if such an aetion

would have been governed by general tiarttime, law. Tt is

true that such an action based on unseaworthines: was net

recognized in 2863. when the West Virginia Wrongful

Death Act was adopted, and that the principles presentls

controll: ng the neghgence aspect of sueh an action had not

been fully developed. We find, however, thdt the West Vir

gitiia legisiature, in adopting the Wrongful Death Act, did

not intend to limit recovery thereunder to actions based

on the wrongful acts, neglects and defaults with which the

legisiators who adopted it were familiar, but that the statute

was intended to cover all wrongful acts. negleets and de

faults which from time to time would entitle an injured

party to maintain an action under the applicable substantive

law. whether the common law, statutory law or maritime

law. The West Virginia courts apply all three. in appro

Prate cases. ;

We conclude that in a maritime tort death case West

Virginia would ‘choose to incorporate the general mari-

38a

time law's concepts of unseaworthiness and negligence.”’

Counsel for Union Carbide argues that such a construc.

tion of the West Virginia Act violates the separation of

powers doctrine, that a state legislature cannot delegate its

law-making power to another branch of government,

whether judicial or legislative. We have found no authority

supporting Union Carbide'’s argument. No delegation of

law-making power is involved. The separation of powers

doctrine does not require that the Wrongful Death Act be

frozen so that it cannot respond to the development of the

common law, as interpreted by West Virginia courts, or

to the development of the maritime law.

iB.

Although we-have concluded that the Supreme Court 0

West Virginia would apply maritime law concepts of neg.

ligence in such ,a case as this, we do not believe that | it

would run ahead of the federal courts and create duties not

heretofore recognized or enforced by the Supreme Court

of the United States or by the weight of other federal

authority, and not applied by West Vi nginie courts i

tinalogous situations,

In our former opinion in this ease we said: ‘Nor wa:

Carbide negligent in delivering the barge to Amherst with- ,

out mounting life rings or other safety equipment on the

barge, or in failing to rescue Goett after he fell into the

river, as contended by his administratrix.. There is, of

course, a duty on a vessel and her owners to have life saving

equipment available to rescue members of her crew who fal!

overboard while the vessel is in operation. Sadler v.

Pennsyivania R. Co., 4 Cir., 159 F. 2d 784, and cases cited.

A similar duty is owed to business visitors who come aboard

while the vessel is in the custody and control of her owners.

Bnt in the instant case Carbide had delivered the barge into

the sole custody and control of Amherst. Carbide’s duty

: 39a

under those cireumstances was to warn Amherst and its

euployees of any hidden danger or latent defeet in thes

barge. It was the duty of Amherst to supply its employees

with a reasonably safe place in which to work. It knew and

controlled the conditions of the work and the equipment

which would be used. Tt was Amherst's responsibility. to

decide Whether a temporary railing or stanchion should be

erected, Whether its men should be required to wear pre-

servers, and Whether and where life rings and other rescue

equipment should be mounted. For negligence in aay of

these respeets it-woulu be liable to plaintiff herein for dam-

ages, Were It not for'the provisions ef the Longshoremen's

and: Harbor, Workers’ Compensation Aet, 88 UL S.C. A.

sees, 901-950. But Carbide is not liable to plaintiff for neg:

ugenee; it breached no duty it owed to Goett, Lester v,

Mrited States [2 Cir, 284 FL 2d 62, cert, cle nD. A a Me

ssl West v. United States (B.D. Pa. 145 Fo Supp. 473).

Raidy ve Untied States [DL Mal, 1530 F: Supp. foc. aff'd

2ir, 242 FL 2a 11}: 88 Am. Jur Negligenee, sec. 47

Restatement, Torts, see. S40, 543: Harper and James, The

Law of Torts, vol, 2, see. 4 Ae =

Since our opinion in this case was written West has been

afirmed by the Third Ciréuit, 256 F. 2d 671, and by the

Supreme Court, 861 U.S. 118, emphasizing the importance

of control of the sumnal at the time of the injury as the de-

eisive factor on both aspects of the case, negligence and

Unseaworthiness. “See also, Malecki, supra. Nernares vy.

fompagnie Generale Transatlantique, 358 U.S. 625, anil

Lawlor ¥. Socony Vacuum Oil Ce., 2 Cir. Bd ;

at. yg in all-of which the vessel was in the control of the

owner, The owner was also in general control of the vessel

in all the stevedore and other cases cited by lihelant. We

adhere to our previous opinion on this point as a proper

application of the general maritime laws’ concept of neg-

ligence. It is also in line with the principles applied by We xt

Virginia courts in analogous ee ck Nesler ve Coal Co,,

ol W. Va. 318, 41S. E. 216. f. Roberts v. Are and Tool

40a

C'o., 101 W. Va. 276, 148 S. E. 70, where the owner was in

control of the premises. See also’ Trimyer v. Norfoll

Tallow Co., 192 Va. 776, 66:8. FE. 2d 441.

i Se Gr

As stated above, we believe the West Virginia Act ineor-

porates the general maritimes law of unseaworthiness in

death actions involving maritime torts. Our previous find.

ings that Goett was not a person to whom the warrant¥ o!

‘seaworthiness ran, and that the barge was not unseawortliy,

is supported by the decision of the Sapreme Court in Wy sf,

supra. See also Lawépr, supra.

We adhere to our decision that judgment should have

been rendered in favor of the defendant.

4la

Judgment

(Filet and entered on April 19, 10). )

UNITED STATES COURT OF APPEALS

For THE Fourtu Cirevit

No. Tass

oe fl y- -— --—- —- -- — --—

Uston Cannipe Corporation, a corporation, Dereudant and

Third Party Plaintiff below,

Appellant and Cross-Appellee,

Vs.

Buen Gorrt, as Administratix of the Estate of

Marvin Pavi Goerrt, deceased, Plamtitf below,

Appellee and Cross-Appellant,

and

AMHERST Barce Company, a corporation, Third Party

Defendant below,

Appellee.

Cross-APPEALS FROM THE Unitep States District Cover

POR THE SovTHeRN District or West Viroisia

Tuts Cause eame on to be heard on the record from the

United States District Court for the Southern District of

West Virginia on remand from the Supreme Court of the

United States, and was argued by counsel.

“ihe 4la

Ox CONSIDERATION WHEREOF, It is now here ordered,

adjudged and decreed by this Court that the judgment of

the said District Court appealed from, in this cause, be,

and the same is hereby, reversed ; that this cause be, and

the same is hereby, remanded to the United States District

Court for the Southern District of West Virginia, at

Charleston, with direetion to enter judgment in favor of

defendant (appellant and cross-appellee here) in accord:

ance with the opinions of the Court filed herein; and that

the costs op appeal be paid by the appellee and Cross:

appellant.

April 19, 1960,

Simon E. SoseLorr,

Chief Judge, Fourth Circuit.

\ A true copy, Teste:

Ricuarp M. FP. Winiiams JR,

Clerk of the United States Court

of Appeals for the Fourth Crrewt,

Filed

Apr 19 1960

R. M. F. Wreurams, Je.,

Che rk.

(Seal)

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