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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1960
- **Citation:** 364 U.S. 826

## Text

~~

——— (earn
. — -

= “ ;S

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

at
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. 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

4

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, $): £ 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.

r
‘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
“ 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

a
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

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 ‘ .
.

13

*

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

14

é

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

15

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.

16

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

———

17

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-

18

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-

19

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 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.

ou

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, :

31

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
se
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

33

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

35

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
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’

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

t>
—_—

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
Vv

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.

{

o
v ‘ j
~

Eviten Goert, as Administratrix of the Estate of Marvin |
Patt Gortt, Deceased,
Petitioner.
v.

Usron Carpsipe Corporation and AMHERST Barce CoMPany.

ray
vv

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.

Ps

‘
— = 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,
ae
s

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

ew

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”
' Tungus, supra, at 502, © os

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,

be such as woukl * © “shave entithed the party injured -

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.

s

4y
Vv

Euiex Gorrt, as Administratrix of the Estate of Marvis
Paci Gortt, Deceased,
Petitionrr,
Vs

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.

I.

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.
21 Cir), judgment vacated and cause remandéd, 358, ©. S. 613;
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
Vv

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

AY

\y

: 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

4
Ww

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0480%3A2. Public record. Not legal advice.