MITCHELL v. TRAWLER RACER, INC.
No. 176
Supreme Court of the United States
May 16, 1960
362 U.S. 539
Argued January 21, 1960
James A. Whipple argued the cause for respondent. With him on the brief was Paul J. Kirby.
Briefs of amici curiae urging reversal were filed by Samuel A. Neuburger, by Arthur J. Mandell, and by Philip F. DiCostanzo.
Walter E. Maloney, Thomas E. Byrne, Jr., M. L. Cook, J. Ward O‘Neill, Louis J. Gusmano and James M. Estabrook filed a brief for the American Merchant Marine Institute, Inc., as amicus curiae, urging affirmance.
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was a member of the crew of the Boston fishing trawler Racer, owned and operated by the
To recover for his injuries he filed this action for damages in a complaint containing three counts: the first under the Jones Act, alleging negligence; the second alleging unseaworthiness; and the third for maintenance and cure. At the trial there was evidence to show that the ship‘s rail where the petitioner had lost his footing was covered for a distance of 10 or 12 feet with slime and fish gurry, apparently remaining there from the earlier unloading operations.
The district judge instructed the jury that in order to allow recovery upon either the negligence or unseaworthiness count, they must find that the slime and gurry had been on the ship‘s rail for a period of time long enough for the respondent to have learned about it and to have removed it.2 Counsel for the petitioner requested that
In its present posture this case thus presents the single issue whether with respect to so-called “transitory” unseaworthiness the shipowner‘s liability is limited by concepts of common-law negligence. There are here no problems, such as have recently engaged the Court‘s attention, with respect to the petitioner‘s status as a “seaman.” Cf. Seas Shipping Co. v. Sieracki, 328 U. S. 85; Pope & Talbot, Inc., v. Hawn, 346 U. S. 406; United Pilots Assn. v. Halecki, 358 U. S. 613, or as to the status of the vessel itself. Cf. West v. United States, 361 U. S. 118. The Racer was in active maritime operation, and the petitioner was a member of her crew.4
For many years American courts regarded these ancient codes as establishing the limits of a shipowner‘s liability to a seaman injured in the service of his vessel. Harden v. Gordon, 2 Mason 541; The Brig George, 1 Sumner 151;
Not until the late nineteenth century did there develop in American admiralty courts the doctrine that seamen had a right to recover for personal injuries beyond maintenance and cure. During that period it became generally accepted that a shipowner was liable to a mariner injured in the service of a ship as a consequence of the owner‘s failure to exercise due diligence. The decisions of that era for the most part treated maritime injury cases on the same footing as cases involving the duty of a shoreside employer to exercise ordinary care to provide his employees with a reasonably safe place to work. Brown v. The D. S. Cage, 4 Fed. Cas. 367, No. 2002;
Although some courts held shipowners liable for injuries caused by “active” negligence, The Edith Godden, 23 Fed. 43; The Frank & Willie, 45 Fed. 494, it was held in The City of Alexandria, 17 Fed. 390, in a thorough opinion by Judge Addison Brown, that the owner was not liable for negligence which did not render the ship or her appliances unseaworthy. A closely related limitation upon the owner‘s liability was that imposed by the fellow-servant doctrine. The Sachem, 42 Fed. 66.7
This was the historical background behind Mr. Justice Brown‘s much quoted second proposition in The Osceola, 189 U. S. 158, 175: “That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship.” In support of this proposition the Court‘s opinion noted that “[i]t will be observed in these cases that a departure has been made from the Continental codes in allowing an indemnity beyond the expense of maintenance and cure in cases arising from unseaworthiness. This departure originated in England in the Merchants’ Shipping Act of 1876 . . . and in this country, in a general consensus of opinion among the Circuit and
It is arguable that the import of the above-quoted second proposition in The Osceola was not to broaden the shipowner‘s liability, but, rather, to limit liability for negligence to those situations where his negligence resulted in the vessel‘s unseaworthiness. Support for such a view is to be found not only in the historic context in which The Osceola was decided, but in the discussion in the balance of the opinion, in the decision itself (in favor of the shipowner), and in the equation which the Court drew with the law of England, where the Merchant Shipping Act of 1876 imposed upon the owner only the duty to use “all reasonable means” to “insure the seaworthiness of the ship.” This limited view of The Osceola‘s pronouncement as to liability for unseaworthiness may be the basis for subsequent decisions of federal courts exonerating shipowners from responsibility for the negligence of their agents because that negligence had not rendered the vessel unseaworthy. The Henry B. Fiske, 141 Fed. 188; Tropical Fruit S. S. Co. v. Towle, 222 Fed. 867; John A. Roebling‘s Sons Co. v. Erickson, 261 Fed. 986. Such a reading of the Osceola opinion also finds arguable support in several subsequent decisions of this Court. Baltimore S. S. Co. v. Phillips, 274 U. S. 316; Plamals v. The Pinar Del Rio, 277 U. S. 151; Pacific Co. v. Peterson, 278 U. S. 130.8 In any event, with the passage of the Jones Act in 1920,
The first reference in this Court to the shipowner‘s obligation to furnish a seaworthy ship as explicitly unrelated to the standard of ordinary care in a personal injury case appears in Carlisle Packing Co. v. Sandanger, 259 U. S. 255. There it was said “we think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock . . . and that if thus unseaworthy and one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages.” 259 U. S., at 259. This characterization of unseaworthiness as unrelated to negligence was probably not necessary to the decision in that case, where the respondent‘s injuries had clearly in fact been caused by failure to exercise ordinary care (putting gasoline in a can labeled “coal oil” and neglecting to provide the vessel with life preservers). Yet there is no reason to suppose that the Court‘s language was inadvertent.10
During the two decades that followed the Carlisle decision there came to be a general acceptance of the view that The Osceola had enunciated a concept of absolute liability for unseaworthiness unrelated to principles of negligence law. Personal injury litigation based upon unseaworthiness was substantial. See, Gilmore and Black, The Law of Admiralty (1957), p. 316. And the standard texts accepted that theory of liability without question.
“In our opinion the libelant had a right of indemnity for injuries arising from an unseaworthy ship even though there was no means of anticipating trouble.
“The ship is not freed from liability by mere due diligence to render her seaworthy as may be the case under the Harter Act (
46 U. S. C. A. §§ 190–195 ) where loss results from faults in navigation, but under the maritime law there is an absolute obligation to provide a seaworthy vessel and, in default thereof, liability follows for any injuries caused by breach of the obligation.” 87 F. 2d, at 711.
In 1944 this Court decided Mahnich v. Southern S. S. Co., 321 U. S. 96. While it is possible to take a narrow view of the precise holding in that case,11 the fact is that Mahnich stands as a landmark in the development of admiralty law. Chief Justice Stone‘s opinion in that case gave an unqualified stamp of solid authority to the view that The Osceola was correctly to be understood as holding that the duty to provide a seaworthy ship depends not at all upon the negligence of the shipowner or his agents. Moreover, the dissent in Mahnich accepted this reading of The Osceola and claimed no more than that the injury in Mahnich was not properly attributable to unseaworthiness. See 321 U. S., at 105–113.
In Seas Shipping Co. v. Sieracki, 328 U. S. 85, the Court effectively scotched any doubts that might have lingered
From that day to this, the decisions of this Court have undeviatingly reflected an understanding that the owner‘s duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care. Pope & Talbot, Inc., v. Hawn, 346 U. S. 406; Alaska Steamship Co. v. Petterson, 347 U. S. 396; Rogers v. United States Lines, 347 U. S. 984; Boudoin v. Lykes Bros. S. S. Co., 348 U. S. 336; Crumady v. The J. H. Fisser, 358 U. S. 423; United Pilots Assn. v. Halecki, 358 U. S. 613.
There is no suggestion in any of the decisions that the duty is less onerous with respect to an unseaworthy condition arising after the vessel leaves her home port, or that the duty is any less with respect to an unseaworthy condition which may be only temporary. Of particular relevance here is Alaska Steamship Co. v. Petterson, supra. In that case the Court affirmed a judgment holding the shipowner liable for injuries caused by defective equipment temporarily brought on board by an independent contractor over which the owner had no control. That decision is thus specific authority for the proposition that the shipowner‘s actual or constructive knowledge of the unseaworthy condition is not essential to his liability.
There is ample room for argument, in the light of history, as to how the law of unseaworthiness should have or could have developed. Such theories might be made to fill a volume of logic. But, in view of the decisions in this Court over the last 15 years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence. To hold otherwise now would be to erase more than just a page of history.
What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service. Boudoin v. Lykes Bros. S. S. Co., 348 U. S. 336.
The judgment must be reversed, and the case remanded to the District Court for a new trial on the issue of unseaworthiness.
Reversed and remanded.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN and MR. JUSTICE WHITTAKER join, dissenting.
No area of federal law is judge-made at its source to such an extent as is the law of admiralty. The evolution of judge-made law is a process of accretion and erosion. We are told by a great master that law is civilized to the
Our law of the sea has an ancient history. While it has not been static, the needs and interests of the interrelated world-wide seaborne trade which it reflects are very deeply rooted in the past. For the most part it has not undergone the great changes attributable to the emergence and growth of industrialized society on land. In the law of the sea, the continuity and persistence of a doctrine, particularly one with international title-deeds, has special significance.
The birth of the current doctrine of unseaworthiness, now impressively challenged by Chief Judge Magruder‘s opinion under review, can be stated precisely: it occurred on May 29, 1922, in Carlisle Packing Co. v. Sandanger, 259 U. S. 255. The action was brought in the Washington state courts by Sandanger, an employee of Carlisle, who was injured while working on its motorboat on a six- or eight-hour trip. The injury occurred when he lighted fuel from a can on board marked “coal oil” in order to start a cookstove, and it exploded. It appeared thereafter that the can had mistakenly been filled with gasoline. In a suit based on a claim of negligence, Sandanger won a verdict on a finding of negligence, which was challenged in the Supreme Court of Washington on the ground that the exclusively applicable maritime law did not afford relief by way of compensation for negligent injury of an employee. The Washington court held that an
The matter was dealt with in this Court in the few lines innovating the rule of absolute liability: “we think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock . . . and that if . . . one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages.” 259 U. S., at 259. (The full text is quoted in the margin.1) No explication accompanied this dogmatic pronouncement on an issue not presented by an issue of the affirmed judgment. It was strangely deemed sufficient to rely on the unelaborated citation of two cases in this Court (The Silvia, 171 U. S. 462, 464, and The Southwark, 191 U. S. 1, 8) which were concerned not with the rights of seamen but with the shipowner‘s liability for cargo damage. The abrupt, unreasoned conclusion was reached without benefit of argument: the parties had presented the case solely on the basis on which the action was instituted and in the terms in which it had been decided by the Supreme Court of Washington—liability founded on negligence. Neither our own investigation nor that of the parties here has disclosed a single case in an English or an American court prior to Sandanger in which the absolute duty to
We must take it as established that the petitioner, a seaman employed on the Racer, fell from her rail while using it as a customary stepping place in leaving the vessel; that the resulting injury was caused by the presence of fish spawn on the rail rendering it slippery; that it was not negligent for respondent to allow the spawn to get on and remain on the rail.3 It further appears that the spawn was deposited on the rail shortly before the injury, when bags of it were handed across the rail in the course of the unloading of the vessel.
The claim now before the Court rested on the alleged unseaworthiness of the vessel. Petitioner asserts that if the presence of spawn on the rail rendered it not reasonably fit for its function, then, without more—and particularly without regard to the length of time the spawn had remained on the rail—respondent was liable to compensate him for his consequent injuries. He asserts that these conclusions flow from the rule of Sandanger, supra, that the owner‘s liability to compensate
Respondent contends, and the lower courts held, that the fact that spawn on the rail caused petitioner‘s injury is not, of itself, sufficient to establish respondent‘s liability. It urges two related propositions in the alternative in support of its judgment. The first of these—the express ground of Judge Magruder‘s decision and the primary ground urged here in its support—is that since this unseaworthy condition concededly did not arise until after the commencement of the voyage it did not create liability unless it persisted so long before the injury as to have afforded the owner notice of its existence. This view makes liability for an unseaworthy condition created without negligence after the start of the voyage turn on the existence of negligence in permitting the condition to persist. Respondent also urges that, even if negligently caused or allowed to persist, this transitory hazard arising after the start of the voyage in equipment otherwise sound was not an unseaworthy condition.
We are thus confronted with two questions of the nature and scope of the duty of a shipowner to seamen to provide a seaworthy ship. The decision in Sandanger, supra, in light of the facts from which its generalization was drawn, certainly did not foreshadow the result urged by petitioner, a result characterized by Judge Magruder as “startlingly opposed to principle.” 265 F. 2d, at 432. There was in that case no such analysis of the reasons upon which the rule announced was rested as to govern or even suggest the present decision. The Court does not deny force to the distinctions urged by respondent, but regards the questions now presented as foreclosed by Alaska S. S. Co. v. Petterson, 347 U. S. 396. In fact, today‘s decision rests on an unrevealing per curiam opinion, itself founded on prior decisions affording no justification for the result here.
In view of the insubstantial foundation in authority of what is today decided, I deem it incumbent upon me to examine the history of the evolution of the doctrine of
Although it was reasonably well established by the middle of the nineteenth century that the maritime carrier of goods, in the absence of express provisions to the contrary, warranted their safe delivery against all hazards save acts of God or the public enemy, see, e. g., The Propeller Niagara v. Cordes, 21 How. 7, 23, the origins of such strict liability are not entirely clear. The English admiralty courts apparently confined the shipowner‘s liability to losses resulting from his fault or that of his servants. See Fletcher, The Carrier‘s Liability, 51-79. The imposition of stricter liability appears to have begun not in the admiralty at all, but in the common-law courts as the jurisdiction of the admiral gradually declined. See Mears, The History of the Admiralty Jurisdiction, in 2 Select Essays in Anglo-American Legal History, p. 312 et seq. (originally published in Roscoe, Admiralty Jurisdiction and Practice, pp. 1–61). They increasingly regarded the carrier by sea as a common carrier, whether or not he fitted the traditional concept, see Paton, Bailment in the Common Law, 233-236, and it does not appear that they predicated his strict liability to redeliver cargo on any peculiarly maritime aspects of the carriage.
In any event, with the sanction of the English—and, to a lesser extent, the American—courts it early became possible for the maritime carrier to use the contract of carriage by way of limiting this extraordinary liability, and the significance of a carrier‘s liability as such shrank. See Pope v. Nickerson, 3 Story 465. Disclaimers of any duty beyond the exercise of diligence were valid and common, and, in England, disclaimers of liability even for negligent damage were sustained. See I Parsons, Maritime Law, 177-179, n. 1; compare, In re Missouri S. S. Co., 42 Ch. D. 321 (1889), with Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 438-439 (1889).
This judicial evolution was doubtless influenced as well by the similarly absolute implied warranty in contracts of marine insurance by which the assured, whether shipowner, charterer, or shipper, warranted the seaworthiness of the vessel at the start of its voyage as a condition upon the attaching of the policy. The origin of this rule has been attributed to the customary understanding of the risks actually undertaken by the insurer. See, e. g., Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381, 395. But whatever role custom may have played, the implied warranty appears to have sprung, at least in part, from considerations of policy unrelated to the insurer‘s understanding. “I have endeavoured, both with a view to the benefit of commerce and the preservation of human life, to enforce that doctrine [of the implied warranty of initial seaworthiness] as far as, in the exercise of a sound discretion, I have been enabled to do so. . . .” Lord Eldon, in Douglas v. Scougall, 4 Dow 269, 276 [1816]; cf. The Caledonia, 157 U. S. 124.
Toward the end of the nineteenth century these different considerations, which had given rise to a single duty, became imperceptibly fused. This Court held that the warranty of assured to insurer was identical to that of carrier to shipper, even explaining the carrier‘s implied promise in terms of the undertaking of the shipper. The Caledonia, 157 U. S. 124.
The divergence of attitude between American and English courts which appeared in the scope of the contractual disclaimers of liability each would recognize, was more sharply exemplified by the scope they respectively attributed to the warranty of seaworthiness in cargo and insurance cases. By 1853 English courts had clearly limited the warranty to the condition of the vessel at the
The most striking differences between English and American courts as to the scope of the warranty of seaworthiness occurred in the area of compensation for seamen‘s injuries.5 The law of both nations early recognized unseaworthiness as a condition upon the contract of employment, which, upon the employer‘s default, operated to exonerate the seaman from forfeiture of wages if he quit the ship. 1 Parsons, Maritime Law, 455; The Arizona v. Anelich, 298 U. S. 110, 121-122, n. 2. But
In England the question of a seaman‘s right to compensatory damages for injuries resulting from the unseaworthiness of the vessel was first presented for decision in Couch v. Steele, [1854] 3 El. & Bl. 402. The plaintiff claimed compensation for damage from illness brought about by the leaky condition of the vessel. The court, apparently assuming that the vessel was unseaworthy, declared that the warranty did not run to seamen, for the reason that it was unknown whether the deficiencies of the vessel were taken into account in the contract for wages. Coleridge, J. (at 408), distinguished the insurance warranty as turning on doctrines which “have no place in any other branch of the law,” and confined the duty of owner to seamen to the scope of master-servant law on land. A similar disposition to analogize maritime to non-maritime activity on the part of the English common-law courts was manifested in Readhead v. Midland R. Co., [1869] L. R., 4 Q. B. 379, where the claim was advanced that a railway passenger injured when a wheel broke was, by analogy to the warranty of seaworthiness as to cargo, entitled to compensation for his injuries. The court disposed of the contention by describing the warranty of seaworthiness as solely responsive to the need, early noted in Coggs v. Bernard, [1703] 2 Ld. Raym. 909, to prevent common carriers generally from colluding with thieves.
Couch v. Steele, supra, was modified by the Merchant Shipping Act of 1876, 39 & 40 Vict., c. 80, sec. 5, by which a duty was imposed on the owner to exercise due care to provide and maintain a seaworthy vessel. For injuries resulting from breach of the duty, a seaman could recover compensatory damages. But even that Act was narrowly
In 1903 this Court decided The Osceola, 189 U. S. 158, and laid down its oft-cited four propositions (at 175) governing the liability of vessel and owner to injured seamen. As has frequently been noted, the second proposition, a dictum declaring a right to indemnity for injuries “received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship” (at 175) does not appear to have announced a doctrine of liability without fault. No cargo or insurance cases were relied upon, and none of the cases cited had found such liability. The only reliance on English law was on the Act of 1876, supra, which defined the duty as requiring the exercise of due diligence to render the vessel seaworthy. It appears instead that it was the intention of The Osceola to adopt the analysis of Judge Addison Brown in The City of Alexandria, 17 F. 390 (D. C. S. D. N. Y. 1883), which it cited, under which a seaman could recover only for injuries resulting from that limited species of negligence which resulted in an unseaworthy condition. Such is the tenor of the third and fourth propositions of The Osceola.
It was against this background that Carlisle Packing Co. v. Sandanger, 259 U. S. 255, quite out of the blue, citing cargo cases, declared that the owner‘s duty to a seaman to provide a seaworthy vessel was as absolute as that established by the implied warranty as to cargo.6 In so ruling, the Court gave expression to a policy, long discernible in American admiralty decisions, of implying the warranty not merely because of the customary expectations of the parties to an agreement—the English court‘s basis for rejection of the warranty in Couch v. Steele, supra—but as well in order to increase protection to life and property against the hazards of the sea. They had previously manifested this conception of the source of the warranty in the degree to which they departed from the English common-law courts in confining attempted disclaimers of the warranty, and in their willingness to find a duty to maintain the condition of seaworthiness throughout the voyage.
The reasons which justified the implication on grounds of policy as to cargo, justified it as to employed seamen;
It was predictable that there would be few, if any, matters with which the owner would have to be concerned under the warranty so extended, that he could reasonably have ignored as creating no threat to the safety of cargo. At the start of the voyage, his opportunity would be ample, as in the case of cargo, to undertake that effective diligence which would in fact avoid all but a very few injuries resulting from unseaworthiness; and he would be able to protect himself from the consequences of most deficiencies undetectable by him by agreement with suppliers, or service companies, and from the rest by the purchase of insurance. The additional burden created by extension of the warranty to seamen was thus not unduly heavy; and the interest to be vindicated had for long been a traditional concern of American admiralty.
If Sandanger now stood alone, it would be plain that the absolute warranty it announced was no greater in scope than the warranty as to cargo which pre-existed the Harter Act of 1893, and the question now presented—whether the warranty is also absolute as to subsequently arising conditions—would clearly present a novel issue for decision. Subsequent decisions in this Court have not deliberately closed the gap.
It was twenty-two years before the question of the existence and scope of absolute liability came before
In 1944 this Court decided Mahnich v. Southern S. S. Co., 321 U. S. 96. The suit was brought by a seaman under the general maritime law (the statute of limitations having run on Jones Act claims) for injuries which he incurred at sea when a rope, with which the staging on which he was working fifteen feet over the deck was rigged, parted and he fell. The mate in charge had taken the rope, which was unused, but at least two years old, from the Lyle Gun (a life-saving device) box. After the accident it appeared that the rope was decayed.
The District Court, 45 F. Supp. 839, found that the mate‘s selection of the rope was negligent but dismissed the libel on the ground that, apart from the Jones Act, negligent injury alone was not compensable and that the vessel, since it had other good rope on board sufficient for the job, was not unseaworthy. The Court of Appeals affirmed. 135 F. 2d 602. It assumed, without deciding, that the rope was negligently selected (a dissenting judge found no negligence, 135 F. 2d, at 605), and agreed with the District Court‘s conclusion that the vessel was not unseaworthy. Though it reversed, this Court, too, found it unnecessary to decide the contested question of negligence. It gave as its primary reason that “the exercise of due diligence does not relieve the owner of his obligation to the seaman to furnish adequate appliances.” (321 U. S., at 100.) Although this statement was the critical major premise of an opinion which went on to decide that such absolute liability would not be barred by
There is no more disclosure in the opinion or history of this case than there was in Sandanger to warrant attributing to this statement a deliberate or authoritative ruling that liability is absolute for all injuries resulting from unseaworthy conditions. Confined to the facts of the case, the decision that intervening negligence would not constitute a defense to an action for injuries resulting from an unseaworthy condition is consistent with the rule of the cargo and insurance cases, confining the absolute warranty to damage resulting from initial unseaworthiness. The rope, which was new, had decayed from overlong or improper storage, not from use, and was, it is right to assume, defective from the start of the voyage. Cf. The Edwin I. Morrison, 153 U. S. 199, 211.
Moreover, a claim for extending the scope of the absolute warranty was not raised or argued by the parties. They simply assumed that liability would follow unseaworthiness unless intervening negligence was a defense. Their major concern, and the primary focus of the Court‘s attention, was the earlier case of Plamals v. The Pinar Del Rio, 277 U. S. 151, where it was held, on substantially identical facts, that the mate‘s negligence did not create liability for unseaworthiness where there was an adequate supply of sound rope on board. In Mahnich, Plamals was held to have rested on one of two mistaken premises: either (1) that the question of seaworthiness turned solely on the supply of rope and not on the condition of the appliance rigged in the course of the voyage, or (2) that liability for provision of an unseaworthy appliance in the course of a voyage would be barred where the unseaworthiness resulted from the mate‘s negligence. The Court in Mahnich was not remotely called upon, in rejecting those premises as it did, to consider whether the absolute war-
“It required the Harter Act to relax the exacting obligation to cargo of the owner‘s warranty of seaworthiness of ship and tackle. That relaxation has not been extended, either by statute or by decision, to the like obligation of the owner to the seaman” (at 101).
Seas Shipping Co. v. Sieracki, 328 U. S. 85, is no better authority for petitioner‘s contentions here. The action was instituted by a longshoreman who was injured while loading respondent‘s vessel, when a forged shackle supporting the vessel‘s ten-ton boom gave way because of a latent defect in the forging. The defect had existed from the time of the construction of the ship. Both parties conceded that the vessel was unseaworthy, and that if a seaman had been injured in the same way he could have recovered compensatory damages. The District Court gave judgment for the owner on the ground that it was not negligent for it to have failed to discover the defect. 57 F. Supp. 724. The Court of Appeals reversed, on the ground that Sieracki was entitled to recover under the warranty of seaworthiness. 149 F. 2d 98. The turning-point of the case in this Court was whether the warranty of seaworthiness, concededly absolute on the facts, covered longshoremen doing seamen‘s work.
The Court‘s extended discussion of the sources and rationale of the warranty is entirely consistent with the history noted above. 328 U. S., at 90-96. Nothing that
No other case in this Court is further enlightening on the question of the scope of the absolute warranty. Alaska S. S. Co. v. Petterson, 347 U. S. 396, has already been discussed. See also Rogers v. United States Lines, 347 U. S. 984. Pope & Talbot, Inc., v. Hawn, 346 U. S. 406, is irrelevant here. The injury occurred in port in the course of loading the vessel; the question of unseaworthiness was not an issue in this Court; and the jury had found the defendant guilty of negligence. Boudoin v. Lykes Bros. S. S. Co., 348 U. S. 336, concerned unseaworthiness predicated upon the incompetency of a crew member, which, as the Court found, was a traditional aspect of the initial warranty of seaworthiness. Crumady v. The J. H. Fisser, 358 U. S. 423, found unseaworthiness as a result of the vessel‘s failure to use “safe practice,” 358 U. S., at 426, n., in the preparation of a winch for unloading operations, on its face a negligent act, although its negligent character was not the overt basis of the decision. None of the several parties to the case raised the objections now urged upon us, and no more than in Mahnich were they considered or adjudicated.
Against this background of prior adjudications it assumes what is required to be established to assert that “[t]here is no suggestion in any of the decisions that the duty is less onerous with respect to an unseaworthy condition arising after the vessel leaves her home port. . . .” In fact, there is no overt suggestion in any of our decisions that the duty is not less onerous, and the origin
This latter consideration is especially pertinent in cases of so-called “transitory” unseaworthiness such as is before us. For disposition of this case it may be assumed, though with considerable misgiving, that the condition here created wholly without fault after the journey had begun, rendered the vessel unseaworthy. But the unreasonableness of imposing liability on the vessel for injuries occasioned by the unavoidable consequences of its proper operation need not therefore be ignored. No compensating increase in the caution actually to be exercised can be anticipated as a result of the creation of such a duty. Nor can the owner pass along the risk to suppliers or
I would affirm the judgment below.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE WHITTAKER join, dissenting.
In joining my Brother FRANKFURTER‘S dissent, I wish to add a few words. I believe the Court‘s decision not only finds no support in the past cases, but also is unjustified in principle, and is directed at ends not appropriately within our domain. The Second Circuit‘s decision in Poignant v. United States, 225 F. 2d 595, provides a useful point of departure for what I have to say.
In Poignant the libellant, a crew member, slipped on a small piece of garbage lying in a passageway of the ship. The vessel lacked garbage chutes, and the garbage was pulled, in cans, through the passageway to a railing, where it was jettisoned. The Court of Appeals first expressed the view that any unseaworthy condition which existed
For me this approach indicates the rule which should govern the case before us. Had the petitioner contended and proved that a properly outfitted trawler of this type should have had a particular device for unloading fish, or an alternative means of facilitating petitioner‘s egress from the vessel, so that either the railing would not have been slippery or the petitioner would not have been required to use the railing in debarking, the case would have been governed by the absolute liability rule of Sandanger and its successors, and respondent‘s opportunity to remove the spawn from the rail would properly be held immaterial. As the case is decided, however, we are told that even though there is no claim that the vessel should have made different provisions for the unloading of its
The Court is not fashioning a rule designed to protect life, cf. Bullard v. Roger Williams Ins. Co., 4 Fed. Cas. 643, No. 2,122, at 646, for there appears no real basis for expectation that today‘s decision will promote the taking of greater precautions at sea. See, dissenting opinion of FRANKFURTER, J., ante, p. 557. The respondent is held liable, without being told that there was something left undone which should have been done, for petitioner is not asked to show, as was the libellant in Poignant, that the vessel ought to have been outfitted differently, that is, in a fashion which would have prevented the dangerous condition from arising at all. Nor is the respondent permitted to show that such condition was not due to its fault.
The sole interest served by the Court‘s decision is compensation. Such an interest is, of course, equally present in the case of an undoubted accident, where under the Court‘s ruling no right of recovery is bestowed, as it is in the present case. But, because of the Court‘s inherent
I would affirm.
Notes
“I haven‘t told you what unseaworthiness is. You will recognize it is somewhat overlapping and alternative to, indeed quite similar to, negligence because it is one of the obligations of the owner of a ship to see to it through appropriate captains, mates, members of the crew, or someone, that there isn‘t left upon the rail of a ship, especially a rail which is going to be utilized for leaving the ship, to climb the ladder, any sort of substance such as slime.
“It doesn‘t make any difference who puts it there. As far as the owner-operator of the vessel goes, it is his job to see it does not stay there too long, if he knows it is the kind of place, as he could have known here, which is used by members of the crew in getting off the ship.
“So I think it would be fair to tell you the real nub of this case which I hope has not been clouded for you, the real nub of this case is, Was there on the rail some slime; was it there for an unreasonably long period of time; was there a failure on the part of the owner-operator through appropriate agents to remove it; and was that slime the cause of the injury which the plaintiff suffered.
“Was there something there and was it there for a reasonably long period of time so that a shipowner ought to have seen that it was removed? That is the question.” Chief Judge Magruder has appropriately noted that no previous decision in this Court has considered whether liability for unseaworthiness existing at the start of the voyage extends to subsequently arising conditions. 265 F. 2d, at 432; see also Dixon v. United States, 219 F. 2d 10 (C. A. 2d Cir.).“I submit that would apply to the negligence count only but with respect to unseaworthiness, if there is an unseaworthy condition, there is an absolute situation, there is no time required. It is the only—
“The Court: Denied. Refer to the case in the Second Circuit.” It was not contended that the failure to provide the vessel with a different mode of access, or other means for unloading, rendered it unseaworthy from the start of the voyage. Cf. Poignant v. United States, 225 F. 2d 595 (C. A. 2d Cir.).In a memorandum filed almost a month after the trial, the district judge, apparently relying upon the fact that the shipowner had no direct financial interest in the spawn which had been unloaded (see note 1, supra), stated that, “[T]here should have been a directed verdict for the defendant on the unseaworthiness count. If there were slime on the rail, it was put there by an associate and joint-venturer of the plaintiff and not by a stranger or by anyone acting for the defendant. If Sailor A and his wife go on board, and each of them has a right to be there, but they are engaging in a frolic of their own, not intended for the profit or advantage of the shipowner, say, for example, that they are munching taffy, and the wife drops the taffy on the deck, and the sailor slips on it, the sailor, if he is injured, is not entitled to collect damages from the shipowner. In short, absolute as is the liability for unseaworthiness, it does not subject the shipowner to liability from articles deposited on the ship by a co-adventurer of the plaintiff.” But this theory played no part in the issues developed at the trial, where the district judge denied the respondent‘s motion for a directed verdict and instructed the jury as indicated above.
The considerations urging harmony of law for international carriage, especially as between the United States and the United Kingdom, led, in 1936, to the enactment of the Carriage of Goods by Sea Act, 49 Stat. 1207, substantially adopting the recommendations of an international convention on the problem. See Gilmore and Black, The Law of Admiralty, 122-124. Where applicable, the 1936 Act imposes only the duty to use due diligence to provide a seaworthy ship at the start of the voyage.