Lead Opinion
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.
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,
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,
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,
Although some courts held shipowners liable for injuries caused by “active” negligence, The Edith Godden,
This was the historical background behind Mr. Justice Brown’s much quoted second proposition in The Osceola,
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,
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,
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.,
In Seas Shipping Co. v. Sieracki,
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,
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.,
The judgment must be reversed, and the case remanded to the District Court for a new trial on the issue of unseaworthiness. D , , , , Reversed and remanded.
Notes
In accordance with tradition, the employment agreement provided that the proceeds from the sale of the fish spawn should be divided among the members of the crew, no part thereof going to the officers or to the owner of the vessel.
The instructions on this aspect of the case were as follows: “In a case like this we have the argument presented here, which you do not have to believe, that the ship was unseaworthy because at the time of the injury there was on the rail of the ship some kind of slime. Well, if that really was there and had been there any period of time, and it caused the accident, then you would find as
“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.”
“Mr. Katz: May I make a further request ? In your charge you specifically said 'and was it there for a reasonably long period of time so that the shipowner could have had it removed.’
“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.”
The trial judge instructed the jury as follows: “In this case, on the basis of rulings I made earlier, I have instructed you on the undisputed fact, Mr. Mitchell is to be regarded as being an employee of the defendant and therefore entitled to those rights if any which flow from the maritime law and flows [sic] from the act of Congress.”
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*543 (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.
All of these early maritime codes are reprinted in
And, of course, the vitality of a seaman’s right to maintenance and cure has not diminished through the years. Calmar S. S. Corp. v. Taylor,
For a more thorough discussion of the history here sketched see Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381, 382-403; Gilmore and Black, The Law of Admiralty (1957), pp. 315-332. See also the illuminating discussion in the opinion of then Circuit Judge Harlan in Dixon v. United States,
Where it was said “[u]nseaworthiness, as is well understood, embraces certain species of negligence; while the [Jones Act] includes several additional species not embraced in that term."
An earlier legislative effort to broaden recovery for injured seamen (the La Follette Act of 1915, 38 Stat. 1164, 1185) had been emasculated in Chelentis v. Luckenbach S. S. Co.,
As one commentator has chosen to regard it. See Tetreault, op. cit., supra, note 7, at 394.
1. e., as simply overruling the decision in Plamals v. The Pinar Del Rio,
The persuasive authority of Petterson in a case very similar to this one has been recognized by the Court of Appeals for the Second Circuit. Poignant v. United States,
Dissenting Opinion
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,
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.”
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.
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 unsea-worthy 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.”
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,
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,
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,
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,
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.
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,
It was against this background that Carlisle Packing Co. v. Sandanger,
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.,
The District Court,
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,
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,
“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,
The Court’s extended discussion of the sources and rationale of the warranty is entirely consistent with the history noted above.
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,
Against this background of prior adjudications it assumes what is required to be established to assert that “[tjhere 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.
“Considering the custom prevailing in those waters and other clearly established facts, in the present cause, we think the trial court might have told the jury that without regard to negligence the vessel was unseaworthy when she left the dock if the can marked ‘coal oil’ contained gasoline; also that she was unseaworthy if no life preservers were then on board; and that if thus unseaworthy and one of the crew received damage as the direct result thereof, he was entitled to recover compensatory damages.”
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.
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,
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.
From the time of the earliest maritime codes seamen injured in the service of the vessel have, to varying extents, been entitled to maintenance and cure at the expense of the ship. See The Osceola,
It is not irrelevant to note that the spokesman for the Court was the Justice under whose lead the most unhappy admiralty doctrines were promulgated: Southern Pacific Co. v. Jensen,
Dissenting Opinion
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,
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 San-danger 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.,
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.