Ferguson v. Moore-McCormack Lines, Inc.

RESPONDENT:Moore-McCormack Lines, Inc.
LOCATION:Roth’s mail-order book business

LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 352 US 521 (1957)
ARGUED: Dec 10, 1956
DECIDED: Feb 25, 1957

Facts of the case


  • Oral Argument – December 10, 1956 (Part 2)
  • Audio Transcription for Oral Argument – December 10, 1956 (Part 2) in Ferguson v. Moore-McCormack Lines, Inc.

    Audio Transcription for Oral Argument – December 10, 1956 (Part 1) in Ferguson v. Moore-McCormack Lines, Inc.

    Earl Warren:

    Number 59, Henry Ferguson, Petitioner, versus Moore-McCormack Lines, Incorporated.

    Mr. Engelman.

    George J. Engelman:

    May it please the Court.

    This case represents a review of judgment to the United States Court of Appeals for the Second Circuit though the action is won by a merchant seaman who invokes the Jones Act, a federal statute to recover damages for personal injuries allegedly due to negligence, the Act, the federal statute, the Jones Act, being one admittedly where recovery is granted only for negligence.

    A case was tried before Mr. Justice Conger and a jury in the United States District Court.

    At the end of the plaintiff’s case, the respondent moved for a directed verdict.

    His motion was denied.

    The case went to the jury where plaintiff had a verdict and respondent, defendant below appealed to the Circuit Court and plaintiff’s judgment was reversed.

    There is no cause of action for unseaworthiness.

    George J. Engelman:

    No cause of action for unseaworthiness.

    The facts are substantially these, the plaintiff was employed as a member of a crew of respondent’s vessel, Brazil, which was on a 40-day — 42-day cruise to South America carrying 500 first class passengers.

    In addition to his duties as a baker, during the evening meal at night, he had the job of filling the orders of waiters for ice cream.

    The ice cream was kept in the bakeshop adjacent to the galley.

    It was stored in two and a half gallon containers in what is known as a tempering or dispensing chest such as we are all familiar with and see in drugstores and confectioner shops.

    The only tool with which he was furnished was the usual hemispherical scoop by means of which he could press this tool into the ice cream, bring it up with a bowl, apply a liver and put it in silver conditions.

    On the night of this accident, he said that he came on watch and he had dispensed about a half of a tub of ice cream which was of proper consistency where upon he proceeded to dispense from a new tub, but he found it hard.

    But with the exercise of considerable pressure, he was able to go down about halfway in this tub of ice cream and serve it.

    He then got an order from a ship’s waiter for 12 portions of ice cream.

    At that point halfway down, he found the ice cream as he said as hard as a brickbat and the tool, the scoop, was utterly useless.

    He testified that he had met with this situation previously on ships and had been provided with a tool to wit an ice chipper which was a simple tool with a handle and had six or eight prongs in a vertical line.

    And that he would take this ice chipper and dig it into the ice cream, smashing it into small pieces and then use the scoop to form it into balls.

    Lacking the ice chipper and seeing no other tool that he might improvise with, he took a butcher knife which was lying nearby in a brittle and there’s no allegation if there was any defect in the knife itself.

    And using the butcher knife as a chipper, he first separated the hard ice cream from the sides of the container in order to get air in there.

    And then with his hand, he — grasping the knife in sort of a dagger-like fashion, he proceeded to hack away, making small shavings or slivers of ice cream which he formed into bowls by means of the scoop.

    In that way, he was able to make nine servings of ice cream.

    When the point of the knife struck a piece of ice cream that was so hard that it resisted the cutting surface and his hands slipped down the blade with the result that he was badly cut and had an injury of 60% loss of the functional use of his hand.

    He testified that no one gave him a specific order to use this knife.

    He appreciated that it was not designed as an ice chipper and he appreciated that it involved certain hazards in its use.

    However, he relied on the compulsion of the job, the fact that he had an order from the waiter.

    And he relied on the implications in a general order which he got from his superior when he joined the vessel in which he was told that he was working on a first class passenger vessel and that he would have to give good service, prompt service and give the waiters what they want.

    George J. Engelman:

    Acting under those conditions, he used the knife.

    Now, the question arises whether the respondent so conducted its business or so handled this commodity of ice cream whether it could reasonably foresee the need of an additional tool which was not supplied to wit the ice chipper or that in the alternative, it would stop serving ice cream to the passengers.

    Fortunately for the petitioner, there is an abundance of evidence in the case that the respondent could foresee that the tool it provided the petitioner with was totally inadequate.

    The ice cream was stored down in D deck in considerable quantities in a deep freeze.

    And there, it was maintained at a temperature of 5 degrees below zero.

    A dairy expert testified that ice cream of that kind is too hard to be dispensable and that it requires being placed in a dispensing or tempering chest at 18 — at 8 to 13 degrees Fahrenheit above zero for a period of 12 hours plus, 12 to 24 hours in order to become dispensable or serviceable throughout, because as it rests in this tempering chest or cabinet, the bottom part is resting on ice and it will fore out or reach a consistency for serving from the top-down.

    Now, in answer to interrogatories, the respondent said that it maintained this dispensing chest where the ice cream was located at the time the petitioner was injured.

    That it maintained this chest at a temperature of — from zero to 5 to 10 degrees which was too low.

    It said that it brought up the ice cream from down to D deck for service at the evening meal between noon and the time of the evening service which would be anywhere from 5 to 8 hours, which was not a sufficient time.

    The respondent’s refrigerating engineer testified.

    The respondent took his deposition in advance to trial and we’ve read it in total.

    Petitioner read it in support of his case.

    Respondent offered no evidence.

    He said that he couldn’t say whether or not this tempering chest was in working order in condition on the day of the accident or not.

    He said in substance that they had a great deal of trouble with this device.

    In fact, they still do as of the time of his testimony.

    And whether he looked at it that day or not, he didn’t know.

    He said that one of the difficulties was that when the machine was out of order, it made the ice cream too soft.

    But taking all of that testimony together, of course, it seems particularly obvious that the fact that the — from time to time, there was considerable difficulty with the machine and when there was that difficulty with this tempering chest, it generated too much heat.

    Of course, explains why they maintained it at a lower temperature than they should have and why the ice cream was not brought up in sufficient time for proper pouring so as to be dispensable.

    Certainly, on the basis of that testimony, the jury had the right to find and determine if this respondent could foresee the need of some tool other than the scoop.

    The petitioner had nothing to do with the bringing of the ice cream up, the handling by the — the chest down on D deck, the deep freeze or the dispensing chest in the galley.

    He was a baker.

    His sole job was to serve it during the night time.

    Mr. Engelman, one of the things that puzzle me.

    In your brief, you say there was uncontradicted proof showing that the tempering chest was not in proper order and your opponent says there’s no proof whatever.

    George J. Engelman:

    Well, I’m — I’m sorry to say —

    I’m wondering where the record shows which of you is right on that.

    George J. Engelman:

    What part of the record?


    George J. Engelman:

    Well, that would be —

    Well, don’t take time from your argument.

    George J. Engelman:

    That would be — that would be in the testimony of the petitioner in a general nature.

    And specifically, it’s in the first part of the record, the deposition of Mr. Sam Shefrin, the refrigerating engineer of the respondent.

    And there was an abundance of — of testimony to that effect in there.

    Stanley Reed:

    Is — is there a testimony in regard to the character of other implements that were there by which the ice cream haven’t been gotten out?

    George J. Engelman:


    The — we offered in evidence, there is on file in Court the ice picker or chipper.

    The respondent said that the petitioner could’ve done this job by means of a spoon.

    I think counsel for the respondent has it.

    So a large spoon, it appears to me to be one that would be used on soup stock and they took the spoon.

    This is it.

    It’s of some substance — substantial and they presented it to the dairy expert who testified for the petitioner and he answered them that this would not be adequate to attack ice cream such as described to him.

    Now, respondent in its brief refers of course to various implements that he might have found, but there’s not a scintilla of evidence in the case that any other tool was available other than this butcher knife which the man used to do his job.

    The case was submitted by Judge Conger to the jury on well-established principles of maritime law that the seaman was entitled to a safe place in which to work.

    He was entitled to adequate tools.

    He was entitled to reasonably safe ice cream in which to work and he was bound to obey implied as well as expressed orders, contributory negligence rule and proximate cause were given to the jury.

    They returned the verdict and the Court of Appeals reversed on the ground that the use of the knife was not within the realm of reasonable foreseeability.

    We urge that in doing that, the Circuit Court of Appeals, United States Court of Appeals for the Second Circuit in effect established a complete — completely new rule of law under which a shipowner can now fail to — to supply an appliance or can supply a defective appliance and escape liability unless he can reasonably foresee harm from the breach of his duty.

    In a long line of cases in the various United States Courts of Appeals, the various circuits and in the decisions of this Court, the shipowner’s duty with respect to appliances has been stated that the duty is absolute, positive, continuous during the voyage.

    That it is non-delegable and that due diligence does not excuse for breach of the duty.

    In other words, a duty which has those attributes, those conditions attached to it, we urge that knowledge on the part of the shipowner that he breached the duty is not a necessary ingredient of liability.

    It is simply necessary to show the breach of the duty and rest there.

    That is illustrated by two cases, strangely in the court below in the Second Circuit.

    Those cases are a Standard Oil versus Robins Dry Dock & Repair Company and Shields versus the United States.

    In the Robins case, the Standard Oil had no possession and control of its vessel.

    The gangway was defective, but the Standard Oil was found to be liable for a defect in its gangway even though it was out of — out of possession and control.

    And in Shields against United States, which was liable under the Suits in Admiralty Act, the seaman was injured when the defect involved was created not by the United States, in that case, the shipowner, but it was created by an independent contractor who came aboard the vessel.

    Under the FELA, the railroad cases, the law is substantially the same where a railroad car will go on the property of another and where that — there are defects and the railroad man is injured by reason of those defects.

    Now, what the — if we think that the Circuit Court here has now imposed an additional — an additional element of negligence, it is no longer sufficient to show that the shipowner breached his duty by failing to provide a necessary tool or by supplying a hazardous form.

    George J. Engelman:

    You have to go further than that.

    You not only have to show that breach of duty, but you have to show that the shipowner could reasonably foresee that harm would come from his breach of duty and we say the fact is contrary to the cases.

    The Circuit Court of Appeals below cited no cases to support its premise whatsoever.

    The three cases that they cited were not in point.

    One was Fowler — it’s Fitzpatrick against Fowler which involved a domestic servant, a shoreside employee here in the City of Washington where assumption of risk was held to apply.

    The other case was Manhattan versus the United States which involved repairmen who got into a perfectly sound lifeboat which had all necessary equipment and appliances but the boat was swung out.

    And one of the workmen carelessly — through his own carelessness, released obvious and good lowering gear.

    The boat went into the water.

    The man was badly injured.

    In that case, the representatives of the workman claimed that the boat should’ve been lashed.

    And the Circuit Court said, “Well now, it can’t be anticipated.

    It can’t be foreseen that workman will be so careless as to lower good gear.”

    On that case, on its facts, is of course a sound case, but it has no application whatsoever to our case here.

    Do you claim that the rule in this respect under a Jones Act case is different for what it is in an ordinary negligence action?

    Foreseeability is not an element of that — a cause of action under your Jones — the Jones Act case.

    George J. Engelman:

    Not in a defective appliance case, sir.

    Not in a defective appliance case.

    The — the duty, the obligation upon the part of the shipowner to — to keep his vessel and as to supply all necessary equipment and appliances and to repair defects is a positive non-delegable one.

    The breach of that duty, any damage that flows from the breach of that duty is sufficient to establish liability.

    He must — on the other hand, we concede that it is not.

    We concede that the — the shipowner cannot make a veritable storehouse out of his ship and that he is only under an obligation to supply those tools which are necessary.

    But once you have established the necessity for a tool, once you have it to that extent, foreseeability is an element on the necessity for the tool.

    But the Circuit Court of Appeals, they haven’t held that.

    The evidence — our evidence unmistakably establishes the necessity for the tool.

    In other words, your point is that a — this ice cream pick was just as essential to the proper equipment to the ship as a life boat.

    That’s —

    George J. Engelman:


    — that’s the premise of your position.

    George J. Engelman:

    That is the premise of my position.

    Harold Burton:

    Wouldn’t you reach the same result in a hotel on the shoreside?

    George J. Engelman:

    Well, I am not too familiar with the — the doctrine of master and servant in a hotel on shoreside.

    Of course, those cases seldom exist because of compensation acts on shoreside employment.

    Now, what the — what the law would be under the old master and servant doctrine is — is substantially in (Inaudible) versus the United States which was not a negligence case.

    It was a — or Mahnich versus the Southern Steamship Company.

    This Court reviewed the duty of a shipowner with respect to appliances and referred to common law.

    And as I take the Court’s opinion, I understand that the Court arrived at a conclusion that the duty with respect to appliance as of common law was positive and non-delegable just as it is in a maritime case.

    Was there any other evidence that the ship’s equipment, the galley equipment, it included an ice cream pick at any time in its maritime —

    George J. Engelman:

    No, there was no — no evidence to that effect at all.

    The very —

    Stanley Reed:

    The negligence, would it be necessary to furnish an ice pick, is that the only implement that would’ve satisfied due care here?

    George J. Engelman:

    That would’ve been the only instrument that could have satisfactorily attacked this — this ice cream.

    It was a — a solid frozen mass and —

    Stanley Reed:

    Ice picks wouldn’t do?

    George J. Engelman:

    There’s no proof that there was any ice pick there.

    Stanley Reed:

    Don’t they have any ice on the board?

    George J. Engelman:

    Well, this man — of course we are dealing as a practical matter of going into the realm of perhaps speculation.

    This was a large ship, the Brazil, I think of about 35,000 tons, that isn’t in the record.

    Now, here’s a man — the ship I think was 500 or 600 feet long.

    Here’s a man down in the galley.

    I presume if we speculate, if the man had gone up to 200 or 300 feet back and up four or five decks and spent maybe 10 or 15 minutes and told the waiter to wait, perhaps he could have and that’s what they assert in their brief.

    He might have found some tool that was more adaptable or less hazardous than the knife which he finally picked up.

    Of course, all of these things were argued to the jury when the case was tried.

    Earl Warren:

    Well, who was his immediate supervisor, the chef?

    George J. Engelman:


    He testified that his immediate supervisor is the chef.

    Harold Burton:

    You really go back to the ice cream being too hard to serve —

    George J. Engelman:

    That is —

    Harold Burton:

    — and being too hard to serve, he shouldn’t serve it if he hadn’t got the equipment.

    George J. Engelman:

    There was an alternative.

    They should have.

    George J. Engelman:

    Of course, as Judge Medina, who wrote the opinion on the Second Circuit, he said, “Well, why should the customers get frozen ice cream?”

    The man was of course in a — in a dilemma.

    He had the orders, not a specific order, but he had the orders to get them out, to — to give good service.

    So, his alternative was either to — to stop the work or to try and give the service and he did the latter to his injury.

    The — the same Circuit Court, strangely, more than 30 years of going in a frequently cited case Storgard versus France & Canada Steamship Company decided the precise point contrary to the present decision.

    In that case, a seaman was ascending or had to go a loft and instead of using a ladder he used rings that were attached to the sail.

    A defective boat was attached to one of these rings and then using the ring, he sustained an injury because of the defective boat.

    And this is what the Circuit Court said and I’d like to read the three lines.

    Stanley Reed:

    Was this with the FELA case?

    George J. Engelman:


    This is a maritime case founded on negligence, a seaman’s case.

    The Circuit —

    Stanley Reed:

    Wasn’t it an inadequately equipped ship?

    George J. Engelman:

    The — in this Storgard —

    Stanley Reed:

    In the earlier case.

    George J. Engelman:

    In the earlier case, in the Stogard case, the complaint was a defective appliance.

    The shipowner in that case —

    Stanley Reed:


    George J. Engelman:

    No, negligence.

    Not unseaworthiness, negligence.

    The shipowner said, “Granted, the appliance — the appliance is defective in this particular case, but we could not anticipate that a seaman would use a ring rather than a ladder to go aloft.”

    In other words, he was putting to use an appliance for which it was not designed or intended.

    Therefore, we think the case supports — the Circuit Court held that it made no difference whether they could apprehend that a man would use the ring or not, and they said “It makes no difference whether they use reasonable men, would not have apprehended the particular accident which actually did happen.”

    In other words, we — we come back to our premise that foreseeability, foreseeability of harm in a defective appliance case or in the lack of an adequate appliance is not a necessary element of negligence.

    Do you stand and fall on that?

    In other words, supposing we disagree with you as to the applicable rule of law.

    George J. Engelman:

    Well, my last —

    (Voice Overlap) decision all right then?

    George J. Engelman:

    My last point in the case is that all of these matters were submitted to the jury and the jury answered all questions and all points and therefore, we had a jury verdict.

    That comes about in this way, the judge did not charge the jury that in order for the respondent to be liable, he must reasonably foresee that petitioner would use the knife.

    George J. Engelman:

    But what the judge did charge was very, very close to that.

    He said, “One of the elements the jury might consider was whether the respondent could have anticipated on all of the evidence, all the facts in the case whether respondent — whether the petitioner would use the knife.

    So, the verdict was a general one and that question stands answered in the affirmative.

    The — the doctrine of reasonable foreseeability, we know of no case where it’s been applied before.

    In the two cases of this Court, seemed to clearly call for the application of the doctrine.

    One was Socony-Vacuum Oil Company versus Smith which we tried in the — in the District Court and argued here.

    There, a seaman had a choice between a sound seaworthy floor plate and a defective step plate.

    He knew the step plate to be defective.

    Without any specific order, he voluntarily chose to use the defective plate.

    He had a free and un-coerced choice.

    Mr. Justice Stone held there was negligence in failing to supply proper equipment and the choice of defective equipment in place of non-defect — or the use of defective equipment in place of adequate equipment was simply a matter of the seaman’s contributory negligence.

    On that case, a very experienced maritime counsel argued the cause and briefed it for the Socony-Vacuum Oil Company and the doctrine of foreseeability of harm was not even discussed by counsel, was never raised.

    The point that was raised in the chamber of this Court on the question of assumption of risk.

    It seems that — that the shipowner has ample protection in the contributory negligence rule.

    This case we believe illustrates that, a man recovered a verdict of $17,500 for 60% loss of his hand which permanently disabled him from his occupation.

    The medical testimony is not reputed in any way.

    And as a practical matter, the rule announced by the Circuit Court certainly is not going to help the careful shipowner, the shipowner who keeps his appliances and equipment in a safe and proper condition.

    The rule will help the shipowner who doesn’t.

    He is the man who will attempt to excuse his breach of duty by saying, “I did not supply proper equipment here.

    I failed to supply equipment there.

    But it was not within the realm of my foreseeability that this particular accident occurred.”

    With the end result, the rule would result in the impairment of the efficiency of our Merchant Marine.

    It would give rise.

    Courts and juries would make such — or certainly, juries would arrive at such diverse interpretation of where foreseeability lay with respect to the enumerable ship’s appliances that the law of appliances would end up as a hunch punch and hardly any shipowner would know what he had to supply and what he didn’t have to supply.

    Now, as my second point is, the simple tool doctrine of this appliance, the — the absence of the ice chipper of course is a simple tool.

    The Circuit Court of Appeals did not refer to the simple tool doctrine or did not refer to the appliances as simple tools.

    The common law, the simple tool doctrine to wit of the servant used defective simple tools at his own peril is — was based on the law of assumption of risk that he assumed the risk.

    He was a shoreside worker.

    He could walk off the job if he wished.

    He could bring his own tools.

    George J. Engelman:

    The last pronouncement this Court made in a simple tool case was Jacob versus the City of New York.

    And in that case, the maritime bar without any question feels that this Court abolished the simple rule doctrine.

    There, a — an engineer had a monkey wrench which this Court said was probably adequate for the job.

    However, for his particular work, there was aboard ship a more adaptable type of wrench and that was worn and defective.

    Three requests for a new wrench had been made and had not been complied with.

    Instead of using the monkey wrench, he used the defective wrench and he sustained injury.

    Again, the Second Circuit dismissed this case holding that there was no insufficiency of appliances and applying the simple tool doctrine.

    This Court held that the evidence — on the evidence, there was a jury question as to whether there was any defect or insufficiency in the ship’s appliances.

    Earl Warren:

    What — what is that case, Mr. —

    George J. Engelman:

    That case is Jacob versus the City of New York, 315 U.S. 752.

    Now, with some language used of the question that I’m attempting to get at, whether — whether the rule of foreseeability which the Second Circuit engrafted on to the — to defective appliance rule, whether this foreseeability rule is engrafted on in the case of simple tools.

    Now, in that Jacob’s case, this Court did use language.

    It’s the first time I found it in any of the decision of this Court or in any decision that I have been able to find in any of the Circuits, did use language with respect to foreseeability and this is what it said referring to the — referring to what the jury may have found with respect to negligence of respondent, the shipowner had said.

    It said this.

    “Whether respondent, after it had knowledge of the defect might not have reasonably foreseen a possibility of resulting harm, if it allowed the worn wrench to remain in use.”

    Now, we concede there that foreseeability was an element, one of the elements of negligence in the case because a request for another wrench should’ve been made on three different times, but we say that it was not the necessary element.

    In a sense, it was a superfluous element of negligence.

    The primary negligence consisted in permitting the worn wrench to remain in use

    A careful shipowner properly supervising his equipment with safe and competent officers would not have permitted the worn wrench to remain in use.

    So, we say that — or urge that the primary duty of safe appliances, a proof of that and nothing else, is sufficient in a simple tool case such as we have here as well in case — as well as in cases of general appliances.

    Now, the Socony case, Socony-Vacuum Oil Company versus Smith, it’s debatable whether the tool was a simple one.

    It was a small step plate or about six by six but it was a fixed tool pillar.

    And in a sense, it was a simple tool.

    Now, we see — we can see no reason why in the case of simple tools, the doctrine of foreseeability of harm from breach of duty and not appliance cases should exist when it clearly doesn’t exist on the authorities in other cases, cases other than simple tools.

    The result that would be reached if you did have this doctrine engrafted on the foreseeability, if you go back and take the plaintiff’s position or his dilemma that confronted him, his alternatives would be either to throw the scoop down and not do any work at all or he’d be — have the obligation when he went aboard the ship to bring his own tools, because he’ll be in a position where he could not rely on the shipowner to supply his tools.

    And again, in the Jacob’s case, the — this Court sharply criticized the — the proposition of a simple tool doctrine of common law where it was born and invoked, shoreside cases that they won such as a seaman who moves about the world should bring aboard ship his own tools.

    Stanley Reed:

    Well, is this a foreseeability case or is this a case of negligence for freezing the ice cream too hard?

    George J. Engelman:

    Well, it’s a combination.

    It’s a — it’s a combination of circumstances, the — one of the elements of negligence.

    Stanley Reed:

    Well then, do all the circumstances have to be foreseeable as to freeze the ice cream too hard, like the sharp knife where the steward would — would pick up a sharp knife?

    George J. Engelman:

    Well, the — the case on the question of proximate cause, I think the knife, the use of the knife comes in.

    True, there was negligence, but I don’t think this — this was not questioned.

    An accident report was made immediately after the accident, but practically no facts in dispute.

    The man had hard ice cream.

    There’s no doubt about that.

    Now, the — the question of — of foreseeability with respect to the tool, I think arises out of the — the issue of the proximate cause of the accident.

    Stanley Reed:

    You don’t think it was negligence to have a hard ice cream?

    George J. Engelman:

    Oh, yes it was — I think it was.

    Judge Conger decided that this — this man was entitled to a reasonably safe commodity on which to work.

    Of course, hard ice cream per se is not a negligent condition.

    Stanley Reed:

    But if they hadn’t conditioned it, the negligence was not conditioning it before they went to serve it.

    George J. Engelman:

    That is it, absolutely, yes sir.

    The — on the third point with respect to the decision of the Circuit Court is that it invokes the defense, the shipowner of assumption of risk.

    In effect, what the Circuit Court held was that the petitioner in using this knife to perform his duty assumed the risk of the use of a hazardous tool when a necessary one was not provided.

    Now again, coming back to the fundamental Socony-Vacuum versus Oil — the Smith Case, this Court abolished the defense of assumption of risk in seaman’s cases.

    And in the concluding question that we asked here, is the defense of assumption of risk also abolished in simple tool cases?

    Mr. Justice Stone, at the conclude — conclusion of his opinion in the Socony-Vacuum Oil versus Smith Case made a statement with respect to the class of cases that was not covered by the decision of the Court, and this is what he said.

    “We leave to future cases as they may arise, the determination of what rule is to apply in cases where the seaman’s election to use an unsafe appliance is in disobedience of orders or made while not on duty.”

    He left the door open on disobedience of orders and the use of — voluntary use of defective appliances that in those two class of cases, nothing was said or indicated that the Court would reach a different rule in simple tool cases.”

    Now, following that decision, Congress in the Federal Employers’ Liability Act, a section which we have quoted in our brief, 45 U.S.C.A. 54 abolished the defense of assumption of risk.

    The language of the statute merely refers to the negligence of any of the officers, agents or employees of such carrier.

    And of course, that Act is incorporated into the Jones Act by reference.

    The Act also refers to any statute enacted for the safety of employees.

    There is no such statute with respect to seaman that we know of.

    The — the situation on — on a parity of — or an ironic comparison basis, certainly, the petitioner here was in a far more difficult position than Smith was in the Socony-Vacuum Oil Company case.

    Smith had a good floor plate.

    He had no specific orders.

    He was not hurried up.

    He was just performing routine duties of oil.

    He knew this plate was defective.

    George J. Engelman:

    Apparently, he forgot about it.

    He got on it and he was injured.

    He had very little — his only compulsion was a compulsion of his job, whereas the petitioner here had the more pressing or immediate compulsion of his job, his work.

    He had a specific order for 12 servings of this ice cream and he had his general orders.He was to get the work out and give good service.

    We think that to apply any different rule because the tool involved was a simple one, would be an — unjust.

    And of course further and our final point is that the jury verdict, the general jury verdict on the basis of the Court’s charge was a finding that this man had an implied order to use the knife.

    It’s what the jury found and it was a clear finding under the judgment — judges’ charge.

    Nothing is more bedrock in maritime law pertaining to seaman than the duty of obeying expressed as well as implied orders.

    As a matter of fact, the same Second Circuit, not long ago in the Darlington case said the case — cases make it clear with the safety of ships at sea might be in seriously danger but the rule otherwise.

    Now, the cases cited by my friend are cases that deal with transitory substances.

    They are the grease and oil cases, the foreign substance cases where someone without knowledge may spill gravy, grease, banana peels or some other substance.

    There is no proof that the shipowner had knowledge or an opportunity to correct the condition.

    And of course, there, the cases at the present time while there are some cases permitting recovery very recently on the basis of unseaworthiness, those cases properly hold that there is no liability under the Jones Act because there’s no negligence.

    There is no knowledge that’s brought home to the employer.

    But here, we have a situation where a careful prudent shipowner would supply the necessary tools, the need for something in addition to that scoop, the sole tool with which the petitioner was provided.

    The evidence abundantly beyond question shows the need and the necessity.

    Now, when they breach that duty, he was ordered to use hard ice cream and he didn’t have a tool to tackle hard ice cream.

    That was the negligence.

    And we say that the shipowner as the jury found is responsible for anything that flows from that, and they shouldn’t be superimpose something else, the nebulous something and vested the most nebulous speculative concept that the shipowner must foresee that out of his breach, there’s a possibility that harm may come over.

    We think it would be the ultimate confusion, overrides established decisions.

    Earl Warren:

    Mr. Wilson.

    William A. Wilson:

    If the Court please.

    The petition here appears to raise no question as to absolute liability.

    It appears to raise no question as to the liability of a vessel owner for supplying defective appliances.

    Quite clearly, it raises no question as to liability of a vessel owner for unseaworthiness and no question as to the applicability of the common law simple tool doctrine.

    The only question that is before the Court on this petition is whether or not the Court of Appeals was correct in its holding that the record shows no proof of faults on the part of the respondent for the injury to this petitioner who, although he was supplied with the customary implement which he admitted to be in good condition for serving ice cream to passengers on board the respondent’s vessel, chose on his own initiative without knowledge, without consent of any of the superiors to take a butcher knife that he himself described as razor sharp that was used customarily by another member of the crew for another purpose and which the petitioner himself admitted was improper for his crew and to use that knife as a dagger to stab ice cream that he found to be hard.

    I should invite the attention of the Court to the fact at the outset that there’s no question of unseaworthiness as Mr. Engelman has said.

    This action has brought at law.

    It’s brought for damages for personal injuries under the provisions of the Jones Act.

    There has been no claim and there is now no claim that the respondent’s vessel or appliances or equipment was in anyway unseaworthy.

    William A. Wilson:

    The Court is not now concerned with the application of any principle of absolute liability or liability without cause that attaches to cases of unseaworthiness under the rule in the Arseola.

    Now, there may well be liability without cause imposed on a vessel owner under the doctrine of unseaworthiness for injuries caused by unsafe working conditions, but no case has been cited by the petitioner holding that liability maybe imposed under the Jones Act without full proof of negligence, and there is no case that so hold.

    Those decisions under the Jones Act that place the vessel owner under the non-delegable duty to provide a seaman with a safe place to work go no further than to hold that the owner is responsible for the negligence of a third person to whom the owner has entrusted the duty.

    The gist of this action is negligence and an order to establish a cause of action against this respondent under the Jones Act, the petitioner had the burden of proving substantial evidence of fault on the part of the respondent.

    Without that proof, there can be no recovery.

    The Court of Appeals for the Ninth Circuit in De Zon against the American President Lines, made clear what is the status of the negligence proof required in a Jones Act case, a case that was incidentally affirmed in this Court.

    The Court of Appeals said, “We must be mindful of the fact that although the Jones Act has given a cause of action to the seaman who has suffered personal injury for the negligence of his employer, still it does not make that negligence, which was not negligence before.

    It does not make the employer responsible for acts or things which do not constitute a breach of duty.”

    That same principle has been stated by this Court in two decisions that are referred to at page 9 of the respondent’s brief, Jamison against Encarnacion and Jacob against the City of New York.

    That principle has also been recognized implicitly in the Socony-Vacuum Oil Company against Smith case that was referred to by Mr. Engelman.

    I would like to refer the Court now to page 14 of the petitioner’s brief at which point there is a quotation from the Socony Oil case.

    The Court there said — I’m reading from the middle of the quotation on page 14, “There being no defense of assumption of risk where the seaman has without opportunity to use a safe appliance.

    It seems plain that his choice of a defective instead of a safe one resulting in injury does not differ in either quality of the act or in its injurious consequences in any practical way from his correspondently negligent use of a safe or an unsafe appliance where its use has contributed to an injury resulting from a breach of duty by the owner.”

    Now, the petitioner appears to contend and states at point one of his brief that under the Jones Act, there is absolute liability imposed on a shipowner for unsafe working conditions.

    That conclusion directly contradicts the language of the Federal Employers’ Liability Act which is set out at page 2 of the respondent’s brief.

    That language reads, “Every common carrier by a railroad while engaging in commerce shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce or such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier or by a reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery and so forth.”

    The conclusion that the petitioner points at point one of his brief is inconsistent with all case law on the point including the authorities that he himself cites apparently in support of it.

    Now, this appears to be the petitioner’s argument as contained at page 9 of his brief, the principal argument upon which the petitioner seems to rely in attempting to reach a conclusion as to the shipowner’s absolute liability in Jones Act cases.

    Petitioner says has the duty, referring to the vessel owner’s duty to provide safe appliances and to provide for the seaman a safe place to work as the duty is non-delegable, not discharged by the exercise of due diligence and is a continuing one for the shipowner’s actual knowledge or breach of the duty need not be proved for it is always imputed to him.

    Therefore, the mere breach of the duty satisfies the negligence requirements of the Jones Act.

    Mere breach, I go now to the last sentence of that paragraph.

    “Mere breach of the similar duty to provide a safe place to work satisfies the negligence requirements of the Federal Employers’ Liability Act where the injury was sustained on a property of another over which the railroad had neither knowledge nor control.”

    I should like to discuss briefly the four decisions which the petitioner cites in that paragraph in apparent support of the argument that I’ve read.

    First is Pacific American Fisheries against Hoof, petitioner cites that apparently in support of the proposition that shipowner’s actual knowledge of the breach of duty need not be proved for it is always imputed to him.

    The Court of Appeals for the Ninth Circuit in its opinion in that case made it clear that its decision was based on the general common law principles of constructed knowledge.

    The Court of Appeals said, “When the working place and appliances are unsafe, it is no answer to say that they were rendered unsafe at some previous time by the act of another servant.”

    As already stated, the duty is a continuing one and the notice of defects and dangers will be imputed to the master where they could have been discovered by reasonable inspection and by the exercise of reasonable care.

    This Court denied certiorari in the Pacific American Fisheries case.

    Second, Frey against the United States also cited by the petitioner in support of the points of that paragraph, in Frey against the United States —

    Earl Warren:

    May I ask — may I ask how that particular citation helps your case?

    Earl Warren:

    Would you mind stating it please?

    William A. Wilson:

    That case, Your Honor, is —

    Earl Warren:

    The point which — that you’ve read.

    William A. Wilson:

    Yes, sir.

    Earl Warren:

    If you please.

    William A. Wilson:

    That case is cited by the petitioner on page 9 of his brief in support of the principle that since the duty is not an order, not discharged by due diligence, actual knowledge of the breach of the duty on the part of the shipowner need not be proved for it is always imputed to him, involving in the statement of the petitioner there some absolute liability on the part of the shipowner by virtue of failure, their failure to provide either safe appliances or a safe place to work.

    I refer to the Pacific American Fisheries case in the opinion of the Ninth Circuit Court of Appeals, in that case as pointing out that the vessel owner is liable only where such defects or such dangers could have been discovered by a reasonable inspection and by the exercise of reasonable care.

    In other words, the Court of Appeals, Ninth Circuit refers back to the common law principles of negligence in order to hold a vessel unreliable under the Jones Act.

    William O. Douglas:

    The District Court could leave it to the jury only on the basis of negligence.

    William A. Wilson:

    In our case, sir?

    William O. Douglas:

    Here, in this case.

    William A. Wilson:

    Yes, I — I would assume so from the charge that it was, athough negligence only was charged in the complaint.

    Second is Frey, the second case is Frey against the United States.

    There —

    Stanley Reed:

    Before you take that case up, what — what do you think is the negligence that’s — that’s charged against your client?

    William A. Wilson:

    I can’t quite tell, sir.

    I don’t know whether it’s negligence in the condition of the ice cream, the alleged condition of the ice cream.

    I don’t know whether it’s negligence in an alleged condition of machinery.

    I don’t know whether it’s negligence in having a knife in the galley.

    I don’t know whether it’s negligence which apparently from my reading on the briefs seems to be the case in not giving this second baker working on ice cream a bar tool to work with, a multiple-pronged ice pick as it were that he could use to chip off this ice cream that he’s described as hard as a brickbat.

    And it was incidentally when he described it as hard as a brickbat which apparently nothing can penetrate that he took the knife which he himself described as razor sharp in an attempt to penetrate it.What the — what the particular negligence is, I do not know, sir.

    Frey against the United States involved that injury to a seaman who slipped in a shower that was improperly constructed and there appear to be no question as to the fact of improper construction.

    Now there, the shipowner was quite obviously charged with notice of the defective — defective condition by a reason of the fact that it had created it.

    But there, the Court said — again with regards to Jones Act liability of a seaman — of a shipowner, it is unquestioned that a seaman may recover for an injury caused by the negligence of the shipowner in not providing seaworthy working conditions, going back virtually to the actual language of the Federal Employers’ Liability Act.

    Earl Warren:

    We’ll recess now.