Gillespie v. United States Steel Corporation

PETITIONER:Gillespie
RESPONDENT:United States Steel Corporation
LOCATION:Criminal District Court, Parish of New Orleans

DOCKET NO.: 10
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 379 US 148 (1964)
ARGUED: Oct 13, 1964
DECIDED: Dec 07, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – October 13, 1964 in Gillespie v. United States Steel Corporation

Earl Warren:

Number 10, Mabel Gillespie, Administratrix, Petitioner versus United States Steel Corporation.

Mr. Day.

Jack G. Day:

Mr. Chief Justice, and May, it please the Court.

This case comes here on a writ of certiorari and I should say by way of preface at the outset that I think that we are entitled to have the facts alleged in our petition and set out in the record — our complaint rather, and set out in the record taken as true.

Although we get here by way of a sustained motion to strike.

The facts in the case were, very briefly, that the administrator’s decedent was helping in the shifting of a boat belonging to the respondent at Lorain, Ohio.

It was a bad day, the wind was high, raining, it was wet war on the dock, and wet war as a consistency about like grease and there was an odd shape to the dock which made it difficult to completely arrange a transport of the distance between the dock and the ship by the type of ladder which was extended to the decedent when he attempted to board the boat and was thrown into the water where at last, he was drowned.

Now this brings us to the main problem in the case, which has at least three facets which I should like to outline briefly before getting into the substance of the argument.

One is the availability of the doctrine of un-seaworthiness outside the Jones Act, coupled with a state wrongful death statute to give a cause of action to the beneficiaries and next of kin of those persons who may be killed wrongfully in state waters, even though the tort itself may have taken place under circumstances which make it a maritime tort.

The second question involves the question of whether in the Jones Act FELA nexus, the classes of beneficiaries are exclusive or whether they are cumulative.

And the third involved the question of the survival of an action for pain and suffering where there is a short interval between the time that those acts which ultimately results in death begin to occur and the time that death in fact takes place, and —

The Court of Appeals discussed but I don’t find discussed in either of your briefs, and was this a final order?

Jack G. Day:

It was treated as a final order Your Honor.

I know it was treated that way but —

Jack G. Day:

I think it is for this reason, because the motion to strike took out of the petition of the complaint, all reference to wrongful death by virtue of an un-seaworthy condition, all reference to wrongful death statutes, state statutes, all reference to state survival statutes for all practical purposes, the rights of those persons other than that one in the primary class under the Jones Act were foreclosed.

So in effect, we have a final order as to them.

We have it particularly since there is no other statute such as the Death on the High Seas Act under which they might bring an action even though precluded from bringing one under the Jones Act.

So in that sense, it was quite final.

Well, I understand your argument but the question is whether it is final.

You had two — you had two in effect two causes of action here didn’t you?

Jack G. Day:

Yes sir, that’s right.

One which you brought — your client brought as administratrix of the decedent’s estate, and the other in which he is sued as a guardian of an incompetent child or incompetent sister or brother, is that right?

Jack G. Day:

Sister, that’s right.

And a single complaint.

Jack G. Day:

Single complaint.

And the District Court struck all the allegations that related to the un-seaworthiness count and to all references to the state for wrongful death statute.

Jack G. Day:

And survival, yes sir.

And survival, yes.

And in that posture, you took an appeal to the Court of Appeals as administratrix.

Jack G. Day:

Yes.

Did you take an appeal as guardian?

Jack G. Day:

We then got a petition and a motion for relief to file the petition for mandamus mandatory injunction or other relief which on behalf of the other possible members of the class, if we were speaking in terms of the wrongful death statute.

Yes.

Jack G. Day:

And we asked that the Court of Appeals order the District Court to do one of several things.

One, to overrule the motion to strike or if it insisted upon sustaining the motion to strike, to make those findings under 28 U.S.C. 1292 (b) which would make it possible for us to deal with it on an appellate basis.

Interlocutory appeal bases?

Jack G. Day:

That’s right, yes sir.

And that motion was denied?

Jack G. Day:

That motion was denied but the motion to dismiss the appeal which was filed by the present respondent here was also denied.

Well, the Court of Appeals said that in effect, as I read its opinion, that both sides here agreed that it would be much more convenient to have these questions decided at the threshold of the case and really on that basis took the case.

Jack G. Day:

That’s right, on the ground that it would not hurt the present respondent and that it was agreed by the administrator and by her awards that the Court should decide the case at that point.

And in the interest of —

But this is a jurisdictional matter.

Jack G. Day:

Well perhaps —

The parties can’t just by agreement and convenience confer jurisdiction on the Court of Appeals.

Jack G. Day:

Well, I think you can infer though that the Court of Appeals decided that this was a hardship proposition.

This was a case in which there was in fact a final order to decide, and that it would expedite the trial of the case to determine these issues as to which there was a substantial issue at the outset.

I realize that, that’s what it said, but the question is whether it could do that?

Jack G. Day:

Well obviously sir —

Neither of your briefs have this?

Jack G. Day:

No sir, I think we have not —

As far as I’m concerned, I would like to see that question briefed.

Jack G. Day:

We took that for granted, I think, both of us possibly, Mr. Koykka will speak for himself, but I had assumed that there was no question jurisdictionally under the circumstances.

Potter Stewart:

There wasn’t any certificate here by the trial judge under the —

Jack G. Day:

No sir, there was not.

Our petition for mandamus indicated that he had expressed himself so forcibly about the merits of the proposition, there’s no point in trying for the certificate.

You have not appealed, you, in your petition for certiorari here, you didn’t raise the question of the refusal to issue mandamus.

You — your petition is directed solely to the appeal on the merits.

Jack G. Day:

That’s right.

We felt it was unnecessary because we had what we — we didn’t get a judgment we wanted, but at least we had a final judgment and that we thought enabled us to come here.

Jack G. Day:

Now, I have suggested that we have these three principal issues and in perfect candor, let me say to the Court that in large measure, our case rises and falls with whatever vitality may still be in Lindgren.

If Lindgren is still the law, we are in considerable trouble, unless the Court sees fit to decide that the classes of beneficiary, primary and deferred as it has been referred to in some cases or preferred and deferred.

Unless the Court finds that those are cumulative rather than alternative.

And I do not think that is a point that I would abandon in my argument here, but certainly, it is not the primary point.

The primary point is that we have a right under the doctrine of un-seaworthiness coupled with the state wrongful death statute to perceive, to file a lawsuit and to recover for wrongful death based on a maritime tort for which a state court provides and a state statute provides a remedy.

And the same argument follows with respect to the pain and suffering claim with the added fact that we have the Corsair problem of the short interval.

And we don’t think that short intervals ought to be determined in terms of a ruling by a court as a matter of law, but rather as a matter of evidence.

Now if there’s anything at all to the short interval, it ought to be determined after we’ve had a chance to adduce evidence and not before.

Potter Stewart:

This case of Corsair just on the pleadings, isn’t it?

Jack G. Day:

Just on the pleadings, that’s right.

So what is said in our pleading must I think be taken as true for all practical purposes.

Now, this leads me to some consideration of the proposition in Lindgren that the Jones Act was intended to preempt all actions for wrongful death, at least by employees basing their claim on — against their employers basing their claim on un-seaworthiness.

First place, may I say if I have this slightly running stock, that the Osceola case decided a long time ago, 1903 as I recall it, prompted Congress at last to pass the Merchant Marine Act of 1915 in which they thought that they were overturning the rule which had been announced in Osceola and which they read as being a rule making it impossible for an employee to recover for a tort committed by a fellow servant.

Now, Chelentis decided in 1917 made it quite clear that this Court at least felt that whoever drafted for Congress and whoever persuaded Congress had misread the rule on Osceola.

And accordingly, there came about the Jones Act of 1920, and in determining what the Jones Act wished to do or thought it could do, I think it’s kind of important to realize that the Jones Act, and I’m sure, I’m bringing owls to Athens when I tell this to the Court, that the Congress had little or no debate about the Jones Act.

Such legislative history as can be found is in conference reports and does not get to the meat of the Act.

It simply is to questions of jurisdiction where suit shall be brought and the like.

And in paragraphs, nothing voluminous at all and it is not clear by any means that the Congress had anything particular in mind, when it passed the Jones Act, unless it be that it hoped to recoup from the Osceola decision what it had attempted to get when it passed the Act of 1915.

And that was to make it perfectly clear that there could be a right among other things.

There could be a right to recover for negligent tort in a maritime situation where an employee was suing his employer.

Now before a preemption in the absence of something —

Byron R. White:

(Inaudible), the negligence of an employee or the typical negligence of a seaman would amount to un-seaworthiness?

Jack G. Day:

In which legislation Sir?

Byron R. White:

In the Jones Act.

Jack G. Day:

As a matter of fact —

Byron R. White:

They think of negligence separately.

Jack G. Day:

Separately, I think that’s true, but there — in the Jones Act there was little consideration of anything, it’s only a paragraph that incorporated FELA by reference as you know sir.

Now in determining whether under such circumstances there has been a preemption, it is very hard to find any clear intent which is one of the standards that this Court has laid down for determining when preemption should apply, clear intent on the part of Congress to knock out a wrongful death action based upon the un-seaworthiness doctrine coupled with those matters which might provide a remedy in the state statutes, very difficult to find any clear intent to do that.

And particularly, I think, since we’re now dealing with the awards of the sea, we’re supposed to have a special place in the heart of admiralty.

As it stands, the survivors of the award are treated like very poor relations indeed because they remain one of the few survivors who cannot recover for any support or any financial benefit they derived from the deceased person.

Jack G. Day:

Now moreover, this Court has said on more than one occasion that you do not find preemption between state and federal statutory efforts, unless a fair interpretation reveals an actual conflict, must be direct and positive.

And as long as there is an area which Congress has not preempted or which the clear intendment of what it did would call for an interpretation of clear preemption then the state statute can stand.

Now since —

Potter Stewart:

Of course you do have all the 30, 40, 50 years of decisions under the Federal Employers’ Liability Act and all that the Jones Act did was incorporate that Act by reference so to speak.

Jack G. Day:

That’s right.

Potter Stewart:

Holding that, that federal act is exclusive of any state limitations or any state extensions or any state variations, that the Jones Act is an exclusive remedy for injured or killed railroad workers.

And the Jones Act simply did incorporate it as an act of Congress, incorporated the FELA by reference, by short hand did it not?

Jack G. Day:

Well, without meaning to be disrespectful to Congress, I think it was a thoughtless incorporation and I —

Potter Stewart:

Yes it was, but that’s what Congress did.

Jack G. Day:

Well that’s what they did, but in terms of what they did and in terms of the background of the two statutes, they came from different sources.

The matrix of each was quite different.

The Jones came out of the Osceola situation where there was an attempt, I think, to broaden what Osceola had narrowed.

FELA arose at a time or there were several efforts in FELA as I recall it, at least two Federal Employer Liability Acts, and it came at the time when the nation was having quite a struggle over the workman’s compensation statutes.

And so this problem was in the mind of the Congress, the question of the relationship between FELA and workmen’s compensation statutes was clearly at in mind of Congress at the time it dealt with the question of FELA.

I think the same statement cannot be made about the intent of Congress at the time it dealt with the Jones Act, quite different situations.

Now —

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

That’s right sir.

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

That’s right, I think that’s true.

It boils down to this, that if a seaman is killed on navigable waters, while in the employee of his employer and has a claim for death against his employer, his beneficiaries cannot recover.

But if he’s killed on the high seas, if he is a stevedore at shore side in navigable waters, if he is a repairman at shore side in navigable waters, if he is a maintenance foreman at shore side in navigable waters then he can recover.

Potter Stewart:

But any of those things within the Jones Act doesn’t apply?

Jack G. Day:

That’s right.

Potter Stewart:

He doesn’t have his Jones Act remedies, if he’s a stevedore or a third party or a passenger.

That’s right.

But some of the cases served that for purposes of this recovery, we will treat this stevedore or this man as a seaman, but we don’t treat a seaman as a seaman for purpose of un-seaworthiness if he happens to be at the dock.

But I think nobody — I think I’m right am I not, in saying that it has yet to be suggested that a passenger or a stevedore or any other third party has a Jones Act right of action.

Jack G. Day:

Oh, no question, I’m not suggesting at all.

Jones Act is an Act which depends upon employment.

Potter Stewart:

And clearly this person is a seaman and he has a Jones Act right of action —

Jack G. Day:

Sure, I think —

Potter Stewart:

For injury or for wrongful death.

Jack G. Day:

Quite right.

I make the point only for the sake of showing that it is a very doubtful proposition that Congress should have intended to take the special award of the sea and treat him in this discriminatory manner.

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

Right, if he’s killed in his employment.

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

That’s right sir.

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

Yes sir I think that’s right.

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

I think that’s right.

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

That’s right.

I can’t believe that Congress meant anything —

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

I can’t —

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

Same year, 1920 yes sir.

I can’t believe that any such discrimination was intended by the Congress.

Now, in the meantime as I have suggested, and I think as Justice Stewart has suggested makes little difference.

I have suggested that it is possible to use the doctrine of un-seaworthiness, a concept peculiar to seamen to recover, utilizing as well as a remedy the wrongful death statutes of the state for the beneficiaries of people who are not seamen in the technical sense of the term.

In the effect, what has happened is that we have had an attempt to make progress for a seaman which has left him in worst condition than he was before.

In the meantime, this Court has made some enormous changes in the effect of death in maritime presence.

I’m suggesting that it is time to make yet one more.

You have said, for example, that a state statute may be used to offer the rule that a liability dies with the tortfeasor, you have said that a state wrongful death statute includes un-seaworthiness, so that a non-seaman may have a course of action or his personal representative may after he has been killed at shore side.

And as he said in response to Mr. Justice Goldberg’s question that Death on the High Seas Act will give a remedy for un-seaworthiness to a seaman, even though would also have an act under the — a course of action under the Jones Act.

Potter Stewart:

What case is that?

Jack G. Day:

That would be the Judith Rose Lee case, and it’s in the brief.

In that case, there was a defective shackle pin, a latent defect and it lowered material upon the mate and killed him and his action was brought.

Now, I don’t want —

Arthur J. Goldberg:

What page is that?

Jack G. Day:

Alright sir, I’ll give you that in just one moment.

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

All right, let me look at the index of the brief and it will be quite simple.

It’s not a decision by this Court, I should say that.

Arthur J. Goldberg:

(Inaudible)

Potter Stewart:

Yes, all right.

I’m quite interested in it if you would just give us a citation with it again.

Jack G. Day:

All right, it’s the — I’ll give it to you, I’m going to reserve five minutes and I’ll give it to you when I get up the next time.

I’ll find it then.

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

No sir, I think there is none.

Now, I come then to the conclusion.

Well I should say one other thing before I come to the conclusion.

That although the Court talked about preemption in somewhat broader terms in Lindgren, it also chose to look at the language in the Jones Act, short as that Act is, to find some further support for its proposition that Congress had in mind, that there could be an election between un-seaworthiness as against negligence causes of action where only personal injury was concerned because of language in the first paragraph, the first section of the Act, and none, no such election for purposes of wrongful death because that same at his election language was omitted from the second phrase.

Now for a time, this was thought to be a substantive difference, but since this Court’s decision in McAllister versus Magnolia Petroleum, I think it is quite clear, that’s a personal injury case and not a death case, it is quite clear that this election that is provided in the first portion of the statute is not a substantive matter but simply a procedural one.

So we have this situation that while the expansion, the dynamism of the admiralty law has been going outward to include people who are not the special awards of the sea, the special awards have been left behind and their beneficiaries cannot recover except, and unless they’re in a Jones Act situation where they are killed at shore side.

And this rule has persisted as the cases cited in our brief show and is the case that brings us here shows.

Now, on the question of classes of beneficiaries, I must say that unless this personal representative, this petitioner prevails on the question of the right to bring an un-seaworthiness action coupled with the remedy provided with the wrongful death statute in the State of Ohio, he can get only a consolation prize or no prize at all unless the classes of beneficiaries which are provided in the FELA as read into the Jones Act, are considered as cumulative and not exclusive.

Candor compels me to say that this is hard road, a hole in the light of a language in the FELA.

However, it is true that there have been examples which will show that simply being cut off, case examples which will show that simply being cut off by virtue of being in a deferred rather than preferred class under the Jones Act does not prevent another action under another statute.

The Death on the High Seas Act for example, if one chooses to file it.

Now that is not available in this case because there is no Death on the High Seas Act available to any of the people who were involved here.

I’ve already suggested that as far as the claim for conscience, pain and suffering goes, I don’t think anyone contends that you cannot base that these days or an un-seaworthiness whether you’re a seaman or not, the issue there and here is whether the Corsair rule on short pain and short suffering forecloses these petitioners.

I suggest to the Court, as I have suggested that the place to determine that will be on trial where we determine whether or not our evidence shows, whether any considerable or at least compensable period of suffering took place.

I’ll reserve five minutes.

Earl Warren:

You may.

Mr. Koykka.

Thomas V. Koykka:

Mr. Chief Justice, may it please the Court.

Let me go first to the question raised by Mr. Justice Harlan as to whether we have here a final order.

We objected on that very ground in the Court of Appeals that there was no final order for a review.

Your Honor is in error in thinking that both sides agreed to have the question decided.

We did not agree.

We resisted, but Mr. Day made a persuasive argument and convinced the Court of Appeals that he had a final order and so the Court of Appeals said since — Mr. Day urges us to do this and since the way we’re going to decide this question doesn’t hurt our side, why, we will deem this a final order and decide that there was no admission on our part.

I didn’t mean —

Thomas V. Koykka:

No, no I so understood.

And when the matter came to this Court on petition for certiorari, we resisted the grant of the writ on that very ground and urged the Court to deny it because there wasn’t a final order.

Now the Court, we concluded, ruled against us on that point and I am not one for wearing out my welcome with the Court, so we concluded that there was a final order here, or at least that the Court had satisfied itself on the point.

And I concluded that that is the reason that it is not argued in the briefs, and I’m looking at the law on the question, I thought that perhaps Mr. Day has a point in that the judgment below does cut off finally the rights of certain beneficiaries.

And then I looked at this Court’s cases and I find that this Court has held that ordinarily, it will not review as for example where a motion for a new trial has been granted or where a denial of a motion to dismiss will ordinarily not review those.

But there’s a series of cases where the Court says “Well if an important question of law is involved, it will review.”

Among those cases are United States versus General Motors, 323 U.S. 373, particularly at 377, Land against Dollar 330 U.S., 731 particularly at 734 note 2.

The Larson versus the Democratic Financial Committee in 3337 U.S. 682 at 685 particularly note — at note 3, and then there are series of case saying that where a separate claim of right has been determined and I concluded that that must have been what this Court held – governed these other beneficiaries.

That was so held in Cohen against Beneficial Loan 337 U.S. 541 particularly at 546.

Roberts against the District Court 339 U.S. 844, Swift against Company General, I think it’s a French line, 339 U.S. 684, Stack against Boyle 3421.

And again, some cases where the Court has said “If the case question is important and needs to be decided, we’ll take it” and that’s Myers against Bethlehem 303 U.S. 41 particularly at 52, and Hanover Star against Metcalf 240 U.S. 403 and Forsyth versus Hammond 166 U.S. 506.

So we concluded we had lost the point and that there is a final order here.

Did you brief before the Court of Appeals?

Thomas V. Koykka:

Before the Court of Appeals it was argued and briefed.

Perhaps (Inaudible)

Thomas V. Koykka:

Or —

Motion to dismiss or —

Thomas V. Koykka:

We’ll be very happy to submit the authorities on that point.

Perhaps it really ought to be Mr. Day’s version and we’ll express our views in opposition on that point.

But as I say, we concluded that there was a final order and that’s the reason the point is not briefed.

Now, I’d like to touch on the question raised by Mr. Justice Goldberg concerning the Death on the High Seas Act.

Thomas V. Koykka:

That does not under any circumstances apply here because the statute expressly says it does not apply to the Great Lakes.

And in any case of course does not apply unless the event occurs more than a marine league from shore.

Now this Court has never said that there is a concurrent remedy under the Jones Act and under the Death on the High Seas Act.

Some lower courts have taken that view.

However, the conclusion we draw from that is not that Congress was intending to provide a remedy which would accommodate as here claimed a state remedy, but was merely providing an adjunct to the existing or other provided federal remedies.

The cure — the remedy of maintenance and cure was a long standing admiralty development and no one, I suppose, really supposed that the Jones Act cut off that remedy.

So —

Arthur J. Goldberg:

(Inaudible)

Thomas V. Koykka:

No.

Arthur J. Goldberg:

(Inaudible)

Thomas V. Koykka:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

Thomas V. Koykka:

That is true.

It does provide an alternate remedy if it ultimately beheld as the lower courts have held that there are concurrent remedies, and that, so far as this Court is concerned is still an open question.

Now then some suggestion was made by Mr. Day to the effect that well persons other than those who were truly seaman have been treated as seaman, and he said that stevedores have sometimes been treated as seaman.

That is true, but not since the Longshoreman’s and Harbor Workers Act was enacted.

Congress provided a remedy for those non-sea going individuals.

Now then, going to the central question in this case which of course is whether a seaman as in this case, who meets his death in the state territorial waters may assert a remedy not only under the federal statute but also under the state of Wrongful Death Act as Mr. Day has suggested that point has been decided in our favor and we think the Court ought to adhere to that rule for several reasons.

And the first is that there is no need here for resort to a state wrongful death statute.

The federal statute already provides a remedy in the event of the death of a seaman.

In this case, there is pending before the District Court in Cleveland the claim under the Jones Act for the death of the seaman.

Now as Mr. Day suggested, this Court has in some cases said that the admiralty law may apply a state wrongful death statute, but those cases we submit had no relevance here, because there, this Court was not confronted with a federal statute as it is here.

And second, in those cases if this Court had said that the state wrongful death statute does not apply, there would have been no remedy at all for the death.

So we say that the — there is no reason.

The reason for the rule in those other cases is absent here and there is no reason here or call on this Court now to hold.

Arthur J. Goldberg:

(Inaudible)

Thomas V. Koykka:

That is true.

That is true Your Honor, but Congress here has spoken by statute and it has provided a remedy.

So Your Honors are not confronted with a case where if you deny relief, there is nothing left for the seaman survivors.

Here, the remedy has been provided.

Thomas V. Koykka:

Now that’s the first reason we think ought to induce this Court to adhere to the rule as it stands.

The second reason, we would urge upon this Court is simply the magnitude of the job of revising the law.

As Mr. Day made clear if the law is as it is today then we are in the right and they are in the wrong, and they say that if that law continues to be as it is at this minute then an affirmance of the judgment below will follow.

Now they challenge this Court’s cases in three areas of the law which Mr. Day enumerated.

Beyond that, they say, that once the law is made tidy and ship shape in accordance with their views on those three points, then they say there are six more cases which will need to be explained or reconciled by this Court.

Those six cases include five that were decided within the last five years, but that isn’t the end of the problem created here.

Arthur J. Goldberg:

(Inaudible)

Thomas V. Koykka:

I do not think the Court could so construe the Jones Act consistent either with history, with this Court’s prior cases or with a congressional intent.

I believe that under the Federal Employers’ Liability Act, there are only certain areas in which there is so to speak liability without fault.

That is to say, violation of the Safety Appliance Act or something of that kind, I don’t believe it’s a universal rule.

Now I concede of course, that this Court being the Supreme Court can declare that under the Jones Act there is liability without fault, but I do not believe the Court can do it and remain faithful and consistent either to the language of the statute, to this Court’s cases or to history on this point.

Potter Stewart:

Mr. Koykka?

Thomas V. Koykka:

Yes.

Potter Stewart:

Mr. Justice Goldberg’s question suggests to me a less theoretical, perhaps less theoretical but more of a practical question.

How much practical importance does this first question have in view of the broad reading that this Court has given in FELA cases to default and to negligence from a very liberal to the very minimal that it’s — as it has required?

Thomas V. Koykka:

That is to say how important is the distinction as to whether negligence —

Potter Stewart:

I don’t see why this is negligence in this area.

Thomas V. Koykka:

And that is a —

Potter Stewart:

In view of the FELA decision.

Thomas V. Koykka:

That is a difficult question to answer Your Honor.

I would hesitate to concede and I hope this Court never will hold that there is no difference.

There has been some intimation, I know in decisions that perhaps there is no difference.

But after all, Congress did put in the requirement of negligence in the statute and I for one would hate to see this Court read that out of the statute as a practical matter, I would much prefer, if a case is to go to the jury to argue to the jury that now you are required under the law before you may find against us, find that there is negligence so that I think that it has a very real and practical importance in the trial of cases.

Potter Stewart:

You really do?

Thomas V. Koykka:

Yes I do Your Honor.

Now, that is not the end of the task of re-plowing the law that is urged on this Court.

They asked in their central question here that the Jones Act be read in such a way that it permits state provided remedies to be utilized.

Now, we’re dealing here actually with the Federal Employers’ Liability Act, all Congress did in the Jones Act was to say that whatever rights are given to railway workers under the Federal Employers’ Liability Act, those same rights we give to seamen.

Therefore, it seems to me that if this Court is to say that this statute accommodates state provided remedies when applied to seamen’s cases then the work of this Court for 50 years under the Federal Employers’ Liability Act where in case after case this Court has ruled to the contrary is certainly cast into doubt and a whole new host of problems are raised not merely in the narrow maritime industry, but in the much wider field occupied by the Federal Employers’ Liability Act.

So we say that it’s too big a job to ask this Court to undertake.

Thomas V. Koykka:

If I may use the language of modern America, it’s Congress that is the big job cleaner.

We submit that their arguments for reversal of the cases in this Court over — well for 34 years under the Jones Act and for more than 50 years under the Federal Employers’ Liability Act, ought not to be addressed to this tribunal but ought to be addressed to Congress, because if there is anything wrong with this statute, Congress can tailor the remedy to fit the ill.

This Court cannot do so without raising a host of new problems.

So we say that for that second reason, this Court ought to adhere to the rule announced in Lindgren and hold as did the courts below and as did the Court in 1934 in Lindgren that under the Jones Act, there is no room for the application of state provided remedies.

Now third, we draw this Court’s attention to the claims of stare decisis.

Now, I appreciate that that isn’t the conclusive answer, but in lining up the scales to determine where the weights are to be put in arriving at judgment in this case, we submit that stare decisis is a factor that weighs and ought to weigh heavily in determining what judgment ought to be entered.

Now I go to my third — to my fourth point that even if Lindgren had not been decided, if this were an open question and coming to the Court now for the first time, we submit that this Court should now announce the same rule as was announced by the Court in the Lindgren case.

Now why?

Well I’m assuming now that if we’re writing on a clean slate, first because that would be responsive to congressional intent.

Now Mr. Day says that there is really no congressional history to indicate what Congress did intend or mean by this statute.

Well, that is true if you don’t look far enough back.

If you look only at the Jones Act there is no history, but bear in mind the statute we are construing here is the Federal Employers’ Liability Act enacted in 1908.

When that legislation came to the floor of Congress, it came accompanied by committee reports that said that if this legislation is enacted, it will suppliant state provided remedies.

And when this Court in the Winfield case examined that statutory history because shortly after the Federal Employers’ Liability Act was enacted, question arose there as arises in this case, is there room for the operation of state provided remedies.

This Court examined that history in the Winfield case and said that the reports of the congressional committees having the billing charge, disclosed without any uncertainty that it was intended to be very comprehensive and to withdraw all injuries from the operation of state statutes.

So we say therefore that this Court if it is an open question, since an important problem always is in statutory construction to determine what was the intent of the legislative body, we say that Congress when 12 years later it then said merely in the Jones Act whatever rights are given to railway workers under the Federal Employers’ Liability Act, those same rights shall be carried over to seamen’s cases.

Surely, if Congress intended to give that statute as applied to seamen’s cases, a different meaning and it said it shall have in railway cases, Congress surely must have said so, but it didn’t.

Byron R. White:

(Inaudible)

Thomas V. Koykka:

Of which?

Byron R. White:

Lindgren.

Thomas V. Koykka:

Of Lindgren.

Lindgren was based largely on the construction that had been given to the Federal Employers’ Liability Act in the cases that preceded Lindgren.

Byron R. White:

As a statutory —

Thomas V. Koykka:

As a matter of statutory interpretation, and that was a court that included Mr. Justice Sanford, Mr. Justice Holmes, Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice Sutherland, Mr. Justice Stone, Mr. Justice Butler, some of the great names of this Court.

And they unanimously reached the conclusion, that it excluded the operation of state statutes.

So we say for that reason if the question is an open one, we ought to adhere to — we ought now to declare the same rule as was declared in Lindgren.

Now secondly, we appeal to the — perhaps the first rule of statutory construction.

It is a familiar rule that if a legislative body, take a state, adopts a statute which has been enacted in a sister state, that later state in picking up that earlier statute adopted by a sister state is deemed to pick up that statute encrusted with the decisions of the courts in the state which originally enacted that statute, unless the second state says “We intend now to give this a different construction.”

Now so here, after the Federal Employers’ Liability Act was enacted in 1908, a series of cases came to this Court really presenting the same question that is here as to whether there is room for state provided remedies.

And this Court in at least six cases before the Jones Act was enacted held that this same statute when applied to railway cases excluded state provided remedies.

Thomas V. Koykka:

Now we submit that it is a fair conclusion that when Congress then says “We want that statute, that same statute applied to seaman’s cases” it must necessarily have meant that statute construed as it had been construed by this Court in a half dozen cases and so —

Byron R. White:

Well that may be true as regards to negligence, what about unseaworthiness?

Thomas V. Koykka:

Well, Congress expressly said in the statute that liability may be imposed for negligence.

On the other hand —

Byron R. White:

They had the problem, that there was no recovery for negligence by a seaman, and there was no recovery after his death —

Thomas V. Koykka:

Yes.

Byron R. White:

Obviously therefore, and that’s what they address themselves to.

Thomas V. Koykka:

Precisely Mr. Justice White.

Byron R. White:

And at that time un-seaworthiness normally did not include simple negligence that followed service, did it?

Thomas V. Koykka:

Well perhaps so, that has been —

Byron R. White:

Wasn’t that so?

Thomas V. Koykka:

Well that —

Byron R. White:

Isn’t what the Osceola held?

Thomas V. Koykka:

Well the Osceola held, so held yes, Your Honor.

Byron R. White:

All right.

Thomas V. Koykka:

Yes.

Byron R. White:

And so how could Congress possibly have been addressing itself to the unseaworthiness recovery when they were dealing with negligence?

Thomas V. Koykka:

Well — but it was settled law at that time that the claim for unseaworthiness would not survive death.

Byron R. White:

Exactly, exactly.

Thomas V. Koykka:

Now when —

Byron R. White:

And so — and they dealt solely with negligence, act of negligence.

Thomas V. Koykka:

Precisely, and if Congress had intended to say that in —

Byron R. White:

They couldn’t possibly have had in mind what the question was about — an issue about unseaworthiness because the law then was settled that unseaworthiness didn’t include negligence and there was no survival of unseaworthiness claim anyway.

Thomas V. Koykka:

Well, perhaps we’re talking at cross purposes.

Perhaps what you are saying Mr. Justice White is that Congress really had no intent —

Byron R. White:

Well what I’m suggesting is that your Employers Liability Act’s argument isn’t much good.

Thomas V. Koykka:

Well I don’t like to hear Your Honor say that because it seems to me that it is a powerful one because we are dealing with —

Byron R. White:

Yes, but it only reaches the negligence side of it and the argument in this case is not that the state laws reach a negligence cause of action.

Thomas V. Koykka:

But —

Byron R. White:

The argument is that the state law reaches an un-seaworthiness argument.

Thomas V. Koykka:

But I submit to Your Honor that if Congress had intended that when it enacted the Jones Act, had intended to provide a remedy after death not only for negligence but also for seaworthiness – un-seaworthiness.

It would have said so.

Byron R. White:

Yeah but your argument — that isn’t your argument.

Your argument is that because they provided a remedy of negligence.

Thomas V. Koykka:

Yes.

Byron R. White:

They intended that there be no remedy in un-seaworthiness, that’s your argument.

Thomas V. Koykka:

It is.

That is part of my argument.

Byron R. White:

But the other side isn’t arguing that Congress intended to provide a remedy in un-seaworthiness, you’re arguing that Congress intended to exclude one.

Thomas V. Koykka:

Yes, Your Honor.

Well, exclude in this sense that they said “We provide a remedy for negligence” and it is my position that when Congress says negligence it means negligence and nothing else.

Byron R. White:

Well, then you probably could make a stronger argument if you said that wherever negligence and un-seaworthiness overlaps, where the two — where they overlap then there must be preemption.

Thomas V. Koykka:

Well, I don’t see why it needs to be so confined.

Here, Congress is dealing with this very subject matter and if it says there shall be a —

Byron R. White:

Well what if it’s dealing with un-seaworthiness.

Thomas V. Koykka:

Well it’s dealing with —

Byron R. White:

Let’s take a case where no one would argue that the unseaworthiness could — the unseaworthy condition constitutes negligence and there are such cases.

Take one of those cases.

Thomas V. Koykka:

Yes.

Byron R. White:

Now would you suggest to me that the Jones Act precludes applying a state wrongful death statute in that circumstance?

Thomas V. Koykka:

Yes Your Honor I would —

Byron R. White:

Solely on the basis of Lindgren.

Thomas V. Koykka:

On the basis of Lindgren and —

Byron R. White:

And then you argue that Congress intended to exclude it in those circumstances?

Thomas V. Koykka:

Yes that is my argument and let me try this then Mr. Justice White.

It is the appeal to logic.

Now, our friends on the other side here Mr. Day argues that there is something illogical in a rule of law which permits a seaman to make a claim for unseaworthiness so long as he lives, but then after his death, he no longer has that claim.

Now, that we submit is spurious logic.

We say that so long as this seaman lived his rights were governed in every respect by federal law.

Now we say it would be highly illogical to say that following death, state law should takeover either in whole or supplementary part.

Thomas V. Koykka:

We say —

Byron R. White:

(Inaudible)

Thomas V. Koykka:

It was the —

Byron R. White:

(Inaudible)

Thomas V. Koykka:

That is true Your Honor, but —

Byron R. White:

(Inaudible)

Thomas V. Koykka:

That is true Your Honor, but there, there was no remedy otherwise provided because the law was settled that any claim —

Byron R. White:

(Inaudible)

Thomas V. Koykka:

Well, I think it does Your Honor.

I think that we have a problem here where the seaman’s rights prior to death were governed by federal law and it seems to me, it must be the same law that governs after death.

And that therefore, there is no room for a state provided remedy.

Byron R. White:

(Inaudible) — wanted to see whether or not your argument really is limited to an overlap — to the overlap which is this case, isn’t it?

Thomas V. Koykka:

Well I would hesitate to say that because I think there’s perhaps some question here whether they can develop a claim actually of unseaworthiness, because all that happened was that this man was returning to his vessel moored at the dock.

He said he reached for the ladder and slipped on the wet floor and dock and fell into the Black River and drowned.

Now maybe they can develop a case of unseaworthiness there, I am not sure, but — so it may not be an overlap case.

Byron R. White:

Well, the allegations would make this up, because certainly if that — it may not be unseaworthiness but certainly its negligence.

Do you think it may be a claim —

Thomas V. Koykka:

Well, oh, yes they alleged negligence, yes, yes Your Honor.

They alleged negligence without question.

And we say that is not open to them accepting under the Jones Act.

Now —

Byron R. White:

Is there any case that you know of that holds a simple act of negligence to a fellow servant of unseaworthiness?

Thomas V. Koykka:

No I do not know of a case.

There may be but I do not recall one at the moment.

Now we would say further that even if Lindgren had been erroneously decided in 1930, this Court ought now to adhere to that rule even so and that is because it has been law for 34 years.

There is a sound public policy and an interest in the continuance of a rule of law once declared because people can and do adjust their affairs to a rule of law once declared.

Second —

Arthur J. Goldberg:

(Inaudible)

Thomas V. Koykka:

Yes.

Arthur J. Goldberg:

(Inaudible)

Thomas V. Koykka:

Well that was a question that was debated before the Court of Appeals.

The Court of Appeals concluded that it was decided by Lindgren and Mr. Day finally in his brief decides that, I’m not sure he says he’ll give up the point, but he says that he knows that he understands when the Court has said it’s against him.

So in my reading it is not dictum in Lindgren Your Honor, and certainly has not been regarded as dictum in Lindgren.

Now let me say further that even if it were an erroneous rule, this Court ought to adhere to it because after all Congress sits, what they are asking this Court to do really is to legislate and over rather a substantial area.

Now they argue in their brief that Congress has been alive to seaman’s cases and has modified the law when —

Potter Stewart:

And just for argument sake that not withstanding, it may be wrong, Lindgren may be wrong, may be wrong in deciding that if it blankets this situation it’s a problem of statutory construction and that we ought not to overrule decisions on statutory constructions, but leaves the revision to the Congress.

Thomas V. Koykka:

Precisely, where Congress is free to act, and as Mr. Day has argued in the brief is alive to seamen’s needs if the rule does not respond to the needs of the times, Congress can change it without raising the collateral problems that would be raised in this Court.

Now there, in addition to that, they asked this Court to overrule the settled law concerning those who are beneficiaries under the statute.

And Mr. Day said that it’s rather a hard rule he has to hold there and of course his first difficulty is with the language of the statute.

The statute, as the Court will perhaps remember, contemplates beneficiaries in three categories, first, the spouse and children then the parents, then the next of kin.

Byron R. White:

(Inaudible)

Thomas V. Koykka:

Well I think he would like to get to it.

I think he would like to enlarge the beneficiary.

Byron R. White:

Why would he?

Thomas V. Koykka:

Oh, well if he recovers on the first point, no he does not, because then perhaps the state wrongful death statute if it applies and is carried over bodily then it would cover that point.

Byron R. White:

Can I ask you another question?

Thomas V. Koykka:

Yes Your Honor.

Byron R. White:

What is the practical argument here between the seaman and the company?

Is there going to be multiple recoveries here, if the petitioner wins, is that it?

Thomas V. Koykka:

I don’t think so.

I do think that it raises —

Byron R. White:

Do you really mind in this particular case, let’s go and talk about the effect on the law —

Thomas V. Koykka:

Yes, yes.

Byron R. White:

Involved here.

How about the dollar percent in this case?

Thomas V. Koykka:

No —

Byron R. White:

Would you really care whether he covered — they covered un-seaworthiness or negligence?

Thomas V. Koykka:

Oh, well in dollars, if the beneficiaries remain the same, it may be that in dollars it would make any difference, but as I say I shrink from —

Byron R. White:

I get the impression of the petitioner here.

He makes an argument that you could — you have multiple recoveries from — that if somebody can — if one beneficiary might recover on un-seaworthiness and another one for negligence.

Thomas V. Koykka:

Well, I didn’t so understand the argument.

I did understand the argument to be that if he prevails then he will be entitled to claim not only for the pecuniary injury to the mother who was a sole survivor, there being no wife or children.

But that he would then also be able to recover for the brother and three sisters at least —

Byron R. White:

For the pecuniary fall —

Thomas V. Koykka:

Yes to them.

Byron R. White:

By them.

Thomas V. Koykka:

To them.

Byron R. White:

So it does, it will have another —

Thomas V. Koykka:

In that respect, yes.

Byron R. White:

Will have some additional beneficiaries —

Thomas V. Koykka:

Yes, yes.

Byron R. White:

Some additional —

Thomas V. Koykka:

Yes, yes Your Honor.

Byron R. White:

Well it does have a factor —

Thomas V. Koykka:

It does and I was going to add that if the state wrongful death statute is read into the Jones Act then what’s to stop other statutes from being read into the Jones Act.

Say a state workman’s compensation law or perhaps other statutes.

Some statutes have enacted statutes of liability without thought and so on.

In other words, I don’t see where the stopping point is once we say that the Jones Act doesn’t mean what it says and what this —

William J. Brennan, Jr.:

Well is this case easier on liability if it’s maybe predicated on unseaworthiness and under the Jones Act?

Thomas V. Koykka:

Well theoretically, it would be because un-seaworthiness I gather is a warranty.

It’s a form of liability without fault, whereas if it’s negligence he has to prove negligence.

Byron R. White:

Well, even if he wins on point here, I mean in going about proving unseaworthiness, he’s got to show that the simple negligence would come to serve an amount to unseaworthiness, is that it?

Thomas V. Koykka:

Well if he’s going to prevail on unseaworthiness, yes.

Byron R. White:

Yes, yes you have to, that I suppose you people bring back up here.

Thomas V. Koykka:

Well, we would perhaps try to.

So we ask for an affirmance of the judgment below.

Earl Warren:

Mr. Day.

Jack G. Day:

May it please the Court.

Since I was asked before I sat down last to come up with a citation, I have it now.

It’s —

Potter Stewart:

We found it, so don’t waste time on it —

Jack G. Day:

(Inaudible) is the first part of the style of the case and that’s the reasons I couldn’t find it under Judith Rose Lee.

Tom C. Clark:

What was the citation?

Jack G. Day:

The citation is 211 F. Supp. 36 affirmed in 317 F.2d 927 cert. denied 375 United States 931.

Tom C. Clark:

Thank you.

Jack G. Day:

That’s the 22nd item in our list of cases.

Now I want to respond very briefly to the suggestion that if there was such that there is no money involved in the difference in positions.

There’s a great deal of money involved because in point of fact, the person who is — stands to suffer most by a failure to prevail in connection with the question whether or not we can use un-seaworthiness plus the wrongful death statute of the state to recover.

The person who will suffer most in our failure to prevail on that point is the sister who is fully dependent and who has a mental defect as well as other brothers and sisters, but she in particular.

Unless of course, this Court should hold that there is a — an accumulation of classes rather than an alternative classes in connection with FELA, without surrendering or retreating on that point because I’d rather be defeated then to lose by concession.

I think that it is quite clear that we are not trying to read something into the Jones Act.

We’re trying to say the Jones Act did not encompass as Mr. Justice White suggested, did not encompass the question of un-seaworthiness.

It was designed to do something about the Osceola after it found out in Chelentis that Osceola did not cover a situation where a negligent master caused an injury to a plaintiff seaman.

And we are trying to say that in — there remained because it was not considered and was not dealt with in the Lindgren case, it wasn’t pledged in the Lindgren case.

There remained the question of un-seaworthiness and the Lindgren has not decided that un-seaworthiness true is not to be coupled with the remedy provided by wrongful death statutes.

And I don’t think it’s quite apt to say, and then I will sit down, that there has been nothing since the Harbors Act from this Court, Harbor and Longshoreman Act, indicating that you could apply un-seaworthiness plus a state wrongful death statute and recover.

I think that the case of Seas Shipping versus Sieracki in 328 U.S. 85 is such a case.

And of course although we have the row to hoe in connection with unseaworthiness, there are cases which have said that faulty ladders will make unseaworthy conditions.

Arthur J. Goldberg:

(Inaudible)

Jack G. Day:

The statute would, yes sir.

I think you would.