Kermarec v. Compagnie Generale Transatlantique

PETITIONER: Kermarec
RESPONDENT: Compagnie Generale Transatlantique
LOCATION: Union Station

DOCKET NO.: 22
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 358 US 625 (1959)
ARGUED: Nov 13, 1958
DECIDED: Feb 24, 1959

Facts of the case

Question

Media for Kermarec v. Compagnie Generale Transatlantique

Audio Transcription for Oral Argument - November 13, 1958 in Kermarec v. Compagnie Generale Transatlantique

Earl Warren:

Number 22, Joseph Kermarec, Petitioner, versus Compagnie Generale Transatlantique.

Mr. Malament --

Edward J. Malament:

May it please the Court.

Earl Warren:

-- you may proceed.

Edward J. Malament:

This is an appeal from a judgment of the Court of Appeals for the Second Circuit affirming an order of the District Court for the Southern District setting aside a jury verdict in favor of the plaintiff and dismissing his complaint.

The action was brought by the plaintiff-petitioner to recover damages for personal injuries sustained by him in 1948 while a guest of a crew member on the S. S. Oregon, a passenger vessel owned by the defendant-respondent cooperation.

The vessel at the time was berthed at a pier in the North River in the port of New York.

The complaint alleged the negligence of the defendant, the unseaworthiness of the vessel and set forth the diversity of the parts.

The accident which gives rise to the suit occurred out of the following circumstances.

A crew member by the name of Yves of the S. S. Oregon obtained a pass from the commanding officer of the vessel so that Kermarec could visit him aboard the vessel when the vessel arrived in New York.

This pass was issued in accordance with the customary practice permitting crew members to entertain guests that visit their family aboard the vessel.

This pass was obtained by the crew member and was retained by him throughout this incident.

It was never shown the plaintiff.

It was never explained to him.

He never saw and knew its contents.

And in due course pursuant to arrangement, Kermarec boarded the vessel.

After some time and as he was leaving, the visit -- the visit having terminated, Yves, the crew member directed him to a central stairway, a stairway used in common by passengers as well as by crew members.

The stairway at the time was covered by a canvas runner, a single piece of linen about an eighth of an inch thick, which ran the entire length of the stairway.

Photographs of the stairway including the affixed canvas runner are attached to the transcript at pages 89 and 91.

As Kermarec started to descend the stairway, it appeared to him in all respects normal and safe.

About four steps from the bottom however, the canvas suddenly slipped from under his feet.

He fell to the bottom of the stairway fracturing his hip.

As he was lying on the deck at the base of the stairway, he noticed that the canvas was hanging loose from the edge of the fourth step.

The testimony for the most part is uncontested and is obtained chiefly from the defendant's own witnesses by way of deposition.

That it was the routine and customary practice for a porter, by the name of Bourdon to wash, cleans the stairway and to cover it with a canvas runner as soon as the vessel arrived in port, to keep it clean until the new batch of passengers embark.

And the facts disclosed that the vessel had arrived the day preceding the accident at which time Bourdon had performed the routine duty.

And that at 8 o'clock the following morning, the day of the accident, he had to remove the canvas and wash the stairs a second time because of what appeared to be the heavy traffic of the crew on the stairway causing the need within less than 24 hours of renewing the cleanliness of the stairway.

This witness also testified that he had been instructed to keep this canvas runner tight so there would be no trouble.

The testimony further is clear that he affixed the stairway, the canvas runner to the stairway by the use of two tacks at the front edge of each step, the two tacks being at the extreme edge -- edges of the canvas runner.

On one of the photographs, I think on page 90, Bourdon, the porter, marked two crosses indicating the place where he affixed the two tacks on each step.