Mitchell v. Trawler Racer, Inc.

PETITIONER:Mitchell
RESPONDENT:Trawler Racer, Inc.
LOCATION:District Court for the District Court of Columbia

DOCKET NO.: 176
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 362 US 539 (1960)
ARGUED: Jan 21, 1960
DECIDED: May 16, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – January 21, 1960 in Mitchell v. Trawler Racer, Inc.

Earl Warren:

Number 176, Frank C. Mitchell, Petitioner, versus Trawler Racer, Inc.

Mr. Katz, you may proceed.

Morris D. Katz:

Mr. Chief Justice and Associate Justices of this Honorable Court.

This is a seaman’s case and it comes here on a certiorari from the First Circuit.

The facts of the case are this, substantially.

Mr. Mitchell, the petitioner, as a seaman and a fisherman and a member of the crew of a fishing vessel, Racer, which is a fishing trawler out of Boston.

In April 1957, he was a member of her crew and at that time, she came back to Boston after having made a 10-day fishing trip to the fishing grounds.

In accordance with the usual practice, the catch was then to be unloaded.

During the spawning season, there is both spawn and fish to be unloaded and in accordance with the custom, the spawn is unloaded first.

On that day, the spawn was unloaded by the deckhands and in the unloading of the spawn, Mr. Mitchell, the petitioner, worked in the hold of the vessel.

When the spawn was unloaded and in accordance with custom, the dock and the deck and the rail are customarily washed down and those of the crew who wish to go home, then do so and the balance of the catch is taken out by those of the crew who wish to work and other persons who are hired to do the job, people known as “lumpers”.

On that particular day when Mr. Mitchell, the petitioner, finished his work in the hold, he came up on deck and then proceeded to the (Inaudible) where he change his clothes, his working clothes, changing into his shore clothes, came back up on deck, intending to go ashore.

And in further accordance with custom, he stepped up from the deck onto to the rail of the vessel which was alongside the wharf, intending from there to grasp a ladder which is attached to the side of the wharf and in that manner, to make his way ashore.

When the petitioner stepped onto the rail of this vessel and was reaching for the ladder, he slipped in some, what he described as slime and gurry.

Charles E. Whittaker:

Mr. Katz, was that a slip on the rail?

Morris D. Katz:

He slipped when he stood on the rail as he was reaching for the ladder.

Charles E. Whittaker:

The rail was — was covered in slime?

Morris D. Katz:

Yes, sir.

Charles E. Whittaker:

(Inaudible)

Morris D. Katz:

The evidence will show 10 to 12 feet of it, I believe.

As he reached for the ladder and was standing on the rail, he slipped.

And to keep himself from falling between the vessel and the dock into the water, he thrust his arm through a rung of the ladder and he hanged there for a brief period until he was able to work his back — way back to safety aboard the vessel.

When he hanged there by his arm, he suffered serious permanent injury to his arm.

This case was tried in the District Court of Massachusetts and there were three counts.

The first count was for negligence under the Jones Act, the second count for unseaworthiness and the third, for maintenance and cure.

The jury returned the verdict for the defendant on the first two counts and for the plaintiff on the third count and it was in charging the jury, that the judge stated what the petitioner considers to have been the error in the case.

He stated that notice was not — notice was — he stated that notice was necessary with respect to both the unseaworthiness and the negligence counts.

He stated that the — he made no distinction between the charge with respect to negligence and unseaworthiness and charge that in order to recover on either count, the petitioner had to show that the slime was on the rail for a period of time long enough for the respondent to have known about it and to have the opportunity to remove it.

Counsel for the petitioner made an oral request that the Court distinguish in his charge between negligence and unseaworthiness and in particular requested the Court to instruct the jury that insofar as the unseaworthiness count was concerned, notice was not a necessary element.

The trial judge denied the request.

Morris D. Katz:

The case went to the Court of Appeals who affirmed the judgment of the District Court and the case has been petitioned, it’s up here in petition for certiorari, certiorari having been granted.

Potter Stewart:

Mr. Katz, what is gurry?

Morris D. Katz:

Gurry as closely as I can describe is this jellyish, gelatinous substance that will drift from a wet fish.

Potter Stewart:

And the spawn is the raw or the (Voice Overlap) —

Morris D. Katz:

Spawn is the — is the —

Potter Stewart:

Fish eggs?

Morris D. Katz:

Fish eggs, yes, sir.

Potter Stewart:

Raw?

Morris D. Katz:

Yes, sir.

During certain seasons of the year, I think the first three months of the year, they get spawn and that becomes the part of the catch.

Earl Warren:

Just a matter of curiosity.

What kind of fish were these they are fishing for?

Morris D. Katz:

This is what they call “groundfish”, Your Honor.

Groundfish being fish swim near the bottom of the ocean, generally speaking, had it and caught.

Charles E. Whittaker:

(Inaudible)

Morris D. Katz:

They get in from the insides of a fish that they catch, Your Honor.

During the spawning season, they will be spawn inside the fish and when they — part in delicacy got the fish on the deck of the vessel.

They take out the spawn.

Spawn is set aside, set into what I believe is cotton bags and put into the hull.

The question presented in this case is whether or not notice is required in unseaworthiness claim.

Where the unseaworthiness comes from what it is described and can be described as a temporary or transitory substance.

Is there any dispute between you gentlemen as to whether this condition was in — did result as a matter of law and unseaworthiness?

Morris D. Katz:

Probably there is, Your Honor.

Since whether or not, there is unseaworthiness would be a question of fact.

In other words, whether or not the condition there created a situation where the rail, which was customarily used for stepping on and going ashore, was not reasonably suited for that purpose at that time.

Charles E. Whittaker:

Might I ask you in that connection.

Was the rail designed for such a use?

Morris D. Katz:

By accepted practice, Your Honor.

The rail of the vessel is used for that purpose.

In other words, they have — these vessels pull into a — a dock and there are ladders attached to the side of the dock and in order to get onto the ladders, the men have to step onto the rail to get to the ladder.

Charles E. Whittaker:

There is no open through the rail that they may use?

Morris D. Katz:

No, sir.

Charles E. Whittaker:

They have to get up on the rail, engulfed through the rails?

Morris D. Katz:

No, sir.

Charles E. Whittaker:

If so —

Morris D. Katz:

The only other possibility for getting ashore, as I visualized it, is for a man to climb up onto what is known as the “whale back” which is the bow of the vessel and since the whale back is raised up about possibly six or eight feet above the main deck, he might then be able to step directly from the whale back onto the wharf but the testimony in the case and the record will show that it was perfectly accepted practice for the men to step from the deck onto the rail with an intermediate step, and I don’t want to confuse the Court, from the deck onto what is known as a “checker”.

A checker merely — meaning a heavy timber which is about, I there say, 10 feet long, three feet wide and about four or five inches thick.

And these checkers are used to check sections of the deck off into squares.

They are set up into stanchions.

If this is the main deck, there would be stanchions at various spots on the deck and these checkers would be set into the stanchions, some running four and a half and some running at fourth shifts.

So that the effect would be that you would have sections of the deck.

The purpose for that being that when they dump the fish on the deck if there were no checkers, the fish will wash from one side to the other with no hindrance whereas with these checkers and they set up sections on the deck, probably five — five or six feet square.

A checker would be about the area of this part of the deck from this end to where my hand is.

Charles E. Whittaker:

(Inaudible) would be an intended use?

Morris D. Katz:

The answer to that, sir, is yes.

William J. Brennan, Jr.:

Is there —

Morris D. Katz:

Yes, sir.

William J. Brennan, Jr.:

— evidence why that ladder was where it was?

Morris D. Katz:

Why the ladder was where it was?

You mean the ladder that he was reaching for?

The ladder is affixed to the outside of the wharf at intervals of about, I there say, 100 feet and those are not movable ladders, those are permanently fixed so that when the vessel comes in and its tied up to the side of the wharf if the tide is low enough, he must get on to the ladder to go ashore.

William J. Brennan, Jr.:

Was this to say then that some such practice which made it necessary to get to the ladder from the ship —

Morris D. Katz:

Yes, sir.

William J. Brennan, Jr.:

— is indicated by the — where in fact, they had ladders there for this purpose?

Morris D. Katz:

That’s true, sir.

Earl Warren:

Mr. Katz, following through on Justice Harlan’s question to you a moment ago, assuming that the Court finds in your favor on the — on the notice issue, is there a problem before us as to whether this is — where the ship is unseaworthy?

Morris D. Katz:

I think not, sir.

Earl Warren:

Yes.

Morris D. Katz:

I think the only problem is whether or not notice — whether or not that plaintiff in the trial of that case was entitled to a charge which did not include the requirement of notice insofar as the unseaworthiness count is concerned.

Earl Warren:

Yes.

Morris D. Katz:

If this Court so finds, then we go back for retrial.

The question then would be, did this in fact constitute an unseaworthy condition with the usual test of what is unseaworthy.

Felix Frankfurter:

What became of Judge Wyzanski, talk about this having been the complain of condition, having been brought about by our joint-venturer?

Morris D. Katz:

May I say this, sir, with respect to that.

This case was tried and in the cause of the trial on two occasions, during the course of the trial and in his charge, Judge Wyzanski charged that he rule — stated and charged that he ruled as a matter of law that the petitioner, Mitchell, was engaged in the course of his employment at the time he was injured.

He was a seaman and engaged into his employment and that the injuries arose out of the employment.

I would like to say also this, sir.

Judge Wyzanski, as I’m sure you know, is a judge of whom we, of the Massachusetts Bar, are very proud.

Nevertheless, I respectfully submit that he committed error, not only in his charge but following the trial of the case and two weeks after the notice of appeal was filed in the Court of Appeals, he filed a memorandum which is part of this record.

And in that memorandum, he states —

Felix Frankfurter:

Is that on page 51 to 52, is that it?

Morris D. Katz:

Yes, Your Honor.

He states in the memorandum two things.

He says they should have been a directive verdict on the unseaworthiness charge.

But following the trial of the case, he denied the defendants request for directive verdict.

He also suggest here that they may have been a “joint venture” as a result of which —

Felix Frankfurter:

That’s why — that’s why it sought it should have been a directive verdict based on the joint-venturer ground, wasn’t it?

Is —

Morris D. Katz:

But, Your Honor, he specifically ruled otherwise at the course of the trial.

Felix Frankfurter:

Yes.

Morris D. Katz:

And I say this with all respect and with admiration for Judge Wyzanski and whose court, both Mr. Whipple and I tried — been privileged to try many cases.

Felix Frankfurter:

I thought what he meant was that [Laughs] he would have been entitled to directed verdict if he didn’t direct because of this joint venture argument of his.

And my curiosity is aroused by — I wonder what — what happens — what basis for that is and what happened to that claim?

Morris D. Katz:

The basis for that —

Felix Frankfurter:

(Voice Overlap) mean argued here one way or the other?

Morris D. Katz:

No, it is not, Your Honor.

It’s not one of the —

Felix Frankfurter:

That’s why I (Voice Overlap) —

Morris D. Katz:

— question presented.

Felix Frankfurter:

That’s why I (Voice Overlap) —

Morris D. Katz:

Well, probably we have to argue it again in the District Court if we — if I am fortunate to go back there with this case.

May I make this brief statement with respect to why he undoubtedly felt that way, two weeks after the notice of appeal was filed.

It doesn’t occur anywhere in the record of the trial of the case up to the time the jury came back with its verdict.

Felix Frankfurter:

You mean the basis for — that basis (Voice Overlap) —

Morris D. Katz:

The basis for him suggesting the joint venture.

Felix Frankfurter:

— the case.

Morris D. Katz:

When these fishermen go out normally, what they get is a fish and they bring it back and they share in the proceeds.

During the time of the year where there is spawn, by agreement with the owners as part of the proceeds of the catch, the 12 deckhands, by the way there are 17 men on this boat, there are 12 deckhands, the captain, the mate, two engineers and a cook, during the spawning season, by agreement with the owner with the employer, the 12 deckhands get the proceeds of the spawn in addition to their regular shares of the catch.

The other members of the crew they get — the captain gets what is known as a “per” or 10% of the owner’s share of the catch in addition to his share of the catch.

The cook gets also a per, something per trip, I think its $20 per trip.

The engineers each get a per and the mate also gets a per.

Now, under — Judge Wyzanski felt that since the substance on which this man probably fell was drippings from the spawn that had been unloaded and since the proceeds of the spawn went only to the 12 deckhands, there might have been the basis for saying this was a joint venture but that, I respectfully submit, sir, is a question of fact which could stand further evidence if we had the opportunity to go back and try this case again because the plaintiff relied upon the facts that the judge ruled that the course — during the trial and in his charge to the jury, that this man was injured, that he was an employee of the defendant, he was injured in the course of his employment contrary to the joint venture theory.

I — I submit that that — I have not said — I think I have made a reference to it in my brief but have not argued it specifically except to point out the inconsistencies of this learned judge.

I will not —

Felix Frankfurter:

We’ve had some cases, have we not, Mr. Katz, come into this Court involving this joint venture acquisition or interpretation of the relation of the crew to the earnings of the trip or the per.

In other connection, not in this connection, determine all these and so on, does not have it?

Morris D. Katz:

I’m not familiar with them, Your Honor.

Felix Frankfurter:

(Voice Overlap) everything was taking [Laughs] judicial notice of what the custom of — of this kind of a fishing enterprise is in your waters.

Morris D. Katz:

Well, the only experience I have had, in a case where a fishing venture is — has been called a joint-venturer and this was not my case, but I read of it, is aware there was a so-called family boat where the entire crew is made up of members of one family and when they went out fishing, they sat down, they decided, “We’ll go today,” and if they want to come back, they said, “We’d go — we’ll come back today.”

And where the fish, how to fish, when the fish always decided in concert, that isn’t what happens.

Felix Frankfurter:

The reason I asked you of sheer curiosity because I didn’t find any — any other reference except the first ground of the — the answer to the argument that might be made at this day.

And I was wondering —

Morris D. Katz:

I don’t know of any.

Felix Frankfurter:

(Voice Overlap) and what happens to it, and you’ve explained its sense very much.

Morris D. Katz:

Thank you, sir.

The petitioner says there were two fundamental reasons why notices not required in these cases.

The first reason can be called one based upon logic and reason.

A seaman and a seaman’s law is a peculiar one, without going too deeply into it because I think these facts are well-known to this Court because of the many cases on this subject that had been here.

The seaman comes under working conditions of which he has no control.

He is under an absolute duty to obey at all times.

Morris D. Katz:

He owes a duty of obedience and loyalty and service to his vessel and to his employer which he cannot deny.

For that reason and speaking logically still, it is the petitioner’s position that the shipowner has a corresponding absolute duty to provide at all times for this man engaged in this hazardous occupation, a seaworthy vessel, and that applies not only to seaworthy vessel with respect to conditions that are permanent such as the basic structure of the ship but also such things as maybe called transitory or temporary.

Since the seaman must serve, it is submitted that the shipowner must provide and maintain this vessel.

Now, with respect to — apart from logic and reason, we have many cases on this subject.

Felix Frankfurter:

You must serve at the — simply become a seaman.

Morris D. Katz:

He must serve, Your Honor.

Felix Frankfurter:

What?

Morris D. Katz:

He has no alternative.

If he is a seaman, he must serve.

If he is in the service of a vessel —

Felix Frankfurter:

No —

Morris D. Katz:

— unless incapacitated —

Felix Frankfurter:

But he must not get into the servitude, free not to get into the service of the vessel, isn’t it?

Morris D. Katz:

It is their freedom of choice before joining the vessel.

Felix Frankfurter:

I suppose, I must said if I become a judge of this Court.

I suppose you must —

Morris D. Katz:

[Laughter]

Felix Frankfurter:

— serve as a lawyer to become a lawyer.

Morris D. Katz:

The prior supporting decisions are another basis for holding that notice is not required in these cases.

The general proposition is that a seaman — a shipowner has an absolute and non-delegable duty to provide and maintain a seaworthy vessel, and that duty is not based upon concepts of negligence.

And these cases run through the Osceola, the Sandanger case, Mahnich case, Sieracki case, the Petterson case, Boudoin, Ferguson as well as others.

For example, in the Petterson case this quote comes, “There is an absolute duty to provide a seaworthy vessel, the Sieracki liability without fault.”

Felix Frankfurter:

Do you disagree with Judge Magruder that while there’s in language in these cases, the cases on the fact, plenty of language, the cases on the fact, did not have to face issues that he thought he had to face in this case, what is to do with that?

Morris D. Katz:

I don’t understand your question, sir.

Felix Frankfurter:

Judge Magruder recognizes that all the — recognizes the language, that there was language in terms of absolute liability in the cases which — to which you refer.

Morris D. Katz:

Yes, sir.

Felix Frankfurter:

But his analysis of the cases is this, that in none of the cases was the issue faced was — did the facts require an examination of the basis of the liability regarding the differentiation that he makes between the vessel being seaworthy, when it sets out and conditions arising subsequently which could not be — which — which it could not be dealt with except on notice or opportunity to deal with it.

You deny that — I’m not now saying that — that he himself recognized it in his phrase you can’t brush off or talk like that, but you deny that on the examination of the — of the facts in each of the cases which he discusses and to which you refer the fact, one of these facts.

Morris D. Katz:

The facts are different, Your Honor.

The facts are such, for example, in these cases that I have mentioned, any one of this stevedore cases, Seiracki, Petterson.

Morris D. Katz:

Judge Magruder says, “Due diligence is enough once the voyage has commenced.”

But that is not so.

All of these —

Felix Frankfurter:

May not be so, what I’m asking you is whether it wasn’t so whether the decisions in those cases deal — did deal with supervening occurrences after the vessels that are underway.

Morris D. Katz:

Well, you are now covering a group of cases, and I would have to examine each one.

Felix Frankfurter:

Well, that’s what he did and I’m asking you whether you think he unfairly dealt with them on the facts.

Morris D. Katz:

I don’t know, Your Honor.

But I think he unfairly dealt with them in his conclusion.

Felix Frankfurter:

Well, that — that maybe so.

You may — you may agree with everything he says and yet reach the opposite conclusion but this opinion of his challenges inquiry into the basis of this talk about absolute liability.

I’m not —

Morris D. Katz:

Two things he says —

Felix Frankfurter:

— saying he’s right.

Morris D. Katz:

Two things —

Felix Frankfurter:

I’m not saying he is right.

Morris D. Katz:

Yes, sir.

Felix Frankfurter:

But it is important intellectually to find out whether his discussion has a foundational sense, doesn’t it?

The foundation.

Morris D. Katz:

There are two things that he says.

Fundamentally he says, “We begin with the Osceola.”

Now, we say beginning with the Osceola, absolute liability, absolute duty to provide a seaworthy vessel.

He says that is faulty.

It’s a faulty premise.

And that is recognized, Your Honor.

Felix Frankfurter:

He didn’t say that, he says that is dictum which is a different thing.

There are lots of talk in cases which do — are not necessitated by the facts in the case, not maybe that the dictum has become law or should become law.

What I’m trying to pursue with you, the validity of his inquiry.

Morris D. Katz:

In the — in the Osceola case, the dictum did not go to the actual facts of the case itself.

But may I suggest, sir, that — in my brief, I quote Mr. Justice Stewart in his recent decision in the Halecki case who in turn is quoting Gilmore and Black, and I read this quotation, “The eventual development of the doctrine of unseaworthiness in this Court is familiar history, although of dubious ancestry,” and I think he there refers to the Osceola —

Felix Frankfurter:

Yes.

Felix Frankfurter:

But Gilmore and Black also a question.

What was said in Osceola as against what was before the Court.

Morris D. Katz:

That is —

Felix Frankfurter:

Don’t they?

Morris D. Katz:

That is true, sir.

But he says there, the doctrine was born with the Osceola although of dubious ancestry and immerged full-blown in Mahnich against the Southern Steamship Co. as an absolute and non-delegable duty.

Now, while it began with dubious ancestry, may I say with respect to that, there is a vast body of law.

Now, based upon that so-called dubious ancestry even though it started as dictum in the case and the facts of the case were not — the dictum was not directly in point with the facts of the case.

Potter Stewart:

That was the rope case, wasn’t it?

The rope?

(Inaudible)

Morris D. Katz:

No, I think, you’re referring to the Mahnich case.

Potter Stewart:

Mahnich, that’s the one.

Morris D. Katz:

Where the rope broke and there was another rope, a good —

Potter Stewart:

Yes.

Morris D. Katz:

— rope, and they picked up a faulty rope —

Potter Stewart:

Yes.

Morris D. Katz:

— and that was Mahnich.

May — may I say this with respect to that Osceola and its dubious ancestry, I think that illegitimate ancestry if such it’d be is not as important as contemporary, propriety and integrity and reasonable basis for this doctrine whatever its origin.

Felix Frankfurter:

Well, now, you’re denying you’re about to begin doing what Judge Magruder suggest one does, namely, examine the basis of liability and on the basis of such an examination reach a conclusion, it is founded on reason and policy rather than the repetition of what he conceives to be a mere dictum.

Morris D. Katz:

The reason and policy, Your Honor, I would say is — arises out of the relationship between the parties, between the shipowner and the seaman, the seaman who must — who must subject himself to the working conditions provided by the shipowner.

He has no way of changing them except that as you suggest did not going aboard but I submit that he has no way of knowing —

Felix Frankfurter:

(Voice Overlap) —

Morris D. Katz:

— what the conditions are aboard until he gets aboard.

Felix Frankfurter:

Do you know the case of Dixon against the United States where the Second Circuit examine the pros and cons of this?

Morris D. Katz:

Yes, sir.

Felix Frankfurter:

Do you think it didn’t reach a conclusion?

Morris D. Katz:

No.

They did not, sir.

Felix Frankfurter:

But you give — you only give him one half of the consideration besides talking about the seaman side, there is another side, isn’t it?

Morris D. Katz:

Yes —

Felix Frankfurter:

There is other side —

Morris D. Katz:

Yes, there is.

Felix Frankfurter:

(Voice Overlap) the whole liability without fault is — is against the general principle of liability in Anglo-American law.

Morris D. Katz:

On the other hand, there are many instances where liability without fault exists.

Felix Frankfurter:

And that’s the problem.

That’s (Voice Overlap) —

Morris D. Katz:

That is the problem, sir.

Felix Frankfurter:

— the opinion poses to us.

Morris D. Katz:

That is the problem, sir.

And may I say, if I may, parenthetically, although the Dixon case did not face up to that question and decide whether there was liability for unseaworthiness arising after the commence of the voyage, the two subsequent cases in the Second Circuit did.

The Poignant case specifically held that due diligence was not enough, that unseaworthiness arising after the voyage began was also a basis for liability and that was — there was another case, Hildebrandt against the United States which also said the same thing, following the Poignant case in the Second Circuit.

Could I ask you a question about this author of Dixon?

Do you have any case up to now where the indictment that you’re contending for has been applied in the so-called transitory unseaworthiness case?

Morris D. Katz:

The —

I think I made the statement in that opinion, “It has never been decided.”

Well, that was a number of —

Morris D. Katz:

It has not.

— that was a number of years ago, and I was wondering what the situation had been since.

Morris D. Katz:

It has not been specifically decided on this level.

The doctrine arose, the so-called transitory unseaworthiness doctrine arose with the Cookingham case in the Third Circuit.

There was a strong dissent by the Chief Judge of that Court.

Subsequent to that, there was the Poignant case in the Second Circuit.

That’s Judge Hincks’ decision.

Morris D. Katz:

Yes, sir.

Yes.

Morris D. Katz:

With a concurring opinion by Judge Frank.

And those two cases stand diametrically opposed, the Cookingham case and the Poignant case.

In the Cookingham case, what apparently the Court here was that, I read this from the Cookingham case, “In the present case, the stairway upon which the libellant slipped was perfectly sound.

It’s unsafe condition being the sole result of the temporary presence of a foreign substance upon it.

Morris D. Katz:

To extend the doctrine of unseaworthiness to cover such a case as this would be to make the shipowner an insurer.”

Now, that is the fear in the Cookingham case.

I submit to this Court that doesn’t happen.

Felix Frankfurter:

I thought that’s what absolute liability means?

Insurer (Inaudible)

Morris D. Katz:

I think not, sir, respectfully.

Felix Frankfurter:

Please expound that.

Morris D. Katz:

There is an absolute duty on the part of the shipowner to provide a seaworthy vessel.

But the question then is what is a seaworthy vessel.

Now, with this — I think in the — I think in the Cookingham case, there was jello on the stairway.

With a proper charge from a jury — to a jury, there would be presented to the jury the law based upon the absolute duty to provide a seaworthy vessel but then, the question is presented to the jury and it is a question of fact.

Did in fact this substance, whatever it may have been, whether it’d be slime on the rail of a fishing vessel or — or a jello on the stairway of a merchant ship, did this substance in fact create an unseaworthy condition?

Now, that is the shipowner’s protection.

He is not an insurer.

Felix Frankfurter:

You — is — is that different — is that a different way of saying, was there a cause in connection between the condition complained of and the resulting injury?

Is that what you mean?

Morris D. Katz:

No, sir.

It’s not a question of causation.

It’s a question of fact as was stated in the Poignant case.

And the Poignant case holds directly for the — for the position that I am contending for, as stated in the Poignant case, not — not every deposit of a foreign substance makes the vessel unseaworthy.

Felix Frankfurter:

You mean the judge can charge to the jury in the view of this slippery stuff, and it wasn’t removed, it was removable, had no business to be there, it was the result of the injury but you may find gentlemen of the jury that nevertheless that didn’t make the vessel unseaworthy, is that it?

Morris D. Katz:

That’s true, sir.

Felix Frankfurter:

Well, I should think Judge Wyzanski, if you go back to him on your theory, could easily charge you out of court on your claim.

Morris D. Katz:

Your Honor, he easily could.

And if I don’t —

Felix Frankfurter:

(Voice Overlap) desirable to have a rule of law that can be evaded that way?

Morris D. Katz:

I think the rule of law contended for here is very important.

And I think what happens —

Felix Frankfurter:

It’s not if you qualify to that hearing.

Morris D. Katz:

And I think that what happens in the Court if we are fortunate to go back there is subject to the direction of Judge Wyzanski —

Felix Frankfurter:

So that it means that is an unseaworthy condition because slippery stuff on which a seaman is running or hastily walking to his post to watch can naturally — were naturally fall but you gentlemen of the jury didn’t find it was unseaworthy.

Morris D. Katz:

It is a question of fact for the jury, sir.

Potter Stewart:

And the test you would say is whether or not it’s reasonably fit for the Court’s intended use?

Morris D. Katz:

That’s true, sir.

That’s the specific answer.

Potter Stewart:

So the jury might find, for example, that the — the rail — the intended use of this rail wasn’t to walk on.

Morris D. Katz:

No.

They — they couldn’t find that it was not to walk on but they could — they could find based upon this discussion I just had with Mr. Associate Justice Frankfurter, they could find either that this foreign substance on the rail did in fact constitute an unseaworthy, unfit, inadequate condition on that rail or it did not.

That would be the question of facts submitted to them in the charge.

But notice, which is the issue in the case as presented to this Court today, would be foreign.

It would be a foreign element in any case relying upon unseaworthiness.

Potter Stewart:

In response a moment ago to — a few moments ago to Mr. Justice Harlan as to whether there are any cases here based which — which go to hold a shipowner liable for transitory unseaworthiness, isn’t it the Petterson case although a per curiam decision here, isn’t that rather helpful to your position?

Morris D. Katz:

Very helpful, sir.

It specifically says, “Notice was not an element in an —

Potter Stewart:

And that involve —

Morris D. Katz:

— in an unseaworthy case.”

Potter Stewart:

— and that involve a transitory situation in effect that if —

Morris D. Katz:

I was getting to that in my argument.

Many of these are transitory things.

For instance in the Petterson case, you got to block ride aboard by stevedores and a stevedore is injured.

And in the decision on that case, it was held and the per curiam decision affirmed it that negligence has no part of a case based upon unseaworthiness and lack of control or notice has nothing to do with it.

And that case, I think, went as far as we — as the cases have gone less far on this particular issue.

I wonder if you get anywhere with this problem approaching it a little differently.

Do you regard unseaworthiness is the equivalent of an unsafe place to work concept and negligence and so on?

Morris D. Katz:

That’s a very close question and a rather sticky question, sir.

And as —

And it has a great deal to do with his problem.

Morris D. Katz:

— referred to the decision in this Court —

It has a great deal to do with this problem as you say.

Morris D. Katz:

Well, personally, I don’t.

Morris D. Katz:

Personally, I have regarded the safe place to work is based upon negligence.

And in my complaint, I said it forth in that way is —

Charles E. Whittaker:

Is there any doubt about that?

Morris D. Katz:

— as a portion — Sir?

Charles E. Whittaker:

Is there any doubt about that?

That the safe place to work is a negligence concept?

Morris D. Katz:

Is there any doubt about it?

Well, I refer to this Court to its decision in the West case several weeks ago.

In which apparently the attorney representing Mr. West contended that there were two absolute duties, one, to provide a seaworthy vessel and the other, to provide a safe place to work.

And this Court held at that time that there is only one absolute duty and that is to provide a seaworthy vessel with respect to the safe place to work, that’s a negligence count.

Charles E. Whittaker:

Thus, to exercise due character by the safe place to work.

Morris D. Katz:

That’s true, sir.

And — and as matter of fact, this Court made that distinction.

Well, what I was thinking of is this.

Is there a difference in the point of view of seaworthiness leave out the time element for a moment whether it’s the inception of the voyage or something that occurs after the voyage starts, is there a difference in your view between a deck that has a hole in it and a deck that has some fine line?

Morris D. Katz:

Both may be unseaworthy.

Do you think there is no difference?

Morris D. Katz:

Well, of course —

I mean as — it may be that there isn’t any difference —

Morris D. Katz:

From — from the point of view of my rationality and approaching it as an unseaworthy condition, both, I would say, are unseaworthy — unseaworthy conditions.

I will not —

Potter Stewart:

How long did the member, if the opinion says, I don’t — how long have the — have the oil been on the deck in the Tungus case?

There were — there was — there was — the record showed that it had been long enough on the — on the deck as I remember to charge the shipowner with notice because that was —

Morris D. Katz:

Well, that, of course —

Potter Stewart:

— that was an impermanent condition —

Morris D. Katz:

— that of course is base upon —

Potter Stewart:

— but it was a little bit more transitory.

Morris D. Katz:

— based upon negligence.

Charles E. Whittaker:

Well, it was that —

Potter Stewart:

Also unseaworthiness.

Charles E. Whittaker:

You actually told us in the Tungus case that it called for a man to come to repair asking (Inaudible) wasn’t it?

Potter Stewart:

Mr. Justice Whittaker is correct.

Morris D. Katz:

I think so, sir.

Charles E. Whittaker:

Now, do we actually — I have to reach this question before.

Can the action reach, if Judge Magruder is right, I mean, Judge Wyzanski is correct, the second — we do a matter of proposition poses on page 52 of this record, namely, that the plaintiff here was injured by the negligence or by the conduct whether or not there’s negligence of his agent then he could recover only against his agent for then he has injured himself under doctrines of the respondeat superior and would have no claim against the owner of the ship.

Now, that’s the theory under which Judge Wyzanski says, he should have directed a verdict for the shipowner.

Point two, that he is right about that, then there was nothing to submit to a jury.

He should have directed the verdict for the shipowner, was that not followed if he’s right?

Morris D. Katz:

If he had been right.

And the evidence showed otherwise at the trial because he ruled otherwise at the trial and —

Charles E. Whittaker:

Why was he stating this?

He says that (Inaudible) whether the deposit was made by a person who regardless of his former employment was at the time of deposit the agent for and only for the plaintiff, notice (Inaudible)

Morris D. Katz:

As to why he said it, sir, I cannot answer that.

And I say that with profound respect for Judge Wyzanski.

But I do say this.

William J. Brennan, Jr.:

Well, Mr. Katz, the respondent says the same — same to Mr. Justice Frankfurter as for the first half considerably.

Morris D. Katz:

Yes, sir.

William J. Brennan, Jr.:

Or he had posed the rule at the trial that the — the plaintiff was an employee.

Morris D. Katz:

The record shows that he ruled at the trial upon which the plaintiff had a right to rely and did rely.

William J. Brennan, Jr.:

Now, this may come up if you’re fortunate enough (Voice Overlap) —

Morris D. Katz:

If we’re fortunate to go back there, it may come up again and will be the subject of further evidence —

William J. Brennan, Jr.:

Yes.

Morris D. Katz:

— since the issue has been raised in this manner.

William J. Brennan, Jr.:

Well, this all depends upon this arrangement you described before us among the deckhands as to (Voice Overlap) —

Morris D. Katz:

That’s true, sir.

That’s true.

Charles E. Whittaker:

You don’t understand then that this memorandum is filed in explanation of his action as his hearing by the Court?

Morris D. Katz:

No, sir.

I do not.

This case has already been appealed to the Circuit Court of Appeals at that time.

Morris D. Katz:

I think the plaintiff had a right to rely upon the ruling the judge made at the trial and cannot — and I don’t think should be bound by a memorandum filed by the judge at the Court of Appeals — after the notice for appeal has been filed.

Charles E. Whittaker:

Would you still maintain that that was so if, as a matter of law, on the record made at the trial, the Court is right in concluding he had erred in submitting the case to the jury and should have informed it?

Morris D. Katz:

I think on the evidence shown is not correct, sir.

Charles E. Whittaker:

Or perhaps not.

Morris D. Katz:

And having relied upon the rulings he made at the trial and being for one of this possibility, there would be further evidence on this subject.

Your point is you didn’t have a chance to litigate that issue.

Morris D. Katz:

When the judge made the ruling, that’s true, sir.

When the judge made the ruling that this man is a seaman, employee, injured in the course of his employment, that ended it as far as —

William J. Brennan, Jr.:

You didn’t have to litigate it.

Morris D. Katz:

Sir?

William J. Brennan, Jr.:

You didn’t have to litigate it —

Morris D. Katz:

No.

We did not.

William J. Brennan, Jr.:

— in light of the ruling.

Morris D. Katz:

In the light of the ruling.

Felix Frankfurter:

You say it isn’t in the case.

You — you say it isn’t in the case.

Morris D. Katz:

That’s true, sir.

Hugo L. Black:

How did this memorandum get in here if it was written in the absence of (Inaudible) appeal?

Why is it in the record?

Morris D. Katz:

Why is it the record?

Hugo L. Black:

How — how did it get in?

Morris D. Katz:

Two weeks after the notice for appeal was filed, this memorandum was filed in the District Court.

When the record was prepared, I ask the clerk to — I think my brother has included in his portion of the record that he designate it, and that’s how it gets in.

Charles E. Whittaker:

Was the motion for judgment, notwithstanding the brief, the motion to be filed by that in the brief?

Morris D. Katz:

No, sir.

There was not.

Charles E. Whittaker:

Well, this is his opportunity and only opportunity to retroact was it, in the — on his own after the verdict of the jury.

Morris D. Katz:

Yes, sir, and after the notice for appeal in the Court of Appeals.

Charles E. Whittaker:

Well, even so.

Charles E. Whittaker:

At anytime, the Court could point out, could it not, I’ve made a mistake in — for giving this case to the jury, I should have taken a common jury, therefore, if I did make some errors into my charge, they cannot hurt you because I shouldn’t have let it go to the jury at all.

Hugo L. Black:

But why couldn’t we get a memorandum from — in there if he changed his mind but you can get it after the appeal?

Morris D. Katz:

I suppose you can always get memorandum if the judge wants to file them.

Charles E. Whittaker:

So his — the question of when that his question is right, if he — if he right in saying that on this — on this record, as a matter of law, no case has made when you could say at any time (Inaudible) of the argument to say it too if it is true.

Morris D. Katz:

But — but did not the — I — I submit, sir, did not the plaintiff had the right to rely upon the rulings made by the trial judge at and during the trial and following the trial upon motion by counsel?

Charles E. Whittaker:

I would think so.

Morris D. Katz:

There —

Charles E. Whittaker:

I would think so.

Felix Frankfurter:

That’s your point.

Morris D. Katz:

Yes, sir.

Felix Frankfurter:

But not that he filed it two weeks later, I should think a judge can try in two weeks, can write a memorandum spelling out the basis of his ruling provided he doesn’t change the basis of his ruling on which the judgment was based.

Morris D. Katz:

Precisely, sir.

Felix Frankfurter:

If there be no objections to his filing of memorandum in explication of something that he ruled and spelling it out.

That’s when we postpone sometimes the filing of opinion.

Morris D. Katz:

But the memorandum as he — as — as written —

Felix Frankfurter:

As really for you entirely, all I’m saying is that the difficulty is not that its two weeks late but it’s unrelated to the case as made out at the trial.

Hugo L. Black:

But why couldn’t he file six months after the appeal at the Court of Appeals supposing the record has any relevance to it?

Does it have any relevance in here?

Morris D. Katz:

It might have — no, sir.

It has no relevancy to the — to the trial of this case or to the issue before this Court.

Hugo L. Black:

It has a relevance in that Court based on the record that’s used.

Morris D. Katz:

I — I —

Earl Warren:

(Voice Overlap) of Justice Whittaker’s questions to you, it seems to me that the judge took it out of the case in the very first sentence of his charge to the jury.

He said in this case, “On the basis of rulings I made earlier, I have instructed you on the undisputed fact, Mr. Mitchell is to be regarded as being an employee of the defendant and therefore entitled to those rights, if any, which flow from the maritime law and flows from the Act of Congress.”

He took it out, didn’t he?

Morris D. Katz:

That’s true, sir.

Earl Warren:

Right there.

Morris D. Katz:

That’s true.

Charles E. Whittaker:

(Inaudible) I did commit error in my charge to the jury.

In fact — I am not letting (Inaudible) I should not have submitted (Inaudible)

Morris D. Katz:

That is to say something different, sir.

In this case, in this situation, what the judge did is he filed a memorandum which contained two inconsistencies with — with his ruling at the trial.

And that is why I say the plaintiff should not be bound by that memorandum.

Charles E. Whittaker:

(Inaudible)

Morris D. Katz:

Precisely, sir.

And not only did he make that ruling at the end of the evidence, the conclusion of the evidence but during the course of the trial he made that ruling which relying upon that ruling, the plaintiff felt there was no necessity for introducing any further evidence on that issue.

I think the discussion in the questioning on this — on this matter has covered a great portion of what I had intended as a prepared argument.

But there are certain things that I would like to mention briefly.

If we have here a duty, an absolute duty, then the question is as to the meaning of what is meant by “absolute”.

And if we take the dictionary meaning of “absolute” which is stated to be without limitation or restriction or qualification, then there should be no limitation or qualification or restriction upon that absolute duty even with respect to temporary unseaworthy conditions if they can be so described.

Now, notice is an element in a negligence action.

I don’t think my brother will dispute that.

To introduce notice into an unseaworthiness case is to breakdown the basic distinction between these two causes of action in many types of cases.

Charles E. Whittaker:

(Inaudible)

Morris D. Katz:

True, sir.

If we can rely upon what the case is saying and there is an absolute duty, and the absolute duty is continuing at all times because the — the duty on the part of the seaman is to serve at all times, then even after the commencement of a voyage and even when the unseaworthy condition as complained of is a temporary condition.

Logic requires that there should be a — an equal extension of the duties, the correlative duties one to the other, the shipowner to the seaman and the seaman to the shipowner.

If the seaman’s duty continues during the entire period that he is in the service of the vessel, why not then require that the shipowner provide this seaworthy vessel during the entire period that this man is in its service both before the vessel commences his voyage and after.

And the two specific cases on that point after the Dixon case did not resolved it where the Poignant case and the Hildebrandt case, Hildebrandt not being cited on my brief but being in 226 F.2d.

If it is said as a shipowner may say that this is harsh doctrine and as Judge Magruder said in his opinion, then it is no harsher than the rigorous demands made upon the seaman.

The burden of the shipowner is not a bit more rigorous than what is expected of the seaman.

He still has that protection that I mentioned in answer to questions, the question of fact whether or not in fact this condition complained of constitutes an unseaworthy condition, a question of fact for the jury.

In effect and in summation, I would say that the decision of the court below is really an assault upon the law and a challenge to the logic and reason as presented by the petitioner.

And I submit further it’s contrary to many decisions of this Court even though the specific question, as in this case, was not there answered.But if we consider the implications of the Boudoin case and the Petterson case, the answer is found in those cases.

Felix Frankfurter:

Well, the Petterson case is a very different case.

That involves the question whether or not in the loading of the ship by a stevedoring company, the so-called independent — that the owner of the ship is liable to the — in so-called independent stevedoring company employees, the stevedore, in — for loading the ship in port, whether the doctrine of the owner’s responsibility, unseaworthiness is limited.

He asked stevedoring company from the load in port, that’s a very different question to me.

Morris D. Katz:

May I suggest, sir, that if the implication is that — it — that the unseaworthy condition arising after the commencement of the voyage is the question than in any of the stevedore cases whether is handling of cargo, they must inevitably had occurred after the voyage began otherwise they wouldn’t be handling cargo.

Felix Frankfurter:

He is, without going to all the cases, he is — was loading the ship in port and the question they raised is the one that this Court decided that the stevedoring employees are in fact, for purpose of seaworthy liability or responsibility, seaman at the essence of that holding, at the essence of the law of this Court as to those cases.

It was a different thing from the problem that you rightly indicated now, namely, whether the vessel a wholly seaworthy vessel underway out in the ocean is something happening transitory or something that couldn’t possibly have been foreseen or mended whether the doctrine apply to that situation.

Felix Frankfurter:

I’m not suggesting remotely that that is all I’m suggesting is different cases should not be accumulated to be the same way because the whole question is whether this doctrine should be extended to a vessel that left forth and is on its own.

Morris D. Katz:

Based —

(Inaudible)

Morris D. Katz:

Sir?

Based upon the arguments presented, it is the contention of the petitioner that the decision of the court below is in error and should be reversed.

Earl Warren:

Mr. Whipple.

James A. Whipple:

Mr. Chief Justice, may it please the Court.

I had intended to speak from an outline but in view of the questions of Your Honors, I should like to take up several of those of matters first.

At first, there was a question as to the decisional analysis of the cases in this Court.

I suggest to Your Honors and to this Honorable Court that all of the cases decided by this Court may be distinguished on this unseaworthiness case by the fact that the defect of the unseaworthiness itself was a latent or open or defect in the equipments itself.

For instance, in the Mahnich case, there was a piece of rope which was defective and that it was rotted by reason of having been installed aboard the ship for sometime, negligently picked up by the mate.

And I — Mr. Justice Frankfurter dissented on that case on the ground that he believed that was — that negligence was the cause of the injury.

In the Petterson case, even though it is involved with the question of longshoreman and control, the defect was a defect in the block itself which broke.

Potter Stewart:

(Inaudible) which was not a part of the ship’s regular gear, isn’t that true?

James A. Whipple:

That is true.

It’s — in that respect — it is like the (Inaudible) case in which it had been on there long enough to become part of the ship.

The (Inaudible) case, I believe was hatch board which the Court said was a part of the ship.

And I do not quarrel with the Petterson case on that ground such — there was some other —

Potter Stewart:

There was a block — a block that had been brought aboard by the various —

James A. Whipple:

Yes.

Potter Stewart:

— stevedoring (Voice Overlap) —

James A. Whipple:

But it did have a defect in it, sir.

It —

Potter Stewart:

How long it had been — had been aboard?

Is it shown here?

James A. Whipple:

I don’t know, Your Honor.

It was being used and —

Potter Stewart:

It was no part of the regular tackle tail of the ship at all?

James A. Whipple:

No, sir.

But it had been so attached to the ship that it was being used to unload the cargo.

Potter Stewart:

Temporarily.

Is that true?

I mean (Voice Overlap) —

James A. Whipple:

Well, I presume that the longshoreman company was going to take it back after they were through using it.

That’s suggest, Mr. Justice Stewart, also the problem of time involved in these matters whether a negligent act which may produce unseaworthiness gives rise to an action for both at the same time without a lapse of time.

Felix Frankfurter:

But if the owner brings aboard something which isn’t part of the permanent gear of the ship, that wouldn’t leave him of unseaworthiness responsibility, would it?

The owner didn’t bring it on the board but the issue was not the character of the object that should be offending — brought about the injury but who is responsible for the injury.

That’s the —

James A. Whipple:

Well, that was the issue in the Petterson case.

Felix Frankfurter:

That’s the issue — that’s the issue on which it came here.

James A. Whipple:

Yes.

Felix Frankfurter:

It didn’t come here on this at all.

James A. Whipple:

Well, referring to some further cases of inherent defect, as I spoke, the (Inaudible) case.

The — the Ross and (Inaudible) case, I believe, had — were — no, that was — yes, that was a case in which eight hours had elapsed.

So that — I would contend, Your Honors, that this — there is a distinction between the present case and those cases are already decided in this Court in that the temporary — temporary presence, transient presence of a slime on the rail in this vessel cannot be compared with the cases in which there is an inherent defect in the rail itself.

This rail was perfectly strong, it was — it was wide enough for a man’s foot to step on if that was the practice in custom, it was high enough to prevent a man from being washed over board even with the slime on it, I would contend to Your Honors that it is reasonably fit and adequate for its purpose.

Potter Stewart:

Now, that — that would be an issue for the jury if is — if this is a jury case —

James A. Whipple:

Yes, Your Honor.

Potter Stewart:

— for you to say that.

James A. Whipple:

You see, the unseaworthiness doctrine provides for absolute liability but also says that the — pertinences may — must be only reasonably fit for their purposes.

Now, reasonably is a word which is important — imported from the negligence side and is what really raises the confusion in this matter.

Charles E. Whittaker:

Do you mean absolute liability or absolute duty that provides reasonably a safe place?

James A. Whipple:

No, Mr. Justice Whittaker.

Liability is what I mean because this Court has already held in the West case before referred to that there is no absolute duty to provide a safe place to work.

And there is some confusion, may I suggest also, in whether this comes under that doctrine or under the unseaworthiness doctrine.

Charles E. Whittaker:

That’s what measures concept of (Inaudible).

James A. Whipple:

That is true, Your Honor.

And you see, if we hold this to be an unseaworthy problem, it raises in, may I suggest, two problems in addition.

First, is at reasonably fit, is there an inherent defect in it?

Is it by its very nature not fit or — and if it is held to be unseaworthiness, it then raises the problem of the safe place to work doctrine, the negligent side.

James A. Whipple:

May I suggest that — that West case has — has some repercussions already.

In the Second Circuit, I would — it is not in my brief and I would refer you to it, is the case of John Lyons versus Empresa Hondurena De Vapores decided December 18th, 1959.

John Lyons versus Empresa —

William O. Douglas:

Lyons?

James A. Whipple:

Lyons, L-Y-O-N-S, sir.

William O. Douglas:

What court?

James A. Whipple:

That’s in the Second Circuit Court of Appeals.

Hugo L. Black:

What was the second name?

James A. Whipple:

Empresa, E-M-P-R-E-S-S-A, Hondurena, H-O-N-D-U-R-E-N-A, De Vapores, V-A-P-O-R-E-S.December what?

December 18th.

Charles E. Whittaker:

Lyons is a person?

James A. Whipple:

Yes, sir.

In the Second Circuit.

Judge — Judges Clark, Hincks and Waterman.

And Judge Clark, Circuit Judge Clark wrote the decision.

Now, in this case, which I am referring to, the Lyons case.

The ship had a tank which had to be cleaned and it was an open tank and a 12-inch board was laid across the tank.

And temporary lights were installed to light the area.

The men injured across this plank, went into an opening on the other end of it and was working in there and said that when he came out, the lights were out causing him to fall into the tank.

There was evidence that another man had crossed this plank several — two minutes before this occurrence, the lights were on and he had returned two or three minutes after the occurrence and the lights were on so that the lights were off at the most two or three or four minutes here.

Now, the Court referred to the West case in this decision and it said that it is clear that the shipowner’s only duty was that of exercising reasonable care under the circumstances citing West versus United States in the Supreme Court on December 7th and also citing the Halecki case.

Indeed, plaintiff seems to have recognized this principle when he withdrew a claim of unseaworthiness at the trial.

So that if the Second Circuit ever did hold that transitory conditions created unseaworthiness, it now appears to be in some doubt, he’s — he’s certainly a transitory condition which lasted only three or four minutes and they didn’t even consider it under the unseaworthiness side.

Now, in the Second Circuit also, on December 1st, 1959, another case which I did not cite in my brief, Santa Maria, this is the steamship Othem, O-T-H-E-M decided December 1st in which the Second Circuit and the same judges said that the presence of — so that a deck made slippery by rain water does not constitute an unseaworthy condition.

Now —

Felix Frankfurter:

Did you say December 1st, Mr. Whipple?

James A. Whipple:

December 1st, Mr. Justice Frankfurter.

Are those both cases, Mr. Whipple, where the ship was at — in her home port?

James A. Whipple:

Let me see, the — yes.

The — this last one I cited, the Santa Maria case was decided it was a longshoremen while unloading the vessel and the other case — yes, because it was Bethlehem Steel employee injured while work and the power in that case came from Bethlehem Steel, their installation on shore I presume.

James A. Whipple:

Well, if we hold that a transitory condition equates unseaworthiness, then we meet this problem — further problem of — when does the — what kind of a condition, what kind of a transitory condition.

Rainwater on a deck is not making the deck slippery, doesn’t make the deck not fit for its purposes according to the Second Circuit.Grain dust on deck as in the Pope — Hawn versus Pope & Talbot oil on an oil tanker, coal dust on the carrier, slime on a fishing vessel, these problems then arise if we hold this to be unseaworthy.

This is all independent, I take it, whether the point of time at which the condition arose.

James A. Whipple:

Well, Mr. Justice Harlan.

May I say that I would grant that unseaworthiness could exist if time has elapsed and if it’s noticed.

If it becomes such a part of the vessel by the time elapsed and noticed that it is then a part of the vessel and not just a transitory, of course, then, it’s no longer a transitory substance.

Felix Frankfurter:

Time may give — time may imply notice as to work?

James A. Whipple:

Yes, sir.

Charles E. Whittaker:

What does that do, if I may ask, Mr. Whipple, to the concept of contract?

Do you have any views on that?

James A. Whipple:

Well, this may be a concept of — of contract, Mr. Justice Whittaker.

But when the Court says that it must be reasonably fit, it is bringing in also concepts of negligence.

Contract action, I — I submit, maybe for carelessly performing a contract so that there is that element in it.

Earl Warren:

Well, is the point you’ve been arguing in this case, the only question was the question of notice?

James A. Whipple:

Is the question what, sir?

I beg your pardon.

Earl Warren:

As to what is — as to whether this is unseaworthiness or not.

James A. Whipple:

I have been addressing myself to the problem.

First, that it is not there is not unseaworthiness, secondly, if it is in this sort of unseaworthiness case notice or and opportunity to correct definition should be made a requisite, perhaps we can get around the difficulty by saying that it doesn’t become unseaworthiness until there is time and notice.

There are certain other aspects of the absolute duty to provide a seaworthy ship.

For instance, the — the latest, newest most reasonable — as the newest and latest and most modern appurtenances don’t have to be supplied but only reasonably fit.

It’s like the question of the — of the snowflake.

The owner doesn’t have a duty to catch the first — every snowflake but accumulation and time affect his duty, and these suggest notice.

Charles E. Whittaker:

(Inaudible) that the duty is, of the shipowner, to exercise reasonable care to make and keep the facility reasonably safe, is that correct?

James A. Whipple:

No, sir.

No, Mr. Justice Whittaker.

I do not quarrel with the concept of absolute duty to provide a seaworthy ship.

I do say that a seaworthy ship involves only reasonably necessary appurtenances to take one and so forth.

Charles E. Whittaker:

Well, then if the duty is absolute, then would scienter be essential notice?

James A. Whipple:

Not if it constitutes unseaworthiness.

James A. Whipple:

As I understand the decisions of this Court, they have already decided that the duty is absolute which means knowledge and notice isn’t necessary on unseaworthiness.

I do not attempt to change the Court’s decision on that respect.

I do say that when we have a further problem of what is unseaworthiness and that in certain respects unseaworthiness does not occur unless there is knowledge and opportunity.

Charles E. Whittaker:

I thought it was the unseaworthiness doctrine that wake into life this duty.

James A. Whipple:

True, that if unseaworthiness is granted, then we have the duty.

But before we find unseaworthiness, we must inquire into this preliminary question.

Charles E. Whittaker:

It seems to me that takes us around in a circle.

James A. Whipple:

[Laughs] I can only say that the cases suggest that the — that we do go around in a circle.

Charles E. Whittaker:

I’m not saying you’re wrong.

[Laughs]

James A. Whipple:

Sir?

Charles E. Whittaker:

I’m not saying that you are wrong.

I just (Inaudible)

James A. Whipple:

Going back to several other questions for the moment.

On the fact of this case, this seaman did not have any expressed agreement with the owner as to keeping this for in for their own account.

They were, by custom, allowed to do so, and I suppose you could call it an — an implied agreement.

They didn’t have to do it if they didn’t want to if they wanted to make the extra money by doing it, they could do so and the owner would not impede them.

The only requirement, I believe it shows on the evidence in the record, was that they so stole the spawn that it could be unloaded first so as not to impede the unloading of the catch of the vessel.

The — the record further shows in the evidence that the mate nor the captain assigned any jobs nor have the authority even the same — assign the jobs to these 12 crew members amongst themselves in unloading the spawn.

One of them voluntarily went on deck, one voluntarily went on the hull, one went up (Inaudible) to catch the baskets as they were swung ashore.

And they did that amongst themselves and decided amongst themselves and indeed denied the authority of the captain to — to assign the specific task necessary.

And furthermore, they sole respond themselves.

The money and the accounting did not go through the owner’s books at all but was sold on the fish exchange by one of the crew members for the 12 members.

That was the basis really for Judge Wyzanski’s memorandum, I think.

Earl Warren:

Well, how — how about his basis of his charge which is rather important in the case and part I — I read a few moments ago, I think, its on page 11 of the — of the record, he says “In this case, on the basis of rulings I made earlier, I have instructed you on the undisputed fact Mr. Mitchell is to be regarded as being an employee of the defendant and therefore entitled to those rights, if any, which flow from the maritime law and flows from the Act of Congress.”

Now, isn’t that memorandum entirely inconsistent with that?

James A. Whipple:

Yes, I think it is, Your Honor.

That’s the only thing I could say.

Earl Warren:

And — and which — which —

James A. Whipple:

I do not — I do not rely upon that on the Court.

Earl Warren:

Which should we be governed by?

The charge or the memorandum?

James A. Whipple:

Which should you be governed by?

Earl Warren:

Yes.

You —

James A. Whipple:

The charge I should say, Your Honor.

It’s up here on that issue and that issue alone.

Earl Warren:

Yes.

James A. Whipple:

And I think that’s the issue that really requires your decision.

Felix Frankfurter:

I’m afraid I am responsible for discussion of what is an irrelevant point but I was just curious how you came to make that memorandum is that what this.

James A. Whipple:

I —

Felix Frankfurter:

I do and if you please irrelevant because neither side relied on that.

That’s not in the case and that’s why I —

James A. Whipple:

Well —

Felix Frankfurter:

— was so surprised that he should later on say he has the right to be dependent on that ground.

James A. Whipple:

I was relying upon it, Mr. Justice Frankfurter, up to the point were he ruled that he was a seaman.

Felix Frankfurter:

Yes.

Well, I’m —

James A. Whipple:

But further beyond that, I did not.

Felix Frankfurter:

When — when the case came here, it was out.

James A. Whipple:

No.

I have not relied on it.

I do not now rely upon it.

Felix Frankfurter:

That’s why I say it’s my fault for having tried to satisfy my curiosity on how Judge Wyzanski to use the right of the memorandum.

Earl Warren:

Why did go into the record if you didn’t provided them?

James A. Whipple:

Well, I did in the Court of Appeals, intend to, and I — I didn’t know whether I wanted to.

I had to print all the record I’ve — in advance so that I —

Earl Warren:

This is the record in — this is the record in this Court?

Felix Frankfurter:

Who makes up the record?

James A. Whipple:

Well, if that was —

Earl Warren:

The record in this Court and you put in this Court.

James A. Whipple:

Yes.

That — that was an over cite, Your Honor.

Earl Warren:

What — what (Voice Overlap) —

James A. Whipple:

We merely took the record out of the Court of Appeals to put it up here and I’ve — by over cite left that in.

Felix Frankfurter:

Who makes up the record in the First Circuit?

How is it done?

James A. Whipple:

The — the appealing party designates the portions of the record that he once printed and the respondent may file a counter designation filing such other parts as he may wish that were left out.

Felix Frankfurter:

And if there’s — if — if — do they have — do they — do their wishes control if there’s conflict, goes before the trial judge, I take it, to settle these.

At least that is what we used to do in the Second Circuit.

James A. Whipple:

I’ve always considered that I had the right to print the whole record if I wish to.

Could I put a question to you?

James A. Whipple:

Yes.

Justice — Mr. Justice Harlan.

I understand the issue that you’re putting.

Let me take something that nobody dispute — dispute as an unseaworthy condition, the last vessel and probably both the (Inaudible), I take it that if that last fellow is a seaman, while the ship is in their home port, you would not question the absolute liability problem of unseaworthiness, is that right?

James A. Whipple:

In view of the many expressions of this Court that it is an absolute duty, I could not contest that.

Now, if the ship (Inaudible) and a good ship — a good ship sailed on and the ship sets out, ship goes out in the ocean, big storm comes along and as a result, the boat is (Inaudible) two minutes after the wind stops blowing on somebody on a heading.

I understood your position would be within the absence — that no circumstances, the question would not be one of absolute liability but it is a question of notice at reasonable time to render the (Inaudible) the picture, is that it?

James A. Whipple:

I would say that that would not be unseaworthiness —

Isn’t that the — isn’t that the issue in this case?

James A. Whipple:

Yes, yes.

It’s all we are talking about, isn’t it?

James A. Whipple:

Yes.

In — one more point, Mr. Justice Harlan.

You ask if a hull in the deck were of the same caliber or slime on the deck, I would say no in answer to that.

(Voice Overlap) I was trying to take —

James A. Whipple:

Yes.

— the question where the issue —

James A. Whipple:

Yes.

— as to whether the position of an unseaworthiness condition couldn’t be disputed.

James A. Whipple:

It’s the only position I can logically take, Your Honor.

And I think, it’s the only position that should be logically followed too, unless we say that —

(Voice Overlap) was suggesting what the answer —

James A. Whipple:

Surely.

— is putting the issue.

James A. Whipple:

May I suggest that it — it is the logical answer because — unless we do hold flatly that the vessel owner is an insurer.

Well, unseaworthiness (Inaudible)

Charles E. Whittaker:

Well, is that correct?

I understood that unseaworthiness was an absolute duty to maintain a reasonably safe condition but not that of an insurer, is that wrong?

James A. Whipple:

That’s right.

He — he has an absolute duty to maintain a reasonably safe vessel but he does not insure that the co-members will be not be negligent or he does not insure that accidents will not happen as your — as this Court has held.

He does not insure things of that nature.

Judge Magruder in his decision put the case of a perfectly seaworthy — perfectly seaworthy rail of washed, loose broken by a tremendous sea and a concurrent loss of a seaman through the opening so provided.

And I say that that vessel was — it was — by the nature of the point that the vessel was seaworthy, and I think she should be still held to be seaworthy until there was notice or an opportunity in that case.

Charles E. Whittaker:

Well, Mr. Whipple, if it’s true that there is no absolute duty to make and keep it safe but there is an absolute duty to make it reasonably safe, then how could notice be a factor if there’s an absolute duty to make and keep the appliances reasonably safe, then doesn’t that exclude scienter?

James A. Whipple:

Not by the use of the word “reasonable”.

Charles E. Whittaker:

No, no, but by the use of the word “absolute duty”.

James A. Whipple:

Here we are in a circle may it please the Court.

You’ve got these two conflicts in this — the previous sayings of this Court, the previous rules.

Reasonable as opposed to absolute and the conflict must be resolved somewhere.

Hugo L. Black:

I don’t quite see where that would be — those two concepts would — would conflict.

I have been thinking of it since you said that, an absolute duty to keep it in reasonably safe condition.

James A. Whipple:

Well, this Court has held in the West case that the duty to supply a safe place to work is not the equivalent of seaworthiness and says that the duty to provide a safe place to work belongs on the negligence side of this question.

That’s what the West case in my opinion really holds.

Potter Stewart:

What the duty is, is it not, is to exercise reasonable care to provide a reasonably safe place to work.

James A. Whipple:

Yes.

Hugo L. Black:

That’s negligence.

Potter Stewart:

And that’s —

James A. Whipple:

That’s negligence

William J. Brennan, Jr.:

Well, the question were on (Voice Overlap) —

James A. Whipple:

Sir?

William J. Brennan, Jr.:

(Inaudible) unseaworthiness — seaworthiness could arose because of the conditions that the vessel was at the time (Inaudible)

James A. Whipple:

That’s right.

William J. Brennan, Jr.:

Well, that was out of the case before.

James A. Whipple:

You said in that case that you — so far you had found only one reason for absolute liability and that was unseaworthiness.

Charles E. Whittaker:

Never been decided.

James A. Whipple:

Summing it up, may it please the Court.

We are faced here with the past decisions of this Court in which it seems to be indicated that the absolute duty applies to reasonably fit appurtenances, reasonably fit for the purpose.

This by decisional analysis apply first to inherent defects, improperly constructed appurtenances, appurtenances originally proper but by — but have become improper such as the rotten rope in the Mahnich case.

Secondly, reasonably fit doesn’t mean that it has to be the newest, best, most modern appliance or rail as in this case.

Thirdly, if we hold the — the presence of a transitory substance on the deck, we run into the problem of confusing it, that problem with the safe place to work doctrine which you have held belongs on the negligence side of the Court.

It runs into the problem of drawing a line between natural accumulations of rain water, as I stated, coal dust in the carrier, oil on an oil ship, where is the line to be drawn between those substances and — and the substances and fish slime on a fish vessel and other substances such as apple peels in the Poignant case and the further problem of holding a transitory substance on a deck to be unseaworthy, the — the further problem of whether that applies under the absolute duty to provide seaworthiness.

The respondent respectfully submits that it does not in that case.

Now —

Hugo L. Black:

You limit that argument to transitory condition.

James A. Whipple:

Yes, sir.

I must — I want to confine it as closely to the facts in this case if possible.

Hugo L. Black:

You’d beg in saying it should never — vessel should never be considered unseaworthy, as I understand it, if — even though there’s — some place is not reasonably good unless the company had reason to know that this transitory thing had brought this about.

James A. Whipple:

That’s right.

I can conceive of circumstances under which a transitory — the presence of a transitory substance might create unseaworthiness, for instance, an oil soaked rope so that the fibers of that rope do not have the characteristics of proper fit reasonable rope.

It is so soaked in and — and changed the nature, the inherent nature of that rope that it is no longer reasonably fit.

Here where we have an apple peel for some moment of time or banana skin or — or a slime on a rail or — I believe, someone asked the time on that, I think, it was five to 11 minutes in the testimony that it had been there at the maximum.

Now, in the petition for certiorari, it was stated that there was a conflict in the courts below saying — the statement that the First and Third endorsed the transitory unseaworthiness although I prefer to call it a transitory condition case and the Second and Ninth being against it but as I — in these cases I have cited to you, I think there are some question as to whether the Second would not hold a transitory condition not to be related to unseaworthiness.

And in the Ninth Circuit, the only case I know of is that Pacific Far East Lines versus Williams.

And the Court in that case said that even assuming that Cookingham case to be the law in this jurisdiction which is dubious, I think they used that word, they decided the Williams case on the ground not that it was a transitory condition but that there was an actual defect in the ship and that the lights were not proper.

So that it is not as clear, I believe, and I submit to Your Honors that there is a conflict as it would at first blush appear.

Earl Warren:

Do you have anything further?

Morris D. Katz:

No, Your Honor.

Thank you.

Earl Warren:

Very well.