Morales v. City of Galveston

PETITIONER:Morales
RESPONDENT:City of Galveston
LOCATION:Herricks School District

DOCKET NO.: 480
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 370 US 165 (1962)
ARGUED: Apr 23, 1962 / Apr 24, 1962
DECIDED: Jun 11, 1962

Facts of the case

Question

  • Oral Argument – April 23, 1962
  • Audio Transcription for Oral Argument – April 23, 1962 in Morales v. City of Galveston

    Audio Transcription for Oral Argument – April 24, 1962 in Morales v. City of Galveston

    Earl Warren:

    Number 480, Robert Morales et al., Appellant, versus City of Galveston et al.

    Mr. Shirley.

    Preston Shirley:

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

    This will be a divided argument.

    I represent the City of Galveston, take a short time and then the remainder of the time will be so taken by —

    Earl Warren:

    Yes.

    Preston Shirley:

    — Cardigan Shipping Company.

    If the Court please, this started as a suit in admiralty, a vessel longshoreman in which the original allegations for against the City of Galveston for negligence in fumigating certain grain and went aboard a vessel.

    There is a subsidiary allegation that the City had failed to inspect or test the grain.

    The case against the City of Galveston was strictly consoled on the allegations of negligence, nothing else.

    As against the respondent, Cardigan Shipping Company, the case was presented there against that company for negligence in hand to inspect the test and on an allegation of unseaworthiness by way of a brief description of the operation to the elevator, this primary at an export house to Water Sack.

    The grain, when it comes in mostly by railcars, is tested and sampled for the Galveston Exchange Board of Trade Inspectors and Supervisor of the Department of Agriculture.

    That inspection was made while the car is still in the yard, five samples were taken.

    If there’s anything shows up bad then, it will be noted.

    Then the car is taken to the elevator; unload it, again by opening the doors and by a person near the elevator.

    It then goes in by gravity down into a container, has taken by elevating legs about 1000 buckets running this way sir, up to the escape holes, where it’s weighed then it goes by shoot, down to its conveyor belts and goes by conveyor belts to the various — one of the 400 semi bins in the elevator.

    While in the elevator, stays generally speaking in the same vent.

    After that, and when it’s desired to export, the owner will order so many bushels over a certain grade of grain.

    It is a mixed house in the sense that there’s no one’s grain owned by — it can be identified as such.

    You can identify by grade owners.

    After the order is placed, a lineup was made out of which the grain will be taken, that is to particular bins and then there’s not just at the bottom of each bin, you take the conveyor belt that open up it so many notches, having to use the various grades to get the desired grade to go into the ship and then runs on this conveyor belt to an elevating leg again and goes back up to the scales, again on the — and then again on the conveyer belt and to a shipping bin roughly housed to the ship.

    Stevedore or the chief stevedore, well then order the grain to be released by telephone and the City employees do it.

    The City has no relation to, no control over or no connection with the ship.

    Therefore, there’s no relation to, no control over or any connection with any question of unseaworthiness.

    Earl Warren:

    Mr. Shirley, where is the — where is the first inspection made for — knock this gases odorous?

    Preston Shirley:

    Mr. Chief Justice, it’s made while they’re in the eleva — while in the railroad cars adjoining the elevator.

    Earl Warren:

    They — they made it —

    Preston Shirley:

    Yes sir.

    Earl Warren:

    — for that purpose right?

    Preston Shirley:

    Yes sir.

    Preston Shirley:

    Now, I might say this Your Honor, the inspection is a double barrel knot.

    It’s primarily for grade —

    Earl Warren:

    Primarily for what?

    Preston Shirley:

    For grade.

    Earl Warren:

    Grade.

    Preston Shirley:

    Hardly, whether wheat number one, number two and so on.

    Earl Warren:

    Yes.

    Preston Shirley:

    They take five samples.

    They take it all to laboratory.

    If there’s any obnoxious odors noted or if the inspectors find any, they will note it on what is known as pan ticket which is a record of the car that goes through the elevator under permanent record.

    Earl Warren:

    I see.

    Preston Shirley:

    That’s the first inspection sir.

    Earl Warren:

    Yes.

    Preston Shirley:

    Now, that is not a chemical test Your Honor, but it is an older test by moving in the car, smelling it and then taking the samples over to the laboratory to grade it.

    William J. Brennan, Jr.:

    Mr. Shirley

    Preston Shirley:

    Yes, sir.

    William J. Brennan, Jr.:

    (Inaudible)

    Preston Shirley:

    Mr. Justice, in certain cases if the grain is found to be weevily.

    William J. Brennan, Jr.:

    (Inaudible)

    Preston Shirley:

    Yes sir.

    Has — if it has weeviled, there will be fumigant put in while it’s in the railroad car by the name of —

    William J. Brennan, Jr.:

    (Inaudible)

    Preston Shirley:

    High Life sir.

    And —

    William J. Brennan, Jr.:

    (Inaudible)

    Preston Shirley:

    No sir, they open the car, pour it on top, spray it over the top of it.

    William J. Brennan, Jr.:

    (Inaudible)

    Preston Shirley:

    Yes sir.

    And High Life is non-damage into humans, maximum of 72 hours, actually at the 20 —

    William J. Brennan, Jr.:

    (Inaudible)

    Preston Shirley:

    It is for about 24 hours sir, then from 24 or 48, not considered.

    And certainly after 72, there’s no question but it’s not harmful at all then.

    William J. Brennan, Jr.:

    (Inaudible) kept in the car for that period time.

    Preston Shirley:

    Yes sir it’s kept in the car for that period of time and then the Board of Trade goes back, reinspects it and clears it for unloading.

    There’s always a second inspection, if High Life is put on the — if the fumigant in the car.

    Now, in further carrying out Your Honor’s question on the — on the occasion, into the elevator if it gets weevily, a fumigant by the name of “Weevil-Cide” would be put on it.

    But again, you have the 24 and 48 to 72 hour proposition.

    William J. Brennan, Jr.:

    Well, that was (Inaudible)

    Preston Shirley:

    Well, sir there has never been an incident like this before.

    There had been three incidents, the Lipscomb Lykes in 1949 where Judge Kennedy, the Southern District found that at the elevator had actually fumigated the grain and then shut it on in without a necessary time elapsing.

    And in Panamolga case which was — to which the City was not a part, it was again found that the City fumigated the grain while it was in the elevator.

    And in the Zosianne it was alleged, and that’s in ’53 the last incident, that the City had fumigated the grain.

    William J. Brennan, Jr.:

    It’s been accurate (Inaudible)

    Preston Shirley:

    Yes sir.

    Earl Warren:

    May I ask you Mr. Shirley, what — what happens besides putting it on the record, if anything, when they find not just odors on this first inspection while it’s on the car.

    Preston Shirley:

    It is held out until they’re removed sir and that the Board of Trade passes the car for unloading.

    Earl Warren:

    Yes, I see.

    Preston Shirley:

    Now, if the Court please then, coming down to what the trial court found, it was a seventh or eighth-day trial.

    Numerous witnesses were introduced; all the records were introduced.

    The court found as a fact that the City did not fumigate the grain either in railroad cars or while in the elevator.

    And Mr. Justice Brennan and I say that there’s — there’s no comfortable incident in the sense that the others were allegations or findings that the City hate and in this and it’s an absolute finding of the trial court which by the way is not attacked here to the effect that we did not fumigate the grain.

    The court also found that there was improper fumigation had an inland point that is before we put it on the railcars for transportation to Galveston and that the fumigant there was chloropicrin.

    That finding is not attacked.

    The court further found that the City did not know and the exercise a reasonable care should not have known of any improper inland fumigation.

    The court also found that the City had never received any knowledge of any prior instance of this kind.

    All those findings if the Court please, are not attacked.

    They’re accepted.

    There’s no attack laid on here.

    Earl Warren:

    I understood Mr. Mandell to say yesterday that — that the City did have knowledge of these three that you have mentioned.

    Preston Shirley:

    Yes sir.

    Preston Shirley:

    Mr. Chief Justice, the City had knowledge of those three were the allegations and findings where that the City had fumigated.

    Earl Warren:

    Yes.

    Preston Shirley:

    The trial for here found we did not fumigate it.

    Earl Warren:

    Yes.

    Preston Shirley:

    Now, and that there was an inland fumigation, an improper inland fumigation that caused trouble.

    Earl Warren:

    Yes.

    Preston Shirley:

    The trial court found we had the — had no notice or knowledge of any prior instance of improper inland fumigation.

    However, it’s put on —

    Earl Warren:

    In this case, in this case.

    Preston Shirley:

    Yes sir or any other case actually.

    It never happened before.

    Earl Warren:

    Well what I — what I — I’m not quite clear.

    I was trying to — to connect up these other three accidents that you mentioned just a moment.

    Did the Court find that they did have knowledge of those or did not have knowledge?

    Preston Shirley:

    Oh the court found we had knowledge of those, sir.

    Earl Warren:

    You have knowledge?

    Preston Shirley:

    There were suits against the City.

    There’s no que —

    Earl Warren:

    Yes, yes.

    Preston Shirley:

    As a matter of fact sir, the suits were brought for — an allegation to fumigation by the City and that about the third as the record shows, the management was changed and an entirely system of control to put into be sure it didn’t happen again.

    So — is that —

    Earl Warren:

    Yes, that’s answered my questions.

    William O. Douglas:

    Well, Mr. Shirley.

    Preston Shirley:

    Yes sir.

    William O. Douglas:

    Did the city know that the grain was frequently fumigated at in — at in — at in an inland point?

    Preston Shirley:

    Yes sir.

    William O. Douglas:

    You didn’t know that it was improperly fumigated?

    Preston Shirley:

    No sir and the record is undisputed that throughout the industry over the many, many years.

    This is a first case of inland fumigation, the chloropicrin or any other substance to cause many trouble.

    William O. Douglas:

    But you did know that those were fumigated at inland point?

    Preston Shirley:

    Yes sir, we did.

    William O. Douglas:

    And in the previous incidents in which the City had fumigated and it caused some trouble, was the cure for the trouble of system of inspections?

    Preston Shirley:

    Yes, sir and the tie to control the records, so we knew exactly where everything was.

    As a matter of fact sir on this one, the 72 hours was the maximum then, it only limited here.

    The last fumigation for the City was February, I believe, the 27th on a March 14th incident.

    William J. Brennan, Jr.:

    Well Mr. Shirley, was there any finding of any deficiency on the part of the City in its inspections which might perhaps have — have discovered whatever may had been the condition resulting from the inland —

    Preston Shirley:

    No sir.

    The court found sir, as in fact that we were not negligent in failing to learn or to know the presence of the inland fumigation.

    The court found we were not negligent in failing to make additional inspections.

    The court found that we made careful and plain taking inspections and examinations and that they failed to detect anything and the court found in addition that there’s no reason to believe that additional inspections would have been more successful.

    William O. Douglas:

    Or was it the grain come from so far away that a normal fumigation would automatically have eliminated any danger with the (Voice Overlap) —

    Preston Shirley:

    Yes, sir.

    William O. Douglas:

    — kind of grain arrived —

    Preston Shirley:

    Yes, sir.

    William O. Douglas:

    — at the city?

    Preston Shirley:

    Yes. sir.

    Mr.Jusitice —

    William O. Douglas:

    None of it came — and none of it came from such a short distance that — that the 72 hours would not have come.

    Preston Shirley:

    No sir.

    Earl Warren:

    Where did it come from Mr. (Voice Overlap) —

    Preston Shirley:

    Sir, we have no idea because it’s a commingled house and it can come anywhere from Nebraska West to any gulf port.

    Mr. Chief Justice, I cannot an — there’s no way to answer that question sir.

    Now, continuing just a minute on it, the — let’s say we have trial court’s findings completely to the effects we were not negligent in every respect.

    It went to the Court of Appeals and that Court held that there’s no basis whatever for attack on the trial court’s finding, that’s the fact.

    It also held that the trial court’s findings were well-supported and wholly reasonable.

    It didn’t came to this Court on the argument about unseaworthiness between petitioners and co-respondent, Cardigan Shipping Company, this Court sent it back to the Court of Appeals for consideration; lie to Mitchell versus Trawler Racer.

    We did not participate in the argument — second argument of the Court of Civil Appeals and had nothing to do with it because there was no attack made upon us one way or another.

    And as a matter of fact, as I understand counsel’s argument pretty much yesterday, he says that the crux of this case was unseaworthiness and if that’s true, if the Court please, I may — my fact findings may get out.

    Thank you very much.

    Earl Warren:

    Mr. Watson.

    Edward W. Watson:

    Mr. Chief Justice and may it please the Court.

    Although, I believe the run of my argument will have to be with the question of unseaworthiness, I’d like briefly to take up where Mr. Shirley left off with the question of negligence to advert to the characteristics of chloropicrin, the particular fumigant that was found by the trial court to have been involved in this case.

    Actually, this was one of these extremely coincidental matters that the fumigant ever got to this particular balance.

    Chloropicrin is applied as a watery liquid.

    I mean it’s supposed to be sprinkled over the grain in the inland granary or in the railroad cars or cars being loaded.

    An expert testified at the trial that the only possible way that this chloropicrin got through to this bin on the Grelmarion was that somebody carelessly dumped a lot of this watery liquid on to a particular portion of the grain.

    There was really a sudden mass of grain at being a watery type of liquid unlike the more gaseous types.

    This wet grain was able to survive the journey in the railcars, the elevation and through the Galveston Wharves elevator, the weighing, the shifting into bins, the measuring out, the mixing, the putting in the loading bin and the travel down to shoot from the elevator into the vessel.

    William J. Brennan, Jr.:

    Is that to say Mr. Watson that the actual finding of — whatever you call that chemical.

    Edward W. Watson:

    Chloropicrin sir.

    William J. Brennan, Jr.:

    Had been introduced at some inland point and not either at Galveston or —

    Edward W. Watson:

    The chloropicrin was never used at — at seaports.

    William J. Brennan, Jr.:

    So the — so the finding is that had to be — had been introduced.

    Edward W. Watson:

    The medical testimony and also some late testimony as well as the expert’s, indicating that the characteristics of the fumigant experienced by the libelants was such — it was a pretty sure thing, it was chloropicrin.

    It affects the eyes, I mean there was one bit of evidence that to me was very conclusive and that these men were taken for first aid to a doctor’s office and the nurse in that office, the day following, noticed that there was some kind of a watery substance that gotten on her clothing that made here eyes smart.

    It might also be said and because this is somewhat relevant to the issue of damages which is raised by the petitioner here, the chlo — the another characteristic of chloropicrin unlike some of the other fumigants used which are chlorinated hydrocarbons, the chloropicrin can be highly annoying but if it’s sufficiently concentrated, it kills you.

    If it’s not that well concentrated, you get over it rather quickly, it has immediate effects but they’re passing.

    There’s no permanent damage to deliver such as with result from Weevil-Cide which is a chlorinated hydrocarbon or the High Life which is never used on ships, incidentally because it’s too volatile and too explosive.

    It all — might also be said while we are talking about what was the chemical involved here that the libelants made in the trial court and have since raised in their petition for certiorari and in their brief the question of an absence of — of test as called for by government literature?

    Actually, the court disregarded all of that evidence and I think it should be disregarded here because the literature referred to test of grain for the purpose of human consumption.

    And actually, there was an exception in this — in these manuals and said it did not apply to the application of these kind of fumigants that we were discussing here to grains, but they were talking about some other grains.

    This is at page 714 of the record.

    That the ethylene dibromide and methobromide or the kind of things that could penetrate a grain and make it unfit for human consumption and these were the things that Miller, under the Food and Drug actually test for.

    But these were not the kind of chemicals that were ever used in fumigating grains in elevators or in railcars or on ships to get rid of weevils.

    But I — I would call the Court’s attention to this matter of the chloropicrin because I wanted to illustrate the extreme coincidence that ever brought it in to this area where it caused the affliction to these libelants, I mean it took an extreme chain of circumstances, just-right atmospheric conditions to keep it from dissipating.

    And apparently, the heat generated by the last trip down the spout, from the elevator into the bin of the ship was just right with other conditions to make this watery substance turn into gassy substance and as it came out of the spout and into the bin on the ship, the men there immediately felt the effects coming off the grain.

    Now, this is, to me, the second factual point that is of high importance in this case.

    The evidence — all of the longshoreman, I believe, testified and their evidence as well as the evidence of other men who were in the bin but are not parties to this case, was all to the effect that they immediately felt something smarting their eyes and making them tear as the grain was still coming out of the spout and before them into this closed-in bin where they will work.

    In other words, they received whatever toxic effects they received directly off the grain.

    There’s a mark difference in that connection between — and I think the Circuit Court so noticed as Mr. Mandell referred to it yesterday.

    Edward W. Watson:

    Between that case and the case where maybe the grain had been piled up so high that the men exhausted the oxygen in the air that they were working, and for lack of a fresh supply of oxygen, they were asphyxiated.

    The medical testimony in this case was not of asphyxiation or a lack of oxygen at all.

    The medical testimony in this case was of an acute intoxication which meant that a gas of toxic effect was inhaled directly and suddenly, I mean it wasn’t chronic or accumulated.

    Earl Warren:

    Well, was — was it closed?

    Was the opening closed on these men?

    Edward W. Watson:

    Actually Mr. Chief Justice, the — as the grain has run up in the opening, these bins are about 10-feet high and they’re about 15 feet by 20.

    I forgot the exact dimensions.

    Earl Warren:

    Yes.

    Edward W. Watson:

    This bin was already three fourths full of grain.

    This was practically the last shot of grain to be put aboard the ship in this bin, so the working space had become very small.

    But as the trial court heard and the trial court found, it was entirely normal that as this bin is — this grain has run out of this elevator shoot, they temporarily cover the opening to the bin and the men start pulling that grain away with their woods, scoops or shovels.

    Earl Warren:

    But the answer is yes to my question.

    Edward W. Watson:

    That the — the outlet to the air is — is closed.

    Earl Warren:

    Now, —

    Edward W. Watson:

    But —

    Earl Warren:

    — the reason I asked that question, I want to follow that up with the — well another and I was going to ask you if it might not be that — that the closing of this airspace would cause the toxic effect to be greater than just what — what you said, that it was at as it was passing down the shoot.

    Edward W. Watson:

    Mr. Chief Justice, I believe on the record in this case, that would not be true.

    I think the evidence is so strongly that the effects were felt directly off the grain.

    I don’t know — incidentally, it might also be said that the hysteria that developed was due to an initial suspicion that this may have been a fumigant such as involved in those three prior incidents that happened more than four years — the last, more than the four years previously where the fumigant used was a chlorinated hydrocarbon.

    And I’m sure all of us that had the careless experience of one time or another whiffing an open bottle of carbon tetrachloride which is chlorinated hydrocarbon.

    And even though we are in this room with all the oxygen and everything that’s around us, that — that gas as we whiff it is very penetrating.

    It immediately serves the insides of our — the linings of our nose.

    Incidentally, it’s also a very bad gas too within that way.

    And I — I believe the physical description of what happened to these men in their own word, not in somebody else’s words but in their own words, makes it rather apparent that they were not in anyway suffering from a lack of oxygen but they were suffering because they all admitted — this is being down there with all the air shut off as a normal experience, so the causative factor in this was not the lack of the oxygen but the presence of this alien substance.

    Now, I may have aviated your question Mr. Chief Justice in that respect but —

    Earl Warren:

    Well, does this argument go to negligence or unseaworthiness?

    Edward W. Watson:

    These facts in my opinion go to both.

    I mean I think they go to the — first, to the negligence question that there’s nothing the ship could have done and the trial court so found to have avoided this incident.

    The bin on the ship was a normal beyond, the standard instruction.

    The men were working in a normal way.

    Edward W. Watson:

    Absent, the chloropicrin gas, nothing would’ve ever happened.

    We would never have heard of this case.

    The fact of the chloropicrin gas coming off the grain caused the incident which is the entire basis for this lawsuit.

    I believe this brings us to the — what Mr. Mandell has called, “The crux of the case,” because in his treatment of it hand and our own, the — the question is really whether the vessel, unable to control this situation, unable to avoid it in any possible way, is liable for an unseaworthiness which arises from the breach of a duty.

    William O. Douglas:

    Mr. Watson.

    Edward W. Watson:

    Excuse me sir.

    William O. Douglas:

    Before you leave this other point, previous incidents had indicated that there was a possibility that even if the grain is fumigated at the — in the elevator by the City that the fumigant may linger and you could have some trouble in the hold of the ship.

    And I gather that some inspection routine and other controls were instituted to control this matter.

    And in any event, the inspection routine was setup for the purpose of detecting whether or not there was any excessive residue of fumigant.

    Edward W. Watson:

    Mr. Justice White that would not be the case.

    Actually, I thought Mr. Shirley looked at this point.

    He didn’t possibly make it entirely clear.

    There was no inspection being conducted to determine direct, the presence of fumigant residuals in this grain.

    Frankly, I think the trial court found it would have been impossible to examine the grain that closely.

    This particular chloropicrin may have come off of 40 or 50 bushels of grain at the most.

    The ship was loading 300 or 400,000 bushels of grain at a very fast rate from the elevators’ grain spouts leading in to about four holes.

    The — the stevedore in charge of the loading had the opportunity, as the record shows, of cutting off this flow of grain if at anytime the government inspectors stationed at the end of either any spout, notice the grain was off-grade in any way.

    Now, one of the things that would put a grain off-grade would not only be the mixture but if it comes out with an objectionable odor.

    In other words, if the men themselves had noticed this chloropicrin, they would have the stopped the run of grain at the deck before allowing the ship to complete.

    Actually, the — the manner in which this grain is handled though would mean that even if he called up to the elevator and said, “Stop spout number 3,” it takes probably 30 minutes — 30 seconds to a minute before they can cut the flow of grain off at the elevator house.

    And meanwhile, whatever effect was going to happen to the men on this bin would have already happened.

    So you have a situation of something happening — happening very suddenly and even frankly, if they had known it was going to happen, they couldn’t have stopped it in time.

    But the — going back to what Mr. Mandell calls the “crux of the question here” and I believe it is just that.

    It is the question whether the shipowners warranty extends to the condition of the cargo because from the view point of approximate cause, it was a condition of the cargo which caused the injury in this case.

    And I think counsel really conceives that in his opening argument to the Court yesterday though other elements of the case are injected.

    We always come back to this single question, does the ship besides warranting that the ship itself is seaworthy — besides warranting that its appurtenances are seaworthy, besides warranting that its personnel are fit for their calling?

    Does the ship also warrant that the cargo which is being taken aboard is free from the conditions which might cause harm?

    And as stated in our brief, we find no case which says so.

    And if it is so held in this case, I believe it would be an extension of the doctrine of unseaworthiness as stated up to now.

    There are some cases involving cashew oil liquids.

    Edward W. Watson:

    There are some cases involving the use of carbon tetrachloride or the carriage of carbon tetrachloride on vessels.

    I believe an examination of those cases insofar as they would be pertinent here, shows that — where liability was found, it was rested on really negligent handling of a known dangerous commodity.

    Here, we had a commodity that had no know — known dangerous characteristics and for that reason, required no special handling but again, we’re getting back to negligence.

    Earl Warren:

    May I ask what the — what the known dangerous element of cashew oil is, —

    Edward W. Watson:

    It’s a highly corrosive —

    Earl Warren:

    I don’t know.

    Edward W. Watson:

    It’s a highly corrosive liquid Mr. Chief Justice.

    Earl Warren:

    Corrosive.

    Edward W. Watson:

    Corrosive.

    And as a matter of fact, in handling the importation of it, the — the longshoreman customarily wear — wear gloves, I mean that are impenetrable to a corrosive or acid.

    And they use a (Inaudible) to causes a dermatitis and apparently no matter how it’s packaged.

    If you handle it, your skin is going to be affected.

    Earl Warren:

    I see.

    Edward W. Watson:

    And I believe there are two of the cashew oil cases and both of them if I am not mistaken, one was a New York State case, one in federal court, both of them rested upon the question of failure to warn the workmen of the fact that they were handling something that would cause dermatitis unless they took a proper precautions.

    They — if the warranty of a vessel as to unseaworthiness is to be so extended, as counsel would contend in this case.

    It suggests itself to the respondent that we are opening a door, a “Pandora’s box” literally, of all kinds of — of complications.

    To begin with, it’s easy to see where the ship’s warranty is confined to its gear, to appurtenances, its personnel but this is going to be confined in area aboard the ship.

    But if the ship is responsible for any element within its cargo that might cause injury, I was thinking yesterday when hearing the argument on the “twilight zone” cases, where does this responsibility of a ship before its cargo stop?

    Are we going to hold them responsible for all things that might come out of that cargo, all conditions even after the cargo has been landed and put ashore in a warehouse and the ship is going about its way?

    Or does the responsibility of the ship for the conditions of that cargo start when the ware — when the longshoreman are still palletizing the cargo in the warehouse and before they’d even come near the — the ship’s tackle, if it is under the ship’s warranty of course that thing, the thing that we would properly dispute.

    Earl Warren:

    May I ask, who, if anyone would be responsible for this condition, for this accident?

    Edward W. Watson:

    This accident Mr. Chief Justice was under the findings of the trial court which are, I believe well-supported in the evidence, due to the carelessness of a party unknown at some inland elevator.

    The ability to trace back to that party being wiped out in the way the grain in bulk is handled and then received in the elevator in its identity lost.

    This does not mean, however, that the injured workman have or — or without a remedy because obviously, the — the longshoreman and Harbor Worker’s Compensation Act was designed to cover some responsibility to give them some protection in some area.

    They have new opportunities for recovery in many areas.

    But here, in our position, is an area where they have the benefit of the compensation law in a proper field, the kind of thing that the compensation law was designed for where you cannot put the finger on a fault or even a breach of a warranty because we say the warranty was not there.

    So here, it’s clearly a proper place for the compensation law is such to operate.

    But it would also occur to us that if the warranty of the — of seaworthiness or reasonable fitness is to be extend to a condition of a cargo, that immediately you have start making new categories.

    You might have a cargo that was inherently dangerous and the injury consequent on a condition of that inherently dangerous characteristic.

    Now, that might be your cashew oil liquid cases.

    Edward W. Watson:

    Or you might have a cargo not inherently dangerous but the injury from a normal condition of that cargo and that, I would suggest might be comparable in a way to the Mitchell case.

    Then you’d have another category of a cargo not inherently dangerous and the injury resulting from an abnormal condition.

    That I think is the case we had here.

    In other words, grain, wheat is a staple, it meets certain standards, it’s trade.

    I believe the figures show that this particular export elevator handled 300 — I mean, 30 million bushels a year of these commodities of this type.

    It’s in world trade.

    It’s standardized by various governmental agencies.

    It’s not regarded as being a dangerous commodity.

    It’s the source of bread.

    Certainly, the condition of this particular grain which produced the injuries complained here was a very abnormal condition, not to be expected despite these three prior incidents of some years previously because it really wasn’t in the final analysis in the same category of those incidents.

    Earl Warren:

    Did I understand you to say, if this had been the other kind of chloride that it probably would have killed them?

    Edward W. Watson:

    You mean that chlorinated hydrocarbon?

    Earl Warren:

    Yes sir.

    Edward W. Watson:

    That has a toxic effect on the liver, if inhaled in sufficient quantities.

    If the — the greatest damage seems to be done in the — in the chronic cases where you inhale chlorinated hydrocarbon consistently over a period of time rather than in — in the — in acute cases where you have a very strong inhalation but only a single inhalation.

    Earl Warren:

    And that was — that is used on occasions?

    Edward W. Watson:

    The chlorinated hydrocarbon is the base of the weevil side which is used in the grain elevator but which — or at least four years prior to this incident had been used under a very tight control.

    Now on the ships sometimes, they fumigate aboard the ships.

    And when they fumigate aboard the ships themselves, this did not happen here, but then again they — they used a cyanide gas type of fumigant.

    And the Court may recall in the petitions for certiorari, both of them in this case, some pictures were attached to floors that were being used on a ship.

    These were being used to clear this kind of a gas out of the ship.

    Obviously, I mean when cyanide has been used, you can’t work for its bin until the whole atmosphere has been well-purified and oxygen restored.

    We submit that those pictures in the evidence relating to the use of blowers to get cyanide gas out of a ship has no relation to this case because blowers of that kind are never used to air a grain in the first instance and the ship here was not fumigated at any stage of the proceeding in the second, so were not concerned with that aspect.

    Earl Warren:

    Was there any inspection made by the City or the ship or anybody else to see whether that kind of a chemical was used in this — in this situation?

    Edward W. Watson:

    Mr. Chief Justice, you mean a chlorinated hydrocarbon?

    Earl Warren:

    Yes sir.

    Edward W. Watson:

    I believe this information would have come to the various grain inspectors and there’s several — there’s a federal inspector and is a Local Board of Trade inspector.

    Only incidentally to their examination of the grain for all kinds of purposes to determine whether weevils were in it, to determine whether there’s any foreign matter, to grade it, to determine how many kernels of this kind, how many kernels of that kind or to determine whether it had any commercially objectionable foreign odors.

    But it’s pointed out by Mr. Shirley —

    Earl Warren:

    Are there any test that could be made to — reasonably be made to determine that?

    Edward W. Watson:

    Mr. Chief Justice, I’m no chemist.

    I only remember what these men said.

    I believe of course that it would be practical to test for almost anything.

    But to test in such a way as to avoid this kind of incident would have required almost a bushel-by-bushel inspection of the grain and when you’re handling 400,000 bushels of grain, loading that much aboard a ship in a day and a half and trimming it out, I question as the court — trial court questioned whether there’s any practical means of — of finding this out.

    Actually, I think the opinion of the trial court was — was unnecessary to find this out.

    This is a kind of thing you take precautions for and actually, the precautions against the presence of chlorinated hydrocarbons were — were worked in this case.

    There’s no evidence to show that there was any chlorinated hydrocarbons in the grian.

    Earl Warren:

    Well, it’s true but the — but the ship wasn’t custom to — to taking on — taking on grain and filling in this manner, sometimes closing the — the air shaft and one would think that perhaps there ought to be some test that men were going supposed to be going into that bin, there might be some test that would be given to determine whether it was safe for them to do it.

    That was the reason of my question here.

    Edward W. Watson:

    Mr. Chief Justice I would say and this is, I believe not in the record and I hate to depart from the record.

    But I — I mean I have known in these other instances where a grain that had been fumigated was found aboard a vessel and the workmen were pulled off the job.

    I think the Zosianne case was an example of that type.

    But before the workman ever go back to the job, the chemist go in and they not only test the atmosphere above the grain but they make probes into the grain to make sure there’s not a — a latent gas there that maybe released as the grain is stirred up for the trimming process.

    But that is the only instance I believe that I can recall.

    I’m sure other counsel can recall where this kind of work is done.

    William O. Douglas:

    But would it make any difference if — if in this case, the fumigation had been done by the City, would you still make the same argument?

    Edward W. Watson:

    I think that would completely change the complexion of this case Mr. Justice White.

    I mean if the City had fumigated the grain without putting the ship on notice that it had fumigated the grain, I think Mr. Shirley and I would be adversaries here as well as sitting on the same side of the table.

    William O. Douglas:

    Yes, but how about — how about your argument of unseaworthiness?

    Edward W. Watson:

    It would have been — well, somebody would have been responsible in negligence if the City had fumigated the grain and knew that fumigated grain was being loaded aboard this vessel and either did not issue the proper warnings and make proper tests themselves or else did not advise the ship so the ship could have issued the warnings and made them —

    William O. Douglas:

    But would that change your argument on unseaworthiness?

    Edward W. Watson:

    I believe not Mr. Justice because I think — I think the liability there would be rested on — on principles of notice or constructive notice which of course would take the case back into the area of negligence.

    William J. Brennan, Jr.:

    But on — in this if I understand you correctly, you’re relying particularly on the finding of this condition, the happen stands of a combination of factors, is that it, that there was nothing anyone could do when the heat as it came in from the bin and suddenly combined with the conditions within the bin to make gaseous but there before, had just been a sub-mass, isn’t that it?

    On the seaworthiness argument?

    Edward W. Watson:

    Mr. Justice Brennan, I think that’s exactly it really.

    I think that’s what happened, I mean and I think there’s nothing that could’ve been done to avoid that in the manner in which the ships are handled, the manner in which these men have to work.

    William J. Brennan, Jr.:

    Well, is this the way you distinguished Trawler Racer?

    Edward W. Watson:

    Sir?

    William J. Brennan, Jr.:

    Is this how you distinguished Trawler Racer?

    Edward W. Watson:

    This case in — in my opinion sir would be like Trawler Racer.

    Edward W. Watson:

    If you change the facts of Mitchell, the Racer case, and had the seaman there, we’ll say perhaps as they are hauling this catch of fish in over the side of the vessel out of sea at an earlier stage of the voyage, if he had encountered a ship — an unusual species of fish where a spine that was poisonous to him and had it gotten an infected hand as a consequence.

    I mean this to me would make — if that was the Mitchell case then that would be our case or another — another analogy might be that one of the fish that they brought aboard the Racer while still out at sea, had — had a previous encounter with some other fisherman and came away with a big hook still in the fish and perhaps while he’s gutting the fish and creating this gurry and slime for the rail, he — that’s happened to me or at all fishermen, he encountered this alien hook, they would have no reason to suspect it was present in this fish.

    That kind of a situation, if that had been the situation in Mitchell, would I think make it like this case.

    Potter Stewart:

    But it’s an unseaworthy fish rather unseaworthy ship.

    Edward W. Watson:

    An unseaworthy fish Your Honor, yes sir.

    The — but to me, there’s — it also as to be noticed in — in the Mitchell case that while this Court has said that this was a transitory thing that notice was not necessary, yet the owner of the Trawler Racer did not have to have notice, I mean because the condition that was encountered by Mitchell was a normal byproduct of the way the ship was being used.

    Now, the condition that was encountered by Morales and the others was not a normal byproduct of the way the ship was being used.

    And there had been a number of cases since the Mitchell case was decided here and the cases prior to Mitchell, where juries have been instructed in the terms of the Mitchell case, and they have not always found unseaworthiness merely because a condition was transitory or they have not always found unseaworthiness merely because an accident happened.

    There is still this question of reasonable fitness for unintended use.

    Potter Stewart:

    The Mitchell case itself wasn’t the — wasn’t the action of this Court to remand it to the District Court?

    Edward W. Watson:

    It was Mr. Justice Stewart and I’ve always been interested in what happened then but I don’t know.

    Potter Stewart:

    In any event, this Court didn’t hold (Voice Overlap) —

    Edward W. Watson:

    No, it was a question of instruction, an erroneous instruction having been given the jury and I believe that is similar to the situation found on the other cases cited by the petitioners here.

    Of course, that is the end of my argument sir.

    Earl Warren:

    Mr. Mandell.

    Arthur J. Mandell:

    Mr. Chief Justice may it please the Court.

    I am not going to present the — for this Court any unseaworthy fish or any unseaworthy condition that does not relate exactly to the ship in question.

    As I understand the argument presented by my colleagues, (a) they state because the Court found that the noxious fumes and insecticide has been placed at a inland place somewhere that — that absolves them of all responsibility.

    And I submit to this Court that that simply cannot be solved under our system of jurisprudence.

    They conceded as they had to that it was known to the industry, it was known to the Galveston Wharves, it was known to the — the agent of the Steamship Company that such practice is engaged in by the industry.

    Now, what steps had they taken to prevent an occurrence such as this, especially in view of the past history in that very port?

    Now, they state that inspections have been made by, at the time the railroad cars came in, and when it goes into the bin.

    But I submit to this Court that that is simply not so and the record said it.

    William J. Brennan, Jr.:

    Was there a finding about inspections Mr. Mandell.

    Arthur J. Mandell:

    Yes sir, there was a finding that the — it could not have been discovered.

    And of course, I am stuck with this finding and I’m not asking this Court to set aside any such finding except to say that the finding of negligence itself of no negligence rather itself is erroneous conclusion of law under the very record in the case.

    If you will permit me —

    William J. Brennan, Jr.:

    (Voice Overlap) on the record, you mean on the findings, it’s erroneous?

    Arthur J. Mandell:

    It’s erroneous on the record.

    I say there is no evidence at all to support no negligence and I may submit this to the Court as follows.

    Arthur J. Mandell:

    The — a Mr. Carroll who was the Superintendent of the Galveston Wharves was called as a witness.

    And on page 26 of my brief, this witness testified in rather detail how the — the grain comes into various bins and that certain bins are fumigated and others are not, that they keep a record of the bins that are fumigated.

    But it further testified that from time-to-time, the grain is shifted from one bin to another and there is no record of the — of the grain that has been shifted.

    There only is a record of a bin and the Court — when the Court realized that, it’s stopped them and the Court asked him this question.

    The point I’m making is, if you don’t know a body’s possible transfers from bin one to bin two, how can you tell me conclusively that a grain from bin two that went in to the vessel had not been switched around and hence perhaps hadn’t been fumigated, do you follow me?

    In other words based — the evidence was that they loaded that bin from so many number bins, but also — the evidence was also undisputed that there was no record kept if grain in bin five that was fumigated, was transferred to bin two.

    In other words, they kept the record of the bins that were fumigated but not of the grain and the grain was constantly shifted from one bin to another.

    And the court says — the court asked him, “Do you follow me?”

    The witness says, “I follow you.”

    “There is a slight possibility that a small amount of that could have happened?”

    “Yes sir.”

    The court, “And your records would not show the contrary?”

    The witness, “No, sir.”

    The court, “Wouldn’t show either way?”

    “No, sir.”

    Actually, there was n record that the bins of — of the grain that was actually fumigated but only on the bins and there record is undisputed that a grain would be shifted from one bin to another.

    There is more than that Your Honor.

    The record is undisputed that a tests that were made as Mr. Watson stated, was for the quality of the grain and not for the purpose of determining whether it has been fumigated or not.

    And how did they go about it?

    They go to a car — the railroad car that comes alongside.

    If it comes in by 12, there is no — apparently, no method of inspecting it.

    But go to a car and they pick up a sample of the car.

    They take that bin away, some distance away.

    And sometime later in some laboratory, somebody makes a test to their grain for the quality or whether that has weevils in it or not.

    Now, they say incidentally, if there is some unusual odor we noted, but there is no evidence at all in this record that any inspection was ever made.

    Now, this is fortified by further testimony and the court was interested in it and a witness by the name of Goss, he was the sampler who stayed on the ship and as the grain came out from the spot, took some samples.

    And he — this man was present when these men were buried in their bin and when they were pulled out, he asked them, “Did you yourself see the mill?”

    “Yes sir, I saw the mill.”

    “Well, did it seem to you that our air from fumigant.”

    “It seemed to me that way.”

    Arthur J. Mandell:

    “Did you then take your sample to test, to see what was the matter with that grain?”

    He said, “No, sir.”

    “Well didn’t it seem to you that that was the time to do it?”

    He said, “No, sir because I do not test it for that purpose.”

    But the evidence goes further than that.

    Immediately above the vessel or before the last bin — the grain in the last bin has poured into the spout, no tests were made.

    At the crucial point, now this was a shot of 500 bushels of grain that obviously was contaminated.

    Now, what did the ship do about it?

    With the knowledge that they had of the previous condition, nothing but absolutely nothing, they just assumed that everything would be alright.

    Now then, an answer to Mr. Justice Harlan’s question yesterday, “What could they have done?”

    This is one of the things that they could have done.

    But frankly under the doctrine established by this Court and what I thought firmly established by this Court, knowledge is not prerequisite and it has been found in this — in this cashew oil grounds.

    Some seamen while loading some cashew nut — cashew nut oil, drums of cashew nut oil and some of them got into their hands because it was a leaky drum.

    It was just gotten in onboard ship.

    The vessel had no knowledge of the situation, couldn’t have had a knowledge.

    There was no question in the District Judge’s mind that that was an unseaworthy condition.

    There’re many other cases, in the Boudoin case decided by this Court.

    (Inaudible) know of the vicious disposition in propensities of the seaman until the assault, he was a calm gentleman.

    Until under certain conditions, he became vicious.

    This Court held that seaman to render the vessel unseaworthy.

    In the Johnson Line versus Maloney, there was presence of wheat dust and wheat kernels on the deck.

    A situation that to me it would seem comparable to the — to the sample that Mr. Watson gave and so the rest of the trade because you cannot load grain, I don’t think, without getting some kernels on the deck or some wheat dust, but the Court held that to be an unseaworthy condition.

    This is not a case where you — when you’re a fisherman and when you’re a fishermen, has certain no risks, that I take coming here to speak before this Court, this is a great Court.

    I don’t care how many times anybody comes before you, I assure you that a steep channel and somebody may have a weak heart and rock.

    That’s a risk of my trade.

    I can’t help it.

    But that’s not a situation as it happened here in the Grillea case.

    In the Grillea case somebody just — longshoreman picked up a — a hatch cover and improperly placed it.

    The ship-owner didn’t really think about it, the Master was probably sure buying his wife’s clothes and the loading made probably done in the galley drinking coffee.

    He didn’t know anything about it but this, the Court imposed liability on this thing and put in Investors v. United States.

    Arthur J. Mandell:

    An apple peel, somebody slipped on an apple peel, I mean —

    John M. Harlan II:

    You go — you go so far as to suggest that any accident that happens on a ship to a seaman or one who is properly on the ship or to do duties, is — renders the owner libel because of unseaworthiness?

    Arthur J. Mandell:

    No sir.

    John M. Harlan II:

    Where do you draw the line?

    Arthur J. Mandell:

    I draw the line in the situations for instance, I’ve gone aboard the vessel, I’m a longshoreman and I carry my — my hook and I swing my hook because I feel good this morning, and I swing it right into my hand.

    Certainly, that didn’t render anything unseaworthy or another longshoreman trips me, not meaning to.

    That didn’t render the vessel unseaworthy or I trip over my own feet.

    That didn’t render unseaworthy, numerous cases where I can illustrate.

    But here, there was an absolute failure to supply a safe place to which that there’s then no question about that, that a vessel was rendered unsafe for the purpose for which these men went down there to work.

    The Court so finds and relies only on the transitory doctrine because it happened just like this.

    This argument that a ship couldn’t have done anything about it, it has been made many times before.

    And as I stated yesterday, the finest example is the — the Petterson versus Alaska Steamship Company when they had a — hook that look just tripping and it had a latent defect.

    This Court had no hesitation to affirm the case.

    And now, the Crumady case decided by this Court, you remember in that case, there was a good (Inaudible) but it was improperly used, made defective.

    It was not inherently defective but made defective by the longshoreman working with it.

    This Court had no hesitation to impose liability in this (Inaudible) case.

    I submit that this case is a classic example of a place where the longshoremen were working in an area that was not reasonably safe to do their work, expected and intended of them.

    The shipowner should’ve known about it, had knowledge of similar instances.

    There is both negligence and unseaworthiness of this case.

    I say just — this is not an inherent dangerous thing to do, longshoremen do it with safety all the time.

    It is only under the circumstances in which the commodity is — becomes dangerous by reason of somebody’s act, renders the area not reasonably safe to do the work.

    I believe that the Mesle, a 260 F.2nd 747, sets out that — that the standard, I think, correctly what constitutes and what does not constitute to unseaworthiness.

    In this instance, the shipowner had actual or constructive notice that grain is being fumigated.

    It has happened in that port before.

    The shipowner didn’t lift a finger that discharge his duty.

    Under such circumstances, we submit the liability is imposed under the law as we know it.

    Thank you very much.