Roper v. United States

PETITIONER:Roper
RESPONDENT:United States
LOCATION:United States Court of Appeals District of Columbia Circuit

DOCKET NO.: 16
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 368 US 20 (1961)
ARGUED: Oct 12, 1961 / Oct 16, 1961
DECIDED: Nov 06, 1961

Facts of the case

Question

  • Oral Argument – October 12, 1961
  • Audio Transcription for Oral Argument – October 12, 1961 in Roper v. United States

    Audio Transcription for Oral Argument – October 16, 1961 in Roper v. United States

    Earl Warren:

    Number 16 William J. Roper, Petitioner, versus United States et al.

    Mr. Kelsey, you may continue your argument.

    Sidney H. Kelsey:

    Mr. Chief Justice, may it please the Court.

    May I briefly for one moment restate what was said on last Thursday?

    The question involved here is whether or not the warranty of seaworthiness is owed by a vessel which has been put into navigation for a commercial purpose, and well the warranty extends to gear an equipment which is attached to the dock on one end but is laying in the hole and is performing maritime services in the service to the vessel during the unloading operation.

    I stated the piece of equipment involved in this case is a grain shovels on a marine leg.

    It leans over from the dock into the hole of the vessel and is the only method in which this vessel can be unloaded.

    This Court said recently in 1959, West versus the United States, that the emphasis now, the focus should be upon the status of the vessel in order to determine the — whether or not it was in navigation and the warranty was old.

    We believe that the decision also imply that the warranty extends also to gear and equipment which is used in the maritime service of the vessel which I say practical and reasonable relation to the maritime service.

    William J. Brennan, Jr.:

    Mr. Kelsey —

    (Inaudible) vessel part of the vessel’s equipment?

    Even though its equipment is usually not part of the vessel equipment?

    Sidney H. Kelsey:

    Yes sir, what is the part of a vessel’s equipment is indeed a relative matter, as modern science progresses, new types of equipment are made in the vessel and we cannot be restricted to any particular type as there are improvements going on all the time.

    (Inaudible)

    Sidney H. Kelsey:

    Yes sir.

    Now —

    William J. Brennan, Jr.:

    Before any equipment?

    Sidney H. Kelsey:

    Well, this is also used in the maritime service as a clear and practical relationship to the maritime service to the vessel.

    In other words, through Sieracki — starting Sieracki 1946 and through to — the Crumady decision in 1959, this Court has double attempted to make any gear and equipment analysis of a type and kind.

    This Court has always said, it’s a clear reasoning, that if this equipment is used and the maritime service and an entry of thought arises out of this service then it is covered — the warranty is covered, covers this type of equipment.

    William J. Brennan, Jr.:

    I wondered Mr. Kelsey if you’re going to talk us through this (Inaudible) on this picture.

    Sidney H. Kelsey:

    Yes sir, I —

    Earl Warren:

    Mr. —

    Sidney H. Kelsey:

    — I had the (Voice Overlap) —

    Earl Warren:

    Mr. Kelsey just before you get to that, you said that this was the only way that ship could be unloaded, would you elaborate that just a bit?

    Sidney H. Kelsey:

    Yes sir.

    The — a marine leg of grain ship is a piece of equipment that is attached to the dock and it is — it is a funnel that goes over to the hole of the ship and it pulls up, it sucks up the grain through the leg into the grain way on the other side.

    There is no other way to unload the grain ship.

    In fact since 1956, the Government has unloaded 28 of its own grain ships, here at Norfolk with this equipment.

    We don’t —

    Potter Stewart:

    How do grain ships used to be unloaded before the development of this equipment?

    Sidney H. Kelsey:

    I presume sir in same way the coals’ unloaded by shovel and — then the holder to the vessels hole and put on the dock.

    This — this is just an innovation the marine leg is about to change its status.

    Now, if the Court — in West, the Court said we will have no job analysis.

    Mr. Justice Clark stated that in his opinion.

    Now, if we will have no job analysis to determine whether the maritime worker is entitled to the warranty of seaworthiness, why should we have in a gear or equipment analysis?

    Indeed in the state opinion Judge Learned Hand said, his words were, “If the maritime thought arises out of the service to the vessel, it makes no difference whether or not it arose on land or it arose on the vessel.”

    And indeed Congress to 1947 showed the way by extending maritime jurisdiction on the Admiralty Extension Act to the dock.

    And since Admiralty jurisdiction is extend to the dock, and certainly where this equipment is, it shows this Court that Congress itself has pointed the way for the coverage of this type of equipment.

    I would like to save the balance of time Mr. Chief Justice in reply please.

    Earl Warren:

    You may.

    Sidney H. Kelsey:

    Thank you.

    Earl Warren:

    Mr. Colby.

    Leavenworth Colby:

    Mr. Chief Justice, may it please the Court.

    It seems to me my brother and his distinguished argument has pointed out precisely what the difficulty is and how this case came to be decided and how it’s here today.

    He has said that the Court in West said that no job analysis would serve to determine the scope of the warranty of seaworthiness.

    Now, that we think means in effect that the scope of the warranty of seaworthiness must be determined upon the particular facts and circumstances of the case.

    And in this case, two courts below have held that in the special facts in the circumstances of the case, the man here did not suffer damage as a result of the reasonable reliance upon a warranty or representation by the shipowner that the equipment which injured him was safe or seaworthy.

    One judge in the Court of Appeals below dissented.

    He appeared to be of the view that my learned brother has so skillfully advocated here, that whenever any kind of a device is used to assist in the maritime operation, whatever the maritime operation, that device should be deemed to be warranted, to be seaworthy for a voyage.

    Now of course, there are certain semantically difficulties about using words in this way, but I pass those.

    I should like to remind the Court of the origin and development and analysis of what it is, a breach of warranty of seaworthiness.

    As Mr. Justice Stewart so skillfully set forth and Mr. Justice Frankfurter also in his dissent in the Mitchell case, the concept to the warranty of seaworthiness was originally developed in respect of the shipowner’s warranty to the underwriter and the shipowner’s warranty to the shipper and the shipowner’s warranty the passenger.

    All of whom were people who knew nothing about what was going on aboard with the exception of the passenger they weren’t even there.

    Now, beginning with the case of (Inaudible) the famous coal oil can case where they had gasoline in the coal oil can.

    This conception was extended to cover a situation where without fault.

    The shipowner had misled the seamen.

    So now, we find that this conception of recovery for the breach of warranty of seaworthiness is precisely the same sort of thing as the courts were confronted with in connection with the warranty of sales.

    And accordingly, we found that when we got to sea rocky, the Court very properly extended the rule as the courts had ruled with respect to the sale of shore side property in MacPherson against Buick to everyone who was within the reach of the representation.

    And the Court most properly said, “We will not draw the line as to whether the man is a seaman in the strict sense, but we will extend it wherever the man is aboard the ship doing maritime work or as they keep saying work of the same nature as the seaman.”

    Leavenworth Colby:

    Now, that of course as this Court has developed through the years, then requires the same factors that it does in a breach of warranty of sale onshore.

    There must be a representation that something is fit for a purpose.

    There must be a reasonable reliance upon that representation and there must be an injury causally resulting from the reasonable reliance.

    And this Court through a series of decisions has developed and expanded this rule.

    Most significant it seems to me in the context we have today, is as both courts below thought, this Court’s decision in the West case where the court held that if the shipowner did not represent that the vessel was seaworthy but on the contrary represented that it was unseaworthy, the man could not rely upon any inconsistent implication of a warranty of seaworthiness.

    Now, two courts below appreciating the facts have come to the conclusion that this is the same sort of thing.

    Now, my brother’s argument it seems to me, pre-supposes a representation that the courts below decided against his client solely because they thought this vessel was not in navigation.

    And secondarily, that this matter was one resulting from a part of the real estate onshore which extended over into the hole when it’s sucked up the grain.

    Now, I don’t think that that isn’t anyways consistent with what the court below actually said, because if Your Honors will examine pages 102, 103 and so forth of the record, you will see that that is not at all what the Court of Appeals thought about the case.

    The Court of Appeals said that with respect to a special factual situation like this, there was no representation by the shipowner that the unloading equipment of the vessel was seaworthy and properly maintained because it all has been taken off.

    It says that, at the bottom of page 102, “No such limited use could give rise to a warranty of seaworthiness of unloading equipment, all of which was still in mothballs” and that refers to the fact that the blooms were still aboard but they were lashed down or completely removed.

    Now, my brother very properly says that here, he wouldn’t have unloaded it with the ship’s equipment in any event.

    Now, it seems to me that far from giving rise to an implication in the circumstances, that the shipowner warranted the seaworthiness for a voyage of the equipment which was passed to the dock, which could not go on a voyage and which could not for all practical purposes ever be inspected, controlled, examined, repaired, or what have you by the shipowner.

    This is not within the scope.

    Now, I would like to direct the Court’s attention to this picture that you’ll have of the marine leg and see where it is up there before its — when it’s retracted before it’s introduced into the ship.

    And you will see that so far as the ship’s people are concerned, all it can do is look up and see it as a part of the real estate.

    It’s attached to this tower which is attached to the grain elevator and it swings out and comes down.

    William J. Brennan, Jr.:

    Which is the scoop Mr. Colby?

    Leavenworth Colby:

    The scoops are stored in this point here of the bucket.

    William J. Brennan, Jr.:

    But why should you look at this?

    (Inaudible)

    Leavenworth Colby:

    It’s very difficult to look at this.

    I think the structure is directed you see on — on steel legs.

    It’s goes up like this —

    William J. Brennan, Jr.:

    Well, this is this?

    Leavenworth Colby:

    It’s swung up.

    It swings down.

    Now, the — the scoops or shovels are stored in between the two parts of the —

    William J. Brennan, Jr.:

    I’m sorry, I cant — I can’t follow this.

    I see that — am I looking at it correctly?

    Leavenworth Colby:

    You’re looking at a correctly.

    William J. Brennan, Jr.:

    And what’s this —

    Leavenworth Colby:

    That is the leg which reaches down in the vessel.

    If Your Honor please, it works something like this if I may take a couple a rulers here.

    Here is the thing pass to the dock.

    You see it in this position like this, up like this.

    Now, when it is to be introduced into the ship, they extend it down into the hold of the ship like this.

    Now, this leg which you see in the picture here along the edge is a clamshell buckle —

    William J. Brennan, Jr.:

    This it looks a pipe here you mean?

    Leavenworth Colby:

    No, that pipe is not a device in question.

    That’s a suction type leg.

    That works on the vacuum cleaner.

    William J. Brennan, Jr.:

    Well, I’m — I’m very certainly the one that —

    Leavenworth Colby:

    The one that’s involved in this case is this clamshell bucket — on top at here.

    William J. Brennan, Jr.:

    Oh, yes.

    Leavenworth Colby:

    And that goes down to the bottom that has a foot that rests ultimately in the bottom the hold of the ship and the buckets run around on an endless chain lifting the grain —

    William J. Brennan, Jr.:

    Well, where’s the steel trap — as I understand it, the steel trap broke or something and release the block.

    Leavenworth Colby:

    There was a block attached to the bottom of the leg.

    That is because as Your Honor will remember —

    William J. Brennan, Jr.:

    Well, may we —

    Leavenworth Colby:

    — once the grain gets slow.

    William J. Brennan, Jr.:

    Yes, but can we see it here Mr. Colby?

    Leavenworth Colby:

    No, at this point it’s stored back in the leg.

    They — when the grain is gotten to such a point that the grain no longer flows against the leg, then they take out the leg, these scoops and they pull by power at furnish from the dock, the scoops through the remaining grain to get the grain against the bucket.

    William J. Brennan, Jr.:

    Now, what — while this process is going on a — the scoops still attach somehow to the leg, this one?

    Leavenworth Colby:

    Yes.

    The scoop has a line; just like a bull line, it has a line that goes over a pulley or block on the marine leg and up to block to the source of power.

    And they have a clutch device with a hand rope that the chap pulls and while he has that pulled, it takes up tension and draws the scoop through the grain.

    See, this is only used at the — on the last grain.

    That other vacuum cleaner type device you see there was — will lift grain almost to the last bucketful.

    Potter Stewart:

    Where — where is that?

    I don’t see that.

    Leavenworth Colby:

    That’s the type that you see somewhere down.

    Potter Stewart:

    Well, that’s the type I see.

    Yes.

    Leavenworth Colby:

    But you see that’s a much slower device.

    Earl Warren:

    Mr. Colby, —

    Leavenworth Colby:

    The —

    Earl Warren:

    — do I understand from what you’ve said a few moments ago that we can eliminate from the case the fact that this ship had been deactivated and at the time was not in full maritime service?

    Leavenworth Colby:

    I don’t think, if Your Honor please, you can never eliminate that sort of thing for a case.

    Earl Warren:

    Well, I thought you said that the grain was eliminated?

    Leavenworth Colby:

    I said — I said that you cannot rest it on that ground alone that it is a factual question overall.

    What is the scope of the representation of what is seaworthy?

    Now, because this vessel had all of its unloading equipment removed from it, because this vessel was not licensed to do anything, because this vessel merely floated upon the water as a floating granary.

    The scope of the representation to the man of what might be in a seaworthy condition for a voyage if will and if you will join my brother in the conception that this is a voyage going from the reserve fleet over to be unloaded, a short distance.

    Still you are presented with the question, what is the scope of the warranty?

    What does the shipowner represent?

    And the court below said, that in these special circumstances, he didn’t represent that the loading equipment whether shore side or on the ship, was seaworthy for a voyage because there was no loading equipment aboard the ship.

    William J. Brennan, Jr.:

    Tell me Mr. Colby suppose that there had been a ship and full operation crew and everything else had simply — and its cargo consisted this grain or its loading equipment is functioning and all the rest of it, but they had the one loaded at the site where into this warehouse, could they have used the ships equipment of this (Voice Overlap) —

    Leavenworth Colby:

    No.

    They wouldn’t have used this equipment —

    William J. Brennan, Jr.:

    So that —

    Leavenworth Colby:

    That I think is what Mr. Chief Justice Warren is addressing himself to when he says, really that — what I say he says that the question of the navigation in so forth has little or nothing to do with it.

    And in the sense that Your Honors takes it, I take it that so.

    In other words, if the vessel had been fully seaworthy for a voyage, they still would have used the marine leg.

    The marine legs still would have been a matter concerning which the shipowner could know nothing and it would be a device which was not like ships equipment.

    William J. Brennan, Jr.:

    Well, suppose — suppose this ship had been like that in this very accident have happened, would you still be arguing that there was no breach of the warranty of seaworthiness?

    Leavenworth Colby:

    Yes, but I assume if that were so in appraising and discussing the special facts of the case, the Court would have thought it necessary to put it primarily on the ground that this man was not engaged in ships work and he was not using ships equipment.

    Now remember, this man is the foreman of Atlantic and Gulf Stevedores, who are the people hired by Continental Grain Company, the operators of the elevator and the owners to the marine leg, to do this particular job.

    The record shows that this is the man who on this day inspected this leg to see whether it was suitable and so forth.

    Leavenworth Colby:

    And —

    William J. Brennan, Jr.:

    Well, but I — as I understand it by quite your correct words, a finding of liability on the basis of breach of seaworthiness, do you think would be supportable if this ship had been as you put it otherwise fully seaworthiness or this fully (Voice Overlap) —

    Leavenworth Colby:

    No, I don’t think it would —

    William J. Brennan, Jr.:

    You do not, yes.

    Leavenworth Colby:

    — because I do not think that the shipowner warrants that equipment which is not appropriate to go on a voyage of the ship, is warranted seaworthy for a voyage.

    In other words, passing —

    William J. Brennan, Jr.:

    Well on what ground — on what ground would he be resting it, that he is not doing seaman’s work or what?

    Leavenworth Colby:

    I would be resting it primarily upon the ground that part of the real estate is nothing which is warranted as part of a vessel seaworthy to go to sea.

    Now, the warranty of seaworthiness as Mr. Justice Stewart’s opinion most recently points out in the Mitchell case, is a warranty that the ship and appurtenances and equipment of the ship are seaworthy for a voyage and — and of course this was the point primarily of the Mitchell case, that they will be maintained seaworthy for a voyage and thus where the shipowner in Mitchell didn’t keep the rail free from slime.

    And the man came up from his cabin expecting that the rail would be by that time free from slimes since that was the way he got on the dock was by stepping on the rail and he slipped.

    There was apparently on the record of breach of the warranty of seaworthiness.

    Now here, there is no representation as to the seaworthiness for the voyage of equipment which cannot go on the voyage, but must always remain fast to the dock.

    Felix Frankfurter:

    Perhaps, you — perhaps you explain the difficulty, but let me put it specifically.

    Deriving my question arise from your statement a little while ago regarding the stages of (Inaudible)

    Leavenworth Colby:

    Yes.

    Felix Frankfurter:

    Namely that he was a foreman is it where and oversea for the Stevedoring Company concerned, is that right?

    Leavenworth Colby:

    That’s right.

    Felix Frankfurter:

    Now, suppose the same person with the same status and the same function that going aboard a ship of this shipowner, the ship fit for voyage, he would have — under Sieracki come within the protection of —

    Leavenworth Colby:

    That is right.

    Felix Frankfurter:

    — seaworthiness.

    Leavenworth Colby:

    And if the (Voice Overlap) had broken as in the Patterson case, or wire had given way as in the Rogers case or a shackle had broken as in Sieracki or any of these other things of ships equipment, he would at that time have been within the warranty.

    Felix Frankfurter:

    Now you say —

    Leavenworth Colby:

    But this man —

    Felix Frankfurter:

    — you say, if may finish —

    Leavenworth Colby:

    Please.

    Felix Frankfurter:

    — for my purpose of clearing up my thought.

    You say that the relevance of his relationship to the stevedoring concern and not to the shipowner, the relevance derives from the fact that this isn’t part of the ship’s equipment for a –- for a sea voyage and therefore a fortiori you said.

    First, he was an employee of the stevedoring concern isn’t being warranted seaworthiness of an equipment that’s not never part of a ship.

    Leavenworth Colby:

    That’s right.

    In other words, this is just one factor and that of course is what the West case has thought, that you cannot decide these questions by saying the ship is — there is not a navigation by saying that the man’s work in general is or his not maritime employment.

    Leavenworth Colby:

    Now, certainly this man if you do it as my brother would have you that he was unloading the ship, this is clearly a maritime employment of the kind that a seaman does.

    On the other hand if he —

    Felix Frankfurter:

    Although the — although the injury is causally connected with equipment on land and forever remaining on that.

    Leavenworth Colby:

    Yes.

    On the other hand, if you look at it from the standpoint of what was the individual man doing.

    In other words, he was the man that looked after this shore side device.

    He is — in the capacity of looking after the shore side device as foreman for this operation, he is not doing in that quality seaman’s work.

    Now, he went exactly the same sorts of problem in connection with Crumady and Halecki and everything else, and this is why it cannot be determined by any kind of shibboleth.

    You cannot decide that it’s a navigation or it’s not a navigation, the fellow has got a job classification to do this or that.

    You have to look at what the individual parties do.

    What was this man supposed to do?

    What was the actual representation?

    Felix Frankfurter:

    But if this — if this had been an ordinary seaman of active live ship, and even sent aboard of — been sent ashore by the mate or the mass or the captain or want not, to do a job — to do a job connected with this installation and he had been inject, what would you say to that?

    Leavenworth Colby:

    I would say there was no warranty of seaworthiness there that that is deferent from the Stricker case, were ships equipment slid of the ship and hit the man, injuring him while he was standing on the dock.

    Because there the equipment, the appurtenances of the ship which are warranted to be seaworthy and to be main –maintain see were they failed and Stricker got hurt.

    Felix Frankfurter:

    I suppose he might — there might be a warranty on the Buick but not because of the seaworthy doctrine, isn’t that right?

    Leavenworth Colby:

    There might be a warranty —

    Felix Frankfurter:

    Suppose the mate sends him over — suppose the mate sends him ashore and he asked to use a car, that’s the use of Buick, the Buick has the inherent effect of the Buick had in a New York case, they might sue the Buick Company but not —

    Leavenworth Colby:

    Precisely.

    Felix Frankfurter:

    — not through the shipowner on the ground of unseaworthiness.

    Leavenworth Colby:

    And here of course, there is not doubt about Mr. Roper’s right to sue Continental Grain Company who was not his employer and presented no compensation questions.

    And it was Continentals Grain’s failure to maintain the marine leg properly which caused the damage.

    There would be no doubts so far as I can see about Mr. Roper’s right to sue Continental Grain Company and recover for negligence.

    In other words —

    Felix Frankfurter:

    What’s the bearing – what’s the bearing of that Romeo case, the fellow got drunk and got on the seaman, get on the balcony somewhere in Venice or where was it?

    Leavenworth Colby:

    That was a maintenance in jury case if Your Honor please, not a unseaworthiness case.

    In other words, the question was not that the house had an unseaworthy balcony and that the ship was charged with that but rather that being in a house or shore was authorize recreation for a seaman in a foreign port.

    Felix Frankfurter:

    It was a cure for Romeo, wasn’t it?

    Leavenworth Colby:

    Yes, I imagine that after that experience, he was somewhat more careful and never went into a house that had a balcony.

    William J. Brennan, Jr.:

    Mr. Colby, this had been a commission ship and Roper, not a stevedore employee but a member the ship’s crew, operating this thing at time this happened and all the other facts where the — what they are (Voice Overlap) —

    Leavenworth Colby:

    I should think that the answer is the same Mr. Justice Brennan.

    William J. Brennan, Jr.:

    Even for a member the ship’s crew?

    Leavenworth Colby:

    Yes.

    In other words, the shipowner warrants the seaworthiness for a voyage of the ship —

    William J. Brennan, Jr.:

    Well I – I’m assuming —

    Leavenworth Colby:

    — and her equipment.

    William J. Brennan, Jr.:

    I’m assuming of course that the — that the ship’s owner, the master or someone assigned Roper as a member the ship’s crew do this job in the hole?

    Leavenworth Colby:

    Well of course it’s a little difficult as a practical matter because this is a skilled work with a shore side device.

    William J. Brennan, Jr.:

    I know that —

    Leavenworth Colby:

    But —

    William J. Brennan, Jr.:

    — if –- on that set of facts, we’ll do if —

    Leavenworth Colby:

    I should think on the set of facts, there it was no breach of the warranty of seaworthiness because it is not an appurtenance of the vessel.

    They went so far — now, on the one hand, we have the question of —

    William J. Brennan, Jr.:

    But what then — would the – that’s to say then that even though he was a member to the crew in that circumstance, the shipowner would have no liability to the seaman?

    Potter Stewart:

    (Voice Overlap)

    Leavenworth Colby:

    As long as that maintenance in cure.

    Potter Stewart:

    And it might —

    Leavenworth Colby:

    And he might be liable for negligence.

    Potter Stewart:

    Under the Jones Act?

    Leavenworth Colby:

    Yes.

    Potter Stewart:

    For assigning a seaman to —

    Leavenworth Colby:

    Yes.

    Potter Stewart:

    — do his stretch life’s dangerous work.

    Leavenworth Colby:

    Yes.

    But he would not be liable on the ground that there had any — was any representation by a shipowner that a shore side equipment which he couldn’t see or have anything to do with, had not been maintained properly.

    In other words, it’s a question and that is what the court below so carefully recognized that pages 102, 103, and 104 of the records that this is a factual question of what is the scope of the representation and was the reasonable reliance.

    Now, on the reasonable reliance, please bear in mind that this is the man who had the duty of inspecting this thing.

    No one would have any better chance to know about it than he.

    And bear in mind that instead of suing Continental of people whose machinery brooked on it, he proceeds to sue the shipowner.

    Now, I don’t blame him one little bit because if you can get away with it so to speak, why — it requires very little from proof of a warranty of seaworthiness and proof of the case of negligence.

    Leavenworth Colby:

    It’s idle for me to stand here and Mr. Kelsey just stand here in the Court to consider what turned out on the record.

    I don’t suppose Mr. Kelsey was this convinced when he got his case under way.

    The Continental would be shown pretty well on the record to be negligent.

    Hugo L. Black:

    Mr. Colby.

    Leavenworth Colby:

    Yes sir.

    Hugo L. Black:

    I’m a little disturbed by your argument because I think you’re arguing something as the Court — the District Court and the Court of Appeals expressly laid aside and which you did not even present as a question in your opposition to this certiorari.

    Leavenworth Colby:

    I think we did presented in our position —

    Hugo L. Black:

    Your proposition (Voice Overlap) —

    Leavenworth Colby:

    — into the certiorari.

    Hugo L. Black:

    You have present.

    Leavenworth Colby:

    And in the brief —

    Hugo L. Black:

    — in the present brief.

    Leavenworth Colby:

    But the —

    Hugo L. Black:

    But in your question, I find not even a semblance of an argument.

    And I assume that was because the Court said at 101, the District Court did not consider whether the usual warranty of seaworthiness would encompass this sort of shore-based, shore attached equipment for it held, there was no warranty of seaworthiness.

    Since we agree, we also confine ourselves to the holdings that there was here no warranty of the seaworthiness of any unloading equipment.

    And then they proceed and decided on the basis to the West case holding of a deactivated ship and I find nothing in you original opposition to this certiorari indicates that you or whoever wrote that brief, thought there was in a such question here as you are now presenting with reference to — except the single question of the West case that this was deactivated ship.

    Leavenworth Colby:

    Well, now if Your Honor please, I think these shows why the ordinary rule is that you urge anything in support of the decision below because we’re drawn into this.

    Hugo L. Black:

    Well, am I correct in your opposition?

    Leavenworth Colby:

    I’m — with my eyes, it’s not possible for me to read the opposition that quickly —

    Hugo L. Black:

    Well did not — have you not read it?

    Have you not read it?

    Leavenworth Colby:

    Yes, but it’s a good long time ago since I read the opposition.

    Hugo L. Black:

    Did you write it?

    Leavenworth Colby:

    And since — no I didn’t write it.

    Since this question about the dock has been in the case from the beginning, I am little of the opinion that it’s probably braided in there somewhere.

    But let me say this.

    I think it’s entirely under the issue which the court below raised, despite the fact that they defined it out because the question is —

    Hugo L. Black:

    The court below did define it out (Voice Overlap) —

    Leavenworth Colby:

    The question is, what is the scope of the warranty that the shipowner made?

    Leavenworth Colby:

    Now, they get out of it by this matter at the bottom of page 102, the Court of Appeals, in which they say that there was no representation as to any kind of loading equipment.

    Therefore, I take it they’re saying that that includes loading equipment on the shore.

    Now, this is perhaps not the way I would have done if I have been in the Court of Appeals.

    Hugo L. Black:

    That’s evident now in your argument.

    Leavenworth Colby:

    But we are — we are obliged to take the case the way they find it.

    And I don’t think that it’s a new issue as shown by the briefs –- briefing in the record generally.

    Earl Warren:

    Mr. Colby, may I ask you this?

    As I understand, it would’ve made no difference whether this ship was fully activated or whether it was inactivated as — as this one had — had been.

    The unloading would have been exactly the same.

    Leavenworth Colby:

    That’s right.

    Earl Warren:

    (Voice Overlap) now just, let me go on please.

    And that the same equipment would have been used and that regardless of whether it was an activated ship or not, this injury would’ve occurred as it did occur.

    Now, why in those circumstances does it make any difference in this case?

    That the ship was inactivated as —

    Leavenworth Colby:

    This —

    Earl Warren:

    — this is according to your protection.

    Leavenworth Colby:

    Yes.

    This is what Mr. Justice Black very properly raises.

    Now, what we’re raising in the — you and Mr. Justice Black are raising that the analysis that the court below made was not as practicable it seems to me, an analysis.

    In other words, they take it by saying, since there was no representation that any loading equipment was seaworthy, there is no representation that this shore side loading equipment was seaworthy.

    Therefore, they say that there is no occasion for passing on the question of whether or not, this is to be treated like the wire and the snatch block in the other cases or whether it’s to be treated like the grinding wheel in Berryhill where the Court said, “Well that was not ship’s type equipment.”

    Earl Warren:

    But Mr. Colby —

    Leavenworth Colby:

    What this does —

    Earl Warren:

    — my — my question is not the same as Mr. Justice Black’s.

    What I want to know is what difference does it make in this case, if the same equipment had been used whether the ship was activated or not and if the accident would have occurred in exactly the same way as it happened here?

    Why – why are you here arguing that one — as one of your questions that this is deactivated, admittedly unseaworthy, vessel of the mothball fleet which is out of navigation and is being used for the non-maritime purpose of storing wheat, why do you make that through the first question if those are the facts?

    Leavenworth Colby:

    I think that we make our first question because that is the way that the court below ceased upon it.

    As I say to you, they viewed the question that there was no warranty of seaworthiness in respect of any equipment on the vessel.

    Therefore, there was none in respect of the land based equipment attached to the real estate.

    Now, Your Honor is perfectly correct that if instead of approaching the problem from the standpoint of the analysis of the court below, but rather from the facts themselves, we see immediately upon analysis of the facts themselves, that it would not have made any difference.

    Leavenworth Colby:

    Now, I don’t think that that means that the court below is wrong.

    It merely means that the opinion is somewhat inartificial because they reached the shore-side equipment by saying there was no warranty at all.

    Therefore, there was no warranty of shore side equipment.

    Therefore, we don’t need to examine the scope of the shore side equipment.

    Hugo L. Black:

    And that’s all they decided, isn’t it?

    Leavenworth Colby:

    Well, I suppose what they decided —

    Hugo L. Black:

    Is that what they said?

    Leavenworth Colby:

    I think what they decide Mr. Justice Black —

    Hugo L. Black:

    Is that what they said (Voice Overlap) —

    Leavenworth Colby:

    Is that in the circumstances, yes, but there’s a difference between what’s decided and what is said.

    I think what they decided was, that in this circumstances, the shipowner had not made any representation upon which the plaintiff relied and which the shipowner had breached.

    Now, I think that’s the essential holding of the case.

    Now, the opinion keeps discussing this in terms that there was no warranty of unloading equipment because of the special circumstances of the case that the unloading equipment had been taken out and off of the vessel.

    And you and Chief Justice very properly called attention to the fact that actually in the circumstances of this case, i.e. the removal of grain out of the railroad car, out of the barge, out of a vessel, out of anything.

    You can’t do it with tackle like a ship has.

    You have to do it either with a sucking device or with the clamshell pocket device.

    Now, again I say to you, this is the question on the one hand between the factual analysis of it and the way of the opinion discusses it.

    But I don’t think when the court below was not wrong, even though it talked about it the wrong way, that that is a ground for reversal.

    I think it may —

    Hugo L. Black:

    I think —

    Leavenworth Colby:

    — very well be —

    Hugo L. Black:

    I think I understood that if that has been your first presentation of your case.

    But you win until I ask you the question, as I understood you on the argument if the court’s opinion showed what now you say it does not show.

    Leavenworth Colby:

    No, I think the court’s opinion —

    Hugo L. Black:

    You read from the page 102 and 103.

    Leavenworth Colby:

    That’s right.

    And I emphasized that the court’s opinion shows which is indubitably correct that the shipowner made no warranty as to the seaworthiness and maintenance and fitness of any kind of unloading equipment.

    And since they made no warranty as to unloading equipment, the court below said for the purposes of this case as distinct from a case where they was unloading equipment, that might have been warranted.

    But for the purposes of this case, that took care of the problem or whether it was aboard or ashore.

    And I think this is not only logically but practically a perfectly permissible way to go about it —

    Felix Frankfurter:

    Mr. —

    Leavenworth Colby:

    — although it doesn’t post a good case for certiorari because this Court wants to decide the more important question, which is Your Honors have pointed out is presented on a ship in navigation no — just the same as on the ship out on navigation.

    But that’s the question of the scope of certiorari after the court has granted it.

    It has nothing to do in my opinion, with the question whether the court below was wrong because it was not.

    Hugo L. Black:

    Mr. Colby, when you or any other lawyer comes here to sustain a judgment, it — has it been the guiding of this Court that you are restricted in sustaining the judgment not only to the ground but to the language of the opinion below, the decision of which you are sustaining?

    Leavenworth Colby:

    It is my understanding that that has never been the con — the doctrine with respect to this Court anymore than with respect to an appellate court.

    Hugo L. Black:

    It’s my understanding —

    Leavenworth Colby:

    In other words you —

    Hugo L. Black:

    — that you presented that late.

    Leavenworth Colby:

    You are ordinarily tried to present the case in support of the decision below —

    Felix Frankfurter:

    And even —

    Leavenworth Colby:

    — but you are not bound by that.

    You also try to explain that there are factors which the court below shows to gloss over, which are equally important if not more controlling.

    Felix Frankfurter:

    Am I right in – am I right in my recollection that this Court has decided cases on ground never adverted to either by the court below —

    Leavenworth Colby:

    Many times —

    Felix Frankfurter:

    By counsel at the bar?

    Leavenworth Colby:

    Many times Your Honor and some of them were matters that were very wide for many doctrine about jurisdiction or anything like that Mr. —

    Felix Frankfurter:

    And here’s against — here’s the question was really raised on which a constitution decision have rested?

    Leavenworth Colby:

    Correct.

    Hugo L. Black:

    Have you (Voice Overlap) — have you understood for many thing I said that the implication that Mr. Justice Frankfurter made were intended to be made by me, that a man cannot defend his judgment on anything he desires.

    I asked why?

    After you have been arguing a case for a long time, you took it on the position that the court had decided it that way, when the record shows it had none.

    Leavenworth Colby:

    I did not think that I had taken it on the ground that the court had decided it that way.

    I thought that I had taken it upon the ground that Mr. Justice Brennan and Mr. Justice Stewart put it to me and what we are now getting to here now that actually, and I would assume for purposes of this Court’s opinion in deciding the case.

    It should not be ignored that although the Court of Appeals shows in dealing with the case on its special facts to view with it that way that is not the only situation in which this problem would be presented.

    And that I’m sure as I understood Mr. Justice Stewart to imply at one point, this is quite an exceptional case to have this happen on a deactivated vessel coming up from the reserve fleet.

    It probably happens everyday, constantly in respect to grain ships on the great lakes in the sense —

    Hugo L. Black:

    But the court (Voice Overlap) remains, does it not?

    That you are asking us to decide this case now on the basis of facts and you say a factual basis, the very important which neither the District Court nor the Court of Appeals haven’t passed on.

    Leavenworth Colby:

    Well, with difference Your Honor, that is what I have thrice said.

    Leavenworth Colby:

    I don’t think is an altogether fair interpretation of the way of the Court of Appeals and the District Court went about it, although they do say, they don’t have to decide the question of the grinding wheel in Berryhill versus the snatch block in Patterson.

    Hugo L. Black:

    Do they not express to say that they do not have to decide anything upon the basis of the shore-base?

    Leavenworth Colby:

    Yes, sir.

    Hugo L. Black:

    They do?

    Leavenworth Colby:

    They do expressly say that.

    And that puts them in the opposition that they have decided the case on the ground that when there is no warranty as to the seaworthiness of any equipment, that covers the situation that there is no warranty as to the seaworthiness of shore-based equipment, and this is logically on unassailable.

    However, much it may represent a chance to throw away an opportunity to instruct the District Courts in the bar as to what the applicable law would be.

    I have no occasion to teach that with your experience in the Legislature.

    I have no occasion to teach that much trouble would be avoided if judges in Courts of Appeal would recognize that in addition to deciding the particular case, they are also engaged in providing guidance to District Courts and lawyers who have other cases coming along.

    Now, I must agree with you that the court below didn’t take the opportunity to recognize that this problem is presented in this case on a ship where there was no loading equipment of board but could have been presented equally on a case where there was loading equipment of board.

    But I remind you again Mr. Justice, that there is an old judicial concept and approach that you always decide everything on the narrowest possible grounds.

    Now again and again and again, this has been proven to be an awkward way of deciding cases.

    I’m sure that Mr. Justice Frankfurter can provide some delightful examples because as I recall when I went to school to him nearly 30 year ago, he then had something of the sort which he tried it out as examples of how judges by trying to be too narrow had not done themselves to the bar any good.

    So it seems to me what we have is the case where this Court may very well want to deal with the other aspect, but that doesn’t mean that there’s any necessity just because the Court of Appeals may have do it in felicitously.

    The Court of Appeals should be reversed, because I think quite to contrary.

    There’s everything in the record and in the Court of Appeals’ opinion, there is implicit what Your Honor has raised.

    Thank you.

    Earl Warren:

    Mr. Kelsey.

    Sidney H. Kelsey:

    Mr. Chief Justice, may it please the Court.

    My distinguished friend mentioned the — two courts below rule was with reference to affirming the majority opinion of the Fourth Circuit.

    This Court stated in the McAlister case versus United States in 1954 348 U.S., that the Supreme Court stands in the same position in review of the District Court’s findings as the Circuit — as the Court of Appeals does and if the findings are clearly erroneous when although there’s evidence to support that — to support it, the reviewing court on the entire evidence is left with adoptive conviction a mistake has been made and this Court will reverse.

    The facts — this is not a situation where this Court must overturn a District Court or Circuit Court’s findings of facts because the facts are undisputed here.

    There are — there are only one set of facts.

    Now, it is the misapplication of the law.

    The West case has been misapplied through the local case and Chief Judge Sobeloff has — has bear pointedly shown the way where it ask.

    This — the majority in the Fourth Circuit said that it was a dead ship.

    This is no dead ship.

    This ship was following and doing the functions of a ship unloading its grain.

    It was kind of a like a commercial venture for the owner.

    How can any — any position be made, however, this was a dead ship, a deactivated ship.

    Sidney H. Kelsey:

    Now, the other question involved regarding the equipment, we don’t believe as we stated before that it makes any particle of difference.

    Well, it would go to see.For instance, no one ever supposed that the — an atomic reactor would go to sea.

    But in the Savannah today, a merchant vessel who has been at sea over a year, wholly and totally powered by atomic power, whoever supposed that that would go to sea.

    Do you consider there any — under the disputed issues of fact shown by this record?

    Sidney H. Kelsey:

    No, sir.

    I do not sir because the facts are clearly with a dispute.

    The vessel was in navigation.

    She made aboard.

    She was unloading her cargo and the only way it could be unloaded.

    Now, if you’re going to strip this longshoreman of his benefit of the warranty when he’s using equipment, the only equipment that the shipowner has, however, provided him well.

    The only equipment to do his job, if you’re going to strip him of a warranty on the basis, on the analysis, that one end of the equipment is on the dock.

    We think it’s not in accordance with the prior decisions of this Court that the equipment covered is given equipment which I think practical and reasonable relationship to the maritime service of the vessel.

    Everything were arises out of a maritime service.

    All around that vessel and floating in water, well its type to the dock (Inaudible) is the maritime protection.

    And Congress as I mentioned earlier, extended it to the dock.

    Now, as to the other part of the case which my friend allude to that we could have sued someone else, we — we didn’t sue anyone else.

    In fact, we couldn’t because equipment actually was not owned by Continental.

    It was owned by Northwest Railroad, which was an independent contractor and it leased equipment to Continental.

    But the point in case is that the United States, the largest shipowner in the world, provided this defective equipment for this longshoreman to you, and it was docked at the face and the whole of the ship using in it, as Chief Judge Sobeloff have said.

    We believe the Supreme Court under these facts would grant a recovery.

    Thank you sir.