Salem v. United States Lines Company

PETITIONER:Salem
RESPONDENT:United States Lines Company
LOCATION:Cleveland, Ohio

DOCKET NO.: 283
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 370 US 31 (1962)
ARGUED: Mar 19, 1962
DECIDED: May 28, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – March 19, 1962 in Salem v. United States Lines Company

Earl Warren:

Number 283, James Victor Salem, Petitioner, versus United States Lines Company.

Robert Klonsky:

May it please the Court.

Earl Warren:

Mr. Klonsky.

Robert Klonsky:

Your Honors, we are here concerned with the reversal by the Court of Appeals of the Jones Act seaman’s verdict related to James Victor Salem who was a lookout able-bodied seaman aboard respondents S. S. United States.

We are also here concerned with a reversal of an award for future maintenance given by the trial judge on consent of the parties.

The major issue involved here relates itself to whether the initial verdict on negligence and unseaworthiness was infirmed because of the failure of the plaintiff to present an expert on maritime architecture with respect to a simple issue of obvious danger and perhaps it would be best for us to formulate the issue in light of some of the facts involved in this case.

It seems that this S. S. United States at its record speed, coursing at a winter sea on February 16, 1958 was two days from the port of New York.

They had in the fore part of the vessel a 65-foot hollow aluminum tower, known as a radar tower, consisting of several platforms.

And the platform that was 31 feet above the deck would be the platform onto which the crow’s-nest personnel would step while coming off an up and down ladder and then go into a bubble in the forward part of its radar tower to perform their function as lookout seamen.

Now, this tower was completely closed at the top and the only illumination provided were by five serially placed lights, one above the other, two of them above the crow’s-nest, two below the crow’s-nest level of 31 feet above and one at its parallel distance.

Potter Stewart:

It’s called a radar tower.

Robert Klonsky:

Yes Your Honor.

Potter Stewart:

A person who went up there, I think it is an ordinary old-fashioned lookout to me.

Robert Klonsky:

That’s right, sir.

Potter Stewart:

It was just the radar — there was no radar up there.

Robert Klonsky:

There was radar on there too.

They have cable (Voice Overlap) much further up and people really went there and there were cables, so they were (Voice Overlap) —

Potter Stewart:

It wasn’t up there in a crow’s-nest so there’s need (Voice Overlap) —

Robert Klonsky:

No, no Sir, the radar scope, I would imagine, would be at the very top, but this —

Potter Stewart:

No, the antenna part would be at the very top — where you read the radar would be on the bridge of the ship.

Robert Klonsky:

Yes Your Honor.

Potter Stewart:

Not up here.

Robert Klonsky:

Right sir.

Potter Stewart:

This is for an ordinary conventional lookout.

Robert Klonsky:

Exactly.

Potter Stewart:

Yes.

Robert Klonsky:

And the manner in which they would get to this particular platform level would be to find an up and down ladder which is 15 inches wide or foot apart the rungs, and then they have to breach the open space, this manhole, by putting one foot behind them hoping to grab holes of a radar enclosure which is a rather bulky piece of a pertinence and then swing the other leg around and then walk towards the door which would lead into the bubble which was the radar — which was the crow’s-nest area in which also incidentally there was a telephone.

Well, as I say, they had these five lights and the two lights above the crow’s-nest platform had been out for months prior to the accident.

The two lights below this crow’s-nest platform were out when Mr. Salem came to work at 12 midnight on this day and it had been the subject of unsuccessful repair six days before without any follow check up by the electrician.

So we are now faced with this vessel, seven degrees to port, six degrees stop and rolling in a rather rough sea with basic — with passing the rain squalls, the vibration transposed to this particular radar tower using ordinary household bulbs instead of any vibration bulbs with the platform itself without any skid proof paint for friction for the seaman who will have to take this awkward and dangerous procedure of coming over, we see that at the time of the accident which was at 2:30 a.m., that last light went out.

(Inaudible)

Robert Klonsky:

The bulbs are burning out at the rate of 500 to 600 a day aboard this ship and that was shown by the electrician’s testimony because —

(Inaudible)

Robert Klonsky:

Thousands of thousands of them, yes Your Honor, but this was done according to the chief porter master, by reason of the excessive vibration caused by the record speed of this vessel.

And they use, as he said, ordinary household bulbs, 500 to 600.

We know that they — for months, the upper two bulbs that would have cast illumination in a crow’s-nest platform were out.

We know that the two bulbs below were out at least since 12 o’clock midnight when he came on duty and then our concern with something that happened at 2:30, when he came back from a coffee break and there was a relief lookout man by the name of Richards inside this crow’s-nest.

As he came over unto this platform and before he could do anything further in walking towards the door, he slipped backwards.

And remember, this platform itself was worn, no skid proof paint though falsely in answer to interrogatories the defendant said they had that and he struck the back of his head on the rungs of a ladder behind him.

He struck his lumbar area on the edge of the platform and he yelled for help and Richards came out groping for him and that was relief man f and asked him if he could sit there for a while, while he went into the crow’s-nest to telephone the bridge and we show too that he could have reached him while holding the man and not had left him abandoned there.

And he left the man sit on a narrow ledge with his feet dangling over to this open space while he went inside the telephone and Salem passed out again and fell another distance into this hole and finally, he was rescued by the use of flashlights and testimonies to clear on that.

Well, while he was in the ship’s hospital for two days, extensive medical notations were made by a doctor Fainger as to this man screaming with pain, immobilized in traction, given glucose, heartbeat irregular, pulse skipping beats, the man seemed to be paralyzed in one leg, dark circles around his eyes.

The reason I say this is because this particular hospital record, on the ship, was never furnished to the marine hospital when he got off the vessel.

Nor was it even shown to respondent’s doctors when they — until the day they testified in the Court.

All these then comes to as picture.

The trial judge charged that the jury may on negligence as well as on the warranty of seaworthiness find for the plaintiff if they found there was a failure to provide railings or other safety devices.

The Court of Appeals reversed the because in the majority opinion written by Judge Watkins concurring by Judge Friendly, Judge Smith dissenting, the plaintiff had the burden to show by a marine expert whether it was feasible to construct a railing or other safety device.

And further, they said there was no evidence to show that a railing or other safety device was necessary under the circumstances.

Well, clearly, with respect to the second part of this disjunctive reasoning of reversal, the testimony by Terry and Trible who were the other lookout seamen was that there was nothing to grab of hold of, nothing to bridge with over that space that the bulky radar enclosure was too big and that it wasn’t safe.

The testimony of witnesses clearly showed that there was a need for it.

So the basic issue as I see it here is this.

In all future trials in maritime cases, is it required that a seaman produce an expert to prove to a jury that something he claims was unseaworthy or unsafe could have feasibly been safe or made safe by construction or otherwise.

In other words, if there was a defective piece of rope, a simple thing like that and the plaintiff says, “That rope parted”, can he succeed now unless he shows by an expert that feasibly they could have made a good piece of rope.

I say the issue was that simple because we are here concerned with an open hole in complete darkness in a vibrating tower and to say that a lifeline or a platform with skid proof paint or bulbs that should have not blown out the anti-vibration bulbs are subjects of expert testimony is the equivalent of saying that a jury is not fit to pass on a simple factual issue.

And now, I turn to the test as I see it, as annunciated by this Court in the Winans case and in the Kellogg case and also set down by leading text on the subject of expert testimony what are the tests to determine that should go to a jury without expert testimony and that which a jury composed of a lay and uneducated mind can properly determine in the absence of an expert?

Well, you don’t produce experts when you have ordinary standards of conduct of safety or danger.

You don’t need an expert when there’s an operation of well-known natural laws.

You don’t need an expert when there’s an existence of a custom.

You don’t need an expert even though the expert may know more of the subject than the juror himself.

And this Court stated in the Milwaukee against Kellogg case of 94 Supreme Court, it is a matter of observation on which the lay mind is capable of forming a judgment that determines whether or not you need an expert.

Robert Klonsky:

I respectfully submit that when you are dealing with a ladder, with an open hole, the lay juror has had enough experience with ladders and with openings that will drop 31 feet to be capable of forming its own judgment on whether that condition was safe or unsafe and whether there should have been a railing or not.

And it was not a subject that would require the tampering and the invasion of a juror’s function by pitting experts against experts to delay the judicial process and confuse it.

The issue now turns to the second point on certiorari and that is future maintenance.

The trial judge by consent of the parties gave Salem three additional years —

John M. Harlan II:

Could I ask you a question?

Robert Klonsky:

Yes, Your Honor.

John M. Harlan II:

Was it argued to the jury that there should have been a railing inside this nest?

Robert Klonsky:

It was argued in the sense of saying that it was an unsafe place without a railing, without a line or something in summations.

We did contend that there should have been something to allow him to safely bridge over the space.

John M. Harlan II:

Well, I know of something that would —

Robert Klonsky:

The nature of it in summation, it was argued.

It was also a contention in our pleadings that he was not supplied with proper pertinences and appliances to perform his work safely.

There certainly was argument and there was a strong contention that this platform which was — went with the temperature difference between the inside and the outside of the tower and its one condition as testified too by the two witnesses should have had skid proof paint.

It was contended that these lights which were going out all the time should have been anti vibration and different in the household bulb that they used.

And these are all items of safety devices which were not provided and were subjects of argument and presentation of proof in Court.

Now throughout its brief, the respondent asks us, what other safety devices you are talking about.

And in our answering briefs, we keep telling them, a guideline or a lifeline, even a simple flashlight to see your way when you know foreseeably the lights inside this tower are no good.

Now, you would need this anti-skid paint.

We tell them that.

We argue that and I might say this.

The briefs of respondent, as I see them, represent re-arguments that — of issues they presented to the jury in the same fashion which was rejected by the jury.

This is a Jones Act jury we’re talking about.

It has a function that this Court has held to be in violet for many, many, many decades of decisions.

Now to come here and say that because the man could have stretched his arms out and clothe these thin stiffeners and thereby held on an absolute darkness or that he gave a different version while under gross sedation on the ship as to what occurred.

These were all told to the jury.

They resolved the facts.

They resolved the facts in favor of the plaintiff.

I might also say that contentions of other errors were also considered by the majority and found in favor of the plaintiff.

They found a contention of error with respect to negligent rescue, they found to the plaintiff.

The obligation of the seaman to report and knowing dangerous condition, they filed for the plaintiff.

Robert Klonsky:

So what remains is that the majority said here is a general verdict there was substantial evidence in favor of the plaintiff if the judge had posed special interrogatories because then, if the special interrogatory would have been answered by the jury, to state yes, there was negligence on the part of Richards, who left him there dangling in open space while confused and injured.

Oh, yes, if they found there was negligence occurred to provide adequate lights which kept going off, while then the verdict would have been sustained, I respectfully submit, neither party asked the special interrogatories.

The judge, in his discretion, did not think special interrogatory should have been propounded, just as that his discretion he did nothing, an expert was necessary.

In light of this, if there’s substantial evidence on some of the issues presented, then why suddenly out of the void, not even made part of the oral argument before the Court of Appeals, should this question of an expert be the basis of a reversal on a remand after seven days of trial and this is a second trial incidentally because the first one ended in mistrial.

Earl Warren:

Did you say not even argued in the Court of Appeals?

Robert Klonsky:

It was not even argued.

No judge asked the question about expert testimony.

It was only mentioned in passing in the briefs and I might state this, Your Honors, that when we moved for a petition for rehearing, it was denied.

We also moved for petition for rehearing en banc and the Court of Appeals then constituted of six judges were split three to three on whether there was need for an expert on such issues of obvious danger.

Accordingly, we have to come here because if we went back to the Court of Appeals and decided to proceed without an expert as we had before while maybe the majority would consist of the three who said we should have had one or vice versa.

So there is a need, of course, in the resolution of this issue not only for this case as I just indicated, but for all maritime cases to ascertain whether from now on, on all issues of maritime architecture, any simple issue of obvious danger that can be a trial with or without an expert and this Court in its past decisions on experts have shown how they can delay trial, how they’re unnecessary on simple issues, how the lay mind can determine things of this nature and even where experts know more as long as the issue wasn’t so complex and technical, it is still preferred not to have experts.

Now let’s go on to the maintenance cause, if I may.

This —

John M. Harlan II:

May I ask you just one question?

Robert Klonsky:

Yes, Your Honor.

John M. Harlan II:

Your real argument as I get it to what you’ve just said is that you can take this — you don’t have to lock horns on the question of whether an expert was or was not necessary.

There is plenty of evidence in the case of negligence and causation.

Robert Klonsky:

Overwhelming, Your Honor.

John M. Harlan II:

That’s your point, really –

Robert Klonsky:

Yes Your Honor.

John M. Harlan II:

— in answer to your argument.

Robert Klonsky:

The defendant never offered an expert either.

And I would think this.

If Your Honor would read the dissenting opinion by Judge Smith, if ever there should be an issue of whether a certain item of danger could be feasibly corrected or constructed, that should be the burden on the defendant to show they could not feasibly have corrected something.

The jury found it unsafe.

They say, “All right, it’s unsafe but we could not have feasibly corrected it, but that was their burden, not our burden.

Our burden under the law, as we see it, is merely to show an unsafe place to work, breach of warranty of seaworthiness which is absolute continuing non-delegable as this Court had stated for so many years.

And it’s an upfront to this Court when the Court of Appeals does not believe that a constitutionally determined jury question in the Jones Act case is beyond the kin of a jury to decide on such a simple issue as that.

It is not a sufficiency of evidence case.

It’s whether there are any weight that could be given to proof which is not tampered by an expert’s testimony on a simple issue.

Robert Klonsky:

Now if I may, can I go to the maintenance question?

The Court on consent of the parties passed on past and future maintenance.

There was no question on the past maintenance because it was affirmed.

Future maintenance was for three years.

It was held by the Court of Appeals and I might state on this the three judges were unanimous.

That there was not enough proof in the record as to a specific need in the discretion of this judge for a three-year period of future maintenance.

And they point to the fact that there is testimony by doctors as to the fact that he will get worse in the future, that he would maybe in need of further treatment that he was still going to a rehabilitation program, but that no doctors specifically said three years in the future.

I respectfully submit to Your Honors that in the light of your Sentilia decision which only recently came down it is not necessary for a trial court to resolve issues of a medical prognosis and diagnosis only on a specific support of a doctor who testifies.

He can draw his necessary and reasonable conclusion from such medical testimony.

And after looking at the voluminous hospital records and after hearing these doctors who came into Court to testify and looking at the ship’s hospital records which have been kept away from their own doctors until they did testify, he concluded and he sets this forth orally on the record that from all this testimony, I feel this poor seaman deserves three additional years of maintenance from this day.

It is attacked from the ground that it does not specifically set forth findings of fact and conclusions of law.

I respectfully submit that there was no provision that there was a specific form prescribed for setting this for.

He gives his reasons, they are set forth rather clearly in the record and —

John M. Harlan II:

What page are those?

Robert Klonsky:

That Your Honor would be found on —

John M. Harlan II:

Well, never mind I’m just —

Robert Klonsky:

Wait.

I have – that is on page 139, Your Honor.

John M. Harlan II:

Thank you.

Robert Klonsky:

And he sets it forth, I think rather concisely, without going into too much detail, he states that it seems to me that the poor man ever since the accident in 1958 has been trying to get relief from this condition, trying to get some assistance to get well, to get on his feet and et cetera, and he concluded at this time my judgment is three years as a reasonable time within which to anticipate that he’s going to need it and I’m going to allow it upon that basis, on the basis of $8 a day which was a stipulated amount.

Here is a problem that arises from this Court of Appeals decision on maintenance.

The majority opinion by Judge Watkins says, it seems that the Supreme Court has stated — I see a white light.

Oh, I’m going to sit down.

The Supreme Court has stated –

Earl Warren:

No, you time is not done –

Robert Klonsky:

Pardon sir?

Earl Warren:

Your time is not –

Robert Klonsky:

I want some time for rebuttal Your Honor.

Earl Warren:

Oh yes.

Robert Klonsky:

The Supreme Court has stated that there’s no future maintenance ever to be granted for a seaman.

Robert Klonsky:

And I respectfully submit the Supreme Court has never said that.

Earl Warren:

Very well.

We’ll recess now Mr. —

Robert Klonsky:

I’m concluded now.

I will have another ten minutes later.

Walter X. Connor:

May it please the Court.

As I can see that I’m here on two questions and only two, other matters were argued to Your Honors this morning many of which I am in disagreement with respect to what the facts were as developed on the trial, but as I understand it, I have to argue a case as to whether or not in the seaman’s action where a charge is made that the ship is defectively constructed, that there must be some kind of an expert testimony to support that, or to say it in other way, is this sufficient where a shipowner shows that over a period of eight years, its particular part of the vessel is safe that the plaintiff may come in without any evidence with respect to the architecture of the place and merely say that there was no railing and therefore, have a jury verdict.

Now the other point of course is the maintenance point.

To deal first with the conditions in that area, I think if I may, this is an exhibit which we had on the trial, it maybe somewhat helpful to Your Honors, I don’t know whether you can see it very well, but in any event it’s kind of a bird’s —

(Inaudible)

Walter X. Connor:

Yes sir.

It’s kind of a bird’s eye view part of the main deck and as Your Honors will notice that this area, there’s a silvery column which arises from the deck and that is the radar tower at the very top of it, some 60 feet off is the radar screen.

I will scope and further down, you’ll see a little projection from the tower and that’s where the crow’s-nest is located.

Now the crow’s-nest on the United States is substantially different than any other crow’s-nest.

I think we’re all familiar with the type of crow’s-nest which is exposed to the elements.

It’s on the forward part of the ship.

It’s attached to the fore mast.

There’s a straight up and down ladder that leads to it and there’s usually a basket light that lies at the top of it which is entered through a trap door.

Now contrary to that on the United States, the lookouts could go to their lookout station without having to face the elements.

Now bear in mind that in the first type of ladder that I described, a seaman had to climb that in the dark because there’s no lights allowed on forward (Inaudible)

There is a simple iron ladder with no platforms, no rest — resting places where the seaman of the – of the – if there’s a snow on the ladder or if rain is falling, your ship is rolling, he still must ascend that ladder.

Now on the United States, all that danger was removed.

There was a ladder enclosed.

The seaman was not affected by the weather.

If climbing up to three flights if you want to call it that or the separations, the first platform was about 11 feet off the deck and then the rest of them a little better than 5 feet.

If he chose, he could step off there and rest instead of climbing the 30 somewhat feet which would bring him to his station.

(Inaudible)

Walter X. Connor:

The first one was on a slant from the deck but not very much of a slant, almost vertical, the rest of it is vertical and these platforms are steel and they have an opening, which will admit a human being.

Now —

(Inaudible)

Walter X. Connor:

I have some here Your Honor.

Yes sir.

(Inaudible)

Walter X. Connor:

Yes.

Now I have to say however that I’m not very happy with the pictures because this is a very tight space.

It’s only 46 inches at its widest part and its only 36 inches at its narrowest part and it’s just about seven feet, fore and aft.

So it was very difficult to take photographs but I have them and while I am on that subject I might mention that I had built an exact size mock up of this particular area of the crow’s-nest.

In other words, it’s exactly the size.

I have photographs of it here but they didn’t get any evidence though nor did the mock up get into evidence.

In other words, what I wanted to show to the jury and I was forbidden from doing so by the court’s ruling out this evidence, although on the prior trial, the judge had allowed it in, the jurors could have looked at this mock up tower and seen what the space was and seen what there was in that area.

Now the contention is made here that in this vacuum in which the jury was acting, it could make a determination of whether or not there should have been some handrails and that’s the only contention the plaintiff made, was handrails.

The safety devices got into the case on the charge and that’s one of the things to which I took objection because the very expression safety devices implies that there was something there – that there was something missing that would have made this man’s journey safe.

Now let’s talk about the lights and bulbs.

It’s not part of this case at all.

We’re not dealing with it here, but I have to refer to it only to point out that it’s quite true that the light at this particular platform went out just prior to the accident but it had nothing whatever to do with this – with the plaintiff’s fault and I’ll explain that in a minute, but something was said here for example about heavy duty bulbs as compared to ordinary household bulbs.

Well, there was no evidence in the case whatsoever that any other type of bulbs would have been better than the bulbs which were being used.

This is a vessel that goes to sea, it’s not a home and a bulb burn out as the testimony showed, but in any event, I suspect that the problem arises here because of a misconception by the Court of Appeals as to how it is that the plaintiff had his accident.

Now I think you might justify and may be infer from what the plaintiff’s counsel said to you this morning that the plaintiff fell while he was stepping from this ladder in the dark.

Well, that’s not so at all.

Now the record on page — in my brief rather, on pages 4 and 5 quote the testimony of exactly what happened.

The plaintiff testified that he had ascended this ladder and incidentally he had done it hundreds of times, he’d been doing his lookout work for over a year and he said he got up to the rung of the ladder from which he normally stepped off and his practice was to back off, take hold of a radar casing which was right at hand and then swing around and walk the necessary three steps to the crow’s-nest, that’s all it was.

It was no more than about three steps.

So he – as he was taking his second foot off the ladder, this light went out and he then turned around and was facing towards the crow’s-nest where he had to go and had taken one step forward away from the hole and he was about to take the second step when for reasons which do not appear in the record, he fell and he was found later on in this access hole to the ladder.

Now I think that in the dissent by Judge Smith, he conceived that the accident happened as the plaintiff was stepping from the ladder onto the platform.

Now, in that crow’s-nest, at shoulder length, at shoulder height of the plaintiff anyway, there was a steel ledge that went around the inside and all that Mr. Salem had to do if he want to maintain his balance and he doesn’t say he lost it, indeed, he said he never had any trouble with this area before.

The other seaman who testified before him said that they never had any trouble.

All he had to do was to extend his arms and he could have maintained himself and walk right to the crow’s-nest where there was another man in there.

Now it’s true it was dark but he should have known the area and the reason it was dark was because he, among other things, had failed to perform his duty.

Now you were told here that they were — an attempt was made to repair the electric wires, well that was not so at all.

There was a – there was a repair and it was effective.

Walter X. Connor:

What happened here were these lights burned out as bulbs do and the testimony is clear enough, but I should say that’s not part of the case and I only mention it to indicate that — or to reply to some of the things that was said to you this morning and I certainly don’t like to trespass on my time to do so.

But in any event, it was the plaintiff’s duty as a lookout to report the absence of any lights.

Now he says that when he started to work at midnight, two lights were out, the light was burning up at the level of the crow’s-nest.

He served two hours at lookout.

He went down the ladder and the two lights were still out and no report from him.

He has a telephone right there in the crow’s-nest, all he had to do was to telephone the bridge and the bridge would telephone the engine room, the engine room keeps on hand, an electrician whose job it is to replace lights.

That’s his – that’s his function.

So the plaintiff merely had to pick up his telephone and notify the bridge, there are some lights out and lights would have been furnished.

But he didn’t do it and then he violated his duty and I – we are charged that he was guilty of negligence because it maybe brought about his own accident, but now we get back to what’s really an issue here.

Is it enough for the plaintiff to have some witness say in a particular area and that’s unique, there was no handrail?

Is it proper in the circumstances for the trial judge to add that and say safety devices?

Now you’ve been told on — by plaintiff’s argument that we did not mentioned the matter of experts on the argument below and say we made some mention of it in our brief.

Well that was really the important things of the brief and I don’t think I did get to argue.

I was allowed 20 minutes to argue this case in the Court of Appeals and I just didn’t get around to it.

I was stopped.

After I had only begun my argument.

I think that in this case there were some 80 prejudicial ruling as against the defendant on the admission or rejection of evidence or remarks by the Court which were highly prejudicial to the defendant, those are some of the areas that we complained about and I only gotten through talking about them when the presiding judge said your time’s up.

Now it’s also said by the plaintiff in this brief, in this court on page 25 —

(Inaudible)

Walter X. Connor:

The respondent did not offer an expert unable architect nor was there any contention recorded by petitioner, respondent by the petitioner was so recorded on clear and simple issues involved, neither did the trial court in its discretion.

Now on page 111 of the record, as I was discussing before the charge was actually given, so many aspects of what the Court said he was to say, I said that I would take exemption to any issue of being submitted to the jury in respect of handrails or hand grips or lifelines in that radar tower because there has been no evidence or whatever that such handrails or lifelines are proper for such an area.

It is a small enclosure where the widest part is four feet, the narrowest is three feet.

There was no expert that has been called here to testify that under such circumstances, in such a ship as this, there should be any such thing as handrails and lifelines.

So there isn’t any question about the fact of the matter of the lack of expert evidence was right there in the trial all the time and I don’t understand the statement made that we did — it wasn’t done.

Now the Court of Appeals determined in accordance with two previous decisions of it that with respect to matters dealing with naval architecture, if a plan was made that the architecture of the vessel was wrong and defective, there had to be some proof of it and that the jury could not decide that matter for itself.

There was some disparagement of experts here by plaintiff’s counsel but he himself used experts and I don’t think he may use the disparaged experts in general because they disagree with one another because that’s what happened here.

He introduced two expert doctors, (Inaudible), both of them disagreed as to whether the plaintiff was injured or not, seriously and permanently injured I mean.

(Inaudible)

Walter X. Connor:

Well, it happens in railroads cases which I’ve indicated the same thing if Your Honor pleases and you know —

(Inaudible)

Walter X. Connor:

Well, no.

They said this and I have — I haven’t — I don’t have it mentioned in my brief, if Your Honor pleases, but since you asked a question, I can say that there is a case of Davis against Louisville and Nashville Railroad Company which is at 75 F.2d 849, a 1935 decision which says, reasonable engineering and scientific judgment used by a mast, and now we’re talking about railroad, is not the subject – is not subject to a review by a jury and there’s another case, Housen against Southern Railway to the same effect.

It seems to me —

(Inaudible)

Walter X. Connor:

Not that I’m aware of, Your Honor, but it seems to me it’s a matter of – here the shipowner has proven that the place is safe.

It had proven that over eight and a half years there’s never been an accident there.

There’s never been any need for this – for a handrail and there’s never been any need for whatever safety devices or I don’t know because I say that’s what the trial court used in one of the areas which we charged below.

I don’t know what safety devices mean but is it enough for a seaman to walk in the court and say there wasn’t a handrail?

Well, he could have said there was no nurse maid there too.

Should we rent a nurse maid?

It’s a problem.

I don’t mean to be fictitious.

I’m trying to be precise in what our duty is, what we are charged with.

Under the Jones Act where a plaintiff is required to prove negligence, well how does he prove?

He got to establish some standard of care and if he doesn’t establish a standard of care by merely saying that there wasn’t something there, he has to have some evidence, the matter of this guy particularly, this unique structure that there should have been something more there than there was there.

Earl Warren:

(Inaudible)

Walter X. Connor:

He had just —

Earl Warren:

(Inaudible)

Walter X. Connor:

Yes sir.

Earl Warren:

(Inaudible)

Walter X. Connor:

Yes sir, that is – that is a matter which might go to the jury.

Yes.

In other words, if the claim was, and it was, that the platform by reason of wear it was slippery and it should have had some type of paint on which might tend to inhibit slipping, that would be a jury question.

However, that’s not what we have here and the —

Earl Warren:

(Inaudible)

Walter X. Connor:

No sir, not in this Court, it is not.

The only thing that’s here is the matter of handrails and safety devices, that’s all.

Earl Warren:

(Inaudible)

Walter X. Connor:

It might.

Earl Warren:

(Inaudible)

Walter X. Connor:

I wouldn’t say so Your Honor.

No.

It seems to me it’s a matter of — it’s not a matter of architecture which is all we’re talking about here.

Have in mind, if Your Honor please, that this case was set back for a new trial that the judges below in the Court of Appeals said there were numerous other areas which were charged by the defendant which they did not think necessary to notice because they were setting the case back for a new trial.

And Judge Waterman, in his en banc decision said that after reviewing the record, he’s ordered it to go back for a new trial.

I’m not going to discuss those areas here now.

I don’t have the time in the first place and the second place as I conceive it and the only – the only charge of error that’s made in this Court and I think that we have a right to rely on that because I haven’t done anything with these – these other charges, is that there should have been handrails in this area.

Yes all there is in this case and this Court.

Now it could very well be that a jury could say you ought to have some kind of a particular substance on a metal deck, lots of decks of ships have metals, and there is this access all you speak off, but the ship is full of such access holes, not only in the quarters where the seamen are and where they have to do their work but in the passengers accommodations.

There are hundreds of such places.

You come up a stairway and there’s no — a door doesn’t suddenly shut behind you so if you happen to lose your balance, you fall back in the stairway.

There’s any number of such stairways throughout the ship and it’s not sought to be negligent because if you don’t have the – the opening suddenly shut up so that if you lose your balance, you won’t fall back.

Now I think that — of course I have to deal with this maintenance now and I’m not satisfied and I’ve completed my argument on this but as I say, I’ve got my time problems and I’m going to go over now to the maintenance aspect of this case and rely upon the matter stated as my brief.

Now with respect to maintenance, as I said before, I don’t think it’s necessary to repeat the details, there was a very substantial disagreement among the plaintiff’s doctors and the defendant’s doctors.

My doctor said that the plaintiff was able to go back to work and I have moving picture showing him doing all kinds of things which he said he couldn’t do in Court.

He crawled around in the courtroom and I have to walk him down the street like he was trying to do a mile, I had him jacking up an automobile and so on.

So we had that dispute but that’s one of the things that the trial judge should have determined which doctor am I going to believe, the plaintiff during the time between his actions and the trial had certified to the New Jersey Motor Vehicle Bureau that he was well and strong and not suffering from any condition.

Now, under the rules —

(Inaudible)

Walter X. Connor:

Not that I’m aware of, Your Honor.

(Inaudible)

Walter X. Connor:

No sir.

The only stipulation we made with respect to maintenance if it please the Court, is that the trial judge could determine the maintenance count.

And we did agree that when the Court said I’m going to allow this maintenance to date, we figured out what that was.

We have paid them a lot of money in maintenance.

Now if you make — no, as a matter fact, I can test it that very quickly.

He gave him three years without any finding that he was entitled to three years.

Now we have to bear in mind that when we’re talking about maintenance, when a seaman is disabled and unable to work or under treatment, it doesn’t mean he gets maintenance.

First of, if he’s in a hospital, he gets his maintenance there.

So there would – should have a determination here by the trial judge if he was going to allow three years maintenance and there was no evidence to support it incidentally that he would have to take his treatment outside of the hospital.

Walter X. Connor:

If he took any of it inside of the hospital then he wasn’t entitled to any maintenance with for the period of time which he was in the hospital.

Now under the rules of — under the Federal Rules of Civil Procedure, when a trial judge determines an issue before him, he must make findings of facts and conclusions of law.

The trial judge did not do that here.

He merely made a short statement that I think the poor man needs more treatment and I’m going to give it to him.

There were some things said about him in getting rehabilitation treatment.

Well the only evidence of that is that the one time he was to go to the hospital for rehabilitation treatment, he didn’t show up.

Now, this Court has very wisely said in the Taylor-Calmar case and reiterated in the Farrell case and it doesn’t — it isn’t a smart thing to give a seaman a lot of money in advance for their future medical treatment because they are said to be spend trips and you’d give him a huge sum of money like here $10,000 or so it is, he go out and spend it and when he needed a treatment, it wouldn’t be there for.

So the — this Court had decided and I think in a well reasoned statement that what should be done is to give the man enough for the immediate future providing of course as evidence of it.

And then at the end of that period of time, if he needs more, he can come back and get more.

And in this instance to say three years in advance and he’s going to need treatment without any evidence to support it, the plaintiff had to qualify doctors neither of whom said he needed treatment.

If Your Honors will notice the opinion, the Court of Appeals have pointed out what the evidence was with respect to this, that there was plenty of a doubt as to whether or not he needed the treatment on the plaintiff’s own testimony.

One of the plaintiff’s doctors indicated that perhaps he would become permanently disabled where no cure could be of any help to him if he ever gets to that stage.

That’s another time when maintenance ceases.

Actually, I don’t think this Court has ever made a determination as how far in the future, maintenance should go.

Back in the — in the early case, the first case where there was a determination of it, in the Calmar-Taylor case, it was then – it had to be decided whether or not maintenance right – the seaman’s right to maintenance extended beyond the end of the voyage.

That’s what the state of the law was then and the Second Circuit made a decision not at all to go beyond that in connection with harbor worker and when the case came down here, this Court made an examination of what the law was after that time and determined that seamen should get maintenance beyond the end of the voyage and that it should extend through reasonable time but not beyond that time and further more that no large amounts like seven years which was allowed in that case should be permitted.

Now that’s the only case I know of which has ever come to this Court where anytime has ever been fixed for the length of maintenance.

And it’s a burden which is imposed upon the shipowner along with all the other burdens that has to face now and I don’t think it ought to be likely treated.

Today, a seaman has a right to indemnity even though he doesn’t prove any negligence under the unseaworthiness theory.

The doctrine of negligence is to the point now where there is some negligence then he’s entitled to recover damages even though it’s not the specific cause of its injury as long as somebody could say it was.

So I say we’re at the point now where I think maintenance ought to be very carefully considered and that these outright grants of three years of maintenance ought not to be permitted.

I wanted to say one other thing and I’m going to suspend. Something was said here about the court that are being other evidence of negligence which a jury could have attached its finding.

Well that’s very true, but their law is true that where there are a number of charges of negligence, one of two of which may not support a verdict and the whole thing has to go back and be tried again and that’s what happened here and there’s adequate law to sustain that feature of the case.

Thank you very much.

Robert Klonsky:

To respond directly, Your Honors, to the last point, of course if there’s anything seriously erroneous about an instruction although there was other evidence to support the verdict, it should go back, but the error contended here is one related to railing or other safety devices.

This was clear from the record and the testimony of defendant’s own witnesses as well as ours.

If it was wrong to pose this even, I would say that’s on the Harmless Error of Rule 61, it could not be considered germane or be pertinent here.

The major issue as I see it is this.

Does the requirement of a rope, the requirement of a rail, around an open hole of such a complex and technical nature that only an expert could testify on it that is the issue.

And if a jury is told that they must have an expert to dilute their Jones Act function in such a simple issue, it will be on every other.

Robert Klonsky:

You will have protracted trials, you will have your delays, you’ll have your experts pitted against experts.

There’s a very real danger in this particular determination by the Court of Appeals downstairs.

And as I told the Court at the beginning, there is a disjunctive reasoning here as to why the reversal was granted.

The first thing, the feasibility of construction, of course, there is no question of a line being part of a construction item, but the feasibility of construction and the need.

Well, we had the testimony by long experience seamen, Trible and Terry.

Trible himself had a second mate’s license.

They are part of the record.

For example, this is what was stated by the first witness.

I think his name was Trible.

He says, no, this rectangular pipe that we spoke about where the radar cable ran through and which is marked in plaintiff Exhibit 2 for identification, did you ever use that as a hand hold, that being the only one available?

Did you ever grab it?

No.

Why not?

Well, because I don’t ever grab hold of anything that has electrical current going through plus the fact that it was too big to grab hold of.

And then the other witness, Terry, who had 88 times for each voyage going up and down this ladder who have been on a 160 or 188 voyages on the vessel who knew this particular vessel better than any one else who could possibly be called from the outside and he said, “Question, the crow’s-nest platform, was there a railing to grab a hold of?

Answer, The platform level when you go in the crow’s-nest question.

Yes.

Answer, There is no special railing there, regular construction of the crow’s-nest.

Question, What is a lifeline?

Answer, Safety measure, to grab hold on to protect yourself until you are safe.

Question, were there any lifelines at this platform level when you left the crow’s-nest on February 15, 1958?

And with respect to the chief judge’s request about the platform itself on page 159, Richards, he being the relief man who left the plaintiff fit on this ledge to fall again, Question, The platform itself on which the accident happened, what was its condition on a daily accident?

Answer, What are you – what are you referring to by condition?

Question, Were there any rising, any preparations, any diamonds to catch or put to protect it from slipping?

Answer, It is a steel plate.

There are no preparations.

It is smooth.

Question, Was there any skid proof paint or anything like that on it.

Answer, No.

And Mr. Connor wants you to say that because for eight years there was no accident on this particular platform, therefore, you should deem it safe but for eight years, the light didn’t go out simultaneously.

Robert Klonsky:

I believe this man in complete pitched darkness and he says he should have raised his arms so he could have held onto the sides, but the testimony is clear that he didn’t have time yet to raise his hands and besides he was scared, he was scared right there and he slipped on this one smooth platform and fell backwards.

He had nothing to guide him in pitch-darkness from this ladder to the point where he fell.

True, he didn’t fall until he got both feet on the platform, but he started from that ladder when the lights all went out.

And when Mr. Connor talks of one light, I wish Your Honors to remember, there were five lights in that tower, five lights were out at the time.

It was a condition that was known for months before with respect to the two upper lights that would have cast some illumination and five days before this accident, they had tried to fix the two lower lights.

This wasn’t ordinary bulbs blowing out because of use.

It’s because there was such excess of vibration.

They did not use proper lights and proper electrical conditions to protect the men that work in that tower.

There are multiple conditions of fault here but all simple, all obvious.

Now —

Felix Frankfurter:

Do I understand you (Inaudible)

Robert Klonsky:

I think so, sir on any.

Felix Frankfurter:

(Inaudible)

Robert Klonsky:

I think so, sir on any.

I think so sir and if Your Honor would read the dissenting opinion by Judge Smith, he points out that on the broad field of naval architecture in any respect if that majority opinion is to be followed, you must have an expert and that is why Judge Clark dissented too.

Felix Frankfurter:

(Inaudible)

Robert Klonsky:

Not if you would please, Your Honor.

I would say it was of any pertinence or appliance of the vessel with respect to its construction or fitness for use and not a condition such as grace which is a transitory thing that could be cleaned up, but Your Honor has before him Judge Smith’s dissenting opinion and he very clearly said that from this opinion it must appear, majority that is, that now on, on all simple issues in the broad field of naval architecture touching on anything, we must now have an expert and that is why Judge —

Felix Frankfurter:

(Inaudible)

Robert Klonsky:

The kind of a ladder you would need, yes, I would think you’d need an expert now if the majority opinion stands.

It is very broad and it applies to things which are not complex or technical because certainly a hand line or a hand hold or a simple rail around an opening is not complex or technical.

So if you use that as an analogy, it must pertain to any other appliance or pertinence that maybe involved in any case.

Does this white light represent my time?

Earl Warren:

(Inaudible)

Robert Klonsky:

Oh, I see, sir.

(Inaudible)

Robert Klonsky:

And this mock up that was referred to by Mr. Connor that the Court properly did not allow an evidence.

It was made of wood.

It was deceptive because it didn’t show the 31-foot drop.

It had certain parts in it which were not the same as the original.

Robert Klonsky:

The best things in evidence were these photographs that were taken by the defendant and the diagrams.

I know they don’t like the photographs because this so graphically portrays the dangers involved here and the need for the use of all sensory perception to get from that ladder onto the platform.

I ask, Your Honors, to look at these photographs.

They are now in Mr. Connor’s possession.

Look at the diagram so you can see the need for saying that under these obvious conditions of danger, there was no necessity for an expert.

William J. Brennan, Jr.:

These photographs and diagrams are part of the record with the file here.

Robert Klonsky:

Yes Your Honor, I don’t know if it is.

I assume it is.

William J. Brennan, Jr.:

Well, do we have the original record and the exhibits here.

Robert Klonsky:

To the best of my knowledge, Your Honor, you do, but I can’t be sure.

Should I check later with the clerk?

William J. Brennan, Jr.:

Now would you not have filed it?

Robert Klonsky:

Yes, I would have filed it through the Court of Appeals everything they had was supposed to come here.

If they have sent that, I’m not sure personally because I didn’t send it.

Felix Frankfurter:

This vibration — is it unusual or —

Robert Klonsky:

Your Honor, it’s unusual for any other ship but this ship.

This ship is a record breaking speed ship.

Felix Frankfurter:

How long has it been (Inaudible)

Robert Klonsky:

About eight and a half years before the accident Your Honor.

Felix Frankfurter:

Is it true that none of these things happened before?

Robert Klonsky:

None of these things happened before — you mean all the lights going out at once, that is true as far as I know inside the radar tower.

Felix Frankfurter:

(Inaudible)

Robert Klonsky:

Yes, Your Honor.

No, for all trips of this ship has compared to any other ship.

Felix Frankfurter:

That’s why I want to know why the lights have go out.

Robert Klonsky:

Well, all of them didn’t go out previously at one time.

Previously lights went out constantly, but this time they had four out since 12:30 and the fifth one went out just as he was bridging.

Felix Frankfurter:

(Inaudible) unusual vibrations not for this trip.

Robert Klonsky:

Not for this trip, no.

But there is evidence on the chief porter master that this ship had more vibration than any other because of its speed.

Felix Frankfurter:

(Inaudible)

Robert Klonsky:

Perhaps, Your Honor, yes and it also requires certain measures that they did not take.

One of them to have a lifeline or a hand hold so the man could safely bridge over this tower which is right in the forward part of the ship and it’s the most susceptible to this vibration, and I might say this.

Mr. Connor points out that this radar tower in the crow’s-nest is unusual.

You don’t find it in other ships.

Well, if it’s so unusual then the only expert we could have gotten to testify about it would be an expert who had something to do with manufacturing that radar tower and that crow’s-nest.

And I don’t think that he’ll come and say that the mastermind of his own creation should be the subject of criticism by human favoring the plaintiff and his testimony.

Now if we —

(Inaudible)

Robert Klonsky:

(Inaudible) Your Honor?

(Inaudible)

Robert Klonsky:

No, I have no known case before Martin (Inaudible).

This is the recent expression of the recent court about the further burdens imposed upon a plaintiff, a greater burden of proof negligence than they ever had before and I think it is a use of patient of a Jones Act jury’s function to be independent in their determination of facts in a lawsuit and when you impose an expert to tamper their judgment while you have done away with one of the fundamental constitutional rights for seaman.

Thank you.

Earl Warren:

Mr. Klonsky (Inaudible)

Robert Klonsky:

I have no objection, Your Honor.

Earl Warren:

(Inaudible)

Robert Klonsky:

Oh, I’d like it very much to see them, Your Honor.

Walter X. Connor:

I have to say this to you, Your Honor, that these photographs which I have with my copies, Mr. Klonsky, I’ve given a copy during the — before the trial and he introduced his evidence that he will say that the pictures I have and I didn’t say that there was these copies of what I have previously given on what was on the trial.

Potter Stewart:

Well, someone has just put in my place what appeared to be the original exhibits (Voice Overlap) —

Robert Klonsky:

Then you have on the diagram –

Walter X. Connor:

I have here the addition to that if Your Honor please.

Earl Warren:

(Inaudible)

Walter X. Connor:

And I submit the drawing of this radar tower.

Robert Klonsky:

That’s in evidence.

Walter X. Connor:

Which I’d be very glad to leave with the Court if somebody helps.

Could I have just one second for an answer to one of your questions, Your Honor?

You asked what Mr. Salem is doing now.

He is still outpatient since the trial, still undergoing rehabilitation.

He made two attempts to go back to work and it’s a part of Judge Ritter’s opinion when he gave three years future maintenance.

Walter X. Connor:

That was unsuccessful.

He spent years in hospital, years out of the hospital and he’s still under treatment.

Earl Warren:

(Inaudible)

Walter X. Connor:

Yes, Your Honor.

But as of right now, he is still not fit for duty at the marine hospital.

Earl Warren:

(Inaudible)

Walter X. Connor:

Thank you, Your Honor.