Usner v. Luckenbach Overseas Corporation

PETITIONER:Usner
RESPONDENT:Luckenbach Overseas Corporation
LOCATION:C-M School Corporate Office

DOCKET NO.: 47
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 400 US 494 (1971)
ARGUED: Nov 18, 1970
DECIDED: Jan 25, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – November 18, 1970 in Usner v. Luckenbach Overseas Corporation

Warren E. Burger:

Usner against Luckenbach Overseas Corporation, number 47.

Mr. Leg, before you leave the courtroom, I overlooked expressing the Courts appreciation for your accepting appointment in this case and for your assistance both to the Court and to your client.

Leg:

Thank you Your Honor.

Warren E. Burger:

We thank you very much.

Leg:

It’s my pleasure to be of service.

Warren E. Burger:

Mr. Brumfield, you may proceed whenever youre ready.

H. Alva Brumfield:

Mr. Chief Justice and may it please the Court.

The sole question presented in this case is whether operational negligence occurring at the time of the injury renders a vessel instantaneously unseaworthy is devoid of any problems of defective equipment on seaworthiness and any part of the vessel whatsoever.

A motion for a summary judgment filed by the ship owner was denied by the Trial Court on the basis of Mascuilli.

If this Circuit Court of Appeal reversed a holding that the operational negligence as presented in the case did not instantaneously make the ship unseaworthy and in effect refused to follow this, the Courts decision in Mascuilli.

Now, Mascuilli, the facts there are on all force with the facts here.

The facts in Usner was that the ship was seaworthy, the equipment was, — it was the operational negligence of an operator, a longshoreman of a winch that calls the sling to come down too fast into the barge and striking the petitioner and injuring him.

The equipment was used before and after this occurrence without any trouble whatsoever.

And the same thing is true with the facts as established from the record in Mascuilli, because the Trial Court in that case found in the findings of fact number 35 that the operational negligence of the winch operators in operating the guide, the winches that had detached the guidelines in such a manner that they became taut and causing a breakage of the equipment striking the Mascuilli and killed him.

So, it was done so instantaneously that the officer had no opportunity to give a warning.

So, the case is on all force and we submit that Mascuilli is the posture of the issue here and answers the question very clearly to us that operational negligence occurring at the time of the injury makes the ship instantaneously unseaworthy.

Warren E. Burger:

Even if it’s not on board, the ship or having anything directly to do with the ship.

H. Alva Brumfield:

Even if it has nothing to do with the ship, the ship owner has no knowledge of it, didnt own it, had no control of it as was held in Patterson, may it please Your Honor in the Landmark case, the Court held that that was no defense and that it made the ship unseaworthy.

Now, the Fifth Circuit has and the Ninth, I believe have been straining nuts and hairsplitting and attempting to apply a time element to make the negligent act exist to such an extent that the — it would ripen into an unseaworthiness condition.

And the decisions just are not reconcilable at all.

And we submit that the reason that theyve got themselves on these horns of dilemma is because they failed to follow fundamental principles and guidelines that this Court has annunciated over the years.

Unseaworthiness can be caused by no negligence at all.

The structural defects, unseaworthiness can be caused by a non negligent act as Mr. Justice Black in Walden where the jury found that the order given by the mate to move the rope by two instead of three or four seaman was not negligent yet this case held that the question of unseaworthiness should be submitted to the jury even though the jury had found that that act itself was not negligent.

Unseaworthiness can be caused by negligent acts and unseaworthiness can be called by negligent acts which occur at the same time and make the ship instantaneously unseaworthy.

Now, this Court has never, never required that there be a showing that time must elapse from the negligent act until the occurrence of the unseaworthiness.

This Court has never done that.

In Mahnich, this Court held that the act of the seaman in choosing the rotten rope instead of the good rope created unseaworthiness.

In Crumady, Mr. Justice Douglas held that the act of setting the electrical cutoff device incorrectly created unseaworthiness.

Warren E. Burger:

Were those cases on ship board or on the docks or the piers?

H. Alva Brumfield:

On — Mahnich was a seaman, Crumady was a longshoreman both on ship but in Gutierrez, Mr. Justice White, it occurred on the dock where the beans spilled out of defective containers holding that that caused unseaworthiness to the ship.

H. Alva Brumfield:

So this Court has never, never required this so called lapse of time to ripen an act of negligence into unseaworthiness.

Because somewhere down the line, usually you are going to find some act of negligence that started in motion to make the ship unseaworthy and this Court has held that theres no distinction between the acts of the equipment itself being defective for example and the acts of personnel or the seaman or the longshoreman or the workers aboard.

That was clearly pointed out in board one and in Walden itself and at the moment that a piece of equipment or pertinence of the ship itself, became defective.

It was at that very moment that the ship became unseaworthy and the same is true by the act of a defective seaman or a defective worker performing a negligent act.

The minute he does that that makes the — and it causes injury, that makes the ship unseaworthy.

And we submit, may it please Your Honor that in Mascuilli, when the question was posed as to whether or not because in Mahnich and in Crumady and Gutierrez, the question as to the time lapse wasnt even considered.

But in Mascuilli, you had it before you exactly that question as to whether or not the operation by the winch negligently making the guidelines come top and breaking, cause an injury instantaneously without the affording of the officer or any one giving — having opportunity giving a warning, you held in no uncertain occurrence, may it please Your Honor that that was unseaworthiness and that liability of the ship owner was established.

Potter Stewart:

If you put your thesis together with Ryan and the — do you think you’ll run into any problems or incongruities in relation to the provisions of the longshoreman in the Harbor Workers Act, these were Stevedores werent they who were heard?

H. Alva Brumfield:

True.

Potter Stewart:

Do you think that gives rise to any problem?

H. Alva Brumfield:

No, I dont believe it does may it please Your Honor because this Court has outlined various guidelines to make those determinations because —

Potter Stewart:

Oh, it’s certainly gone right down the line up to date on what you’re arguing.

There’s no question about that.

I’m just suggesting, I suppose there comes on recourse of legal development or one might take a new look.

H. Alva Brumfield:

But may it please Your Honor, insofar as the Stevedores are longshoremans, it is — it is known and can be taken as a fact that the Sieracki seaman or the people or the workers in that place are doing now work that was traditionally done before by the seaman.

And that work has become more dangerous — using more dangerous and hazardous equipment.

And so it gives rise to this Court extending the Maritime Law to these type of workers.

And insofar as the triad of going back in indemnity against Stevedore, laid down various lines there that where the unsafe place to work, where this duty was violated in that respect, then of course there would be indemnity over from the Stevedore to the ship owner.

And so that in itself is not a — shouldnt be a determinant.

It has not been because of the principles of — that have been annunciated by this Court that this duty of warranty of furnishing a ship reasonably safe for the intended purpose and furnishing a place safe to work has been founded in the law annunciated by this Court down through the years.

And we can see nothing insofar as that problem goes that would cause a tying up of not only pages of jurisprudence of this Court but sir I would say volumes.

And in this condition of unseaworthiness can be transitory but it’s a temporary condition.

Back in this case, well, the Mitchell case with Mr. Justice Stewart where the 1221 on the rail.

Here, you had — instead of that, you had longshoreman creating this transitory, temporary condition by his negligent act.

And I know that we speak of unseaworthiness, it connotes a condition and we speak of negligent, it connotes causation.

But just because that the twain is met and just because you have causation and negligence occurring at the same time, nonetheless you have unseaworthiness and thats exactly what this Court has adhered to all the way and it is not the — it’s not so much as the manner in which the condition of unseaworthiness took place but the fact that it did, it’s a species of liability without fault is really what it amounts to.

Potter Stewart:

Thats the reason Mr. Brumfield I dont see why it has — why the act has to be a negligent act and its under your submission and your theory.

H. Alva Brumfield:

It does.

Potter Stewart:

Are there any act, any very careful act on the part of the seaman on a well equipped and a very seaworthy ship, any very, very careful act that just happens to injure somebody who would under your theory create an unseaworthy ship and create liability on the part of the ship owner for unseaworthiness wouldnt that be correct?

H. Alva Brumfield:

Thats exactly right, may it please Your Honor.

H. Alva Brumfield:

And you so held in Walden because the jury in that case held with the very act of the mate giving the order was not negligence.

And yet this Court reversed to send it back to submit the unseaworthiness pressful to the jury on the basis that it didnt take any negligence at all to make an unseaworthiness condition.

But just because you got operational negligence occurring at the time of the injury, that still doesnt make it not unseaworthiness, thats how simple it is to me that for the life, I cannot understand why the Courts — and I know that some of the Court say that if particularly, you criticize Mascuilli by saying it’s not illuminating and it’s cryptic and by saying that you didnt procure and you used the — I believe you used exactly 14 words in that decision.

And you said the petition for a writ of certiorari is granted and the judgment is reversed.

But it couldnt be anything any clearer than that to me because what was presented to you as a matter of law is where the instantaneous negligence made the ship instantaneously unseaworthy.

Potter Stewart:

(Inaudible)

H. Alva Brumfield:

Maybe it does, yes.

Warren E. Burger:

Well recess for lunch now.

You may continue.

H. Alva Brumfield:

Mr. Chief Justice and may it please the Court.

As we were stating prior to lunch, this Court has rendered many landmark decisions in so called cryptic terms of just a few words.

And one case comes to mind and thats the Petterson case where Your Honors held that snatch block were brought ashore by Stevedore and company and not owned by the ship owner.

The ship owner had no knowledge of it.

It was defective and held that that in itself caused a ship to be unseaworthy and you did that in exactly four words.

You said the judgment is affirmed.

Another landmark case especially down in our section of the country, the 1636 case where you had under consideration the review of Fifth Circuit Court of Appeal decision involving whether or not workman onboard, a submergible drilling barge in his drilling operation offshore.

First of all was the seaman and second of all was the submersible drilling barge, a vessel.

And you did that I think in 25 words by saying that judgment of the Court of Appeal is reversed and the case is remanded to the District Court with the direction to reinstate the judgment.

And so, it maybe as Mr. Justice Harlan said, a rebellion but then nonetheless, the pronouncements of this Court in many of the landmark decisions Mahnich, Crumady, Waldron, Mitchell, Gutierrez, all of them had adhered to the same principle of the humanitarian doctrine of species of liability without fault.

Hugo L. Black:

How long has it been since the first case which you referred was decided?

H. Alva Brumfield:

The Crumady was in 1944.

Hugo L. Black:

What about Mahnich?

H. Alva Brumfield:

I mean Mahnich was 1944.

And never in all of these occasions that you had to reveal this question.

Did you require any time lapsing or that this condition had to develop over a period of time from the active negligence to the entry?

Hugo L. Black:

If Congress taken any action since those cases were decided?

H. Alva Brumfield:

No Your Honor, they havent passed any legislation concerning this problems since then.

No sir.

And so we say that in answer to Chief Judge Brown of the Fifth Circuit when he said in talking about Mascuilli.

Of course, nothing we say about what the Supreme Court said or thought it said can add much if what was said or what it will say it said.

H. Alva Brumfield:

How we have the —

Hugo L. Black:

Was he on the panel who decided this case?

H. Alva Brumfield:

He was on the panel that decided the Grigsby case in the Fifth Circuit in which they held that operational negligence was brought about unseaworthy condition but it wasn’t instantaneous.

It was over a lapse of time and I believe Mr. Chief Justice Burger was on the panel of that —

Warren E. Burger:

Factually, that was a very different case than this.

H. Alva Brumfield:

Yes.

All together but —

Warren E. Burger:

All of the conduct there was on the desk, true.

H. Alva Brumfield:

True.

Warren E. Burger:

So there’s no question about relating it to some fictional aspect of it’s being 100 yards away from the vessel.

H. Alva Brumfield:

Right.

May it please Your Honor but Chief Justice Bryan writing the opinion made the statement about Mascuilli and it didnt make the same statement other than holding the different panel.

In Usner held of that reverse to District Court holding that the operational negligence didnt make the ship unseaworthy instantaneously.

And the only reason that Ill make that statement is that we feel that this Court in Mascuilli has answered the very issue that has been — is being presented here and in no uncertain terms because you reversed a finding of the District Court and the Second Court of Appeal decision based upon facts which were finding of facts and as a question of law that was presented that an instantaneous negligence occurring at the time of the injury made the ship unseaworthy or in other words, there is — just because you have an operation on negligence occurring at the time of the injury, that in itself doesnt take away the fact that you have unseaworthiness.

Because as I’ve pointed out many times in the Waldron case and others, you dont need negligence at all to find that there was an unseaworthy condition in the vessel.

And so–

Byron R. White:

Mr. Brumfield?

H. Alva Brumfield:

Yes sir.

Byron R. White:

As I recall, the reversal in Mascuilli cited two cases.

H. Alva Brumfield:

Yes sir.

Crumady and Mahnich.

Byron R. White:

Do you feel that either of those cases stands for the reversing proposition?

H. Alva Brumfield:

Yes I do, may it please Your Honor because in both of those cases, Mahnich and in Crumady, it was based upon the fact that operational negligence created the unseaworthy condition.

In Mahnich, the getting or choosing the rope which was rotten was a negligent act that created the unseaworthiness.

Byron R. White:

At least there though, did you not have a defective piece of equipment?

H. Alva Brumfield:

Yes you did but —

Byron R. White:

But here I take it, we have no defective piece of equipment.

H. Alva Brumfield:

Right, may it please Your Honor but we dont need a defective piece of equipment to make a ship unseaworthy.

This Court has held that Mr. Justice Black in Waldron and many other decision of (Inaudible) seaman — a man can make a ship unseaworthy is just the same as a defective piece of equipment.

And just because you have the operation of the human element, the personnel has well pointed out in Waldron, there’s no distinction between the ships equipment and the personnel aboard.

H. Alva Brumfield:

Both can bring about an unseaworthy condition.

Byron R. White:

Well, I think this is true and I have assumed that your primary here was one of instantaneous negligence and that hence my question about the two supporting cases cited.

H. Alva Brumfield:

Well, what I say in those cases, Crumady and in Mahnich, this Court didnt concern itself with going in to the fact or determining what lapse of time was necessary for the choosing of the rotten rope or for the missetting of the electrical cutoff device to make it unseaworthy.

You never have done that.

And so here, you have the situation of where the operational negligence occurred at the same time of the injury, nonetheless, you have unseaworthy condition.

There’s no need for the lapse of time to make this act of negligence gel in to ripen into an unseaworthy condition.

And so we say that the Crumady and Mahnich do support Mascuilli.

And Mascuilli had before the very question of instantaneous negligence that we held here as whether or not the act of negligence occurring at the time of the injury made the ship instantaneously unseaworthy.

Or to say it in other words, just because you had an operational negligence that brought about this condition, that in itself doesnt take away from the fact that the ship was unseaworthy.

And so we say may it please Your Honor that this Court could be cryptic if it wishes and decide this case in four words.

And those four words, the judgment is reversed.

Thank you very much.

Warren E. Burger:

Mr. Kohlmeyer?

Charles Kohlmeyer, Jr.:

Mr. Chief Justice, may it please the Court.

Addressing ourselves first to the question just asked by Mr. Justice Blackmun, it’s our submission that the Court could not in Mascuilli have meant the reversal to be on operational negligence basis.

The concept was new to the Court.

The concept was a very large one affecting an entire industry and it is generally thought by the bench and bar we believe that the Court would not have summarily treated such an important subject.

On the other hand, Mascuilli did in fact have as its basis the, tight line situation that did come up in Crumady.

It did have as a potential, the same type of thing, accident that happened in Crumady.

There were no electric cutout switches in Mascuilli and it wouldve been very easy for the court in Mascuilli to have pitched — I’m talking about the District Court now — to have pitched its decision in favor of the plaintiff on an unseaworthiness basis not an operational negligence basis but on the basis that the ship was improperly rigged.

And the condition that we say must be incident of any case where liability is imposed on the ship.

That condition did then exist at that time.

Certainly, the citation of Mahnich and Crumady does not give rise to any thought that this Court is reversing on a theory of instantaneous unseaworthiness or operational negligence.

This is a case, if the Court please and all unseaworthiness cases are cases of liability without fault.

That is of course true.

This man who was injured was standing on a barge next door to the ship which was being loaded, the cargo was being handled from the barge to the ship, the sling was brought down too quickly, struck him, knocked him off the barge and caused his injuries.

He was immediately adjacent to the ship.

There was no unseaworthiness present that we can dissent or that anyone has suggested in the record.

The fact is that this was operational negligence the winch man let the swing down too fast.

Since it’s liability without fault, is it a matter of having an insurance liability for anyone who goes on and board a ship, who has a business on board a ship, who is a passenger, who is a workman?

Charles Kohlmeyer, Jr.:

If so, then we submit, it’s up to Congress to make that decision or certainly, it’s up to this Court to do it and this Court has not yet done it.

There is no such thing as an insurer’s liability as yet.

If Your Honors choose to make such a decision, it will be a future decision but none exist on the books as of today.

If however, it is any act which causes an injury to another party on board ship regardless of weather, the act is negligent, and regardless of whether the ship becomes unseaworthy, then if the Court please, it is exactly that act that is in fact imposing the ship owner — the insurer’s liability on the ship owner.

And this is what we submit cannot be done.

I think that Mr. Justice Stewart suggested that of course in Mr. Brumfields argument and I think thats the answer to the suggestion.

It cannot be that you can put liability on an act unless it’s negligence or on a condition unless it’s unseaworthy — unseaworthiness.

Now, if we want to change terminology–

Potter Stewart:

But the condition need not have been caused by any negligence or by any fault at all, thats correct, isn’t it?

Charles Kohlmeyer, Jr.:

This is of course correct.

Potter Stewart:

I mean for example the Mitchell case there, there was gurry on the ship’s railing — nobody knew whether that anybody was negligent in causing that condition, that wasnt an element on the case.

Is that correct or am I —

Charles Kohlmeyer, Jr.:

I think that Your Honor is correct in your statement of the end result that was not an element of the case.

I rather doubt that no one knew that it was there.

I think it was there —

Potter Stewart:

No one knew how it came to be there whether it was through the fault of anybody.

That was —

Charles Kohlmeyer, Jr.:

Thats correct and I would think that it is proper to state that under the existing law, knowledge of the condition need not be brought home to the ship owner in order to enforce liability on him because it is a liability without fault.

It is not the situation of the Conner Grocery whether Coca Cola bottle is not off and he leaves it there too long and somebody steps on it and is cut.

If it’s there for a moment, it is a condition whether the owner knows it or not, it’s still is a condition.

And when a party is injured by virtue of that condition, then there is liability.

But it is a condition and it is a condition which precedes the accident, precedes the injury and the doctrine presupposes condition rather than causation and in fact is — this is a definition I should think of unseaworthiness.

A condition rather than causation the fact that you know about it or dont know about it is of no moment because as you point out, it is a liability without fault.

In the case of Mascuilli to revert to it one more time if I may and then set digressed, certainly, it is not an easy case, easy decision to understand.

And certainly, the Second Circuit takes one view of the interpretation and the Fifth Circuit and the Ninth Circuit take it completely and irreconcilably opposite view of the same decision.

So that we do have a direct conflict in the twos — in the three circuits.

Two on the one side and the one on the other with possibly the third and the fourth mixing in some may say in favor of the Second and some may say in favor of the Fifth but certainly, there are two circuits at least on the one side and one at least on the other side and the views are diametrically opposed to each other.

When the — when was the Jones Act are passed?

Charles Kohlmeyer, Jr.:

1920 I believe.

Byron R. White:

And that gave a man the right to recover for negligence?

Charles Kohlmeyer, Jr.:

I’m sorry sir?

That gave an action for negligence to seamen?

Charles Kohlmeyer, Jr.:

Yes sir.

Byron R. White:

That was against the background of court developed remedies for unseaworthiness dating back to the late 19th Century?

Charles Kohlmeyer, Jr.:

I think dating back even further than that but say to the Oceola, yes, you had your remedy for unseaworthiness at the —

Byron R. White:

There must be — have you looked at the legislative history of the Jones Act in terms of what Congress might have said about existing remedies of seaman?

Charles Kohlmeyer, Jr.:

I think that — frankly, I have not.

No, if the Court please but the Jones Act is presently interpreted as being an exclusive remedy.

Byron R. White:

What?

Charles Kohlmeyer, Jr.:

It’s presently interpreted as presenting — as giving an exclusive remedy to a seaman.

Byron R. White:

Well, did seaman usually sue for both negligence and unseaworthiness?

Charles Kohlmeyer, Jr.:

Correct.

Byron R. White:

So in that sense, it’s not exclusive.

Charles Kohlmeyer, Jr.:

Correct.

He embraces unseaworthiness action on to his negligence action and brings it both in negligence and unseaworthiness.

Byron R. White:

But did Congress express any dissatisfaction at all with the unseaworthiness concept developed in the Courts when it passed the Jones Act?

Charles Kohlmeyer, Jr.:

Not to my knowledge but I’m not familiar with that if the court please and I couldnt answer the question.

Byron R. White:

Thank you.

Charles Kohlmeyer, Jr.:

I dont think however that the Sieracki type of seaman such as we’re dealing with here would be covered by the same type of hearing that Your Honor is referring to.

Because I think the hearings insofar as the Jones Act are concerned would be limited to seaman as such to the man who work on board ships and not to the harbor workers who have been given seaman rights in the so called Sieracki seaman who got their rights following the Sieracki case rather than from the legislation and the Jones Act.

I believe that these cases that we’re getting now are going much further than the Court ever dreamt that they could go.

In the Fifth Circuit at least, we’re getting further and further away from the ship as the unseaworthiness doctrine grows and as this instantaneous negligence doctrine could grow.

If this case were to be decided adversely to the position we take, under the case law that is now coming up, it would be possible for a truck driver to negligently operate a truck on his way to a roof (ph) up here and for the ship to become responsible for his injuries by reason of his having been — the ship having become unseaworthy.

The —

Hugo L. Black:

Would you say that again please?

Charles Kohlmeyer, Jr.:

In the Fifth Circuit right now, there are — there is case law and I should imagine that Your Honors will get these cases on writs.

There are two cases decided in September, the lower case and the Chagois case where one; a man is discharging a real car —

Hugo L. Black:

We are talking about the truck driver.

Charles Kohlmeyer, Jr.:

The other one is the lift truck driver who is on the roof hooking up to this lift truck driver in the Fifth Circuit Case was moving some cargo on the roof to get it near to the ship and what they call headache rack on top of the protection, on top of the lift truck on the roof falls on his head held that he could recover against the ship on the grounds of unseaworthiness.

Now this —

Hugo L. Black:

I thought you just said that this case has led to appear that a man could not have been on the ship and wasn’t going into the ship but was driving out of town.

Charles Kohlmeyer, Jr.:

Well this — this is a simple extension of that if the Court please if when you’re discharging a car 500 feet away from a ship and working with a tool to discharge rice from the car and you get hurt discharging the car and the Court holds that the ship is responsible for your injury and the ship didnt furnish that tool when you’re not employed by the ship–

Hugo L. Black:

But the case wasn’t detailed there.

Charles Kohlmeyer, Jr.:

That was the Chagois case if the Court please Chagois versus Lykes Brothers–

Byron R. White:

They officially reported it?

Charles Kohlmeyer, Jr.:

I do not think it’s officially reported.

It’s an a slip opinion of course.

I think September 30, either September 16 or September 30, one is the Chagois against Lykes Brothers and the other one is Law against Sagamore Hill which was decided on December — September 16.

That was the one where the lift truck had the headache rack fall on the man.

The other one was the rice worker case hurting the man.

But these are the extensions that you get too–

Hugo L. Black:

Thats not here.

Charles Kohlmeyer, Jr.:

No sir.

Hugo L. Black:

Not in this case.

Charles Kohlmeyer, Jr.:

Not in this case.

This case is a sling attached to the ship itself with the man standing directly adjacent to the ship but not on board the ship which I dont think could make any difference although it might.

But he is not on board the ship.

He is engaged in loading.

Hugo L. Black:

Suppose this equipment you are talking about that was attached to the ship, it was actually defective and had been defective six months.

No good, would you say that was something that affected both?

Charles Kohlmeyer, Jr.:

Clearly a case of unseaworthiness which would be actionable.

Hugo L. Black:

Be actionable?

Charles Kohlmeyer, Jr.:

Certainly.

We dont complain–

Hugo L. Black:

Is the ship unseaworthy?

Charles Kohlmeyer, Jr.:

Oh yes.

I would think also that there would be very few people who would object to the concept of a man recovering for what we would call true unseaworthiness.

It’s the idea of bringing the unseaworthiness into play where the ship itself is perfectly sound and someone makes it —

Hugo L. Black:

But it is an equipment and other was equipment.

You mean the ship itself as a whole has to be unsound?

Charles Kohlmeyer, Jr.:

No, the ship and its equipment be perfectly sound.

But in the state of the law as I understand it today if the ship itself and all of its equipment is completely sound, and a longshoreman goes on board the ship and drops some grease on the deck and the man following him slips on that grease, that ship is unseaworthy and that man can sue the ship for his injuries.

Hugo L. Black:

But you dont need to indulge in much of a fiction to relate that to the ship do you?

Charles Kohlmeyer, Jr.:

No sir.

Because that of course happened on the ship and that of course–

Hugo L. Black:

Then why do you have to indulge on the fiction to relate this to the ship?

Charles Kohlmeyer, Jr.:

This accident?

Hugo L. Black:

Yes.

Charles Kohlmeyer, Jr.:

You dont.

What I am saying though if the Court please is that if you permit the operational negligence to substitute for unseaworthiness, if you require that simple — if you permit simple negligence to be a substitute for unseaworthiness, then where are you going to get?

You’re going to get these cases stretching further and further away from the ship and you’re going to be —

Hugo L. Black:

But I believe we can take up those cases all together.

Charles Kohlmeyer, Jr.:

[Laughter Attempt] That of course is true but I submit to the court in all earnestness that there is no reason for this type of extension.

This is a new departure from existing law —

Hugo L. Black:

Or it is a new departure from Waldron?

Charles Kohlmeyer, Jr.:

Well I should think Waldron is a case that could be very easily decided on the same basis as Boudoin against Lykes that the ship can be unseaworthy and manpower as well as an equipment and we’ve always recognized that.

If you put two man on the job that takes four men to do, certainly, I should think —

Hugo L. Black:

Well thats instantaneous isn’t it?

The order is given, they put two men where they would have four, thats negligence.

Charles Kohlmeyer, Jr.:

And that the two men are —

Hugo L. Black:

And you hold that they are allowed with the lack of seaworthiness, should that be?

Charles Kohlmeyer, Jr.:

I dont think that the Waldron case held that.

No, if the Court please I think you sent it back because the Court — the lower court had taken the unseaworthiness issue away from the jury.

But —

Hugo L. Black:

The unseaworthiness?

Charles Kohlmeyer, Jr.:

Yes.

But the negligence matter was held against the plaintiff in the Waldron case which was the subject to the dissent that was in that case.

Where it was held that since there was — since the jury had found there was no negligence in assigning two men to do the job, then it couldnt very well be unseaworthy.

The ship couldnt be unseaworthy because there was no lack of manpower.

This is the way I read the case.

Charles Kohlmeyer, Jr.:

Nevertheless, it was sent back and it was —

Hugo L. Black:

why was it sent back?

Charles Kohlmeyer, Jr.:

I think it was sent back on the unseaworthiness issue.

But still, it was a condition because there were two men carrying something that the court that might be four men should carry–

Hugo L. Black:

At that moment, the next moment, they might have required one man or four men or five men.

Charles Kohlmeyer, Jr.:

This is true.

But —

Hugo L. Black:

I can understand your argument.

Those cases should be overruled.

We dont agree with it but I dont understand your argument that we havent cited against you in this case previously.

Charles Kohlmeyer, Jr.:

Well I dont think the Waldron case comes close to this case if the Court please and I think you have to do more than come to that conclusion — come to the conclusion that operational negligence is involved to get to the result in the Waldron case.

You dont need that theory spelled out that way to get to the answer in the Waldron case.

In Waldron, the condition was there.

That was the fact that two men were doing the work that three or four men should have been doing —

Hugo L. Black:

At that moment.

Charles Kohlmeyer, Jr.:

At that moment — to the same extent as if an improper tool had been given to them to use.

And on that basis, you had an incompetent crew or incompetent — incomplete workforce and that made the ship unseaworthy.

But it was a condition that existed at the moment of injury so I could justify the Waldron case without any difficulty.

Now all of this stems I think —

Hugo L. Black:

Mr. Kohlmeyer, if I may, did you say that if somebody on board ship negligently drops grease and the next man coming by slips, the ship is unseaworthy?

Charles Kohlmeyer, Jr.:

I dont think there’s much doubt about it on this date at todays law, Mr. Justice Black.

Hugo L. Black:

Well, suppose this man who negligently for a moment let that sling down too fast, had dropped the grease and a man had been injured, you wouldnt be here would you?

Charles Kohlmeyer, Jr.:

I dont guess I would be.

Hugo L. Black:

I dont see the difference between negligently dropping the grease and negligently slipping on the winch.

Charles Kohlmeyer, Jr.:

Well, the concept of unseaworthiness is the key note, I think in the touchdown on which we have to view these cases.

That concept we submit requires there to be a condition.

And if you do not have a condition, you cannot have unseaworthiness by definition.

Hugo L. Black:

The grease is the condition.

Charles Kohlmeyer, Jr.:

Correct.

Hugo L. Black:

That separates it to–

Charles Kohlmeyer, Jr.:

Correct.

Now if that —

Potter Stewart:

Then that would be unseaworthiness would you agree or not — whether or not the man who dropped it was negligent in dropping it?

Charles Kohlmeyer, Jr.:

Yes.

Potter Stewart:

He might have been very careful in dropping it.

He might not have been negligent at all.

Nonetheless, if there’s a greasy deck, thats an unseaworthy condition and the man following him could collect against the ship owner for an unseaworthy ship isn’t it?

Charles Kohlmeyer, Jr.:

Correct.

Potter Stewart:

So the negligence has nothing to do.

Charles Kohlmeyer, Jr.:

Nothing at all to do with it.

And nor with the fact that the ship owner had knowledge or did not have knowledge of the existence have anything to do with it.

This doctrine we submit comes from Judge Hahns decision on the Second Circuit in Grileau.

And in Grileau, we feel that that Judge Hahn indicated at that time that there had to be a time interval in order to apply to doctrine that he was speaking for then.

If you recall, in Grileau, there was a hatch board cocked over a (Inaudible) unequally and the man fell on the hatch board.

But he indicated that a time interval had to elapse.

And if you dont have your time interval elapsing, if you dont have your condition existing, youve got something that isn’t unseaworthiness.

Now, I dont know what it is and of course, the law can be changed, but at this moment, it isn’t unseaworthiness as we know it and as the word is defined to be because it is not a condition and you must have a condition for anything to be unseaworthy.

Additionally, the question of what this does to the industry when you put it together with Ryan is startling in its results.

The men who work on the ships of course are covered by the Compensation Act, given the compensation by their employers, they have their comp awarded to them as their sole and exclusive remedy.

They have their right to a third party action and the third party of course goes back against the employer so that in all of these cases that come to court, not in all but in 99% I should say, there is a liability over charged against the contract Stevedore or the person — the employer of the injured man.

We are getting the security of action to come right around the corner back to where the Congress said it could not rest.

And philosophically, it’s our submission that it is unfair to foist upon anyone, a fixed liability without fault and yet put no limits on that liability and thats what this type of result comes to.

Hugo L. Black:

What percentage of the ships or boats you suppose that operate have insurance policies?

Charles Kohlmeyer, Jr.:

$100.00–

Hugo L. Black:

Accidents of this type.

Charles Kohlmeyer, Jr.:

A hundred.

Hugo L. Black:

100%?

Charles Kohlmeyer, Jr.:

Yes sir.

Hugo L. Black:

So the question of which insurance company in the end has to pay?

Charles Kohlmeyer, Jr.:

Well the question if you bring it down to that Mr. Justice Black of how much is the public going to pay for the service.

Charles Kohlmeyer, Jr.:

Because obviously, the public is going to get the charge passed along to it in higher cost so that doesnt matter whether it’s insured or not.

Hugo L. Black:

(Inaudible)

Charles Kohlmeyer, Jr.:

Pardon?

Hugo L. Black:

If they have serious enough injuries, the public will have to bear the injuries.

Charles Kohlmeyer, Jr.:

Well, there’s a big difference I should think between a judgment for half a million dollars and cash damages and a judgment for $102 a week or $122 a week —

Hugo L. Black:

Was this judgment from a million dollars?

Charles Kohlmeyer, Jr.:

In our case?

Hugo L. Black:

Yeah.

Charles Kohlmeyer, Jr.:

In our case, we got a summary judgment with the defense.

Hugo L. Black:

Summary judgment?

Charles Kohlmeyer, Jr.:

Yes sir.

Hugo L. Black:

Okay.

I was just going to ask you if you could state beside something you can, what ruling are you asking this Court to make?

Charles Kohlmeyer, Jr.:

In this particular case, if the Court please, the case comes to you on the Fifth Circuits statement that there is no such thing as operational negligence constituting unseaworthiness which would be actionable by an injured man.

We seek an affirmance of that ruling.

Operational negligence as such does not on the part of the contract Stevedore does not give rise to an action against the ship for unseaworthiness.

They can go whether it’s instantaneous or not.

Charles Kohlmeyer, Jr.:

It’s the same thing if the court please.

Instantaneous negligence and operational negligence we would think would be the same thing.

So what you think you got as asking (Inaudible) line of procedure?

Charles Kohlmeyer, Jr.:

No, I think not because I dont think you have ever had that decision unless you made that decision in Mascuilli or unless you made it as Mr. Justice Black says you made it in Waldron.

I dont know that you have.

There is no clear cut statement by this court that instantaneous negligence constitutes unseaworthiness or that operational negligence constitute unseaworthiness.

Not that I know of.

Potter Stewart:

Mr. Kohlmeyer — excuse me, have you finished your answer to Justice Harlans question?

Excuse me.

This action was according to Judge Simpson in the Fifth Circuit involved a claim based on negligence and unseaworthiness and I noticed that as you correctly said in an answer to my brother Black a moment or two, though you got a summary judgment, what happened to the negligence claim?

It’s almost considered at least here — at least arguendo that there was negligence in this case.

Charles Kohlmeyer, Jr.:

The negligence charge was against the longshoreman apparently if the Court please and not against the ship.

The operator of the winch who was the negligent party was an employee of the Stevedore and a fellow employee of the injured plaintiff.

Potter Stewart:

Well, it wouldnt be an act for negligence.

Charles Kohlmeyer, Jr.:

I should think —

Potter Stewart:

His remedies would be limited by the Federal Harbor Workers Longshoreman Act.

Charles Kohlmeyer, Jr.:

I should think that you’re right.

He has no claim for negligence under this concept, under the facts of this case.

Potter Stewart:

If indeed, the man who was negligent was an employee of the same employer, it was a longshoreman.

Charles Kohlmeyer, Jr.:

Correct, it’s correct.

Potter Stewart:

Then his recovery would be limited to that Federal Workmans Compensation Statute.

Charles Kohlmeyer, Jr.:

That is correct.

Yes sir.

Byron R. White:

Well, longshoreman (Inaudible)

Charles Kohlmeyer, Jr.:

I think he can maintain a negligence action against the ship.

Yes, if the Court please.

Byron R. White:

Under the Jones Act?

Charles Kohlmeyer, Jr.:

Well, it’s —

Byron R. White:

(Inaudible)

Charles Kohlmeyer, Jr.:

He is given something thats pretty — for all practical purposes, he can do the same thing that a seaman can do.

Warren E. Burger:

In these cases Mr. Kohlmeyer that you referred to, I think you said they are on the way — possibly on the way here.

Theyve been decided in the Fifth Circuit in terms of just distance if you know the facts, how far from the vessel was the farthest occurrence?

You said 500 yards?

Charles Kohlmeyer, Jr.:

Well, I’m not sure that the court mentions exactly how far the occurrence of the injury was from the ship itself but in the Chagois case–

Warren E. Burger:

But it’s a substantial distance in any event.

It separates the ship —

Charles Kohlmeyer, Jr.:

It’s well away yes sir and in the Law case, the Sagamore Hill, they made no bones about how close it was to the ship.

The fact was — the concept of both cases was that he was preparing cargo for loading on board the ship and therefore, he was engaged in loading the ship and therefore, the ship owed him a duty of — owed him a seaworthy ship and not to have him injured and therefore grant him a recovery.

This was the concept and the approach that the court gave to both cases.

Potter Stewart:

Well, distance so remote from the ship has never been thought to be controlling and —

Charles Kohlmeyer, Jr.:

No, I shouldnt think so.

Potter Stewart:

— generally, there is that maintenance in your case where the sailor went off on liberty and fell out of the window of (Inaudible) and was held–

Charles Kohlmeyer, Jr.:

Yes.

Charles Kohlmeyer, Jr.:

But in this context, these people are loading ships you see and where they are loading ships, you always think that they are right on the ship but obviously, this wouldnt apply if a man was going back and forth, on and off the ship carrying cargo on his shoulder, when he was carrying it on to the ship or carrying it off of the ship.

But that isn’t the way Stevedoring is done, they have a bunch of men that are in the hole and another bunch that are on the shore.

And the theory now is that the men on shore and the theory now is that the man on shore has the same rights as the men on the ship.

The mere fortuitous event that they are posted to shore today and not in the ship today doesnt change their rights at all.

I see that my time is up.

Thank you.

Warren E. Burger:

Thank you Mr. Kohlmeyer.

Mr. Brumfield, you have six minutes.

H. Alva Brumfield:

Mr. Chief Justice and may it please Your Honors, with regard to Mr. Justice Marshall to the dropping of the grease, if the grease is dropped without any negligence whatsoever and a seaman or another stevedore steps on it, my good friend says thats unseaworthy condition which I agree.

And by the same token, if that grease was dropped on the seaman or worker himself and say hit him in the eye and put his eye off.

Nonetheless he had held the unseaworthy condition.

And this theory that I think generated from the Fifth Circuit to the effect that there must be some time element in order for this negligent act or none negligent act to ripen into unseaworthy condition is just fiction and has no basis on any decision of this Court.

And just because you have to condition and the causation occurring at the same time or seconds apart is the condition itself thats important.

The unsafe place to work that is violated.

And if thats done by a matter of seconds or matter of hours or a matter of days, it wouldnt make any difference if this sling itself as Your Honor said drops the grease.

So if the sling itself when it was negligently dropped —

Thurgood Marshall:

The man operating the winch was not a condition.

H. Alva Brumfield:

May it please Your Honor.

Thurgood Marshall:

The man operating the winch was not a condition than the man operating the winch.

H. Alva Brumfield:

Right.

But the man —

Thurgood Marshall:

Mr. Kohlmeyer says thats different.

H. Alva Brumfield:

I say that the man — there is no difference and this Court has said so in no uncertain terms in the Waldron case, it makes no difference between the equipment and the personnel because this condition can be brought about by a defective equipment or negligent operation of the equipment or even by non negligent operation of the equipment.

Thurgood Marshall:

Even if it’s temporary just for one second, it makes no difference.

H. Alva Brumfield:

Makes no difference may it please Your Honor because this —

Thurgood Marshall:

But that door had been there a long time and —

H. Alva Brumfield:

Sir, I beg your pardon.

Thurgood Marshall:

The condition had been there quite a while in Mitchell.

Must have been —

H. Alva Brumfield:

Well, Your Honor, you didnt even make that determination.

H. Alva Brumfield:

You said it was there.

It was transitory.

It was temporary.

It was on the rail and he stepped on it.

Now, if it had been there hours, if it had been there days, I dont — Ill say it would make absolutely no difference whatsoever because a condition, it didnt have — it didnt have to be there for a matter of hours before the sailor stepped on the rail and he was thrown overboard, he couldve been there a second before he stepped on that rail.

And this so called condition, of course it’s a unseaworthy condition but — and it’s preceded by some negligence, but that can occur just seconds before or the same time.

There has to be some and usually are some negligent acts it creates a condition.

Of course, we agree with that but just because you have an operational negligence, that does not take away from the fact that that operational negligence instantaneously creates an unseaworthy condition.

Hugo L. Black:

I believe you said that — originated that idea or concept originated under Fifth Circuit?

H. Alva Brumfield:

When the (Inaudible)

Hugo L. Black:

What cases?

H. Alva Brumfield:

We cite them in our briefs.

Hugo L. Black:

You cited in your brief?

H. Alva Brumfield:

Yes (Inaudible).

Hugo L. Black:

Who wrote the first one?

Do you remember?

H. Alva Brumfield:

I sure dont Mr. Justice Black but they concern themselves with a lapse of time whereas nowhere in this Court in this decision at Crumady and Gutierrez where it happened offshore or with a bean bags or the man, those cases, nowhere when this question of negligence or non-negligence creating a condition of unseaworthiness was the time ever considered.

Now you did squarely hold that an instantaneous operational negligence created unseaworthy condition.

And you held it just as clearly as anything as any decision youve ever pronounced from this Court.

Because the lower court found a finding of fact, number 35 that says that the operational negligence occurred, the equipment was seaworthy and it occurred so instantaneously that the officer couldnt warn — give him a warning whatsoever.

It occurred then.

And now the Court denied a liability.

And Your Honors reversed it.

Well if thats saying that instantaneous operational negligence makes a ship instantaneously unseaworthy and thats how clear that decision is.

And it makes that you dont have to have this lapse of time, when you say it must precede the grease dropping and stepping back on or someone steeping momentarily thereafter on the grease.

But it makes no difference whether it was there in a matter of time.

The condition is a unsafe place to work and if thats created by a negligent act, is unseaworthy.

And just because it occurred seconds before or just because it — momentarily at the same time, you have a causation and condition meeting at the same time is unseaworthy.

And thats what Your Honors have held.

You held it in Mascuilli, you did have the same question before this and thats what you did hold in absolutely no uncertain terms.

H. Alva Brumfield:

And we submit may it please Your Honor that thats the policy of that Mascuilli decision in line with the other decisions of Crumady and Mahnich or justification and authority if you need in making pronouncements which you certainly held that in Mascuilli.

And there’s just absolutely no question about it.

And as I say, here where you have the — a defective equipment may it please Your Honor to say it one more time, momentarily can create a ship unseaworthy or any kind of transitory condition can momentarily make that ship unseaworthy.

Or active men — there’s no distinction between the equipment and the personnel.

Warren E. Burger:

I think we are done, Mr. Brumfield.

H. Alva Brumfield:

Yes.

That in itself can make it unseaworthy.

Thank you very much.

Warren E. Burger:

Thank you Mr. Brumfield, thank you Mr. Kohlmeyer.

The case is submitted.

H. Alva Brumfield:

Thank you very much.