Weyerhaeuser Steamship Company v. Nacirema Operating Company, Inc.

PETITIONER:Weyerhaeuser Steamship Company
RESPONDENT:Nacirema Operating Company, Inc.
LOCATION:Philadelphia Board of Public Education

DOCKET NO.: 75
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 355 US 563 (1958)
ARGUED: Jan 06, 1958
DECIDED: Mar 03, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – January 06, 1958 in Weyerhaeuser Steamship Company v. Nacirema Operating Company, Inc.

Earl Warren:

Number 75, Weyerhaeuser Steamship Company versus Nacirema Operating Company.

William Garth Symmers:

Mr. Chief Justice, may it please the Court.

Earl Warren:

Mr. Symmers.

William Garth Symmers:

Symmers.

Earl Warren:

Symmers.

William Garth Symmers:

William Symmers appearing for the petitioner, the Weyerhaeuser Steamship Company.

This case arises out of a third-party action by a longshoreman who recovered damages from the petitioner, Weyerhaeuser Steamship Company, for personal injuries which the longshoreman sustained while working on Weyerhaeuser Ship in Boston Harbor.

That issue here is the right of the shipowner to indemnity from contracting stevedore which employed the injured longshoreman which supervised him in the course of his work.

The logbook for the day in which this longshoreman was injured is so succinct in the statement of facts.

Before I go into my narrative of facts, it might be helpful to the Court if I simply read the sailor’s language of how it happened.

William O. Douglas:

Where is that?

William Garth Symmers:

It’s on the record at page 84.

The log is dated February 4, 1952, 10 o’clock in the morning.

A piece of wood from a winch driver shelter built by them, that number hatch fell into number one lower hold hitting longshoreman William —

Where are you reading from?

William Garth Symmers:

Record 84, sir.

84.

William Garth Symmers:

A piece of wood fell on the number one lower hold hitting longshoreman — the upper left-hand corner, William J. Connolly on the head, hatch tender, path divine, a man set out of hold on stretcher.

No ships near the (Inaudible).

This case is here on writ of certiorari to the United States Court of Appeals for the Second Circuit which by a divided court affirms the trial judges’ direction of a verdict in favor of the third-party defendant, stevedoring contractor, in the shipowner’s action to recover indemnity from the stevedore.

The trial was in the District Court for the Southern District of New York before Judge McGohey and the jury.

Charles E. Whittaker:

Is it true then, we have no issue here as (Inaudible) between the steamship company?

William Garth Symmers:

Yes.

The original plaintiff Connolly was paid after indictment in his favor against the shipowner.

The trial judge then directed judgment in favor of the third-party defendant not leaving the question to the jury at all and between the — the original shipowner defendant in the — and the stevedore.

Charles E. Whittaker:

A finding that the steamship (Inaudible) which is primarily liable was not (Inaudible).

William Garth Symmers:

Well, it’s not a question of primary liability, sir.

We — there are two issues submitted to the Court, one tried together.

One was Connolly (Voice Overlap) a claim against the shipowner.

Secondly, was the shipowner’s claim in a third-party proceeding against the stevedore.

William Garth Symmers:

The judge let — he said that he would charge the jury on both of those cases.

He submitted the case of Connolly, the longshoreman against the shipowner first and entered instruction.

He said, “If you decide against the shipowner in this case I will then instruct you later in the case of the shipowner for indemnity against the long — stevedoring company.”

The longshoreman reported.

Charles E. Whittaker:

But he didn’t do that.

William Garth Symmers:

He didn’t do that.

He entered directed verdict.

As soon as the jury came in on one count against the Weyerhaeuser Steamship Company in the case of the longshoreman against the Steamship Company on account of negligence against the shipowner, he directed a verdict immediately in the second case in favor of the third-party defendant stevedore.

Charles E. Whittaker:

(Inaudible)

William Garth Symmers:

Only with the fact to the jury, certainly.

That’s our — our contention.

It — it could have been a fact.

We say two things.

Our point here is that actually the trial court heard and not following a ruling of this Court in the line of stevedoring case and in directing the — in the second — in the (Inaudible) case, they showed a directed verdict for the shipowner against the stevedore.

And at the very least, they should have submitted the case to the jury for the jury to determine whether or not the stevedore’s breach of contract with the shipowner was the approximate cause or the cause of the agent stevedore — any longshoreman is injured.

I think it’s — it gets rather complicating to have these four cases or four parties involved.

Felix Frankfurter:

You meant to say it but you didn’t that the recovery by Connolly was on negligence and not on unseaworthiness.

William Garth Symmers:

Yes, sir, Your Honor.

The jury — there were two counts in Connolly’s claim.

One was negligence, a failure to provide a safe place to work.

And secondly, unseaworthiness causing his injury.

The jury found for the shipowner on the seaworthiness count.

In other words, they found the ship and our impertinent that we’re a bit seaworthy, but they said, “You left this man work under unsafe conditions and therefore you’re liable.”

Didn’t say primarily or secondarily or anything like that.

That was submitted.

Felix Frankfurter:

And the essential question here is whether the arrangement — that purpose to use in its full term whether the arrangement, meaning, shipowner and the stevedore supplanted or — supplanted, yes, the finding of negligence against the shipowner as between a shipowner and stevedore.

William Garth Symmers:

Yes, sir.

Well, the shipowner has a non-delegable duty —

Felix Frankfurter:

Yes, I —

William Garth Symmers:

— to provide a safe place to work even if that place has been created unsafe by one of his independent contractors.

William Garth Symmers:

And the — that question is then, where — this liability has been imposed upon us with no fault other than a (Inaudible) for committing an unsafe condition.

We are not therefore entitled to go up against the independent contractor under his contract for contractual indemnity to recover the damages that he has caused (Inaudible) to suffer.

Felix Frankfurter:

But because — but it’s relevant or is it relevant that the jury found in favor of the shipowner on the score of the non-delegable responsibility of seaworthiness?

William Garth Symmers:

That would be the absolute liability (Inaudible).

I think its very — very important because it shows the —

Do you have a — a specific agreement with — with the stevedore, not (Inaudible)?

Charles E. Whittaker:

Do you contend (Inaudible)?

William Garth Symmers:

Under the law as presently stated by this Court in Ryan, yes, Your Honor.

The — the contract itself provides this.

It’s in the record at page 65 that the stevedore agrees to faithfully furnish such stevedoring services as maybe required upon such of Weyerhaeuser vessels as are assigned to the contractor.

And the stevedore further agrees to provide all necessary stevedoring labor, also foreman and such other stevedoring supervision as are needed for the proper and efficient conduct of their work.

Now, this man had been working on in the Weyerhaeuser ship.

There are no — the stevedores in port, all the 11 deck men were shore — on shore leave, 30 some odd longshoreman taking over the ship discharging under a — a specialized long work under their own foreman.

They had control of their particular portion of the ship for four days.

They were using a — a winch shelter to keep the rain off the winch driver’s head and winds and so forth.

There had been a record by this very stevedoring company.

They had never bothered to look at it or check it to see whether this flimsy structure which was built from dunnage and loose pieces of wood they found and about, was safe or unsafe to the vibration of the ship during the cargo operation with the wind and everything else for the last four days.

And suddenly a piece of wood falls off of the roof of this shelter, seven feet high shelter and lands down the lower hold on top of Mr. Connolly’s head.

The jury thought that was a worth — and it was worth $50,000 which we paid.

We say that primary duty there is to indemnify us is rather the stevedoring contractor which created this petition which would — we hired to do this work.

They built their shelter.

They provided their own supervisory personnel and that they breached their contractual obligation to do their work properly.

And that we therefore, what we should’ve done is we moved for a directed verdict in our favor.

And at the very least that the case should have been submitted to the jury as to whether the — any conduct on the part of Nacirema amounted to a breach of contract on their part so as to entitle us to indemnity.

Felix Frankfurter:

What would be the jury issue?

You see, I believe the jury was —

William Garth Symmers:

Well, it’s —

Felix Frankfurter:

What would be the jury —

William Garth Symmers:

It’s very hard for me to say any jury issue but —

Felix Frankfurter:

I know but you just said at least he was at the jury.

Felix Frankfurter:

What would be the jury —

William Garth Symmers:

Well, I think that the jury covered that and I tried to cover it in our brief.

The jury would be entitled on — if we — if the Ryan case is still the law, that was — decided here in 1955, the jury would — might have a case as to — as to whether this particular certain type of this case were caused by a breach of contract on the part of Weyerhaeuser to that effect.

Now, if Ryan is not the law then the Second Circuit has a different theory of the law which they’ve been following for many years in the New York Court of Appeals and other courts too, which I thought had been put to sleep by Ryan.

And that is a theory of active primary negligence as against the passive negligence and the party who is guilty of the — what the Court used to call so active or primary negligence to entitle the indemnity or rather must indemnify the negligence to the owner of the premises who’s only negligence was passive and that he submitted the conditions to exist.

Felix Frankfurter:

Are we asked to overrule Ryan in this case?

William Garth Symmers:

No, Your Honor.

Felix Frankfurter:

I know not by you, but —

William Garth Symmers:

Not by me.

Felix Frankfurter:

No, but by the other side.

William Garth Symmers:

No, I think the other side attempts to distinguish it.

Felix Frankfurter:

All right.

I just want to know whether we are asked to overrule Ryan.

William Garth Symmers:

And the — the Court of Appeals below, two of the judges, Judge Terry Waterman writing his opinion joined by Judge Medina were of the view that while the facts of our case are strikingly similar to the Ryan case, nevertheless it’s distinguishable.

Well, it is distinguishable as all cases are distinguishable and that the trouble is that the — in fact, it’s so close that one is a little bit blinded about the principles of law, I think, it applied.

Now, Judge Lombard said, “Not only does Ryan apply but it’s a — it applies despite the distinction made by the majority of the Court of Appeals.”

In — in the Ryan case, the stevedore loaded some paper down in George Town, South Carolina negligently and then the same stevedore discharged the ship in New York and one of the employees was hurt as a result of that stevedoring negligence.

The shipowner was held responsible there for a failure to give the — the person non-delegable duty, the failure to — to give the longshoreman a safe place to work which is a non-delegable duty even though that unsafe condition has been created by the longshoreman’s employer.

And this Court held that the longshoreman had breached the — its contract, implied contractual obligation to do the work properly and implied and read into the contract in obligations indemnified.

What do you understand to be the distinction of the Court of Appeals, the majority of the Court of Appeals made to this situation, Ryan, which (Inaudible)?

William Garth Symmers:

Well, Ryan — in Ryan, the unsafe condition was created in George Town, South Carolina and the action occurred in New York.

In our case, this winch shelter was built by the stevedoring contractor in New York and the accident occurred in Boston.

And for that reason, the cases become being so similar become confused when they shouldn’t be.

The Court of Appeals, the majority of the Court of Appeals said, “Well, it’s a George Town case when the stevedore negligently loaded the — loaded the paper.”

It was foreseeable that somebody was going to get hurt when they started discharging in New York.

And they read into the — into the contract, the duty to indemnify for foreseeable injuries.The —

Charles E. Whittaker:

But didn’t the Court here find that there was an attempt (Inaudible) on the part of the steamship company, between the time of the construction of this shelter over the hatch in New York Harbor and the time the ship arrives in Boston Harbor with the shelter still on it.

The allegation of negligence being that the custom was and in the duty of the steamship company to remove that shelter before they left New York and they failed to do so and the predicate, that the jury’s finding for the plaintiff in — in Boston was that the shelter was still present.

And therefore, the steamship company was negligible (Inaudible).

William Garth Symmers:

Well, it wasn’t put to the jury solely on that — on that issue.

William Garth Symmers:

I think the Court of Appeals had that point in mind that there — there is evidence.

The evidence is uncontradicted in the record that it was customary when the stevedore has finished work in one port when the ship go to — went on to its next port of discharge or the deck crew of the ship to tear down these shelters.

But the evidence is also appearing, it’s overlooked in the Court of Appeals’ opinion, majority opinion that the reason for carrying down those shelters has — and not any duty to the stevedore company at all.

It is so that they will have room to maneuver on deck to secure the booms of the ship and so these pieces of wood won’t be flying around and injure some member of the crew during the course of the voyage.

Those are all the reasons described by witnesses for the plaintiff which is uncontradicted in the record.

Those were the sole reasons for removing shelters at sea.

Charles E. Whittaker:

Wasn’t there evidence however that there was (Inaudible) this was — the shelter is still there where it became (Inaudible).

William Garth Symmers:

No evidence whatsoever in that, Your Honor.

The Court — there was a conflict of evidence throughout.

I tried to avoid that to make the facts more simple but there was a conflict of evidence at the trial, conflict of testimony, a short conflict.

All of the ships’ officers swore up and down that these shelters had been removed and that the shelter that actually caused this man’s damage is important had been constructed by the Nacirema employees in Boston rather than by Nacirema employees in New York.

But the longshoreman in Boston also swore that it was there when they — when the ship arrived in Boston.

Therefore, by — although they were prepared with knives — rather with hammers and nails and tarpaulin and all the rest of equipment they needed to build shelters in Boston, they saw them already there and so, they used them.

And they used them for four days without inspecting in any way.

Now, I think the fact is they — they took over an instrumentality, that was created by the same company, same contractors, adopted — readopted rather, used it, never inspected it.

There’s nothing in the record that said we were negligent.

Well, we — yes, I suppose our basis of negligence is that we let it stay there or let these men use it and that would have been true whether it was built in Boston or built in New York.

Charles E. Whittaker:

(Inaudible) in the trial court, was left to the jury as the basis of your liability, that is that (Inaudible) independent act of negligence occurring after the ship had left New York Harbor and before it arrived — arrived in Boston.

William Garth Symmers:

Well, the Court said, “If on the other hand you find that the structure was there, and that in leaving it there, making it available to these men to work that the shipper’s guilty of some act of omission or commission, which act of omission or act of commission was negligent and that brought about the injury then you might find the verdict for Mr. Conolly on the first cause of action submitted, was permitting it, just to remain there and letting them use it.

That’s — that was the basis of —

Your point is I take it that the duties so far as negligence is concerned, is owed — was owed by you people to the employee is a different duty than the one that was owed by you to your indemnitor.

William Garth Symmers:

We owe a duty to any business invitee to get a non-delegable duty in the safe place to work.

On the other hand, when we hired an independent contractor to do that special particular work and to supervise it, we feel that the duty we — there’s no duty owed to that independent contractor to supervise him.

Certainly, we must — we have a chief officer there who is charged in law, as the law now stands, with the duty of saying that men don’t hurt themselves, it’s possible.

In other words, duty of due diligence and reasonableness of inspecting the — making sure they’re using safe equipment and safe gear.

Charles E. Whittaker:

That it does distinguish this case from Ryan, does it not?

William Garth Symmers:

That is the way the Court of Appeals in majority distinguished.

I don’t agree that it’s — the (Inaudible) was Ryan.

It distinguishes it on those facts, Your Honor.

Those — that is where the facts (Inaudible).

William Garth Symmers:

There was a different set of facts here.

In — in Ryan, the foreseeability arose in George Town.

Whereas here the unsafe condition was created in New York and the unsafe condition was adopted again by the same stevedore in Boston.

As Judge Lombard has said it, “He couldn’t see that it makes any difference whether we’ve taken that shelter off and stowed it down in the hold and they put it right back up again when they got there.”

Felix Frankfurter:

There was negligence on the part of the shipowner, vis-à-vis the employee in Ryan.

William Garth Symmers:

Yes, sir.

It was indeed.

It was — in that — in that respect to —

Charles E. Whittaker:

In Ryan, the roles of people had been placed by the stevedoring company?

William Garth Symmers:

Under the chief officer’s responsibility and supervision.

Charles E. Whittaker:

And had to (Inaudible) intervening negligence on the part of the shipowner from that time to the date of the injury of the — of the stevedore.

William Garth Symmers:

Only in — only in permitting that condition to be created.

Charles E. Whittaker:

No.

William Garth Symmers:

That is the only act of negligence that occurred in — in this case.

There was no other act of negligence to the — either to the stevedore employee or to — to anyone else on the part of the shipowner in this case.

There was no duty on the part of the shipowner to tear this structure down at any time.

It was customarily done at sea solely because it’s part of the squaring up of the ship and has to do with the ship and its own sailors and not any duty towards the stevedore.

And with — in making a short run from New York to Boston if it left those structures there, that beyond — that was in violation of no duty to anyone other the seaman if a seaman might have gotten hurt in the process of cleaning it up during the course of the voyage.

But the jury found that this structure, as it arrived in Boston was the very same structure that had been created by the third-party defendant stevedore at New York.

And that our liability was in permitting these men passive action of committing the (Inaudible).

Stevedore created it.

Stevedore was in charge of the men.

They were the specialist at discharging the ship and in supervising the work.

They expressly contracted to do this work properly, with the proper supervision and equipment.

The — the piece of equipment which caused this man’s injury was no part of the ship.

The jury verdict precludes any finding to that effect.

So the ship was found to be seaworthy.

And I think the definition of seaworthiness given by the district judge is — is fair enough on that score.

Did you move for a directed verdict when it came to the second part of the case?

William Garth Symmers:

Did I sir?

Yes.

William Garth Symmers:

Yes.

Our motion appear in the record, I think its page 17.

We made all the motion.

All the (Inaudible) motion.

William Garth Symmers:

They’re all in that.

Leavenworth Colby:

May it please the Court.

(Inaudible)

Leavenworth Colby:

The United States appears amicus curiae in this case because of its great importance to the Government as one of the principle operators of the merchant marine and additionally, as responsible for the subvention of the merchant marine.

Any increase in cost of the operating of ships falls upon the Government to a greater or less extent.

And accordingly, we are interested not only as the largest customer of contracting stevedores, but also as those who are responsible for supporting and subventioning other customers of contracting stevedores.

Now, this if the Court please, in the second phase which is the phase which is before this Court today is a suit by the customer, the ship who hired a professional stevedoring contractor to stevedore its vessel in a skillful and proper fashion.

In other words, it is a claim of the client against the expert of the customer against the contractor.

The basis of the claim is that by reason of a breach of the contact by the contracting stevedore to do the work in a proper fashion, one of the contracting stevedores own employees was injured.

That employee recovered a judgment against the ship on account we maintain of ultimately the negligence of the contracting stevedore.

And the ship having paid for that brings this suit to obtain reimbursement of the money it was required to pay out as a result of the contracting stevedore’s breach of contract.

And accordingly we say, the concepts of primary and secondary fault have nothing to do with it.

The question here is purely one of the law of contracts.

The ship had a contract to have the work done properly.

The contractor breached that contract.

Now, I would like to look for a moment at the facts.

Now, Mr. Connolly, the injured longshoreman who got hit on the head with the board has been paid off some $50,000 odd and this suit is by the ship who paid him pursuant to the judgment to be reimbursed that amount because it had to pay it as a result of the breach of contract of its professional contracting stevedore.

Now, the facts are quite simple.

The ship got into New York Harbor on the 25th day of January.

At that time, there was a deck load on and they had to begin first to take the deck load of lumber off and then to go into the holds.

And when I assumed they got the deck load off, at that point, the winch man erected in New York shelters to keep the weather off of him, the snow and the rain.

Those shelters which were erected by the winch man, employees of the contracting stevedore for their own convenience were flimsy-like structures.

They’re made out of dunnage, hard boards that are left around loose and they put over them tarpaulins in order to keep off the weather.

Now, they erected them some time subsequent to the 25th day of January.

The vessel was done discharging at New York on the 30th day of January.

Leavenworth Colby:

So on the 30th day of January, she put to sea, at that time ordinarily, the longshoreman would have been expected to take away the stevedore’s tarpaulins from this flimsy hatch shelter that they had here.

But whether they did or not, when the vessel arrived at Boston, the following day, that’s one day later, the shelter, the hatch shelter was still in place.

It was visible whether there were one or two tarpaulins over it.

It’s doubtful under the testimony in the record whether it could be certain and that’s of course important because it was light loose dunnage placed on the top of the second tarpaulin which was blown off by the wind and precipitated into the hold hitting Mr. Connolly, the injured man, on the head.

Now — so, we have a situation that the professional contractor built this flimsy structure for his own purpose.

It’s a hindrance to the ship and when the ship gets ready to go to sea, it should take it off.

As Mr. Symmers has explained, it owes that duty to its seamen.

When they got into Boston, the ship’s personnel say that the shelter was gone.

The stevedore contractor’s personnel say the shelter was still there.

They say that they ordinarily in accordance with the custom of the trade, the agreement of parties go aboard with hammer and nails and they erect such a structure but they didn’t have to do it this time because there was one up there.

Now, once more, I want to remind the Court.

The ship employs the professional expert stevedore to do the job properly.

Now, if there was some kind of conjuries of boards amounting to a hatch shelter that for one day had been in the possession of the vessel while it was at sea and had been blown about.

Proper stevedoring practice and indeed ordinary common sense would indicate that that should have been inspected by the professionals who were going aboard to stevedore the vessel and who would have to erect their own flimsy structure if they hadn’t found the remains of an old one there.

The record however shows that they didn’t do a thing.

They did not inspect the hatch shelter that was there.

They paid no attention to it and they went on stevedoring using this hatch shelter which the company had built at New York and which had been in the possession of the ship just one day at sea.

And after five days of using the structure during which again the record is clear, they failed absolutely to make the customary inspections.

Indeed, I think common sense dictates that a structure of this sort should be inspected two or three times a day.

The winch drivers themselves who testified for the plaintiff said that matters might be dislodged from it by wind or by the vibration of the winches in operating and that it was most important that it be secured.

Now, because they say that the ship had permitted the structure to remain aboard while it put to sea and came in, they are excuse from the professional duty of inspecting that structure when — before they started to use it and through the whole of five days.

Now, if the Court please, it seems to me it makes a great deal of difference in this case as to whether the accident happens a few hours after the longshoreman come along or as in this case five days.

We believe that when a ship hires a contracting stevedore, it’s entitled to have the hatch shelters or any other parts inspected immediately before they begin to use them.

But we don’t have to worry with that here.

They had five days during which there should have been 15 inspections in all probability and none were made until after.

Charles E. Whittaker:

You wouldn’t say that if the shelters were a part of — or had been built by the ship.

Leavenworth Colby:

If they were an integral part of the ship, the situation might very well be different.

But of course not only are we precluded by such a judgment as a matter of common sense but the finding of the jury was in respect of the instructions on unseaworthiness that the hatch shelter was not impertinent to the ship.So, we have no such trouble.

However, I would point out to Your Honor that even it had been a part of the ship such as a hatch beam with the defective locking device or anything of that sort, it is well settled under the decisions that the professional contracting stevedore, the expert which his hired by the ship.

Now remember, the ship’s personnel go ashore leaving only a couple of men around to take care of the ship.

Leavenworth Colby:

They don’t do anything about the stevedoring.

The professional stevedore is supposed to inspect and if things are not in order, he’s supposed to stop work.

And if it’s a job that the ship should do to put them in proper order then the work stops and the time is running against the ship until the ship gets around to fix it.

Now, that’s exactly what wasn’t done here.

In other words, this is the old familiar pattern that the contractor took the money and didn’t do the job right.

Now, I’d like to say a word about this question, about intervening acts of negligence.

The Second Circuit by a very distinguished judge, Judge Waterman, thought that the failure of the ship to remove the hatch shelter was an intervening act of negligence insolating, I take it, the liability of the contractor for having built a flimsy hatch structure but by the same token, the failure of the contractor to perform its proper professional duty to inspect the shelter before working.

And during the course of the work for five days was an intervening act of negligence which should in turn insolate the situation there.

But actually, this conception of intervening acts of negligence is not appropriate to a case which involves contract rights.

In other words, the question we have here is when the ship allowed the flimsy structure to remain aboard when it put to sea and came in to Boston.

Did it breach its contract to the contracting stevedore?

Was there an agreement by the ship that it would for the benefit of the contracting stevedore remove the hatch shelter?Of course, the answer is, how could it be?

To the extent that it was left there, it put the contracting stevedore in the position that there were the remains of a hatch structure, of a hatch shelter which it could refurbish and renew and put in shape with less trouble.

There’s certainly between the ship and a professional contractor skilled in the art could be no doubt that there was no representation by the ship that this flimsy structure hadn’t been withstanding the high seas and winds in the passage from New York to Boston.

Charles E. Whittaker:

In your review then legalistically, there is no difference between these facts and what would have been the situation if the ship had stayed in New York Harbor and only a night had intervened?

Leavenworth Colby:

That is right, sir.

That’s why we don’t think it makes any difference whether there was one or two contracts, whether the same stevedore operated at New York or Boston or any of these things.

The question is, the stevedores at Boston were hired to do a proper job.

When they got aboard, there — there was the remains of a flimsy hatch shelter there.

It was their duty to refurbish that, to inspect it because it was there for their purpose.

We make conjecture that the reason it was left there is very likely because it was — was the same stevedore in both places and it saved the people doing work in the second port.

Idle speculation but it’s the most logical explanation.

Now, in other words, had it been some similar flimsy structure there and a new stevedore had come up.

The new stevedore would owe the ship the same duty of professional skill in here to look after it.

And as I’ve said to Your Honor, even if it had been a part of the ship as long as it was susceptible of discovery by inspection, there could be no doubt about the professional contractor’s duty to his customer to see that it was done.

Now, in the brief of the contractor, a great deal is made to the fact that it was difficult to detect that there was trouble and insufficiency in the construction of the shelter.

Now, that’s errant nonsense because we find that after Mr. Connolly was hit on the head by a board, and the boards by the way were one inch by eight, about three and a half to five feet long, so it’s little light dunnage.

After that, one of the winch drivers simply skipped up on top the winch and being up that high, he could see up over the top of the shelter which was seven foot high and he was able to say to his partner that, “Now, this is an improper way to put a hatch shelter together.”

The second tarpaulin isn’t secured at all.

They just laid it across and put two or three boards on top of it.

Leavenworth Colby:

Now, that they could have found by similarly getting up on the hatch and taking on the winch and taking a look, the day the vessel came in to port.

It is to my mind the most abominable and shocking violation of a professional duty on the part of a contractor to its customer that has come before the courts.

Most of these cases involve something quite latent and difficult.

And you might feel some sympathy for the contractor even though he was a professional in having his men detect what’s wrong.

But this was the most obvious matter.

Nothing except the claimed breach of the contractor’s duty to his customer ship could possibly have permitted this to come about.

I think frankly it is a shocking thing that there was no criminal prosecution for the negligence in failing to inspect this matter daily so that Mr. Connolly was hit on the head.

So now, that is the very crux of the case, not that it was erected by the same stevedore contractor in New York but that after it had been a — but a single day in the possession of the ship, the new stevedore contractor, because it’s a different group of men even though it’s the same company, the new stevedore contractor comes aboard and he doesn’t do what he’s paid for doing.

Now, we in our brief have set forth at great length the considerations of why it’s necessary to have a breach of contract by the customer before the customer is deprived of his right to recover against the contractor who doesn’t do the job he’s paid for.

Now here, there can be no question that there was no breach of contract subsequent to the breach of contract by the contracting stevedore.

There is nothing in the testimony anywhere that suggests that the ship did anything to render the hatch shelter less secure once the stevedore contractor came aboard and started working.And that is the only kind of testimony we believe which would permit a denial of a judgment for reimbursement.

Do you think there’s a question of fact assuming one was to agree with your position, what should be done with the case?

Leavenworth Colby:

It seems to me that the district judge should have granted the motion for a directed verdict in favor of the customer ship and against its expert contractor because —

Charles E. Whittaker:

How could he have done that when you had just predicated in his submission to the jury the liability of the plaintiff upon the negligence of the Steamship Company in permitting these shelters to remain there?

Leavenworth Colby:

Oh, but the negligence of the contractor is the negligence of the Steamship Company, too.

Because all the time the ship owed a non-delegable duty to Mr. Connolly.

And if Mr. Connolly was hit on the head by a board as a result of the negligent performance by the expert contractor of a duty which vis-à-vis Conolly, the ship had no right to delegate, there is no doubt about it if Mr. Connolly recovers judgment for negligence.

But it doesn’t mean that the customer is not entitled to recover against the contractor to whom he delegated the non-delegable duty.

Charles E. Whittaker:

Correct, unless — and the District Court (Inaudible) and the Court of Appeals affirmed, there was intervening negligence on the part of the ship company in not removing this shelter during its course of the ship from New York to Boston.

Leavenworth Colby:

The difficulty with that Your Honor you see is that the Court entirely overlooked the supervening negligence of the stevedore in failing to inspect the shelter that was carried from New York to Boston before working and as he was continuing with the work.

Felix Frankfurter:

If this had happened to Connolly 10 minutes after the shelter was up, the same flimsily built shelter as you’ve described it, the Steamship Company would have been liable.

Leavenworth Colby:

If Mr. Connolly had been hit on the head by a board which blew off before the contractor at Boston had had a chance —

Felix Frankfurter:

No, I’m talking about the New York —

Leavenworth Colby:

— to look at it.

Felix Frankfurter:

— after they’ve put it up.

Leavenworth Colby:

Oh, in New York.

Felix Frankfurter:

After —

Leavenworth Colby:

Yes, of course.

Felix Frankfurter:

If this had hit Connolly five minutes after it was erected, before any of the Steamship Company’s officers could do anything about it, the Steamship Company would have been liable.

Leavenworth Colby:

That is right.

Leavenworth Colby:

Because —

Felix Frankfurter:

Because —

Leavenworth Colby:

— it would not have furnished a safe place for Connolly to work.

In other words, vis-à-vis Connolly, there is a non-delegable duty of the ship to furnish him a safe place to work but vis-à-vis, the contractor, the professional expert to whom the ship has delegated the performance of a non-delegable duty, the ship is entitled to recover reimbursement for its breach of contract.

Now, that’s all, if Your Honors please, there is in the case.

Felix Frankfurter:

There is no — there’s no — your argument gets down to this that if the Steamship Company, if the ship of taking out an insurance policy against such a judgment against it by Connolly could recover against the insurance company and the insurance company couldn’t say, “Oh, you were negligent.”

Leavenworth Colby:

That is right.

Charles E. Whittaker:

Do you argue that this is not (Inaudible) that has happened in Boston rather than in New York?

Leavenworth Colby:

No.

And we think it is not different that by a circumstance, the contractor who breached his duty in Boston to inspect the flimsy structure before using it and make it safe was the same contractor who breached his duty by erecting an improper and flimsy structure in New York.

And the fact that in between, the ship should have torn it down does not affect the situation because there are two intervening acts of negligence.

And the last negligence and the last breach of contract is on the part of the contractor at Boston.

Now, of course we don’t think that there is a breach of contract in failing to tear down the structure when they put to sea because there was no agreement to do so.

The jury found that there was no warranty of seaworthiness to anybody.

And so clearly, not to a contractor thus far a contractor is not entitled to a warranty of seaworthiness.

Things grow but there’s simply nothing which insolates the contractor from the final breach of contract at Boston.

Now, of course we’re very much interested in this because we hire stevedore contractors all the time.

And the typical situation is the ship doesn’t have much in the way of witnesses because it only has two or three men aboard.

The stevedore contractor and the injured longshoreman, they have their people all over the ship and they will always testify for their employer and for their friends.

I don’t mean that they would testify falsely.

I mean that there are people there who saw it and those people who were there who saw it are for the most part, persons who were not ship’s people and who maybe presumed to be hostile to the ship.

Felix Frankfurter:

Mr. Colby, just as a matter of sheer curiosity, idle curiosity, of the merchant marine dunnage, how much is Uncle Sam’s about?

Leavenworth Colby:

I don’t think I know, if Your Honor please.

I have never been a man (Voice Overlap) —

Felix Frankfurter:

What — what I meant is — never mind.

I just — I was curious.

Leavenworth Colby:

I don’t think I’d like to mislead you for saying something.

Felix Frankfurter:

I —

Hugo L. Black:

When a ship — when a ship makes a contract to the stevedore bringing men on a few work, does the ship make any contract in connection with safety of the place where they have work?

Leavenworth Colby:

I suppose not.

Leavenworth Colby:

I suppose the obligation of the ship to the men who comes aboard to do the work is a tort obligation rather than a contractual one.

Hugo L. Black:

How do you draw the distinction?

It’s all — all goes out of the contract either way.

Leavenworth Colby:

No.

There’s no contract between the — the employee of the contractor.

Hugo L. Black:

But there’s a contract between the stevedore and the ship.

Do you say that the stevedore breached this contract and — because he comes in and doesn’t inspect this flimsy, flimsy, flimsy structure?

Does the ship make any agreement with the contractor that he will — these men will not be subjected to a flimsy, flimsy structure?

Leavenworth Colby:

The cases hold that except for the structure of the ship itself, a customer does not make any warranty to the professional expert that it employs that it will do anything to protect the professional.

In other words, it is the contractor who undertakes to do the job for the customer.

The customer does not undertake to protect the contractor —

Hugo L. Black:

Well, that’s —

Leavenworth Colby:

— whom he employs —

Hugo L. Black:

(Voice Overlap) —

Leavenworth Colby:

— against any mistake.

Hugo L. Black:

Instead of having a flimsy structure, suppose this had been a sling gun which a man — the ship knew that if these men steps there, on it, he’d get shot.

Do you mean if a contractor, the shipowner doesn’t contract (Inaudible) subject people that he brings in there via contract as a plaintiff?

Leavenworth Colby:

No, the case has hold there that vis-à-vis, the contractor, the customer does owe a duty to his contractor to warn him of latent conditions.

This of course was not a latent condition as shown by the fact that as soon as the contractor’s employees skipped up on top of the winch, he was able to see what was —

Hugo L. Black:

Well, that’s (Voice Overlap) —

Leavenworth Colby:

— dangerous.

Hugo L. Black:

— of the fact, isn’t it?

Leavenworth Colby:

Yes.

Hugo L. Black:

You’re — you’re getting —

Leavenworth Colby:

Here, it’s a question —

Hugo L. Black:

— into the facts now?

Leavenworth Colby:

Here, it’s a question of fact but that was taken from the jury.

Hugo L. Black:

But I — I don’t quite understand how you can get all the contracts of obligations on one side.

It —

Leavenworth Colby:

Well —

Hugo L. Black:

— seems from what you say that it’s all kind of contracts of obligations (Inaudible) stevedore or the other stevedore company, but no contracts of obligation on the part of the shipowner.

Leavenworth Colby:

Yes.

That’s the difference between the relationship of client and expert and customer and contractor.

When the client hires a lawyer, he does not undertake to advice the lawyer and protect him against difficulties and mistakes into which the lawyer may fall.

The lawyer is hired as the expert.

So in this situation, the ship hires the professional, skilled stevedore contractor to bring his supervisory personnel and his laborers down and do the job.

That’s the reason they hire him.

And the shipowner does have a responsibility to them as it resulted here, doesn’t it?

Leavenworth Colby:

Yes.

And he has — he has a responsibility under the decisions of this Court as to the contractors here.

In other words, if the contractor’s gear breaks and injures the contractor’s employee, the contractor’s employee may recover against the ship because the ship owes a non-delegable duty to the contractor’s employee.

And it must answer for the breaches of contract of the professional expert that he’s hired to perform that non-delegable duty.

Hugo L. Black:

What do you mean by ship’s gear?

Leavenworth Colby:

Well, ship’s gear in this connection I think would probably mean the difference between that gear with which say the booms were fitted on the one hand and the contractor’s gear in most instances is simply the slings and other matters that the contractor brings.

Hugo L. Black:

I suppose the gear was a (Inaudible) that the thing is on the ship, it’s there.

Somebody might get hurt from it, a part of great, there’s an agreement that it won’t be there.

Leavenworth Colby:

Yes, I think —

Hugo L. Black:

How can you distinguish between one kind of (Inaudible) if this belongs to the ship or to the contractor, this flimsy structure?

Leavenworth Colby:

I don’t suppose that it belonged to the ship.

Hugo L. Black:

Did it belong to this Boston contractor?

Leavenworth Colby:

Well, the contractor which was the same at Boston and New York erected the structure and employed it for its own purposes at —

Hugo L. Black:

That’s —

Leavenworth Colby:

–New York.

Hugo L. Black:

Is that — I didn’t understand that was a basis for the Court’s decision or your argument that the contractor was the same in Boston as in New York.

Leavenworth Colby:

We don’t think it makes any difference, no.

Hugo L. Black:

But weren’t that (Voice Overlap) —

Leavenworth Colby:

In this particular circumstance, if it was —

Hugo L. Black:

Going back to the lawyer, the expert lawyer, man makes a contract with his lawyer and he lied to him that I’ve got this gun, this is mine, he tells him a lie.

Now, the lawyer may be an expert but he may not be an expert on detecting whether a fellow is telling the truth about it.

Leavenworth Colby:

Precisely.

Hugo L. Black:

Would — well, what about the contractor —

Leavenworth Colby:

If the contractor —

Hugo L. Black:

— between the man who hires the lawyer and the lawyer, wouldn’t that — not be a breach of contract if he lied —

Leavenworth Colby:

I assume there would be.

Hugo L. Black:

— to him about this case?

Leavenworth Colby:

I assume there would be, the same way as between the ship and the contractor.

There is a breach of contract if there is a latent defect in the ship’s gear or equipment and the ship’s people failed to tell the contractor of it.

Hugo L. Black:

What — what’s the peculiar (Inaudible) use of the word latent, if there’s a defect?

Leavenworth Colby:

Well —

Hugo L. Black:

There is that defect.

Leavenworth Colby:

If you —

Hugo L. Black:

Which the shipowner knows about it and the other man doesn’t, wouldn’t that — wouldn’t there be a breach of contract if he failed to tell him?

Leavenworth Colby:

Probably not under the decisions, if Your Honor please, because (Voice Overlap) —

Hugo L. Black:

(Voice Overlap) —

Leavenworth Colby:

— a contractor is supposed to be able to see the easily observable defects.

In other words, you are not required to take the professional by the hand and tell him that there’s a defective condition here when he can see it.

Hugo L. Black:

But if the Court required to go further and further with the idea of implied contract, of course they have all the obligation on the side of the ship — in favor of the ship and none in favor of the other people.

Leavenworth Colby:

I don’t —

Hugo L. Black:

Are there no mutual obligations between them under this contract?

Leavenworth Colby:

I think there’s no doubt about it that this Court and other courts have held repeatedly that the customer, the ship in this case, is obliged to advise the contractor of matters which the contractor may not observe.

Now, Mr. Symmers calls attention to the fact that the contract here has a provision in respect of what’s to be ship’s gear and what’s to be contractor’s gear at page 65 of the record at the bottom, item six, the equipment.

The ship is to supply booms, adequate winches and good order with sufficient steam or current for their efficient operation, flops, topping lifts, guys, wire, or rope poles of sufficient length and strength, patch tents, lights for night work, tugs, derricks or cranes for such heavy lifts that exceed the capacity of the ship’s gear and cranes in the absence of the ship’s winches.

The ship is also to supply dunnage paid for in all materials for shoring and lashing cargo as well as rain bags and separation claws.

Earl Warren:

Well, (Voice Overlap) —

Leavenworth Colby:

The contractor is to supply all other cargo —

Earl Warren:

But, before that —

Leavenworth Colby:

— and the gear and equipment.

Earl Warren:

Before you get to that, what is — what are hatch tents?

I don’t know.

Leavenworth Colby:

Well, hatch tents —

Earl Warren:

Hatch tents?

Leavenworth Colby:

Hatch tents —

Earl Warren:

Yes.

Leavenworth Colby:

— is an expression sometimes loosely used for these winch shelters.

Technically speaking —

Earl Warren:

They’re the ones we’re talking about here?

Leavenworth Colby:

Yes.

More accurately and correctly used, a hatch tent is a canvas structured to put over an open hatch in case of rain to keep the rain from falling into the hatch.

We do not have to do it here with —

Earl Warren:

Yes.

But — under — do — do I understand you to say that the — under this provision that you’ve just read us, the ship is obliged to provide those hatch tents?

Leavenworth Colby:

Yes.

But that is not the — that is not the winch shelter, the hatch shelter that’s involved here.

This is the canvas —

Earl Warren:

Well, I thought you just a moment ago that it was.

Leavenworth Colby:

No, if Your Honor please.

The —

Hugo L. Black:

So, without regard to what the contract is, who supplied this flimsy built structure?

Leavenworth Colby:

The contractor built it at New York.

The ship failed to tear it down when it went to sea.

When the ship came to Boston, the contractor not having to erect one because there was one there —

Hugo L. Black:

(Voice Overlap) whether that — that contract because I understood you to say that made no difference.

What I understand is from your statement, (Inaudible) that a man, one contractor had put up a flimsy structure on the ship to which the ship left it, (Inaudible).

After they’ve got to Boston, it fell and hurts somebody.

Leavenworth Colby:

No.

After it got to Boston and the contractor took it over and made it his own and used it for five days without inspection —

Hugo L. Black:

He did know?

Did the evidence show that?

Leavenworth Colby:

That’s what their evidence shows.

The winch driver testified that he had expected to go aboard and erect a shelter.

Leavenworth Colby:

He had his hammer and nails and other things available that when the ship came, he found there was one there in place.

So he went aboard and at no time from then until after Mr. Connolly was injured did he inspect the shelter.

Directly after Mr. Connolly was injured, the winch driver then got up on the winch where he could see the top of the structure which was seven feet high and looked at it and saw at a glance immediately that there were light dunnage boards merely are laid on top of a second tarpaulin.

Hugo L. Black:

That’s the first time it’s been discovered?

Leavenworth Colby:

That is the first time it had been discovered.

Hugo L. Black:

Is that a latent defect?

Leavenworth Colby:

That is clearly it seems to me patent —

Hugo L. Black:

It’s (Voice Overlap) —

Leavenworth Colby:

— as shown by the fact that he could get up and look at it.

Hugo L. Black:

— on top of it to see it.

Leavenworth Colby:

Well now —

Hugo L. Black:

I understood you to say —

Leavenworth Colby:

If Your Honor please, I don’t think that a defect becomes latent because a man of my size must bend over in order to look underneath.

And by the same token, I don’t think that the condition of the top of the shelter became latent because a man in making a proper routine inspection of it would have had to step up on something in order to look over the top of a structure seven feet high.

Hugo L. Black:

Why couldn’t the jury reasonably disagree with you on that point?

Leavenworth Colby:

If Your Honor please, this case was not allowed to go to the jury.

Hugo L. Black:

I understand that.

Leavenworth Colby:

Your Honor is making a convincing argument that the court below committed error in failing to let the case to go to the jury.

And my Brother of course is apparently entirely content with that.

He does not feel as the government does that the evidence in the record is sufficiently clear so that it shouldn’t go to the jury.

Now, Your Honor may very well be correct and certainly counsel for the party at interest agrees with you.

Thank you.

Earl Warren:

Mr. Gibbons.

Patrick E. Gibbons:

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

We had — I represent the stevedoring contractor and we have two transactions here, one in New York, where we unloaded some of the lumber from the ship, and one in Boston, where we completed the unloading.

And Mr. Symmers who represent the ship claims that we are liable to indemnify him for negligence or breach of contract in New York.

And the United States Government says that we should indemnify the ship because of breach of contract which occurred in Boston.

I’d like to take — take it from the New York first.

When the ship came into New York, it had a load of lumber which we started to unload.

The evidence which sustains the inference that we erected this shelter over — over the winches is evidence given by the plaintiff’s witnesses and by the ship itself that there was an invariable custom in every harbor in New York that longshoremen erected those shelters.

Patrick E. Gibbons:

And that as soon as the work was done, the ship’s personnel removed it.

When the contract was drawn between the ship and the stevedore that — that custom was well-known to both sides and they must have — we must presume that the — the contract was made in full knowledge that that condition existed.

Now, the ship of course denied that there were any shelters on the decks when it came into Boston.

They swore that there were — the witnesses swore there were not — no shelters there that they would have been guilty of gross negligence if they had allowed the shelters to stay on deck.

The ship argues that they didn’t owe us any duty to remove the ship.

But if that were so, we would still be responsible.

The were temporary shelters.

We’ll be responsible for their condition if they had no duty to us.

We’d still be responsible if they caused injury to their seamen or to their — to anybody on the deck until they were removed.

There’s the — we lost control of the shelters and I would think that under any reasonable interpretation, the ship owed us the obligation under this custom to remove those shelters.

And on the basis of that intervening negligence and that intervening if you might call it breach of their implied warranty to the implied agreement that they would remove those shelters.

The trial judge after the jury had returned the verdict holding that the ship was liable, the trial judge directed a verdict in favor of us on the indemnity claim.

And the majority in the Circuit Court affirmed that on the same basis that there was intervening negligence on the part of the ship which distinguished it from the Ryan case where there was no intervening negligence.

And the reason and other distinction in that case, not every — I would think that not every act of collateral negligence that occurs in connection with the — the performance of a contract gives rise to an action for a breach of contract.

It gives rise to an action for — in tort for negligence against the contractor because he’s responsible for his employee’s negligence.

But I don’t think that you can take every collateral act of negligence of that sort which occurs in connection with the loading and unloading of the ships and say that this is a breach of contract rather than this is tort.

And I don’t think that the statute of limitations could be extended to give such causes of action after six years, benefit of the six years statute under — rather than the benefit of the three year statute which is for negligence.

Now —

Hugo L. Black:

I don’t quite understand why you say — why you say the Ryan case, I (Voice Overlap) —

Patrick E. Gibbons:

In the — in the Ryan —

Hugo L. Black:

But I had solely held that it was — he was negligent during the work that created — that was (Inaudible) of the contract.

Patrick E. Gibbons:

Well, the Ryan case dealt with negligence in doing the exact work to — the substantial work which they were employed to do.

The stevedore had undertaken to load the ship.

He unloaded it — he loaded it improperly.

And as a result of improper loading which was a breach of his contract, the injuries resulted.

In this case, there’s no claim that we were negligent in unloading.

This was a — a negligence in connection if its negligence at all in connection with some collateral matter, the shelter that was erected for the convenience of the employee.

Felix Frankfurter:

Suppose — suppose putting up this winch shelter a part of the stevedore’s function?

Patrick E. Gibbons:

It was — it really didn’t — it was nobody’s function.

Actually, what happened, the stevedore employees put it up for their own convenience to protect them against the rain and the snow if there were snow.

Patrick E. Gibbons:

It had nothing to do — it was — it wasn’t part of a written contract.

Felix Frankfurter:

Well, but it was — it was something done by the stevedore in carrying out his stevedoring service, isn’t that a fair statement?

Patrick E. Gibbons:

It was — it was a collateral —

Felix Frankfurter:

Fair statement?

Patrick E. Gibbons:

Yes, it was a collateral (Inaudible).

Felix Frankfurter:

Well, it’s a —

Patrick E. Gibbons:

It was according to this — same to say, construction employees in cold weather.

They light fires to keep themselves warm.

I think if — if through some mishap or rather a fire occurred that the action would not be for breach of contract against the construction contractor, it would be for negligence because he would be responsible for the negligence of his employees.

Felix Frankfurter:

You mean to say that if I hire a contractor to build my house and his work — and put some scaffolding in a careless way and that does damage to the house and set fire to the house, I couldn’t say that he wasn’t at fault of his contract.

Patrick E. Gibbons:

Oh, I would think in that —

Felix Frankfurter:

How could you bring it up and say this is collateral?

It’s part of a job, you hire a contractor or stevedore to do a job and if he does the job incompetently in the course of it, when presumably he’s hired to do it competently, that’s a breach of a contract.

Patrick E. Gibbons:

That’s a breach of contract, yes.

Felix Frankfurter:

Well, but a third outsider testify who’s heard by — he can only sue on the basis of — of a state imposed liability to where it’s tort.

Patrick E. Gibbons:

And —

Felix Frankfurter:

But if I hire him to do a job well, he has to do the job well in all these incidences.

Patrick E. Gibbons:

I would think so.

But there are — there are collateral things which really aren’t part of the contract in which I don’t think would give rise to an action for a breach of contract.

But a part from that, the distinction made by Circuit Court that this — the damage from the erection of the shelter in New York was not foreseeable as a damage was in the Ryan case.

In the Ryan case, the damage was foreseeable.

There was no intervening negligence.

In our case, once the shelter was finished, we understood and we had a right to understand that the ship would remove it, that it would not be left on standing until it got to Boston.

That it would not be used again.

It was just a temporary structure.

And for that reason, I think there is a substantial difference between this case and the Ryan case.

Felix Frankfurter:

But when it got to Boston, when it got to Boston, a new situation was (Voice Overlap) —

Patrick E. Gibbons:

Yes, when at that — when it goes —

Felix Frankfurter:

And the fact that the ship was negligent in not removing it, I’m assuming that, on the trip from Boston, from New York to Boston doesn’t obliterate the meaning of what happened after they got to Boston.

Patrick E. Gibbons:

No, when it got to Boston Your Honor, the ship turned it over to the stevedores for use as a shelter.

Patrick E. Gibbons:

And the evidence in the case is that it looked perfectly all right when it came in to Boston.

There was no evidence at all that there was anything wrong with it.

You couldn’t see it by casual inspection which — to answer Mr. Justice Black’s question.

I think that the law is definite that a stevedore does not owe a duty to the ship to inspect any equipment furnished by the ship for use by its employees, the American Mutual against Matthews and the Sieracki case, both hold that that if there’s equipment furnished by the ship, the stevedore is entitled to use it without inspection unless it’s obviously defective.

(Inaudible)

Felix Frankfurter:

Were those equipments furnished by the ship?

I thought you said it was built by the stevedore’s employees for their own wellbeing.

Patrick E. Gibbons:

In New York.

It was not —

Felix Frankfurter:

All right, it’s there, when it got there, it didn’t therefore as a matter of law necessarily forever made that shelter a part of the ship’s equipment, did it?

Patrick E. Gibbons:

No, Your Honor.

But the ship in not removing it adopted it.

It was not meant by the stevedores to continue — titled to — it did not continue on the stevedores.

Felix Frankfurter:

Oh, the weather in Boston can be awfully bad, isn’t it?

You don’t know.

Patrick E. Gibbons:

They — they — hasn’t — it come —

Felix Frankfurter:

Therefore — therefore, it became the equipment or the shelter put up there by the ship because they didn’t take it off, is that it?

Patrick E. Gibbons:

No.

But it was furnished by the ship, adopted it.

They furnished it to the stevedores in Boston for use.

Felix Frankfurter:

But while the ship was in — at berth, it was the stevedores who were in charge of unloading or loading, whatever they did in there.

Patrick E. Gibbons:

That’s right Your Honor.

Felix Frankfurter:

And it was their people who are — who are — who found this shelter which was put up for their comfort against the elements and there are elements also in Boston Harbor.

Patrick E. Gibbons:

That’s correct.

But it was not — it was not — the — the shelter is not even in the same condition I would think as it was in New York.

From the weather — from New York to Boston, the evidence is that it was very — a stormy weather and there is — actually, there’s no evidence in the record that we put the boards on top of this shelter at all.

There is evidence or at least as an inference from the custom that we erected a shelter or erected shelters.

But I think when you — when you go that far with the inference, you exhaust its possibility.

You can’t infer because we erected a shelter that we put boards on top of it which are no essential part of the shelter’s structure.

Felix Frankfurter:

And is the jury’s finding that — that structure wasn’t so much part of the ship or to allow the recovery for unseaworthiness, isn’t it?

Patrick E. Gibbons:

There is no finding by the jury that this was part of the ship (Voice Overlap) —

Felix Frankfurter:

Well, I mean —

Patrick E. Gibbons:

— so as to render it liable.

Felix Frankfurter:

— contrary finding.

Patrick E. Gibbons:

There’s a — they find it that it was not unseaworthy.

Felix Frankfurter:

(Voice Overlap) — not being a part of a — of the ships (Inaudible), isn’t it?

Patrick E. Gibbons:

That’s correct Your Honor.

Felix Frankfurter:

(Voice Overlap)

Patrick E. Gibbons:

But there is a finding that the ship furnished it to the stevedores for use which was the basis for the finding of negligence because the Court charged the jury that unless they found that the ship furnished this for use to the stevedores and that it was defective and that the ship knew it was defective then there could be no recovery.

Now —

Charles E. Whittaker:

(Inaudible)

Patrick E. Gibbons:

That’s right, Your Honor.

Charles E. Whittaker:

(Inaudible)

Patrick E. Gibbons:

That’s correct, Your Honor, at least that the inference is correct.

Charles E. Whittaker:

(Inaudible)

Patrick E. Gibbons:

I don’t think it makes any difference that they’re a different sets of employees.

What I think is that the difference is that this — the shelter which we built in New York was not intended to remain on the ship as far as possible.

Charles E. Whittaker:

What — what (Inaudible)?

Patrick E. Gibbons:

I think it’s legally different Your Honor because the — the ship had gone through a very rough voyage from New York to Boston.

And there is no evidence that the shelter was in the same condition when it left New York as when it arrived in Boston.

Charles E. Whittaker:

(Inaudible)

Patrick E. Gibbons:

The — on — the evidence as to the condition of the weather.

Charles E. Whittaker:

(Inaudible)

Patrick E. Gibbons:

Not as to those — as a matter of fact, the evidence as to the shelter brought by the ship was that it wasn’t there that there was no shelter on — on the ship when it got into — into Boston.

And of course, we couldn’t tell anything about the shelter except that we saw a shelter there when it did come into Boston.

Charles E. Whittaker:

(Inaudible)

Patrick E. Gibbons:

The ship — the ship would —

Charles E. Whittaker:

(Inaudible)

Patrick E. Gibbons:

— would be liable if — if it had no notice or a constructive notice of the condition.s

Charles E. Whittaker:

Wouldn’t you then be liable over in that position?

Patrick E. Gibbons:

I would —

Charles E. Whittaker:

The ship coming —

Patrick E. Gibbons:

And under those circumstances I think if the — it was shown that we erected the structure in that way, I think that we’d be liable.

Charles E. Whittaker:

(Inaudible)

Patrick E. Gibbons:

I think the difference is that there is — that there is no proof that the — first of all, there is proof of the ship’s negligence in failing to remove that shelter.

That — that was something we had a right to rely on.

We had a right to rely on the fact that they would remove it.

Now, there is no proof that the condition was the same in Boston as it was in New York.

Charles E. Whittaker:

(Inaudible)

Patrick E. Gibbons:

Except the proof of the captain’s — the captain and the crew that the — this canvas on top would have not stayed on there and then the winds that they encountered unless something were to put on to hold it down.

The inference that the — the boards were put on to hold the canvas on it as least as reasonable as the inference that they were put on in — in New York, it’s stronger as a matter of fact.

And I don’t think that the ship is entitled to take the most favorable inference under those circumstances.

Hugo L. Black:

May I ask you the — as I understand it, what you say is, there was evidence from which it could be firmed that you had not put this (Inaudible) on top of this thing, whatever it’s for.

Patrick E. Gibbons:

That’s right Your Honor.

Hugo L. Black:

But that maybe the shipowner has done it and that they owed you some kind of duty there.

Why wasn’t that a jury question as the dissenting judge did say?

Patrick E. Gibbons:

Well, I think that that would — to find that we put the boards on top, there would be a sheer speculation.

The — the circumstantial evidence which justifies the inference that we built the shelter, I don’t think it was far enough to justify an inference that we built the shelter negligently.

Hugo L. Black:

So you built the shelter and when it got to Boston, it had these things on top of it.

Patrick E. Gibbons:

It had the — yes.

Hugo L. Black:

What you’re claiming is it that the evidence showed beyond any doubt so that nobody could doubt it, no reasonable man could find that you had put this up on the tarp?

Suppose you didn’t —

Patrick E. Gibbons:

I don’t quite —

Hugo L. Black:

Suppose you — suppose your company put it on top, back in New York and stayed there, (Inaudible), hits your people.

Patrick E. Gibbons:

In New York?

Hugo L. Black:

Yes.

No, no, in Boston.

Now, of course, wouldn’t I assume that they — it was the duty of the company not to let that stay on and on the way up to Boston.

But suppose they did, and then you got to — you go to work and the thing you put on there, rolled over and you hit your back, hit his back.

Why would that not be a jury question of whether you did it or whether they did it, if that’s what you —

Patrick E. Gibbons:

Well, Your Honor, I think in the — in the — in connection with that that the ship had a — a contractual duty to us to remove that — that shelter —

Hugo L. Black:

Suppose you did?

Patrick E. Gibbons:

— not to leave it there.

Hugo L. Black:

Suppose you did and yet you worked on it for some days and it has not been done.

And that the jury could find that you should have — you even knew or should have known that it was still on top of it.

Why wouldn’t that be a basis for a jury finding of negligence on your part?

Patrick E. Gibbons:

Well, I think there would be no evidence to sustain a jury finding that we knew it was on top as to whether we should have known.

I think that depends on what duty of inspection we owed.

Because the equipment was — presumably, it was presumptively as it stood furnished to us for use by the — for use by us by the ship.

We used it in the way it was supposed to be used and that it looked on casual inspection seemed to be all right.

Now, the — the law seems to be clear that you don’t owe a duty to the ship, at least the stevedore doesn’t owe a duty to the ship to inspect equipment which is given to it for use so long as it uses the equipment in the way which is it supposed to be used.

And the case is cited in all the briefs seem to sustain that unless the stevedore knows or is told that the equipment furnished by the ship is defective, he’s entitled to assume that it’s safe.

Felix Frankfurter:

Your — your argument if I appreciate it, I’m trying to follow it, is in effect would be — is in effect saying that there was no shelter in New York.

There was no such winch shelter and there was none — ship sailed up to Boston that when she arrived, the Steamship Company put up this structure and this structure then hit one of your men.

Patrick E. Gibbons:

That —

Felix Frankfurter:

Do you think that — that — you’re reducing it to a situation that’s just like that, isn’t it?

Patrick E. Gibbons:

What?

Your Honor, what I am saying is that in failing to remove it, the ship adopted it as its own structure.

Felix Frankfurter:

I understand it.

Patrick E. Gibbons:

And became responsible for its condition.

Felix Frankfurter:

And that when you — when they got to Boston there, it is as though this had been put up by the Steamship Company and it — and it — the result was that your man was hit and therefore it’s like some other negligently constructed contrivance onboard the ship, that’s (Voice Overlap)?

Patrick E. Gibbons:

That in — in effect, Your Honor.

Felix Frankfurter:

That in effect —

Patrick E. Gibbons:

That — that is the — that is the argument.

Felix Frankfurter:

That’s what you’re saying.

Patrick E. Gibbons:

I think that in failing to remove it, that the ship adopted it as its own and in furnishing it to this — to the stevedores for use in Boston without inspection, it was guilty of independent negligence and guilty of breach of contract which deprives us on the right to indemnity.

Felix Frankfurter:

Well, independent, sole, that you have nothing to do with it on — if you’re right —

Patrick E. Gibbons:

On that — on that basis of —

Felix Frankfurter:

Sole, you have (Voice Overlap) —

Patrick E. Gibbons:

— whatever had happened before that would have been eliminated.

Felix Frankfurter:

Yes.

Patrick E. Gibbons:

Then —

Hugo L. Black:

What about what happened afterwards?

Patrick E. Gibbons:

Well, what happened afterwards depends, Your Honor.

It — it may well be as Your Honor suggest that there — that there might — a question of fact might have survived, although I don’t think that we owed that duty of inspecting the — the shelter to find out what condition it was in.

Felix Frankfurter:

Well, certainly if you had nothing to — certainly, you have no duty of inspection if in fact you took something that the company gave you, which is your argument.

Patrick E. Gibbons:

That is the argument, Your Honor.

Felix Frankfurter:

All right.

William J. Brennan, Jr.:

Mr. Gibbons, do you also say that this was a hatch tent?

It was in the meaning of a contract which requires the ship to furnish a hatch tent?

Patrick E. Gibbons:

Well, I — I think Your Honor that it was conceded on the trial that this shelter was not a hatch tent as defined as mentioned in the contract.

It was a different — different type of structure.

But I think that on that basis Your Honor that the judgment of the Circuit Court should be affirmed.

Thank you.

Earl Warren:

Mr. Symmers.

William Garth Symmers:

I believe that Mr. Chief Justice’s overview or Justice Black asked about that hatch tent question.

I just want to clear that up.

It’s on page 66.

Earl Warren:

The reason — the only reason I asked it, I understood Mr. Colby to say ordinarily it was — it was this kind of a — of —

William Garth Symmers:

That was a —

Earl Warren:

— is a closure was one, but more particularly it was the other.

Now, if I was mistaken that way —

William Garth Symmers:

Immediately —

Earl Warren:

— tell me about it.

William Garth Symmers:

— immediately after — the — in the record, immediately after — where the contract is spelled out as to what the shipowner will supply and what the stevedore will supply.

Earl Warren:

Yes.

William Garth Symmers:

The stevedore, for example, is to supply hatch tents.

I asked the witness.

You just heard me read from this contract, if you tell a jury if you will what a hatch tent is, purposely that being that, they confuse it with one of these shelters.

After — well, there — there are different types of hatch tents that — that are used and the Court interjected and said, “Very well, all right, you all agreed that a hatch tent isn’t the type of shelter that is in question in this case.”

Felix Frankfurter:

Well, I understood Mr. Gibbons to — to read —

William Garth Symmers:

I think that’s —

Felix Frankfurter:

(Inaudible)