1. A shipowner's obligation of seaworthiness, traditionally owed
by shipowners to seamen, extends to a stevedore who was injured
while aboard and loading the ship, although employed by an
independent stevedoring contractor engaged by the owner to load the
ship. Pp. 328 U.S.
(a) The obligation is essentially a species of liability without
fault, and is neither limited by conceptions of negligence nor
contractual in character. Pp. 328 U. S.
(b) It is not confined to seamen who perform the ship's service
under immediate hire of the owner, but extends to those who render
it with his consent or by his arrangement. Pp. 328 U.S. 95
(c) For purposes of the liability, a stevedore is a seaman,
because he is doing a seaman's work and incurring a seaman's
hazards, and he is entitled to a seaman's traditional protection.
P. 328 U. S.
2. By giving longshoremen the rights of compensation afforded by
the Longshoremen's and Harbor Workers' Compensation Act and making
them exclusive as against the employer, Congress has not withdrawn
from longshoremen the protections gained under the Merchant Marine
Act of 1920 or other protections relating to personal injury
available to them under general maritime law. P. 328 U. S.
Page 328 U. S. 86
(a) The Longshoremen's and Harbor Workers' Compensation Act did
not purport to make the stevedore's remedy for compensation against
his employer exclusive of remedies against others, and it expressly
reserved to the stevedore a right of election to proceed against
third parties responsible for his injury. P. 328 U. S.
(b) It did not nullify any right of a stevedore against the
owner of the ship, except possibly when he is hired by the owner.
P. 328 U. S.
3. A right peculiar to the law of admiralty may be enforced
either by a suit in admiralty or by one on the law side of the
court. P. 328 U. S.
4. The liability of a shipowner for failure to maintain a
seaworthy vessel rests upon an entirely different basis from the
liability of contractors and subcontractors who built the ship.
Therefore, the shipowner would not be jointly liable with the
builders, but would be liable severally. P. 328 U.S. 89
5. When one of several defendants in a suit brings the cause
here on certiorari and the others are not named as respondents or
served in accordance with Rule 38(3), this Court is precluded from
making any determination concerning the rights or liabilities of
the other defendants. P. 328 U.S.
149 F.2d 98 affirmed.
A stevedore employed by an independent stevedoring company sued
a shipowner, the contractor who built the ship, and a subcontractor
for injuries sustained while working aboard the ship as a result of
a latent defect in a part of the ship. The District Court gave
judgment against the contractor and subcontractor, but in favor of
the shipowner. 57 F. Supp.
. The Circuit Court of Appeals reversed as to the shipowner.
149 F.2d 98. This Court granted certiorari. 326 U.S. 700.
p. 328 U. S.
Page 328 U. S. 87
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
The principal question is whether the obligation of
seaworthiness, traditionally owed by an owner of a ship to seamen,
extends to a stevedore injured while working aboard the ship.
Sieracki was employed by an independent stevedoring company
which was under contract to petitioner to load its ship, the S.S.
On December 23, 1942, he was on the vessel
loading cargo. The winch he operated was controlled by a ten-ton
boom at number five hatch. One part of a freight car had been
lowered into the hold. The second part weighed about eight tons.
While it was being put down, the shackle supporting the boom broke
at its crown, causing the boom and tackle to fall and injure
He sued petitioner and two other companies. These were the
Bethlehem Steel Company, to which the Maritime Commission had
awarded the contract for constructing the ship, and Bethlehem
Sparrow's Point, Inc., which had built part of the ship under
agreement with the steel company. The District Court found that the
shackle had broken as the result of a defect which has occurred in
its forging. The Bethlehem companies had purchased this equipment
from another concern. Nevertheless, the court held they were
negligent in not having tested it adequately before installing it.
But the court considered petitioner to be under no such obligation
to test, [Footnote 1
therefore not negligent. Accordingly, it gave judgment against the
two Bethlehem companies, but in favor of petitioner. 57 F. Supp.
The Circuit Court of Appeals reversed as to petitioner. 149 F.2d
98, 102. Accepting the District Court's conclusion
Page 328 U. S. 88
that it was not negligent, the Court of Appeals was of the
opinion that respondent should recover for the ship's lack of
seaworthiness. [Footnote 2
opinion emphasized that the decision was novel, noting "statements
and assumptions each way." [Footnote 3
] Because of the novelty and importance of the
question, we granted certiorari. [Footnote 4
] 326 U.S. 700.
The finding that the ship was unseaworthy is not disputed.
Petitioner says, first, that the doctrine of unseaworthiness is
peculiar to admiralty, and cannot be applied in a suit brought on
the law side of the court. It also urges that, in any event, the
liability may not be extended properly to the benefit of stevedores
and longshoremen. And, finally, petitioner argues that, if the
doctrine is properly so applicable, its liability is only secondary
to that of the Bethlehem companies, which both courts found to be
negligent, and therefore petitioner, the nonnegligent defendant,
should not be held "jointly" liable with the negligent ones.
At the outset, we may dismiss the first contention. It is now
well settled that a right peculiar to the law of admiralty may be
enforced either by a suit in admiralty or by one on the law side of
the court. Carlisle Packing Co.
Page 328 U. S. 89
Sandanger, 259 U. S. 255
259 U. S. 259
Garrett v. Moore-McCormack Co., 317 U.
, 317 U. S.
-244; Rhones v. Socony-Vacuum Oil
Co., 37 F. Supp.
. [Footnote 5
Equally unavailable is the contention concerning the secondary
character of petitioner's liability. That liability, if it exists,
not only sounds in tort, [Footnote
] but rests upon an entirely different basis from that upon
which recovery has been had against the Bethlehem companies. Such a
liability therefore would be not joint, but several, and the
judgment of the Court of Appeals obviously went on this view.
Moreover the contention necessarily affects the Bethlehem
companies, at any rate in relation to possible claim of indemnity
by petitioner. They have not been named as respondents here or
served in accordance with Rule 38(3). Consequently we are precluded
from making any determination concerning their rights or
liabilities with relation either to petitioner or to
The nub of real controversy lies in the question whether the
shipowner's obligation of seaworthiness extends to longshoremen
injured while doing the ship's work aboard but employed by an
independent stevedoring contractor whom the owner has hired to load
or unload the ship.
Page 328 U. S. 90
There could be no question of petitioner's liability for
respondent's injuries, incurred as they were here, if he had been
in petitioner's employ, rather than hired by the stevedoring
company. That an owner is liable to indemnify a seaman for an
injury caused by the unseaworthiness of the vessel or its
appurtenant appliances and equipment has been settled law in this
country ever since The Osceola, 189 U.
. Mahnich v. Southern S.S. Co.,
321 U. S. 96
321 U. S. 99
and authorities cited. And the liability applies as well when the
ship is moored at a dock as when it is at sea. See, e.g., The
23 F. 43; Johnson & Co. v.
86 F. 886; The Waco, 3 F.2d
Petitioner insists, however, that the obligation flows from, and
is circumscribed by the existence of, the contract between the
owner of the vessel and the seaman. Accordingly, since there was no
such contract here, it says respondent cannot recover. Respondent
is equally insistent that the owner cannot slough off liability to
those who do the vessel's work by bringing an intermediary
contracting employer between himself and those workers. In
respondent's view, the liability is an incident of the maritime
service rendered, not merely of the immediate contractual relation
of employment, and has its roots in the risks that service places
upon maritime workers and in the policy of the law to secure them
indemnity against such hazards.
Obviously the norm of the liability has been historically, and
still is, the case of the seaman under contract with the vessel's
owner. This is because the work of maritime service has been done
largely by such persons. But it does not follow necessarily from
this fact that the liability either arose exclusively from the
existence of a contractual relation or is confined to situations in
which one exists.
Page 328 U. S. 91
The origins are perhaps unascertainable. [Footnote 7
] But that fact, in itself, may be some
evidence that contract alone is neither the sole source of the
liability nor its ultimate boundary. For to assume this would be at
once to project ideas of contract backward into centuries governed
more largely than our own by notions of status, [Footnote 8
] and to exclude from the
protection all who do the work of the sea without benefit of
contract with the owner. It may be doubted, for example, that he
has ever been able to escape liability to impressed seamen, in
whose cases to speak of "contract" would only rationalize a
responsibility imposed regardless of consensual relationship. And
it would hardly seem consistent with the obligation's benevolent
purposes [Footnote 9
Page 328 U. S. 92
the owner might nullify it by the device of having all who man
the ship hired by others willing to furnish men for such service at
sea or ashore.
It is true that the liability for unseaworthiness is often said
to be an incident of the seaman's contract. But, in all instances
which have come to our attention, this has been in situations where
such a contract existed. [Footnote 10
Page 328 U. S. 93
in such a setting, the statement could have no reference to any
issue over liability in the absence of such a contractual relation.
Its function, rather, has been to refute other suggested
restrictions which might be held to apply on the facts. Most often,
perhaps, these have been limitations arising from the erroneous
idea that the liability is founded in negligence, and therefore may
be defeated by the common law defenses of contributory negligence,
assumption of risk, and the fellow servant rule. Mahnich v.
Southern S.S. Co., supra; cf. Carlisle Packing Co. v.
Sandanger, 259 U. S. 255
Because rationalizing the liability as one attached by law to
the relation of shipowner and seaman, where this results from
contract, may have been thought useful to negative the importation
of those common law tort limitations does not mean, however, that
the liability is itself contractual, or that it may not extend to
situations where the ship's work is done by others not in such an
immediate relation of employment to the owner. That the liability
may not be either so founded or so limited would seem indicated by
the stress the cases uniformly place upon its relation, both in
character and in scope, to the hazards of marine service which
unseaworthiness places on the men who perform it. These, together
with their helplessness to ward off such perils and the harshness
of forcing them to shoulder alone the resulting personal disability
and loss, have been thought to justify and to require putting their
burden, insofar as it is measurable in money, upon the
Page 328 U. S. 94
owner regardless of his fault. [Footnote 11
] Those risks are avoidable by the owner to
the extent that they may result from negligence. And, beyond this,
he is in position, as the worker is not, to distribute the loss in
the shipping community which receives the service, and should bear
These and other considerations arising from the hazards which
maritime service places upon men who perform it, rather than any
consensual basis of responsibility, have been the paramount
influences dictating the shipowner's liability for unseaworthiness,
as well as its absolute character. It is essentially a species of
liability without fault, analogous to other well known instances in
our law. Derived from and shaped to meet the hazards which
performing the service imposes, the liability is neither limited by
conceptions of negligence nor contractual in character. Mahnich
v. Southern S.S. Co., supra; 234 U. S. S.
Co. v. Imbrovek, 234 U. S. 52;
Carlisle Packing Co. v. Sandanger, supra.@ It is a form of absolute
duty owing to all within the range of its humanitarian policy.
On principle, we agree with the Court of Appeals that this
policy is not confined to seamen who perform the ship's service
under immediate hire to the owner, but extends to those who render
it with his consent or by his arrangement. All the considerations
which gave birth to the liability and have shaped its absolute
character dictate that the owner should not be free to nullify it
by parcelling out his operations to intermediary employers whose
sole business is to take over portions of the ship's work or by
other devices which would strip the men performing its service of
their historic protection. The risks themselves arise from and are
incident in fact to the service, not merely to the contract
pursuant to which it is done. The brunt of loss cast upon the
worker and his dependents is the same, and is as inevitable,
whether his pay comes directly from the shipowner or only
indirectly through another with whom he arranges to have it done.
The latter ordinarily has neither right nor opportunity to discover
or remove the cause of the peril, and it is doubtful, therefore,
that he owes to his employees, with respect to these hazards, the
employer's ordinary duty to furnish a safe place to work, unless
perhaps in cases where the perils are obvious or his own action
creates them. [Footnote 12
If not, no
Page 328 U. S. 96
such obligation exists unless it rests upon the owner of the
ship. Moreover, his ability to distribute the loss over the
industry is not lessened by the fact that the men who do the work
are employed and furnished by another. Historically the work of
loading and unloading is the work of the ship's service, performed
until recent times by members of the crew. Florez v. The
35 F. 916; The Gilbert Knapp,
37 F. 209, 210;
58 F. 908, 909. That the owner seeks to
have it done with the advantages of more modern divisions of labor
does not minimize the worker's hazard and should not nullify his
Every consideration therefore giving rise to the liability and
shaping its character bespeaks inclusion of men intermediately
employed to do this work, save only that which is relevant to
consent as a basis for responsibility. We do not think this is the
ultimate basis of the liability where the seaman hired by the
vessel does the work. It is only the source of the relation which
furnishes the occasion for the liability, attached by law to
performance of the service, to come into play. Not the owner's
consent to liability, but his consent to performance of the service
defines its boundary. That this is given by contract with the
worker's employer, rather than with the worker himself, does not
defeat the responsibility.
Page 328 U. S. 97
Accordingly, we think the Court of Appeals correctly held that
the liability arises as an incident not merely of the seaman's
contract, but of performing the ship's service with the owner's
consent. For this view, in addition to the stated considerations of
principle, the court rightly found support in the trend and policy
of this Court's decisions, especially in International
Stevedoring Co. v. Haverty, 272 U. S. 50
Atlantic Transport Co. v. Imbrovek, 234 U. S.
, and Uravic v. F. Jarka Co., 282 U.
case is of special importance. The Court of
Appeals said, with reference to its bearing and that of the
"And so an injury to a stevedore comes within the classification
of a marine tort. Atlantic Transport Co. v. Imbrovek,
234 U. S.
. It seems, therefore, that, when a man is performing
a function essential to maritime service on board a ship, the
fortuitous circumstances of his employment by the shipowner or a
stevedoring contractor should not determine the measure of his
rights. This is the very basis on which the Jones Act [Footnote 13
] was held applicable to
give redress to an injured stevedore in International
Stevedoring Co. v. Haverty.
. . ."
149 F.2d 98, 101.
The conclusions are sound notwithstanding the cases are
distinguishable in their specific rulings. From that fact, it does
not follow that either those rulings or the grounds upon which they
went are irrelevant or without force for our problem. It is true
that negligence was the basis of recovery in both cases, and that,
in each, the stevedoring contractor was held responsible. But it
was of the gist of the jurisdictional question present by the
Page 328 U. S. 98
] that stevedores injured while working aboard
the ship, though not employed by its owner, are within the
traditional protections afforded to seamen by admiralty, and that
"the fortuitous circumstance" of their employment by one other than
the owner to do the ship's work not only did not remove them from
those protections, but brought their employers within the
protection of the liability to supply them. [Footnote 15
The same underlying considerations were controlling in the
decision, although the liability asserted arose
under an Act of Congress and the Court cast its ruling in terms of
legislative intent. The only fulcrum for its action was the
statute's undefined use of the term "seamen" in conferring the
right of recovery under the Federal Employers' Liability Act for
the employer's negligence. 41 Stat. 988, 1007. Recognizing that,
for most purposes, "stevedores are not seamen,'" [Footnote 16] and relying upon
Page 328 U. S. 99
the Court again stressed that "the work upon which the plaintiff
was engaged was a maritime service formerly rendered by the ship's
crew," and that the statute's policy was to afford compensation for
injuries "as properly part of the cost of the business" -- that is,
of the maritime service rendered, rather than by the capricious
circumstance of employment "by a stevedore, rather than by the
ship." And the Uravic decision rejected an equally capricious
discrimination based upon the nationality of the vessel's flag.
Running through all of these cases, therefore, to sustain the
stevedore's recovery is a common core of policy which has been
controlling, although the specific issue has varied from a question
of admiralty jurisdiction to one of coverage under statutory
liability within the admiralty field. It is that, for injuries
incurred while working on board the ship in navigable waters, the
stevedore is entitled to the seaman's traditional and statutory
protections, regardless of the fact that he is employed immediately
by another than the owner. [Footnote 17
] For these purposes, he is, in short, a
seaman because he is doing a seaman's work and incurring a seaman's
hazards. Moreover, to make the policy effective, his employer is
brought within the liability which is peculiar to the employment
relation to the extent that, and because, he also undertakes the
service of the ship.
Page 328 U. S. 100
It would be anomalous if such a policy, effective to control
such issues, were less effective when the question is simply
whether the stevedore is entitled to the traditional securities
afforded by the law of the sea to men who do the ship's work. Nor
does it follow from the fact that the stevedore gains protections
against his employer appropriate to the employment relation as such
that he loses, or never acquires against the shipowner, the
protections, not peculiar to that relation, which the law imposes
as incidental to the performance of that service. Among these is
the obligation of seaworthiness. It is peculiarly and exclusively
the obligation of the owner. It is one he cannot delegate.
] By the same
token, it is one he cannot contract away as to any workman within
the scope of its policy. As we have said, he is at liberty to
conduct his business by securing the advantages of specialization
in labor and skill brought about by modern divisions of labor. He
is not at liberty, by doing this, to discard his traditional
responsibilities. That the law permits him to substitute others for
responsibilities peculiar to the employment relation does not mean
that he can thus escape the duty it imposes of more general scope.
To allow this would be, in substantial effect, to convert the
ancient liability for maritime tort into a purely contractual
responsibility. This we are not free to do.
It remains to consider one other argument -- namely, that the
decision has been overruled, in effect, by the
enactment of the Longshoremen and Harbor Workers' Compensation Act
of March 4, 1927, 44 Stat. 1424, 33 U.S.C. § 901 et seq.,
and therefore the effect of that decision as furnishing any support
for including longshoremen within the owner's obligation of
seaworthiness has been
Page 328 U. S. 101
nullified. The argument is that, by giving longshoremen the
rights of compensation afforded by that Act against the employer
and making them exclusive, Congress had withdrawn from them not
only the protections gained by virtue of the Merchant Marine Act of
1920 under the Haverty
decision, but also all other
protections relating to personal injury which otherwise might be
available to them under the general maritime law. In other words,
it is claimed that the remedies afforded by the Longshoremen's
legislation are exclusive of all other remedies for injuries
incurred aboard ship, whether against the employer or others.
This view cannot be accepted. Apart from the fact that the
decision was rendered by a unanimous Court some
three years after the Longshoremen's and Harbor Workers' Act was
adopted, with a like result in Jamison v. Encarnacion,
281 U. S. 635
] the compelling
answer is that Congress, by that Act, not only did not purport to
make the stevedore's remedy for compensation against his employer
exclusive of remedies against others. It expressly reserved to the
stevedore a right of election to proceed against third persons
responsible for his injury, [Footnote 20
] and, in case of his election to receive
compensation, it provided for assignment of his rights against
third persons to his employer, binding the latter to remit to him
Page 328 U. S. 102
excess of the recovery over the compensation, expenses of
recovery, etc. [Footnote
We may take it, therefore, that Congress intended the remedy of
compensation to be exclusive as against the employer. See
Swanson v. Marra Brothers, Inc., ante,
p. 328 U. S. 1
U.S.C. § 905. But we cannot assume, in face of the Act's explicit
provisions, that it intended this remedy to nullify or affect
others against third persons. Exactly the opposite is true. The
legislation therefore did not nullify any right of the longshoreman
against the owner of the ship, except possibly in the instance,
presumably rare, where he may be hired by the owner. The statute
had no purpose or effect to alter the stevedore's rights as against
any but his employer alone. Beyond that consequence, moreover, we
think it had none to alter either the basic policy or the
rationalization of the Haverty
decision. Because the
recovery under the Merchant Marine Act of 1920 was limited to the
employer, the necessary effect of the Longshoremen's and Harbor
Workers' Act, likewise so limited, was to substitute its remedy for
that provided under the preexisting legislation and the
decision's construction of it. There was none to
nullify the basic and generally applicable policy of that decision,
or to affect the validity of its foundations in other
It may be added that, beyond the applicability of those
considerations to sustain the stevedore's right of recovery
Page 328 U. S. 103
for breach of the owner's obligation of seaworthiness, are
others to support the statutory policy of giving his employer
recovery over against the owner when the latter's breach of duty
casts upon the employer the burden of paying compensation. These
may furnish additional reason for our conclusion. With them,
however, we are not immediately concerned.
The judgment is
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
Visual inspection would not have disclosed the defect.
The District Court found "that the accident occurred by reason
of the unseaworthiness of the vessel." 57 F.
The references were to McCahan Co. v. Stoffel,
651, 654; Cassil v. United States Emergency Fleet Corp.,
289 F. 774, suggesting liability, and, to the contrary, Panama
Mail S.S. Co. v. Davis,
79 F.2d 430; Bryant v.
52 F.2d 1078; Luckenbach S.S. Co. v.
19 F.2d 871, reversed on another ground,
277 U. S. 277
226; The Howell,
273 F. 513; The Student,
807; Jeffries v. DeHart,
102 F. 765; The
Mercier, 5 F. Supp.
72 F.2d 1008.
in addition to the authorities cited by the
Circuit Court of Appeals, 149 F.2d at 102; Decision (1945) 45
Col.L.Rev. 957; (1945) 59 Harv.L.Rev. 127; (1946) 19 Tem.L.Q. 336,
Nothing in 28 U.S.C. § 41(3) is to the contrary. The section
provides that federal district courts shall have jurisdiction
"of all civil causes of admiralty and maritime jurisdiction,
saving to suitors in all cases the right of a common law remedy
where the common law is competent to give it. . . ."
This does not mean that, where suit is brought at law, the court
is restricted to the enforcement of common law rights.
Chelentis v. Luckenbach S.S. Co., 247 U.
, 247 U. S. 384
Panama R. Co. v. Johnson, 264 U.
, 264 U. S.
-388; Panama Refining Co. v. Vasquez,
271 U. S. 557
271 U. S.
-561, "When a cause of action in admiralty is
asserted in a court of law, its substance is unchanged." Panama
Agencies Co. v. Franco,
111 F.2d 263, 266.
infra; Cortes v. Baltimore Insular
Line, 287 U. S. 367
Atlantic Transport Co. v. Imbrovek, 234 U. S.
It has been suggested that
"the seaman's right of indemnity for injuries caused by
defective appliances or unseaworthiness seems to have been a
development from his privilege to abandon a vessel improperly
The Arizona v. Anelich, 298 U.
, 298 U. S. 121
note 2; Mahnich v. Southern S.S. Co., 321 U. S.
, 321 U. S. 99
cf. The Osceola, 189 U. S. 158
It does not follow that the right of abandonment would not exist
if the seaman were hired by another at the instance of the vessel's
owner, and no decision to which we have been referred so holds.
Maine, Ancient Law (1861). For a modern criticism,
Pound, Interpretations of Legal History (1930) 53
An excellent summary is given by Parker, J., in The
85 F.2d 944, 945:
"Seamen are the wards of admiralty, and the policy of the
maritime law has ever been to see that they are accorded proper
protection by the vessels on which they serve. In early days, this
protection was sufficiently afforded by the enforcement of the
right of 'maintenance and cure.' Vessels and their appliances were
of comparatively simple construction, and seamen were in quite as
good position ordinarily to judge of the seaworthiness of a vessel
as were her owners. . . ."
"With the advent of steam navigation, however, it was realized,
at least in this country, that 'maintenance and cure' did not
afford to injured seamen adequate compensation in all cases for
injuries sustained. Vessels were no longer the simple sailing
ships, of whose seaworthiness the sailor was an adequate judge, but
were full of complicated and dangerous machinery, the operation of
which required the use of many and varied appliances and a high
degree of technical knowledge. The seaworthiness of the vessel
could be ascertained only upon an examination of this machinery and
appliances by skilled experts. It was accordingly held that the
duty of the vessel and her owners to the seaman, in this new age of
navigation, extended beyond mere 'maintenance and cure,' which had
been sufficient in the simple age of sailing ships; that the owners
owed to the seamen the duty of furnishing a seaworthy vessel and
safe and proper appliances in good order and condition, and that,
for failure to discharge such duty, there was liability on the part
of the vessel and her owners to a seaman suffering injury as a
result thereof. The Osceola, 189 U. S.
, 189 U. S. 175
. . . . In
The Edith Godden,
23 F. 43, 46, which dealt with the case
of a seaman injured by a defective derrick, Judge Addison Brown
pointed out that, in dealing with injuries sustained by the use of
"it is more reasonable and equitable to apply the analogies of
the municipal law in regard . . . of owners and masters, rather
than to extend the limited rule of responsibility under the ancient
maritime law to these new, modern conditions, for which those
limitations were never designed."
, in addition to the cited opinion of Judge Brown,
his opinion in The City of Alexandria,
17 F. 390. See
also Storgard v. France & Canada S.S. Corp.,
263 F. 545,
547, 548; The H. A. Scandrett,
87 F.2d 708, 711.
In all of the cases cited or found, except perhaps the stevedore
cases cited in note 3
cause of action has been based upon unseaworthiness, there was a
contract. The "implied warranty" on the part of a shipowner that a
ship is seaworthy has been read not only into contracts made with
seamen, Hamilton v. United States,
268 F. 15, 21, but also
into contracts for the carriage of goods by sea, Bradley
Fertilizer Co. v. The Edwin I. Morrison, 153 U.
, 153 U. S.
-211, although this liability has been modified by
the Harter Act, 27 Stat. 445, 46 U.S.C. §§ 189-195, and, in rare
instances, perhaps also into contracts with passengers, cf.
Muise v. Gorton-Pew Vessels Co.,
1938 A.M.C. 714, 718; Rainey
v. New York & P. S.S. Co., 216 F. 449, 453; Robinson, Admiralty
(1939) 306, note 109.
Contributory negligence has never been a defense in suits
brought by seamen to recover for injuries due to a ship's
unseaworthiness, but has been applied merely in mitigation of
damages. Socony-Vacuum Oil Co. v. Smith, 305 U.
, 305 U. S. 429
The Arizona v. Anelich, 298 U. S. 110
298 U. S. 122
and cases cited. And, in The Max Morris, 137 U. S.
, the Court held that in a suit for personal injuries
brought in admiralty by a stevedore the admiralty rule of divided
damages was applicable. It was said in The Arizona v.
at 298 U. S.
-123, with respect to the defense of assumption of
"The seaman assumes the risk normally incident to his perilous
calling . . . , but it has often been pointed out that the nature .
. . and the practical difficulties of his avoiding exposure to
risks of unseaworthiness and defective appliances make such a
defense . . . peculiarly inapplicable to suits by seamen to recover
for the negligent failure to provide a seaworthy ship and safe
As to the fellow servant rule, see Mahnich v. Southern S.S.
Co., 321 U. S. 96
321 U. S.
-103; The Frank and Willie,
45 F. 494, 495,
In this connection, is pertinent also the frequently stated rule
that the obligation of a shipowner to provide a seaworthy ship is
nondelegable. See, e.g.,
Lord and Sprague, Cases on the
Law of Admiralty (1926) 237, note 4; The Rolph,
299 F. 52,
55; Globe S.S. Co. v. Moss,
245 F. 54, 55.
In Atlantic Transport Co. v. Imbrovek, 234 U. S.
, the stevedoring company was held liable to its
employee for negligence in failing to furnish a safe place to work.
This consisted in its failure to secure properly a beam which
supported hatch covers removed by it in the loading process. The
libelant joined the shipowner with the stevedoring contractor, both
being represented by the same proctors and advocates. The
stevedoring company acquitted the shipowner and the libel was
dismissed as to it. The case, in view of these circumstances, is
not authority for the view that the stevedoring company is liable
to the stevedore, under the employer's obligation to furnish a safe
working place, for the hazards secured against by the shipowner's
obligation of seaworthiness. It holds only that the stevedoring
company is liable for its own negligence.
It has frequently been said that a shipowner owes to stevedores
the duty of providing a safe place to work, see, e.g., The
Joseph B. Thomas,
86 F. 658, 660; The No. 34,
602, 604, but cf. Willis v. Lyke Bros. S.S. Co.,
488, 489, although the duty has at times been qualified by
statements that it does not extend to latent defects that "a
reasonable inspection by the shipowner or his agents would not
[disclose]." Wholey v. British & Foreign S.S. Co.,
F. 379, 380, aff'd,
171 F. 399.
Merchant Marine Act of 1920, 41 Stat. 1007, 46 U.S.C. § 688,
extending to "seamen" the benefits of the Federal Employers'
Liability Act, 45 U.S.C. § 51 et seq.
It was argued that the wrong, although taking place aboard ship
in navigable waters, was not of maritime character, and hence not
within the admiralty jurisdiction of the District Court.
In answer to the contention that the service was not maritime,
and hence the independently employed stevedore's claim was not
within the admiralty jurisdiction, the Court said:
"Upon its proper performance depend in large measure the safe
carrying of the cargo and the safety of the ship itself, and it is
a service absolutely necessary to enable the ship to discharge its
maritime duty. Formerly, the work was done by the ship's crew, but,
owing to the exigencies of increasing commerce and the demand for
rapidity and special skill, it has become a specialized service
devolving upon a class 'as clearly identified with maritime affairs
as are the mariners.'"
234 U. S. 234
52, 234 U. S.
The Court of Appeals in this case likewise carefully limited its
ruling in recognition of the fact that stevedores are not entitled
to all the protections a seaman may claim.
It is in relation to liability for personal injury or death
arising in the course of his employment aboard the ship that the
policy of our law has been most favorable to the stevedore's
claims. Whether or not that policy has been influenced by the
vicissitudes experienced in finding protection for him as a result
of the Jensen
decision, 244 U. S. 205
Davis v. Department of Labor, 317 U.
, 317 U. S.
-253, the reasons underlying the policy are perhaps
more nearly identical in this application, as between seamen and
longshoremen than those supporting other rights of the seaman, such
as that to maintenance and cure.
In this case, we are not concerned with the question whether the
same policy extends to injuries incurred ashore by a stevedore
engaged in the same work -- a matter which is relevant, however, in
Swanson v. Marra Brothers, Inc., ante,
p. 328 U. S. 1
O'Donnell v. Great Lakes Dredge & Dock Co., 318 U. S.
See note 11
Both cases were determined on facts which arose prior to
enactment of the statute.
Section 33(a) of the Act provides:
"If, on account of a disability or death for which compensation
is payable under this Act, the person entitled to such compensation
determines that some person other than the employer is liable in
damages, he may elect, by giving notice to the deputy commissioner
in such manner as the commission may provide, to receive such
compensation or to recover damages against such third person."
44 Stat. 1440, 33 U.S.C. § 933(a).
33 U.S.C. § 933(b) to (g) inclusive. As to the
right of election and the right to receive compensation or the
amount of the recovery against third persons, whichever is greater,
see Chapman v. Hoage, 296 U. S. 526
296 U. S. 529
Marlin v. Cardillo,
68 App.D.C. 201, 95 F.2d 112;
Grasso v. Lorentzen,
149 F.2d 127; The Pacific
31 F.2d 152; Cupo v. Isthmian S.S.
Co., 56 F. Supp.
The statute did not cover members of a crew of a vessel, thereby
saving to them their preexisting rights under the Merchant Marine
Act of 1920. 33 U.S.C. § 902(3). See South Chicago Coal &
Dock Co. v. Bassett, 309 U. S. 251
309 U. S.
MR. CHIEF JUSTICE STONE, dissenting.
MR. JUSTICE FRANKFURTER, MR. JUSTICE BURTON, and I think the
judgment should be reversed.
Respondent, the employee of a stevedoring company, which had
contracted with petitioner to load its vessel lying in navigable
waters, was injured while so employed in consequence of the failure
of a shackle, a part of the ship's tackle, due to its hidden
defects. The courts below have found that two other defendants were
liable for negligence in furnishing the defective shackle. The
courts were unable to find that the injury was attributable to any
negligent act or omission of the vessel or its owner. But the Court
of Appeals below and this Court have sustained a recovery against
petitioner on the novel ground that the owner is an insurer against
injury caused by the unseaworthiness of the vessel or its
appliances to a maritime worker on board, although not a member of
the crew or the ship's company, and not employed by the vessel.
The Court has thus created a new right in maritime workers, not
members of the crew of a vessel, which has not hitherto been
recognized by the maritime law or by any statute. For this I can
find no warrant in history or precedent, nor any support in policy
or in practical needs.
Page 328 U. S. 104
The liability of a vessel or its owner to members of the crew,
as an insurer of seaworthiness of the vessel and its tackle, was
not recognized by the maritime law of England until established by
statute. Merchants Shipping Act, 39 & 40 Vict. c. 80, § 5; 57
& 58 Vict. c. 60, § 458. In this country, the right of the
seaman to demand, in addition to maintenance and cure, indemnity
for injuries resulting from unseaworthiness was first recognized by
this Court in The Osceola, 189 U.
. In later cases, it has been established that due
diligence of the owner does not relieve him from this obligation.
See The Arizona v. Anelich, 298 U.
, 298 U. S. 121
Socony-Vacuum Co. v. Smith, 305 U.
, 305 U. S. 429
305 U. S. 432
Mahnich v. Southern S.S. Co., 321 U. S.
, 321 U. S. 100
and cases cited; The Neptuno,
30 F. 925; The Frank and
45 F. 494; The Julia Fowler,
49 F. 277;
cf. The Edwin I. Morrison, 153 U.
, 153 U. S.
The liability of the vessel or owner for maintenance and cure,
regardless of their negligence, was established long before our
modern conception of contract. But it, like the liability to
indemnify the seaman for injuries resulting from unseaworthiness,
has been universally recognized as an obligation growing out of the
status of the seaman and his peculiar relationship to the vessel,
and as a feature of the maritime law compensating or offsetting the
special hazards and disadvantages to which they who go down to sea
in ships are subjected. They are exposed to the perils of the sea
and all the risks of unseaworthiness, with little opportunity to
avoid those dangers or to discover and protect themselves from them
or to prove who is responsible for the unseaworthiness causing the
For these reasons, the seaman has been given a special status in
the maritime law as the ward of the admiralty, entitled to special
protection of the law not extended to land employees. Robertson
v. Baldwin, 165 U. S. 275
165 U. S.
-283; The Arizona v. Anelich, supra,
298 U. S.
Page 328 U. S. 105
S.S. Corp. v. Taylor, 303 U. S. 525
Socony Vacuum Co. v. Smith, supra, 305 U. S. 430
Aguilar v. Standard Oil Co., 318 U.
. See also
Judge Addison Brown in The
City of Alexandria,
17 F. 390, 394, et seq.
Story said in Reed v. Canfield,
"Seamen are in some sort coadventurers upon the voyage, and lose
their wages upon casualties which do not affect artisans at home.
They share the fate of the ship in cases of shipwreck and capture.
They are liable to different rules of discipline and sufferings
from landsmen. The policy of the maritime law, for great and wise
and benevolent purposes, has built up peculiar rights, privileges,
duties, and liabilities in the sea service which do not belong to
It is for these reasons that, throughout the long history of the
maritime law, the right to maintenance and cure, and later the
right to indemnity for injuries attributable to unseaworthiness,
have been confined to seamen. Longshoremen and harbor workers are
in a class very different from seamen, and one not calling for the
creation of extraordinary obligations of the vessel or its owner in
their favor, more than other classes of essentially land workers.
Unlike members of the crew of a vessel, they do not go to sea; they
are not subject to the rigid discipline of the sea; they are not
prevented by law or ship's discipline from leaving the vessel on
which they may be employed; they have the same recourse as land
workers to avoid the hazards to which they are exposed, to
ascertain the cause of their injury, and to prove it in court.
Congress has recognized this difference in their status from
that of seamen. Although it has given extensive consideration to it
in enacting the Longshoremen's and Harbor Workers' Compensation
Act, 33 U.S.C. § 901 et seq.,
in 1927, and again, upon its
revision in 1934 and 1938, in no instance did Congress extend to
Page 328 U. S. 106
harbor workers any of the special rights or privileges conferred
on seamen by the maritime law. In fact, Congress, by the
Longshoremen's Act, cut off from longshoremen and harbor workers
the right extended to them by judicial construction of the Jones
Act, 46 U.S.C. § 688, International Stevedoring Co. v.
Haverty, 272 U. S. 50
Uravic v. F. Jarka Co., 282 U. S. 234
enjoy the same right of recovery from the vessel or owner as seamen
for negligent injuries sustained while working on navigable waters.
Swanson v. Marra Brothers, Inc., ante,
p. 328 U. S. 1
the Act gave to longshoremen and stevedores a right to compensation
against their employer, it neither conferred upon nor withheld from
them any rights of recovery for such injuries against third
persons. It can hardly be said that the failure of Congress thus to
enlarge the rights of longshoremen, so as to make them comparable
to those of seamen, is a recognition of existing rights against
third persons arising from the warranty of seaworthiness which no
court has ever recognized *
and which grows
out of a status which longshoremen have never occupied.
There are no considerations of policy or practical need which
should lead us, by judicial fiat, to do that which Congress, after
a full study of the subject, has failed to do. Wherever the injury
occurs on navigable waters, Congress has given to longshoremen and
harbor workers substantial rights to compensation against their
employer for injuries
Page 328 U. S. 107
inflicted without his fault. South Chicago Coal & Dock
Co. v. Bassett, 309 U. S. 251
has left them free to pursue their remedy for injuries resulting
from negligence of third parties, including in this case the vessel
and the furnishers of the defective shackle. Where the injury
occurs on land, they are free to pursue the remedy afforded by
local law. State Industrial Commission of New York v.
Nordenholt Corp., 259 U. S. 263
Smith & Son v. Taylor, 276 U.
; Swanson v. Marra Brothers, Inc., ante,
p. 328 U. S. 1
would seem to be no occasion for us to be more generous than
Congress has been by presenting to them paid up accident insurance
policies at the expense of a vessel by which they have not been
employed, and which has not failed in any duty of due care toward
them. Apparently, under the decision now rendered, the maritime
worker employed by a vessel on navigable waters, but not a member
of the crew, would enjoy rights of recovery not accorded to members
of the crew. For he would be entitled to indemnity upon the
warranty of unseaworthiness as are members of the crew, and also to
the benefits of the Longshoremen's & Harbor Workers' Act from
which members of the crew are excluded. See South Chicago Coal
& Dock Co. v. Bassett, supra, 309 U. S.
Nor is the rule now announced to be justified as a modern and
preferred mode of distributing losses inflicted without fault.
Congress, in adopting the Longshoremen's Act, has chosen the mode
of distribution in the case of longshoremen and harbor workers. By
33 U.S.C. § 901 et seq.,
it has given to them compensation
for their injuries irrespective of fault. Section 933 provides
that, if a stevedore entitled to compensation elects to recover
damages against a third person, the employer must pay as
compensation a sum equal to the excess of the amount which the
commission determines is payable on account of the injury over the
amount recovered against the third person.
Page 328 U. S. 108
The whole philosophy of liability without fault is that losses
which are incidental to socially desirable conduct should be placed
on those best able to bear them. Congress has made a determination
that the employer is best able to bear the loss which, in this
instance, could not be avoided by the exercise of due care. This is
an implied determination which should preclude us from saying that
the ship owner is in a more favorable position to absorb the loss
or to pass it on to society at large than the employer.
* The two cases relied upon by the Circuit Court of Appeals do
not lend support to its decision. In Cassil v. United States
Emergency Fleet Corp.,
289 F. 774, recovery was sought on the
ground that the vessel was negligent, and the Court merely said
that there could be no claim against the vessel unless it was
unseaworthy. The court seems to have assumed that a recovery for
unseaworthiness could be had only if negligence was shown.
cases cited in Mahnich v. Southern S.S. Co.,
321 U. S. 96
321 U. S. 100
In W. J. McCahan Sugar Refining & Molasses Co. v.
41 F.2d 651, a longshoreman was allowed recovery on
the ground of negligence of one of the ship's employees.