A stevedore, while aboard and engaged in unloading a vessel
owned by the United States and managed by General Agents under a
general agency contract, was injured by a defective boom. He sued
the Agents for damages in a state court.
Held:
1. The injury was a maritime tort and the state court had
jurisdiction by virtue of § 9 of the Judiciary Act of 1789, which
saves "to suitors, in all cases, the right of a common law remedy,
where the common law is competent to give it." P.
332 U. S.
157.
2. The determination of the state court that a business invitee,
such as the stevedore, is without a remedy in the courts of the
state against one who has no control and possession of the premises
is decisive. P.
332 U. S.
158.
3. To the extent that the determination of tort liability in the
state court involves the construction of the contract between the
Agents and the United States, the interpretation of the contract
presents a federal question upon which the determination of the
state court is not conclusive. P.
332 U. S.
158.
4. If, on a fair reading of the contract, the control which the
Agents had over the vessel is the kind of control which the state
requires as a basis of liability to third persons, the state courts
cannot so read the contract as to deny the right which the state
recognizes. P.
332 U. S.
158.
5. Under the contract with the United States, the Agents are not
to be deemed owners
pro hac vice in possession and control
of the vessel. Pp.
332 U. S.
158-159.
6.
Hust v. Moore-McCormack Lines, 328 U.
S. 707, and
Brady v. Roosevelt S.S. Co.,
317 U. S. 575,
differentiated. Pp.
332 U. S.
159-160.
295 N.Y. 463, 68 N.E.2d 444, affirmed.
Petitioner sued respondents in a state court of New York to
recover damages for injuries sustained aboard a vessel which
respondents were managing as General Agents under a contract with
the United States. A verdict
Page 332 U. S. 156
for the petitioner was set aside by the Appellate Division. 270
App.Div. 563, 61 N.Y.S.2d 164. The Court of Appeals affirmed. 295
N.Y. 463, 68 N.E.2d 444. This Court granted certiorari. 329 U.S.
704.
Affirmed, p.
332
U.S. 160.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
The S.S.
Everagra is owned by the United States and
managed in its behalf by the respondents as General Agents. (For
the relevant portions of the contract and for full consideration of
it in relation to issues other than those here involved, reference
is made to
Hust v. Moore-McCormack Lines, 328 U.
S. 707.) On January 27, 1944, the
Everagra,
docked in the North River, New York City, was being unloaded by a
stevedoring concern, the Jarka Company. Jarka did the unloading
under a contract with the United States, negotiated through the War
Shipping Administration. One of its provisions was that "the
Administrator shall furnish and maintain in good working order all"
necessary equipment. Caldarola, the
Page 332 U. S. 157
petitioner, was an employee of Jarka. In the course of his work
on the vessel, he was injured. He brought this action in the New
York courts against the respondents, claiming that his injury was
caused by a defective boom and that they were liable for failing in
their duty as Agents to maintain it in sound condition.
The New York Court of Appeals, affirming the Appellate Division
in setting aside a verdict for the petitioner, 270 App.Div. 563, 61
N.Y.S.2d 164, held that, under New York law, the relation which the
Agents bore to the vessel did not make them responsible to a third
person for its condition. 295 N.Y. 463, 466, 68 N.E.2d 444. Because
of claimed conflict in the decisions, particularly between this
ruling and
Hust v. Moore-McCormack Lines, 328 U.
S. 707, we granted certiorari. 329 U.S. 704.
No doubt petitioner could have sued the United States in
Admiralty. Section 2 of the Suits in Admiralty Act, 41 Stat. 525,
46 U.S.C. § 742. He chose not to do so. Presumably to obtain the
benefit of trial by jury, he asked for relief from New York. There
is no question that the injury of which Caldarola complains is a
maritime tort. As such, it is suable in the State courts by virtue
of § 9 of the Judiciary Act of 1789, which saves "to suitors in all
cases the right of a common law remedy where the common law is
competent to give it." 1 Stat. 76-77, subd. 3. Whether Congress
thereby recognized that there were common law rights in the States
as to matters also cognizable in admiralty, or whether it was
concerning only with "saving" to the States the power to use their
courts to vindicate rights deriving from the maritime law to the
extent that their common law remedies may be available, is a
question on which the authorities do not speak with clarity.
Compare 46 U. S.
Clarke, 5 How. 441,
46 U. S.
460-461;
Taylor v.
Carryl, 20 How. 583,
46 U. S.
598-599; 3 Story on the Constitution (1st ed.) 533, n.
3,
with Schoonmaker v. Gilmore, 102 U.
S. 118;
The Hamilton, 207 U.
S. 398;
Page 332 U. S. 158
Chelentis v. Luckenbach S.S. Co., 247 U.
S. 372;
C.J. Hendry Co. v. Moore, 318 U.
S. 133;
Seas Shipping Co. v. Sieracki,
328 U. S. 85,
328 U. S. 88-89.
In any event, whether New York is the source of the right or merely
affords the means for enforcing it, her determination is decisive
that there is no remedy in its courts for such a business invitee
against one who has no control and possession of premises.
Compare Douglas v. New York, New Haven & Hartford R.
Co., 279 U. S. 377, and
Testa v. Katt, 330 U. S. 386.
The New York Court of Appeals authoritatively determines who is
liable, in New York, for such an occurrence as that of which
Caldarola complains. Insofar as the issues in this case exclusively
concern New York law, that court had the final say in holding that
one in the relation of the respondents to the petitioner is not
liable for the tort of which the latter complains. But, to the
extent that the determination of tort liability in New York is
entangled with the construction of the contract between the Agents
and the United States, the interpretation of that contract is a
matter of federal concern, and is not concluded by the meaning
which the State court may find in it.
We agree that if, on a fair reading of the contract, the control
which the Agents had over the vessel is the kind of control which
New York requires as a basis of liability to third persons, the New
York courts cannot so read the contract as to deny the right which
New York recognizes. It is not claimed that an injured party has
rights under the agency contract, or that it created duties to
third persons.
Robins Dry Dock & Repair Co. v. Flint,
275 U. S. 303. And
so the narrow question is whether the Agents were in possession and
control of the
Everagra. This is the crucial issue,
because liability in tort by the Agents for Caldarola's injury
would only arise in New York when there is such possession and
control of premises on
Page 332 U. S. 159
which injury occurs, due to negligence in their maintenance.
Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397. The United
States, as
amicus curiae, submitted what we deem to be
conclusive considerations against reading the contract so as to
find the Agents to be owners
pro hac vice in possession
and control of the vessel. The consequences, to both the national
and international interests of the United States, of such a
construction would be too far-reaching to warrant such a forced
reading merely in order to have a basis on which to build liability
under the law of New York. Serious issues affecting the immunity of
Government vessels in foreign ports, as well as immunity from
regulation and taxation by local governments, would needlessly be
raised. After all, the question is not whether petitioner may be
compensated for his injury. Congress has made provision for that.
Petitioner insists, in order to enable him to sue in the courts of
New York, that the Agents are to be deemed, as a matter of federal
law, owners of the vessel
pro hac vice and therefore as a
matter of State law, subject to the duties of such ownership under
New York law toward business invitees. We reject this
construction.
Our previous decisions do not require it.
Hust v.
Moore-McCormack Lines, supra, arose under the Jones Act. Act
of March 4, 1915, 38 Stat. 1185, as amended, June 5, 1920, 41 Stat.
1007. We there held that, under the Agency contract, the Agent was
the "employer" of an injured seaman as that term is used in the
Jones Act, and a seaman could therefore bring the statutory action
against such an "employer." The Court did not hold that the Agency
contract made the Agent for all practical purposes the owner of the
vessel. It did not hold that it imposed upon him, as a matter of
federal law, duties of care to third persons, more particularly to
a stevedore under employment of a concern unloading the vessel
pursuant to a contract with the United States.
Brady v.
Roosevelt
Page 332 U. S. 160
Steamship Co., 317 U. S. 575, is
likewise remote from the issues decisive of this case. It merely
held that the Suits in Admiralty Act, by furnishing an
in
personam remedy against the United States, did not free the
Agent from liability for his own torts. The
Brady case did
not reach the "different question" whether "a cause of action"
against the Agent had been established. 317 U.S. at
317 U. S. 585.
That is the precise question here, and more particularly, whether
the contract created a relationship from which, under New York law,
liability as to business invitees followed.
Judgment affirmed.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE
MURPHY concur, dissenting.
For the reasons stated in my separate opinion in
Hust v.
Moore-McCormack Lines, 328 U. S. 707,
328 U. S. 734,
I think that respondents were owners
pro hac vice of the
vessel, since the business of managing and operating it was their
business. They were therefore principals, and liable to petitioner,
a longshoreman who was injured while working on the deck of the
vessel by reason of the breaking of a cargo boom, part of the
ship's gear.
The Circuit Court of Appeals for the Second Circuit has reached
the same result in a case decided since
Hust v. Moore-McCormack
Lines. In
Militano v. United States, 156 F.2d 599,
that court held that the agent, under the same form of operating
agreement as we have here, was owner
pro hac vice. Swan,
J., speaking for the court, said in reference to the
Hust
case, 156 F.2d at 602,
"If the agent remains the employer sufficiently to be liable to
members of the crew under the Jones Act, we think it cannot escape
the duties of an owner
pro hac vice in other respects.
Thus, it has the duty to furnish stevedores with a safe place to
work, a duty which is analogous to that owed by a landowner to a
business visitor. "
Page 332 U. S. 161
The Court does not essay to answer that argument, nor does it
address itself to the facts which I reviewed in the
Hust
case and which establish that the business of managing and
operating the vessel was the business of the agent. It avoids
analysis of the actual arrangement by viewing with alarm the
consequences to the Government of such a holding as applied in
other situations. But we are here concerned with private rights
which press for recognition. It is no answer to the legal argument
on which those private rights rest that the Government might be
inconvenienced if they were recognized. It is plain under this
operating agreement that the United States is merely the
underwriter of the financial risks of the venture, while the
private operator performs the managerial functions in the usual
way. To call that government operation is to ignore the realities
of the relationship. Whatever the consequences in other situations,
it is shocking to find private operators getting immunity in this
manner from their traditional liability for tort claims.
MR. JUSTICE RUTLEDGE, dissenting.
I agree with respondents' counsel and the Court that
Hust v.
Moore-McCormack Lines, 328 U. S. 707,
does not rule this case. Nevertheless I cannot agree with the
Court's view that either New York law of the so-called "agency
contract," identical with that involved in the
Hust case,
immunizes respondents from the consequences of their negligence
causing petitioner's injury.
The
Hust case involved the rights of seamen, not of
longshoremen. [
Footnote 1]
Also, it arose under the Jones Act, 46 U.S.C. § 688, whereas here
liability is grounded upon maritime tort. And the
Hust
decision rested in part
Page 332 U. S. 162
upon the effects of the so-called Clarification Act of 1943, 50
U.S.C. App. § 1291, which has no bearing in this case, since seamen
are not involved.
The Hust decision flatly rejected the view that the events there
in question [
Footnote 2] had
been effective to strip the seaman of his various preexisting
remedies, replacing them with the single remedy of suit provided by
the Suits in Admiralty Act. [
Footnote 3] 46 U.S.C. § 742. The necessary result was to
preserve not merely the seaman's rights under the Jones Act, but
also his other preexisting ones. [
Footnote 4] For if the conjunction of events put forward
in the
Hust case as having made the Suits in Admiralty Act
remedy the only one available to the seaman was thus effective, the
Jones Act remedy, as well as others, was thereby excluded. And if
it was not excluded, neither were those
Page 332 U. S. 163
others long possessed by seamen. [
Footnote 5] The
Hust decision was therefore not
merely a construction of the Jones Act. That Act was simply a
specific fulcrum for turning the broader issue presented.
But seamen's rights are not longshoremen's rights, and the
events combining to present the question concerning seamen's rights
in the
Hust case were not conclusive upon longshoremen's
rights. This is true although, in some instances, longshoremen,
through legislation or by virtue of their succession to seamen
occasioned by the industry's evolution in some phases of ship and
shore duty, have been held entitled to similar protections.
Seas Shipping Co. v. Sieracki, 328 U. S.
85;
Atlantic Transport Co. v. Imbrovek,
234 U. S. 52. The
question in this case, therefore, is not one necessarily governed
by the same considerations as applied in the cases of seamen
covered by the
Hust decision.
But, as the Court recognizes, it is one of maritime tort,
although longshoremen, rather than seamen are involved, and is,
moreover,
"suable in the State courts by virtue of § 9 of the Judiciary
Act of 1789, which saves 'to suitors, in all cases, the right of a
common law remedy, where the common law is competent to give
it.'"
Notwithstanding the characterization as maritime tort, the Court
skirts the question whether the source of the right is New York law
or, on the contrary, is federal law for which New York, pursuant to
§ 9, merely supplies a means for enforcement. For, in either event,
it says,
"[New York's] determination is decisive that there is no remedy
in its courts for such a business invitee against one who has no
control and possession of [the] premises. "
Page 332 U. S. 164
From this conclusion, I disagree. For, if the liability here is
founded in federal law, as creating the maritime tort, then New
York law has nothing to do with creating or nullifying the
substantive right. Its sole function is to supply the remedy
commanded by § 9 of the Judiciary Act.
Testa v. Katt,
330 U. S. 386.
And, in my judgment, the liability here, since it arises from a
maritime tort, is a creature of federal law in its entirety, not of
state law. [
Footnote 6] I
therefore do not agree that any substantive issues in the case
"exclusively concern New York law," or that in any respect that
state's Court of Appeals "had the final say in holding that one in
the relation of the respondents to the petitioner is not liable for
the tort of which the latter complains." I do not understand how
the Court can leave open the question whether New York law has a
hand in creating the right sued on, or one only in supplying a
forum and remedy, and, at the same time, can rely on New York law
as having any part in creating the right or nullifying it, as it
seems to do. The result does not simply entangle state law with
federal law in the
Page 332 U. S. 165
substantive phase of the case. It entangles hypothetically
applicable state law in one phase with federal law in another.
Regarding the case, as I do, as being controlled in its
substantive aspect altogether by federal law, I do not think that
law requires or should permit the result the Court reaches.
Regardless of whether the so-called "agency" contract makes the
operating company an "agent," an "owner
pro hac vice," or
technically something else in relation to the United States, the
federal maritime law, in my opinion, well might hold responsible to
an injured longshoreman one who has knowledge that such persons
will come aboard and who undertakes to keep the vessel and its
equipment in safe condition for their use. [
Footnote 7] More especially should such a rule apply
when the person so undertaking is the only one constantly on board
to observe the creation of hazardous risks in the vessel's daily
routines and, in addition, has such a degree of control over their
creation as the "agent" did here.
But, in any event, the same result should be reached on the
basis of construction of the contract. Whether this is put upon the
ground stated in the opinion of MR. JUSTICE DOUGLAS, that the
"agent" became owner
pro hac vice, or in the view of the
contract taken in the
Hust case,
Page 332 U. S. 166
with reference to application of the Jones Act, is largely
immaterial, perhaps only a matter of words. [
Footnote 8]
That view, incorporating the rule of the Hearst case, [
Footnote 9] we have only recently
extended to apply in cases of coverage of the § official Security
Act and the Fair Labor Standards Act.
United States v.
Silk, 331 U. S. 704;
Rutherford Food Corp. v. McComb, 331 U.
S. 722. While the liability here is not legislative in
origin, nevertheless, as in the
Hust case, application of
the common law "control" test to defeat the longshoreman's remedy
under the state procedure, as provided by § 9 of the Judiciary Act
of 1789, cannot "be justified in this temporary situation unless by
inversion of that wisdom which teaches that
the letter killeth,
but the spirit giveth life.'" 328 U.S. at 328 U. S.
725.
Finally, in my opinion, the terms of the agreement in its
provisions for indemnity confirm the conclusion that liability of
the "agent" in such a case as this was contemplated. Not only is
there broad indemnity
"for all expenditures of every kind made by it in performing,
procuring or supplying the services, facilities, stores, supplies
or equipment as required hereunder,"
with specified exceptions not covering such liabilities as are
now in question. The indemnity also expressly provided:
Page 332 U. S. 167
"To the extent not recovered from insurance, the United States
shall also reimburse the General Agent for all crew expenditures
(accruing during the term hereof) in connection with the vessels
hereunder, including, without limitation, all disbursements for or
on account of wages, extra compensation, overtime, bonuses,
penalties, subsistence, repatriation, travel expense, loss or
personal effects, maintenance, cure, vacation allowances,
damages or compensation for death or personal injury or
illness, and insurance premiums, required to be paid by law,
custom, or by the terms of the ship's articles or labor agreements.
. . ."
(emphasis added), as well as for payments made to pension funds
and for social security taxes. This clause specifically
contemplated that the "agent" should be responsible for paying
claims not only for maintenance and cure, but also for "damages or
compensation for death or personal injury or illness," and should
be indemnified for such payment. A narrow construction, of course,
would limit the provisions for payment and indemnity to payments
made without resort to suit. On the other hand, even a literal
interpretation would cover payments made by the "agent" upon
judgments recovered against it on claims of the character
specified. I know of no good reason why the narrow view should be
accepted, or why the Government, by its contract, should desire to
uproot seamen and others, including longshoremen insofar as they
have acquired seamen's rights aboard ship, from their normally
applicable remedies, in the absence of either explicit statutory
command or express contractual provision to that effect. Moreover,
in view of the scope of the indemnity provided, I see no possible
harm that could be inflicted on the "agent" from interpreting the
contract so as to allow the normally applicable remedies to
apply.
Accordingly, I would reverse the judgment of the Court of
Appeals.
[
Footnote 1]
Congress and the President, in the legislative and executive
action taken in connection with the Merchant Marine and pertinent
in the
Hust case, were concerned with the rights of
seamen, not primarily or perhaps even incidentally with those of
longshoremen.
[
Footnote 2]
In the
Hust case, after noting the disruptive
consequences for seamen's long-settled rights flowing from the view
that they had been reduced for assertion to the single remedy
provided by the Suits in Admiralty Act, we said:
"We may assume that Congress could authorize so vast a
disturbance to settled rights by clear and unequivocal command. It
is not permissible to find one by implication.
Brady v.
Roosevelt S.S. Co., supra, 317 U.S. (575) at
317 U. S.
580. Here, the disruption, if it has occurred, has done
so only as an implied result of the conjunction of the Suits in
Admiralty Act's provisions with the Government's emergency action
in taking over the shipping industry for war purposes."
328 U.S. at
328 U. S. 722.
No such intent, we said, could be found in any action of Congress,
or of that body and the President in exercising their powers to
bring the industry under governmental control, or in the Suits in
Admiralty Act or the Jones Act as applied to the relation created
by the "agency" contract.
[
Footnote 3]
See note 2
[
Footnote 4]
Confirmation of the conclusions summarized in
note 2 supra, was found in the
legislative history of the Clarification Act of 1943, 50 U.S.C.
App. § 1291, and particularly in the provision for election of
remedies given by § 1, as to injuries accruing on or after October
1, 1941, and before March 24, 1943, the Act's effective date.
Opinion was expressly reserved as to the effect of that Act
concerning injuries occurring after its effective date. 328 U.S. at
328 U. S.
727.
[
Footnote 5]
In the
Hust case, we said of the argument that the
Suits in Admiralty Act remedy had become exclusively available for
asserting seamen's rights that, with specified exceptions,
"the various rights of seamen, enforceable by various
proceedings in admiralty and at law, in state and federal courts,
are swept into one hopper, the suit against the Government. . .
."
328 U.S. at
328 U. S.
720.
[
Footnote 6]
28 U.S.C. § 371, derived from § 9 of the Judiciary Act of 1789,
is a recognition by Congress that the states may exercise whatever
jurisdiction the common law had concurrently with admiralty.
See Waring v.
Clarke, 5 How. 441,
46 U. S.
460-461. However, since "[i]t is not a remedy in the
common law courts which is saved, but a common law remedy,"
The Moses
Taylor, 4 Wall. 411,
71 U. S. 431, it
has been held that, where suit is brought under the saving clause,
the right to be enforced is that "recognized by the law of the
sea."
Chelentis v. Luckenbach S.S. Co., 247 U.
S. 372,
247 U. S. 384.
"The general rules of the maritime law apply whether the proceeding
be instituted in an admiralty or common law court."
Carlisle
Packing Co. v. Sandanger, 259 U. S. 255,
259 U. S. 259.
The commentators recognize this to be the rule now, 1 Benedict on
Admiralty (6th ed.) 53-55; Stumberg, Maritime Cases in Common law
Courts (1925) 3 Tex.L.Rev. 246; Mole and Wilson, A Study of
Comparative Negligence (1932) 27 Corn.L.Q. 333, 353-355, though the
matter seems not to have been decided prior to the
Chelentis case.
Cf. The Hamilton, 207 U.
S. 398,
207 U. S.
404.
[
Footnote 7]
"One who does an act or carries on an activity upon land on
behalf of the possessor thereof is subject to the same liability,
and enjoys the same immunity from liability, for bodily harm caused
thereby to others within and outside the land as though he were the
possessor of the land."
Restatement, Torts, § 383.
"An agent who has the custody of land or chattels and who should
realize that there is an undue risk that their condition will cause
harm to the person, land, or chattels of others is subject to
liability for such harm caused, during the continuance of his
custody, by his failure to use care to take such reasonable
precautions as he is authorized to take."
Restatement, Agency, § 355.
[
Footnote 8]
In that case, assuming that the agreement made Hust, the injured
seaman, an employee of the United States for purposes of ultimate
control, in spite of the meticulous character of the differences
between it and the Maritime Commission's standard contract, we
said:
"But it does not follow from the fact that Hust was technically
the Government's employee that he lost all remedies against the
operating 'agent' for such injuries as he incurred. This case, like
Labor Board v. Hearst Publications, 322 U. S.
111, involves something more than mere application to
the facts of the common law test for ascertaining the vicarious
responsibilities of a private employer for tortious conduct of an
employee."
328 U.S. at
328 U. S.
724.
[
Footnote 9]
Labor Board v. Hearst Publications, 322 U.
S. 111.