A seaman lost his life on a tug which caught fire when an open
flame kerosene lamp on the deck of a scow it was towing on a river
at night ignited highly inflammable vapors lying above an
accumulation of petroleum products spread over the surface of the
river. The lamp was not more than three feet above the water, and
the vapor would not have been ignited had the lamp been carried at
the height of eight feet required by Coast Guard regulations. There
was no collision or fault of navigation.
Held: under the Jones Act, which incorporates the
provisions of the Federal Employers' Liability Act, the seaman's
employer was liable, without a showing of negligence, for his death
resulting from a violation of the Coast Guard regulations
pertaining to navigation. Pp.
355 U. S.
427-439.
(a) The decisions of this Court in actions under the Federal
Employers' Liability Act based upon violations of the Safety
Appliance Acts and the Boiler Inspection Act establish that a
violation of either Act creates liability without regard to
negligence if the violation in fact contributes to the death or
injury, without regard to whether the injury flowing from the
breach was the injury the statute sought to prevent. Pp.
355 U. S.
430-436.
(b) The basis of liability established in those decisions is not
confined to cases involving the Safety Appliance Acts or the Boiler
Inspection Act, but extends also to deaths resulting from a
violation of the Coast Guard regulations here involved. Pp.
355 U. S.
436-439.
(c) Under §1 of the Federal Employers' Liability Act, when a
statutory violation results in a defect or insufficiency in
appliances or other equipment, liability ensues without regard to
whether the injury flowing from the violation was the injury the
statute sought to guard against. Pp.
355 U. S.
437-439.
(d) The Jones Act expressly provides for seamen the cause of
action -- and consequently the entire judicially developed doctrine
of liability -- granted to railroad workers by the Federal
Employers' Liability Act. P.
355 U. S.
439.
35 F.2d 618, 619, reversed and remanded.
Page 355 U. S. 427
MR. JUSTICE BRENNAN delivered the opinion of the Court.
In this limitation proceeding brought by the respondent under §§
183-186 of the Limited Liability Act, R.S. §§ 4281-4289, as
amended, 46 U.S.C. §§ 181-196, the District Court for the Eastern
District of Pennsylvania denied the petitioner's claim for damages
filed on behalf of the widow and other dependents of a seaman who
lost his life on respondent's tug in a fire caused by the violation
of a navigation rule.
141 F.
Supp. 582. The Court of Appeals for the Third Circuit affirmed.
235 F.2d 618,
rehearing denied, 235 F.2d 619. We granted
certiorari. 352 U.S. 965.
The seaman lost his life on the tug
Arthur N. Herron,
which, on the night of November 18, 1952, while towing a scow on
the Schuylkill River in Philadelphia, caught fire when an
open-flame kerosene lamp on the deck of the scow ignited highly
inflammable vapors lying above an extensive accumulation of
petroleum products spread over the surface of the river. Several
oil refineries and facilities for oil storage, and for loading and
unloading petroleum products, are located along the banks of the
Schuylkill River. The trial court found that the lamp was not more
than three feet above the water. Maintaining the lamp at a height
of less than eight feet violated a navigation rule promulgated by
the Commandant of the United States Coast Guard. [
Footnote 1] The trial court found that
Page 355 U. S. 428
the vapor would not have been ignited if the lamp had been
carried at the required height.
The District Court held that the violation of the rule "whether
. . . [it] be called negligence or be said to make the flotilla
unseaworthy," did not impose liability, because
"the Coast Guard regulation had to do solely with navigation,
and was intended for the prevention of collisions, and for no other
purpose. In the present case, there was no collision, and no fault
of navigation. True, the origin of the fire can be traced to the
violation of the regulation, but the question is not causation, but
whether the violation of the regulation, of itself, imposes
liability."
141 F. Supp. at 585.
The petitioner urges first that the statutory violation made the
flotilla unseaworthy, creating liability without regard to fault.
But the remedy for unseaworthiness derives from the general
maritime law, and that law recognizes no cause of action for
wrongful death, whether
Page 355 U. S. 429
occasioned by unseaworthiness or by negligence.
The
Harrisburg, 119 U. S. 199;
[
Footnote 2]
see Western
Fuel Co. v. Garcia, 257 U. S. 233,
257 U. S. 240.
Before the Jones Act, [
Footnote
3] federal courts of admiralty resorted to the various state
death acts to give a remedy for wrongful death.
The
Hamilton, 207 U. S. 398;
The Transfer No. 4, 61 F. 364;
see Western Fuel Co. v.
Garcia, supra, at
257 U. S. 242;
Great Lakes Dredge & Dock Co. v. Kierejewski,
261 U. S. 479. The
Jones Act created a federal right of action for the wrongful death
of a seaman based on the statutory action under the Federal
Employers' Liability Act. In
Lindgren v. United States,
281 U. S. 38, the
Court held that the Jones Act remedy for wrongful death was
exclusive, and precluded any remedy for wrongful death within
territorial
Page 355 U. S. 430
waters, [
Footnote 4] based
on unseaworthiness, whether derived from federal or state law. The
petitioner assumes that, under today's general maritime law, the
personal representative of a deceased seaman may elect, as the
seaman himself may elect, between an action based on the FELA and
an action, recognized in
The Osceola, 189 U.
S. 158,
189 U. S. 175,
based upon unseaworthiness. In view of the disposition we are
making of this case, we need not consider the soundness of this
assumption.
The petitioner also urges that, since the violation of the rule
requiring the lights to be eight feet above the water resulted in a
defect or insufficiency in the flotilla's lighting equipment which
in fact caused the seaman's death, liability was created without
regard to negligence under the line of decisions of this Court in
actions under the FELA based upon violations of either the Safety
Appliance Acts [
Footnote 5] or
the Boiler Inspection Act. [
Footnote 6] That line of decisions interpreted the clause
of § 1 of the FELA, 45 U.S.C. § 51, which imposes liability on the
employer
"by reason of any defect or insufficiency, due to its
negligence, in its cars, engines, appliances, machinery, track,
roadbed, works, boats, wharves, or other equipment."
The cases
Page 355 U. S. 431
hold that under this clause, a defect resulting from a violation
of either statute which causes the injury or death of an employee
creates liability without regard to negligence.
San Antonio
& A.P. R. Co. v. Wagner, 241 U. S. 476,
241 U. S. 484.
Here the defect or insufficiency in the flotilla's lighting
equipment due to a violation of the statute resulted in the death
of the seaman. The question for our decision is whether, in the
absence of any showing of negligence, the Jones Act -- which in
terms incorporates the provisions of the FELA -- permits recovery
for the death of a seaman resulting from a violation of a statutory
duty. We hold that it does.
In denying the claim, the lower courts relied upon their views
of general tort doctrine. It is true that, at common law, the
liability of the master to his servant was founded wholly on tort
rules of general applicability and the master was granted the
effective defenses of assumption of risk and contributory
negligence. This limited liability derived from a public policy,
designed to give maximum freedom to infant industrial
enterprises,
"to insulate the employer as much as possible from bearing the
'human overhead' which is an inevitable part of the cost -- to
someone -- of the doing of industrialized business."
Tiller v. Atlantic Coast Line R. Co., 318 U. S.
54,
318 U. S. 59.
But it came to be recognized that, whatever the rights and duties
among persons generally, the industrial employer had a special
responsibility toward his workers, who were daily exposed to the
risks of the business and who were largely helpless to provide
adequately for their own safety. Therefore, as industry and
commerce became sufficiently strong to bear the burden, the law,
the reflection of an evolving public policy, came to favor
compensation of employees and their dependents for the losses
occasioned by the inevitable deaths and injuries of industrial
employment, thus shifting to industry the "human overhead" of doing
business. For most industries,
Page 355 U. S. 432
this change has been embodied in Workmen's Compensation Acts. In
the railroad and shipping industries, however, the FELA and Jones
Act provide the framework for determining liability for industrial
accidents. But instead of a detailed statute codifying common law
principles, Congress saw fit to enact a statute of the most general
terms, thus leaving in large measure to the courts the duty of
fashioning remedies for injured employees in a manner analogous to
the development of tort remedies at common law. But it is clear
that the general congressional intent was to provide liberal
recovery for injured workers,
Rogers v. Missouri Pacific R.
Co., 352 U. S. 500,
352 U. S.
508-510, and it is also clear that Congress intended the
creation of no static remedy, but one which would be developed and
enlarged to meet changing conditions and changing concepts of
industry's duty toward its workers.
The FELA and the Jones Act impose upon the employer the duty of
paying damages when injury to the worker is caused, in whole or in
part, by the employer's fault. This fault may consist of a breach
of the duty of care, analogous but by no means identical to the
general common law duty, or of a breach of some statutory duty. The
tort doctrine which the lower courts applied imposes liability for
violation of a statutory duty only where the injury is one which
the statute was designed to prevent. [
Footnote 7] However, this Court has repeatedly refused to
apply such a limiting doctrine in FELA cases. In FELA cases based
upon violations of the Safety Appliance
Page 355 U. S. 433
Acts or the Boiler Inspection Act, the Court has held that a
violation of either statute creates liability under FELA if the
resulting defect or insufficiency in equipment contributes in fact
to the death or injury in suit, without regard to whether the
injury flowing from the breach was the injury the statute sought to
prevent. Since it appears in this case that the defect or
insufficiency of the flotilla's lighting equipment resulting from
the violation of 33 U.S.C. § 157, actually caused the seaman's
death, this principle governs and compels a result in favor of the
petitioner's claim.
In
Louisville & N. R. Co. v. Layton, 243 U.
S. 617, a railroad employee on one of five freight cars
loaded with coal was thrown to the track and injured when an engine
pushed a stock car into the last of the loaded cars and drove the
five cars against a standing train. Neither the stock car nor the
car which it struck was equipped with automatic couplers, as
required by the Federal Safety Appliance Act. Had the cars been so
equipped they would have coupled when they came together, and the
five cars would not have run against the standing train. The stated
purpose of the automatic coupler requirement was to avoid "the
necessity of men going between the ends of cars," and the railroad
contended that this showed that the Congress intended the
requirement only for the benefit of employees injured when between
cars for the purpose of coupling or uncoupling them. The Court
rejected the argument and affirmed a judgment for the
plaintiff.
In
Minneapolis & St. L. R. Co. v. Gotschall,
244 U. S. 66, a
brakeman walking along the tops of the cars of a moving train was
thrown off and killed when the train separated because of the
opening of a coupler which resulted in an automatic setting of the
emergency brakes and a sudden jerk of the train. This Court
sustained a
Page 355 U. S. 434
judgment against the railroad although the injury was not one
which the Safety Appliance Act aims to prevent.
In
Davis v. Wolfe, 263 U. S. 239, the
conductor of a moving train holding on to the grab iron directly
over the sill-step on which he stood fell because the grab iron was
loose and defective. It was contended that the grab iron was
required to aid employees engaged in coupling or uncoupling cars or
a service connected therewith, not to aid in the transportation of
employees. The Court rejected this contention and held that the
Layton and
Gotschall cases had settled that the
employee
". . . can recover if the failure to comply with the
requirements of the [Safety Appliance] Act is a proximate cause of
the accident, resulting in injury to him while in the discharge of
his duty, although not engaged in an operation in which the safety
appliances are specifically designed to furnish him
protection."
Id. at
263 U. S.
243.
In
Swinson v. Chicago, St. P., M. & O. R. Co.,
294 U. S. 529, a
freight brakeman was releasing a tightly set hand brake at the end
of a tank car. Release of the hand brake required the application
of considerable force to the brake wheel. The brakeman put his left
foot on the running board and his right foot on the grab iron to
set himself better to put pressure on the brake wheel. The foot
pressure exerted on the grab iron caused the plank to which it was
attached to split and one of the bolts securing the grab iron to be
pulled through. As a result, the brakeman lost his balance and was
seriously injured in a fall in front of the moving car. The
railroad contended, unsuccessfully, that it was not liable because
the grab iron had been used by the brakeman for a purpose for which
it was not intended, arguing that the duty to supply grab irons was
intended by Congress in order to provide employees with an
appliance to grasp with the hands, not to provide a foot brace or
support to secure leverage in releasing a hand brake.
Page 355 U. S. 435
In
Coray v. Southern Pacific Co., 335 U.
S. 520, an employee of the railroad, riding a
motor-driven track car behind a moving freight train, was killed in
a crash of the track car into the freight train, which stopped
suddenly when its brakes locked because of a defect in its braking
system. The Supreme Court of Utah affirmed the state trial court's
direction of verdict for the railroad upon the ground that, insofar
as brakes were concerned, the object of the Safety Appliance Act
was not to protect employees from standing trains, but from moving
trains. The Utah Supreme Court also reasoned that the stopping of
the train in consequence of the leak in the valve was precisely
what, as a safety device, it was designed to do. This Court
reversed and said,
id. at
335 U. S.
524:
"The language selected by Congress to fix liability in cases of
this kind is simple and direct. Consideration of its meaning by the
introduction of dialectical subtleties can serve no useful
interpretative purpose. The statute declares that railroads shall
be responsible for their employees' deaths 'resulting in whole or
in part' from defective appliances such as were here maintained. 45
U.S.C. § 51. And to make its purpose crystal clear, Congress has
also provided that 'no such employee . . . shall be held to have
been guilty of contributory negligence in any case' where a
violation of the Safety Appliance Act, such as the one here,
'contributed to the . . . death of such employee.' 45 U.S.C. § 53.
Congress has thus, for its own reasons, imposed extraordinary
safety obligations upon railroads, and has commanded that if a
breach of these obligations contributes in part to an employee's
death, the railroad must pay damages. These air-brakes were
defective; for this reason alone, the train suddenly and
unexpectedly stopped; a motor track car following at about the same
rate of speed and operated by an employee looking in
Page 355 U. S. 436
another direction crashed into the train; all of these
circumstances were inseparably related to one another in time and
space. The jury could have found that decedent's death resulted
from any or all of the foregoing circumstances."
Finally, in
Urie v. Thompson, 337 U.
S. 163, the Court considered a claim based upon an
alleged violation of an Interstate Commerce Commission regulation
promulgated under the Boiler Inspection Act. The regulation
provided:
"Locomotives shall be equipped with proper sanding apparatus,
which shall be maintained in safe and suitable condition for
service, and tested before each trip. Sand pipes must be securely
fastened in line with the rails."
Id. at
337 U. S. 195.
The purpose of the requirement was to provide sand for traction. A
fireman employed by the railroad for almost thirty years sued to
recover damages for silicosis allegedly contracted from the
inhalation of silicate dust emitted by allegedly broken or faulty
adjusted sanders into the decks and cabs of the many locomotives on
which he had worked. The railroad contended that the ICC rule was
designed to ensure an adequate auxiliary braking system, not to
protect employees against silicosis, and therefore the employee
could not recover for an injury not of the kind the ICC rule sought
to guard against. The Court rejected the argument as resting on
general tort doctrine inapplicable to this case.
The decisive question in this case, then, is whether the
principles developed in this line of FELA cases permit recovery for
violation of this navigation statute, or are limited, as the
dissenting opinion would have it, to cases involving the Safety
Appliance and Boiler Inspection Acts. Our attention is directed to
the provisions of § 4 of the FELA, which makes reference to "any
statute enacted for the safety of employees . . . ," and it is
urged that this phrase, in some unexplained manner,
Page 355 U. S. 437
creates a special relationship between the FELA and the Safety
Appliance and Boiler Inspection Acts. Several answers may be given
to this contention.
First, § 4 relates entirely to the defense of assumption of
risk, abolishing this defense where the injury was caused by the
employer's negligence or by "violation . . . of any statute enacted
for the safety of employees. . . ." It is § 1 of the FELA which
creates the cause of action, and this section, on its face, is
barren of any suggestion that injuries caused by violation of any
statute are to be treated specially. In formulating the rule that
violation of the Safety Appliance and Boiler Inspection Acts
creates liability for resulting injuries without proof of
negligence, the Court relied on judicially evolved principles
designed to carry out the general congressional purpose of
providing appropriate remedies for injuries incurred by railroad
employees. For Congress, in 1908, did not crystalize the
application of the Act by enacting specific rules to guide the
courts. Rather, by using generalized language, it created only a
framework within which the courts were left to evolve, much in the
manner of the common law, a system of principles providing
compensation for injuries to employees consistent with the changing
realities of employment in the railroad industry.
Second, it is argued that the Safety Appliance and Boiler
Inspection Acts are special safety statutes, and thus may easily be
assimilated to the FELA under general common law principles. But
there is no magic in the word "safety." In the cases we have
discussed, it was regarded as irrelevant that the defects in the
appliances did not disable them from performing their intended
safety function. For instance, in
Gotschall, the coupling
defect parting the cars resulted in the automatic setting of the
emergency brakes as a safety measure. In
Coray, the train
stopped due to the operation of the very safety mechanism required
by the
Page 355 U. S. 438
statute. In
Urie, the defect in the sanders which
caused sand to come into the locomotive cabs in no wise impaired
the designed safety function of the sanders -- to provide sand for
traction. We think that the irrelevance of the safety aspect in
these cases demonstrates that the basis of liability is a violation
of statutory duty, without regard to whether the injury flowing
from the violation was the injury the statute sought to guard
against. It must therefore be concluded that the nature of the Acts
violated is not a controlling consideration; the basis of liability
is the FELA. [
Footnote 8]
The courts, in developing the FELA with a view to adjusting
equitably between the worker and his corporate employer the risks
inherent in the railroad industry, have plainly rejected many of
the refined distinctions necessary in common law tort doctrine for
the purpose of allocating risks between persons who are more nearly
on an equal footing as to financial capacity and ability to avoid
the hazards involved. Among the refinements developed by the common
law for the purpose of limiting the risk of liability arising from
wrongful conduct is the rule that violation of a statutory duty
creates liability only when the statute was intended to protect
those in the position of the plaintiff from the type of injury in
fact incurred. This limiting approach has long been discarded from
the FELA. Instead, the theory of the FELA is that, where the
employer's conduct falls short of the high standard
Page 355 U. S. 439
required of him by this Act, and his fault, in whole or in part,
causes injury, liability ensues. And this result follows whether
the fault is a violation of a statutory duty or the more general
duty of acting with care, for the employer owes the employee, as
much as the duty of acting with care, the duty of complying with
his statutory obligations.
We find no difficulty in applying these principles, developed
under the FELA, to the present action under the Jones Act, for the
latter Act expressly provides for seamen the cause of action -- and
consequently the entire judicially developed doctrine of liability
-- granted to railroad workers by the FELA. The deceased seaman
here was in a position perfectly analogous to that of the railroad
workers allowed recovery in the line of cases we have discussed,
and the principles governing those cases clearly should apply
here.
The judgment of the Court of Appeals is reversed with direction
to remand to the District Court for further proceedings not
inconsistent with this opinion.
Reversed.
[
Footnote 1]
33 CFR § 80.16(h).
"Scows not otherwise provided for in this section on waters
described in paragraph (a) of this section shall carry a white
light at each end of each scow, except that when such scows are
massed in tiers, two or more abreast, each of the outside scows
shall carry a white light on its outer bow, and the outside scows
in the last tier shall each carry, in addition, a white light on
the outer part of the stern. The white light shall be carried not
less than 8 feet above the surface of the water, and shall be so
placed as to show an unbroken light all around the horizon, and
shall be of such a character as to be visible on a dark night with
a clear atmosphere at a distance of at least 5 miles."
The Commandant is empowered by 30 Stat. 102, as amended, 33
U.S.C. § 157, to establish rules "as to the lights to be carried .
. . as he . . . may deem necessary for safety. . . ." This section
was contained in the Act of June 7, 1897, the purpose of which was
to codify the rules governing navigation on inland waters and to
conform them as nearly as practicable to the revised international
rules for preventing collisions at sea adopted at the International
Marine Conference in October, 1889. 30 Cong.Rec. 1394; H.R.Doc. No.
42, 55th Cong., 1st Sess., p. 1.
[
Footnote 2]
The Harrisburg disapproved lower federal court cases,
among them a decision of Chief Justice Chase at Circuit,
The
Sea Gull, 21 Fed.Cas. 910, No. 12,578a, which had given a
right of action for wrongful death. Reliance was placed on the fact
that English admiralty law did not recognize the cause of action,
although continental maritime law did. By statute, English
admiralty courts now entertain a cause of action for wrongful
death. 23 Halsbury's Laws of England (2d ed. 1936) § 979.
[
Footnote 3]
"Any seaman who shall suffer personal injury in the course of
his employment may, at his election, maintain an action for damages
at law, with the right of trial by jury, and in such action all
statutes of the United States modifying or extending the common law
right or remedy in cases of personal injury to railway employees
shall apply; and in case of the death of any seaman as a result of
any such personal injury, the personal representative of such
seaman may maintain an action for damages at law with the right of
trial by jury, and, in such action, all statutes of the United
States conferring or regulating the right of action for death in
the case of railway employees shall be applicable. [
I.e.,
Federal Employers' Liability Act, 35 Stat. 65, as amended, 45
U.S.C. §§ 51-60.] Jurisdiction in such actions shall be under the
court of the district in which the defendant employer resides or in
which his principal office is located."
41 Stat. 1007, 46 U.S.C. § 688.
[
Footnote 4]
Where death occurs beyond a marine league from state shores, the
Death on the High Seas Act, 41 Stat. 537, 46 U.S.C. §§ 761-768,
provides a remedy for wrongful death. Presumably any claims, based
on unseaworthiness, for damages accrued prior to the decedent's
death would survive at least if a pertinent state statute is
effective to bring about a survival of the seaman's right.
See
Holland v. Steag, Inc., 143 F.
Supp. 203;
cf. Cox v. Roth, 348 U.
S. 207;
Just v. Chambers, 312 U.
S. 383. Claims for maintenance and cure survive the
death of the seaman.
Sperbeck v. A. L. Burbank & Co.,
190 F.2d 449. For a discussion of the applicability of a state
wrongful death statute to an action for death of a nonseaman based
upon a breach of the warranty of seaworthiness,
see Skovgaard
v. The Tungus, 252 F.2d 14.
[
Footnote 5]
27 Stat. 531, as amended, 45 U.S.C. §§ 1-16.
[
Footnote 6]
36 Stat. 913, as amended, 45 U.S.C. §§ 22-34.
[
Footnote 7]
The trial court relied upon Restatement, Torts, § 286, Comment
on Clause (c), h:
"A statute or ordinance may be construed as intended to give
protection against a particular form of harm to a particular
interest. If so, the actor cannot be liable to another for a
violation of the enactment unless the harm which the violation
causes is that from which it was the purpose of the enactment to
protect the other."
[
Footnote 8]
The dissenters argue that the Safety Appliance and Boiler
Inspection Acts were each prefaced by the statement: "An act to
promote the safety of employees and travelers. . . ." But we are
not persuaded that liability under the FELA should depend on the
title of the Acts whose violation is alleged. Were we to rely on
such indicia, we could point out that the statute here involved
empowered the Commandant of the Coast Guard to establish rules "as
to the lights to be carried . . . as he . . .
may deem
necessary for safety. . . ." 30 Stat. 102, 33 U.S.C. § 157.
(Emphasis added.)
Memorandum of MR. JUSTICE FRANKFURTER.
Since it has been my general practice for on to a decade to
refrain from participating in the substantive disposition of cases
arising under the Federal Employers' Liability Act and the Jones
Act that have been brought here on writ of certiorari, a word
explaining my participation today is in order.
After persistent protest against granting petitions for
certiorari to review judgments in the state courts and the United
States Courts of Appeals involving application of the Federal
Employers' Liability Act, I deemed it necessary to register my
conviction on the unjustifiability of granting such petitions by
noting that the petitions were
Page 355 U. S. 440
improvidently granted.
See my opinion in
Rogers v.
Missouri Pacific R. Co., 352 U. S. 500,
352 U. S. 524.
All these cases involved evaluation of evidence: evidence on what
constitutes "negligence,"
i.e., the common law conception
of negligence which Congress adopted, subject to qualifications
regarding "causation" and withdrawal of common law defenses, and
which remains the statutory requisite for liability. It has become
the practice for this Court to review evidence where trial courts
have considered it their duty to take cases from juries or to set
aside jury verdicts, or where appellate courts have reversed trial
court decisions as to what are allowable verdicts by juries. This
manifestly ceased to be the function of this Court after Congress,
by the Act of September 6, 1916, 39 Stat. 726, abolished appeals to
the Court in Federal Employers' Liability Act cases and restricted
review of lower court decisions in such cases to the confined scope
of our general certiorari jurisdiction.
I am aware of the suggestion that these cases -- at least those
coming from the Courts of Appeals -- involve a constitutional issue
-- namely, the application of the Seventh Amendment. That, I should
suppose, would be equally true of every case in the federal courts
in which the claim is made that a case should have been left to the
jury, and equally, of course, such claims (in non-FELA cases, at
any rate) are here denied, except in the most flagrant instances.
This Court has said again and again, in other than FELA cases, that
questions of fact -- and that is essentially what these negligence
cases involve -- afford an inadmissible basis for review by this
Court. And this for the conclusive reason that deliberate
consideration and wise adjudication of the cases that concededly
ought to be reviewed here make a demand greater than the resources
of time and thought possessed by this Court, no matter how ably
constituted, reasonably afford.
See
Page 355 U. S. 441
Ex parte Republic of Peru, 318 U.
S. 578,
318 U. S.
602-603 (dissenting opinion).
This case is different in kind from those in which I have felt
it my duty to abstain from consideration on the merits. This is a
case which involves a serious question of construction of a statute
of nationwide importance. Such questions of construction are among
the most important issues for final determination by this Court. I
therefore reach the merits, and, on the merits, I join the opinion
of MR. JUSTICE HARLAN.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER, MR. JUSTICE
BURTON, and MR. JUSTICE WHITTAKER join, dissenting.
I share the view of the Court that, under existing law, a cause
of action for wrongful death does not lie on principles of
unseaworthiness, and that therefore respondent's liability for the
death caused by this unfortunate accident depends entirely on the
Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, which incorporates the
provisions of the Federal Employers' Liability Act, 35 Stat. 65, as
amended, 45 U.S.C. §§ 51-60, and thereby reflects the principles of
negligence upon which the FELA is explicitly based.
The District Court granted exoneration to respondent upon
findings that the accident was not attributable to negligence of
any kind on its part, and, in particular, that respondent was not
negligent in carrying the kerosene signal lantern, which ignited
the fumes from the petroleum products on the surface of the river
at a height of three feet in a part of the river which had never
been considered a danger area. Although the District Court found
that the accident was traceable in fact to respondent's violation
of a Coast Guard regulation, 33 CFR § 80.16(h), which required a
white light to be carried
Page 355 U. S. 442
at a minimum height of eight feet above the water, [
Footnote 2/1] the court held that this
violation did not, of itself, give rise to liability in negligence,
because the sole purpose of the statute authorizing the regulation,
30 Stat. 102, as amended, 33 U.S.C. § 157, was to guard against
collisions, and not to prevent the type of accident which here
resulted.
This holding, as the Court seems to recognize, was in accord
with the familiar principle in the common law of negligence that
injuries resulting from violations of a statutory duty do not give
rise to liability unless of the kind the statute was designed to
prevent. Indeed, that principle, which is but an aspect of the
general rule of negligence law that injuries in order to be
actionable, must be within the risk of harm which a defendant's
conduct has created,
see Seavey, Principles of Torts, 56
Harv.L.Rev. 72, 90-92 (1942), was established as long ago as 1874
by a leading English case,
Gorris v. Scott, L.R. 9 Ex.
125, and has been followed in this country almost without
exception. Restatement, Torts, § 286; Prosser, Torts (2d ed. 1955),
§ 34; Lowndes, Civil Liability Created by Criminal Legislation, 16
Minn.L.Rev. 361, 372-377 (1932);
cf. The Eugene F. Moran,
212 U. S. 466,
212 U. S. 476
(under admiralty law).
Page 355 U. S. 443
The Court neither casts doubt on the District Court's finding
that respondent was not negligent in carrying the tug's lantern at
three feet above the water surface nor disputes that the sole
purpose of the Coast Guard regulation was to guard against the risk
of collision, but it nevertheless decides that violation of the
regulation, in and of itself, rendered the respondent liable for
all injuries flowing from it. This holding is said to follow from
the decisions of this Court in a series of FELA cases based on
violations of the Safety Appliance Act, 27 Stat. 531, as amended,
45 U.S.C. §§ 1-16, and the Boiler Inspection Act, 36 Stat. 913, as
amended, 45 U.S.C. §§ 22-34. These decisions, as the Court here
properly states, have created under the FELA an absolute liability
-- that is, a liability "without regard to negligence" -- for
injuries resulting from violations of the other Acts. From this,
the Court concludes that there is no reason not to extend this
absolute liability to cases based on the violation of a statutory
duty which are brought under the Jones Act.
This conclusion I cannot share. A reading of the cases relied
upon by the Court demonstrates beyond dispute that the reasons
underlying those decisions have no application in the context of
this Coast Guard regulation and the Jones Act. It follows that
liability can be impressed on respondent only because of
negligence, the theory upon which the Jones Act is founded.
In the course of its development of an absolute liability under
the FELA for injuries traceable to violations of the Safety
Appliance Act or the Boiler Inspection Act, the Court has faced two
distinct problems. First, was it necessary for the plaintiff to
show that the violation of either of these safety statutes was due
to negligence? The answer has uniformly been "no."
St. Louis,
Iron Mountain & S. R. Co. v. Taylor, 210 U.
S. 281;
San Antonio
&
Page 355 U. S. 444
A.P. R. Co. v. Wagner, 241 U.
S. 476;
Minneapolis & St. L. R. Co. v.
Gotschall, 244 U. S. 66;
Southern R. Co. v. Lunsford, 297 U.
S. 398;
Lilly v. Grand Trunk Western R. Co.,
317 U. S. 481.
Second, was the defendant's liability for the injuries suffered
limited to those within the character of the risks which these
statutes were designed to eliminate? Except for
St. Louis &
S.F. R. Co. v. Conarty, 238 U. S. 243,
which stands alone and has never since been followed, the answer
here has also been "no."
Louisville & N. R. Co. v.
Layton, 243 U. S. 617;
Davis v. Wolfe, 263 U. S. 239;
Swinson v. Chicago, St. P., M. & O. R. Co.,
294 U. S. 529;
Brady v. Terminal Railroad Assn. 303 U. S.
10.
The rationale for these earlier cases is not entirely clear,
but, after a good deal of uncertainty, it finally became
established in 1948 and 1949 that railway employees suffering
injuries in consequence of a violation of safety regulations found
in or promulgated under either the Safety Appliance Act or the
Boiler Inspection Act could maintain an action under the FELA
without reference to the law of negligence.
Urie v.
Thompson, 337 U. S. 163;
O'Donnell v. Elgin, J. & E. R. Co., 338 U.
S. 384;
Carter v. Atlanta & St. A.B. R.
Co., 338 U. S. 430. As
a result of these cases, the scope of § 1 of the FELA, 35 Stat. 65,
as amended, 45 U.S.C. § 51, has been enlarged by making compensable
not only injuries "resulting in whole or in part from the
negligence" of the carrier, but also those resulting from violation
of the two regulatory Acts, so that, in effect, these Acts give
rise, through the medium of the FELA, to a "non-negligence"
(
O'Donnell, supra, at
338 U. S. 391)
cause of action. Referring to the nature of that kind of action,
this Court said in
Carter, supra (at
338 U. S.
434):
"Sometimes that violation [of the Safety Appliance Act] is
described as 'negligence
per se' . . . ; but we
Page 355 U. S. 445
have made clear in the
O'Donnell case that that term is
a confusing label for what is simply a violation of an absolute
duty."
"Once the violation is established, only causal relation is in
issue. And Congress has directed liability if the injury resulted
'in whole or in part' from defendant's negligence
or its
violation of the Safety Appliance Act."
(Italics added.)
These cases then certainly do not establish any broad rule under
the FELA that the term "
negligence," as used in that, Act
is not subject to the limiting doctrine of
Gorris v. Scott,
supra, which the District Court applied. Rather, they are
based on a theory of liability wholly divorced from negligence.
And, in fact, the Court today invokes these decisions to support
its conclusion that a "
non-negligence" action based on
violation of this Coast Guard regulation lies under the Jones Act.
Its reasons for this conclusion are that the Jones Act
"incorporates the provisions of the FELA," and
"expressly provides for seamen the cause of action -- and
consequently the entire judicially developed doctrine of liability
-- granted to railroad workers by the FELA."
The Court thus reads these decisions to establish a doctrine
under the FELA that injuries following
any violation of
any statute, not simply the Safety Appliance and Boiler
Inspection Acts, are actionable without any showing of negligence,
and it is this doctrine which, the Court argues, the Jones Act
absorbs.
So unjustifiably broad a view of the doctrine this Court is said
to have established disregards the basis upon which these earlier
decisions proceed. In brief, they concentrate and explicitly rest
upon the peculiar relationship between the Safety Appliance and the
Boiler Inspection Acts, on the one hand, and the FELA, on the
other. In view of this relationship, the Court recognizing that
Page 355 U. S. 446
neither of these safety Acts gives rise to a private cause of
action of its own force,
see, e.g., Urie v. Thompson,
supra, at
337 U. S. 188,
has read the FELA to provide the private remedy to enforce the
absolute liability which the Court considered the other Acts to
establish. The Court's opinion here makes no effort to show either
that the statute authorizing the Coast Guard regulation was
intended to give rise to an absolute liability for injuries
resulting from its violation or that the Jones Act, a statute
founded on negligence, was intended to be the medium of enforcement
of such a liability.
In the cases involving the Safety Appliance and the Boiler
Inspection Acts, the Court has repeatedly emphasized that the
manifest purpose of Congress was to foster through these particular
Acts the safety of employees, and to make employees secure in their
jobs, a purpose partially evidenced by statements prefacing each of
these Acts as they were originally enacted:
"An Act to promote the safety of employees and travelers upon
railroads by compelling common carriers engaged in interstate
commerce to . . ."
follow the rules of each Act, 27 Stat. 531; 36 Stat. 913;
Illinois Central R. Co. v. Williams, 242 U.
S. 462,
242 U. S.
466-467;
Urie v. Thompson, supra, at
337 U. S.
190-191. In keeping with this statement of purpose, two
sections of the Safety Appliance Act expressly refer to the civil
liability of employers to injured employees by abrogating the
common law defense of assumption of risk and by preserving such
civil liability over a particular exception to the general
liability for fines payable to the United States which is imposed
on carriers for violation of the provisions of the Act. 27 Stat.
532, 45 U.S.C. § 7. 36 Stat. 299, 45 U.S.C. § 13.
Paralleling the provision of the Safety Appliance Act referring
to assumption of risk is § 4 of the FELA, 35 Stat. 66, as amended,
45 U.S.C. § 54, which abolishes
Page 355 U. S. 447
the defense of assumption of risk not only with respect to
actions grounded on negligence but also "in any case where the
violation . . . of any statute enacted for the safety of employees
contributed to the injury or death of" an employee. This quoted
clause is included also in § 3 of the Act, 35 Stat. 66, 45 U.S.C. §
53, which substitutes for the absolute common law defense of
contributory negligence what is, in effect, a rule of comparative
negligence, but bars this defense completely in actions based on
the violation of such a statute. The phrase "any statute enacted
for the safety of employees" of course refers to the Safety
Appliance Act,
Moore v. Chesapeake & Ohio R. Co.,
291 U. S. 205,
291 U. S. 210,
and to the Boiler Inspection Act,
Urie v. Thompson, supra,
at
337 U. S.
188-189. The use of this phrase in juxtaposition with
the term "negligence" in these sections confirms the congressional
purpose to accord special treatment to employees injured by
violations of these Acts.
These express indications of congressional intent to impose
strict liability for injuries traceable to violations of these
statutes underlay the holdings on which the Court relies. The
intimate relationship between the Safety Appliance Act and the FELA
was summed up by the Court in
San Antonio & A.P. R. Co. v.
Wagner, supra (p.
241 U. S.
484), in the following language:
"If [the Safety Appliance Act] is violated, the question of
negligence in the general sense of want of care is immaterial. . .
. [T]he two statutes [Safety Appliance Act and the FELA] are
in
pari materia, and where the [FELA] refers to 'any defect or
insufficiency,
due to its negligence, in its cars,
engines, appliances,' etc., it clearly is the legislative intent to
treat a violation of the safety appliance act as 'negligence,' . .
. "
(Italics in original.)
Page 355 U. S. 448
And in
Urie v. Thompson, supra (p.
337 U. S.
189), the Court concluded:
"In this view, the Safety Appliance Acts, together with the
Boiler Inspection Act, are substantively, if not in form,
amendments to the [FELA]. . . . [They] cannot be regarded as
statutes wholly separate from and independent of the [FELA]. They
are, rather, supplemental to it, having the purpose and effect of
facilitating employee recovery. . . ."
Finally, as noted above, the Court, in
Carter v. Atlanta
& St. A.B. R. Co., supra, at
338 U. S. 434,
observed that "Congress has directed liability" under the FELA for
injuries resulting from negligence or from violation of these
Acts.
In short, I think it is evident that this Court's past
interpretation of the FELA to provide a cause of action based on
absolute liability for injuries traceable to violations of these
two particular safety statutes has rested entirely on its view of
congressional intent, and that no general rule of absolute
liability without regard to negligence for injuries resulting from
violation of any statute can fairly be said to emerge from these
decisions.
Despite the explanations in the past cases for creation of this
absolute liability, the Court now asserts that "the nature of the
Acts violated is not a controlling consideration." Indeed, it does
not even appear to be a pertinent consideration, for the opinion
makes no effort to show that a similar congressional intent to
create absolute liability in favor of seamen, or even to afford
additional rights to seamen, can be discerned either in the terms
of the statute authorizing this Coast Guard regulation or in its
relationship with the Jones Act. It is abundantly clear from the
face of the regulation, and its setting, that its purpose was
simply to prevent collisions, rather than to guard against such
unforeseeable occurrences as the
Page 355 U. S. 449
explosion in this case. [
Footnote
2/2] This is confirmed by the tenor of the section of the
statute under which the regulation issued:
"The Commandant of the United States Coast Guard shall establish
such rules to be observed on the waters mentioned in the preceding
section by steam vessels in passing each other and as to the lights
to be carried on such waters by ferryboats and by vessels and craft
of all types when in tow of steam vessels . . . as he from time to
time may deem necessary for safety. . . . [
Footnote 2/3]"
Moreover, although another section of the same statute indicates
that violation of this regulation does give rise to an absolute
liability on the part of the master or mate
Page 355 U. S. 450
of the tug for damages suffered by passengers, that section
makes no reference to
seamen's remedies, and provides
generally that liability of the
vessel or
owner
is not to be affected by the statute. [
Footnote 2/4] Finally, there are no cross provisions
between this statute and the sections of the FELA incorporated into
the Jones Act comparable to those found between the FELA, on the
one hand, and the Safety Appliance and Boiler Inspection Acts, on
the other. In short, unlike the situation as to those statutes, one
can look in vain for evidence of a congressional purpose to
supplement the remedies for injuries due to negligence
Page 355 U. S. 451
available to seamen under the Jones Act by a cause of action
based on absolute liability for damages suffered in consequence of
a violation of this Coast Guard regulation. In these circumstances,
the argument that such a cause of action arises because the Jones
Act "expressly provides for seamen the cause of action . . .
granted to railroad workers by the FELA" seems to me an empty
one.
The premise of the Court that the FELA was intended to leave to
federal courts the duty of fashioning remedies "to meet . . .
changing concepts of industry's duty toward its workers" underlies
today's holding. In carrying out this duty, the courts, as shown by
this decision, are not to consider themselves confined by doctrines
deeply ingrained in the common law of negligence upon which the
FELA was predicated, but instead are to be free to develop other
theories of liability. Indeed, not content with its particular
conclusion that violation of a statutory duty leads to absolute
liability under the FELA and the Jones Act, the Court goes on to
say that
"the theory of the FELA is that, where the employer's conduct
falls short of the high standard required of him by this Act, and
his fault, in whole or in part, causes injury, liability ensues . .
. whether the fault is a violation of a statutory duty or the more
general duty of acting with care. . . ."
Thus, the Court in effect reads out of the FELA and the Jones
Act the common law concepts of foreseeability and risk of harm
which lie at the very core of negligence liability, and treats
these statutes as making employers in this area virtual insurers of
the safety of their employees.
Whatever may be one's views of the adequacy of "negligence"
liability as the means of dealing with occupational hazards in
these fields, Congress has not legislated
Page 355 U. S. 452
in terms of absolute liability. "The basis of liability under
the Act is and remains negligence."
Wilkerson v. McCarthy,
336 U. S. 53,
336 U. S. 69
(concurring opinion of DOUGLAS, J.). And, except as expressly
modified by Congress, the term "negligence" as it appears in § 1 of
the FELA has always been taken to embody common law concepts. Thus,
in
Urie v. Thompson, supra, one of the principal cases on
which the Court here relies, it was said (at
337 U. S. 174,
337 U. S.
182):
"The section [§ 1 of the FELA] does not define negligence,
leaving that question to be determined . . . 'by the common law
principles as established and applied in the federal courts.' . .
."
"We recognize . . . that the Federal Employers' Liability Act is
founded on common law concepts of negligence and injury, subject to
such qualifications as Congress has imported into those terms.
[
Footnote 2/5]"
I cannot agree that Congress intended the federal courts to roam
at large in devising new bases of liability to replace the
liability for negligence which these Acts imposed on employers.
I would affirm.
[
Footnote 2/1]
This finding must rest on the assumption of the District Court
that the regulation forbade respondent to carry any signal light at
a height of less than eight feet above the water. However, it is
questionable whether the regulation had the effect of proscribing a
light at three feet, as well as requiring a light at a minimum
height of eight feet. That is, the violation of the regulation may
have consisted solely in the absence of a light eight feet above
the water, not in the presence of a light three feet above the
water, in which case the accident could not be attributed to
violation of the regulation. For the purpose of this opinion, I
shall assume, as the District Court necessarily concluded, that the
violation of respondent consisted in carrying the light at three
feet, and was thus the factual cause of the accident.
[
Footnote 2/2]
The particular regulation violated by respondent, 33 CFR §
80.16(h), appears under Subchapter D of 33 CFR, which is entitled:
"Navigation Requirements For Certain Inland Waters." Section 80.16
itself bears the caption "Lights for barges, canal boats, scows and
other nondescript vessels on certain inland waters on the Atlantic
and Pacific Coast." Other sections under Subchapter D regulate for
signals (§ 80.12), speed in fog (§ 80.13), and navigation near
bends and curves (§ 80.5). Section 80.16(h) itself states that a
light shall be carried at a minimum height of eight feet above the
surface of the water
". . . and shall be so placed as to show an unbroken light all
around the horizon, and shall be of such a character as to be
visible on a dark with a clear atmosphere at a distance of at least
5 miles."
[
Footnote 2/3]
This section, 30 Stat. 102, as amended, 33 U.S.C. § 157, appears
under Chapter 3 of Title 33, which bears the title "Navigation
Rules for Harbors, Rivers, And Inland Waters Generally." Other
sections under Chapter 3 refer to sound signals (33 U.S.C. § 191),
speed in fog (33 U.S.C. § 192), and ascertainment of risk of
collision (33 U.S.C. § 201). Section 157 was originally enacted as
part of the Act of June 7, 1897, and the clear purpose of that Act
was simply to effect a codification of all rules governing
navigation on inland waters so that they would conform in the
highest possible degree to prevailing international rules for the
prevention of collisions at sea. H.R.Doc. No. 42, 55th Cong., 1st
Sess., p. 1.
[
Footnote 2/4]
30 Stat. 102, as amended, 33 U.S.C. § 158, was also enacted as
part of the Act of June 7, 1897,
355
U.S. 426fn2/3|>note 3,
supra. It provides in part
that:
"Every pilot, engineer, mate, or master of any steam vessel . .
. and every master or mate of any barge or canal boat who neglects
or refuses to observe the provisions of . . . the regulations
established in pursuance of [§ 157, text at
355
U.S. 426fn2/3|>note 3,
supra] . . . shall be liable
to a penalty of one hundred dollars, and for all damages sustained
by any passenger in his person or baggage by such neglect or
refusal:
Provided, That nothing herein shall relieve any
vessel, owner, or corporation from any liability incurred by reason
of such neglect or refusal."
As originally drafted, preceding its enactment in 1897, present
§ 158 read substantially as it does now, except that it did not
contain the last "
Provided" clause. H.R.Doc. No. 42, 55th
Cong., 1st Sess., p. 9. In the House debates concerning the Act of
1897, discussion was directed in part to this section and the
question was raised whether its effect might be to impose liability
for injury to passengers exclusively upon officers of the vessels,
who might be financially irresponsible. 30 Cong.Rec. 1395. To end
these doubts, the section was amended prior to its enactment by
addition of the "
Provided" clause. Representative Payne
stated that the amendment's purpose was to make clear that
liability of the
vessel or
owner of the vessel
for damages would remain entirely unaffected by the section. 30
Cong.Rec. 1465. In other words, the Act of 1897 was not intended
either to define to any extent liability of a vessel or its owner
or to advance the remedies or broaden the rights of seamen, but
simply afforded
passengers remedies against officers
personally liable because of breach of regulations.
[
Footnote 2/5]
The qualifications, of course, refer to those provisions of the
FELA, not applicable to the facts of this case, which modify or
abrogate the common law defenses of contributory negligence, § 3,
35 Stat. 66, 45 U.S.C. § 53, and assumption of risk, § 4, 35 Stat.
66, as amended, 45 U.S.C. § 54.