While a pilot boat was being overhauled by a contractor at a
shipyard in New Jersey, two employees of a specialized
subcontractor went aboard to clean the generators with carbon
tetrachloride, a task which could be performed only when there was
no one else on board the ship, and which required the use of
special equipment and special safety precautions. Though such
special equipment was used, and the usual precautions were taken,
one of these employees died of carbon tetrachloride poisoning. His
administratrix brought this action for damages against the owners
of the pilot boat in a federal district court, basing jurisdiction
on diversity of citizenship. Under instructions that either
unseaworthiness of the vessel or negligence would render the
defendants liable, and that contributory negligence on the part of
the decedent would serve only to mitigate damages, a jury returned
a general verdict for the administratrix, and judgment was entered
thereon. The Court of Appeals affirmed, holding that the New Jersey
Wrongful Death Act incorporates liability for unseaworthiness, as
developed by federal law, and adopts the admiralty rule of
comparative negligence when death occurs as a result of tortious
conduct upon the navigable waters of that State.
Held:
1. The right of recovery depended upon the interpretation of New
Jersey law, and this Court accepts the Court of Appeals'
determination of the effect which New Jersey law would accord to
the decedent's contributory negligence.
The Tungus v.
Skovgaard, ante, p.
358 U. S. 588. P.
358 U. S.
615.
2. Even if the Wrongful Death Act of New Jersey be interpreted
as importing the federal maritime law of unseaworthiness, the Court
of Appeals erred in holding that the circumstances of this case
were such as to impose liability under that doctrine. Pp.
358 U. S.
615-618.
3. Since the doctrine of unseaworthiness was not applicable, it
was error to instruct the jury that the shipowner could be held
Page 358 U. S. 614
liable even if the jury should find that the shipowner had
exercised reasonable care. P.
358 U. S.
618.
4. As to the claim based on negligence, the evidence created an
issue of fact to be determined by the jury. Pp.
358 U. S.
618-619.
5. A new trial will be required, since there is no way of
knowing whether the invalid claim of unseaworthiness was the sole
basis for the jury's verdict. P.
358 U. S.
615.
251 F.2d 708, judgment vacated and cause remanded.
MR. JUSTICE STEWART delivered the opinion of the Court.
The administratrix of the estate of Walter J. Halecki brought
this action against the owners of the pilot boat
New
Jersey to recover damages for Halecki's death, allegedly
caused by inhalation of carbon tetrachloride fumes while working
aboard that vessel. The action, based upon the New Jersey Wrongful
Death Act, N.J.Stat.Ann. 2A:31-1, was brought in the federal court
by reason of diversity of citizenship. Under instructions that
either unseaworthiness of the vessel or negligence would render the
defendants liable, and that contributory negligence on the part of
the decedent would serve only to mitigate damages, a jury returned
a verdict for the administratrix, upon which judgment was entered.
The Court of Appeals affirmed, holding that the New Jersey Wrongful
Death Act incorporates liability for unseaworthiness, as developed
by federal law, and adopts the admiralty rule of comparative
negligence when death occurs as a
Page 358 U. S. 615
result of tortious conduct upon the navigable waters of that
State. 251 F.2d 708.
For the reasons stated in
The Tungus v. Skovgaard,
ante, p.
358 U. S. 588, we
hold that the Court of Appeals was correct in viewing its basic
task as one of interpreting the law of New Jersey. For reasons also
stated in
Tungus, we accept in this case the Court of
Appeals' determination of the effect which New Jersey law would
accord to the decedent's contributory negligence. But even if the
Wrongful Death Act of New Jersey be interpreted as importing the
federal maritime law of unseaworthiness, the court was in error in
holding that the circumstances of this case were such as to impose
liability under that doctrine.
The essential facts are not in dispute. In September of 1951,
the vessel was brought to Jersey City, New Jersey, for its annual
overhaul at the shipyard of Rodermond Industries, Inc. One of the
jobs to be done was the dismantling and overhaul of the ship's
generators, requiring, among other things, that they be sprayed
with carbon tetrachloride. Since Rodermond Industries was not
equipped to do electrical work, this job was subcontracted to K.
& S. Electrical Company, Halecki's employer.
The generators were in the ship's engine room, and both Halecki
and his foreman, Donald Doidge, were aware of the necessity of
taking special precautions in undertaking the job of spraying them
with tetrachloride, a toxic compound. [
Footnote 1] They arranged to do the work on Saturday,
Page 358 U. S. 616
a day chosen because, as Doidge testified, "[W]e know it has to
be done when there is nobody else on board ship."
Halecki and Doidge came aboard on the appointed day, equipped
with gas masks. They found only a watchman, to whom they gave
instructions not to permit anyone to enter the engine room. Before
starting the job, they rigged an air hose underneath the generators
to blow the fumes away from the man spraying. A high-compression
blower was placed so that it would exhaust foul air through one of
the two open doorways. These pieces of equipment belonged to
Rodermond Industries, and had been brought aboard by Doidge and
Halecki the previous day. Together with the engine room's regular
ventilating system, the air hoses and blower were operated by
electrical power supplied from the dock. Halecki did most of the
spraying, working for 10- or 15-minute periods with intervening
rests of equal length. The ventilating equipment was in operation,
and Halecki wore a gas mask during the entire period that he
worked. He became sick the next day, and died two weeks later of
carbon tetrachloride poisoning.
The eventful development of the doctrine of unseaworthiness in
this Court is familiar history. Although of dubious ancestry,
[
Footnote 2] the doctrine was
born with
The Osceola, [
Footnote 3] and emerged full-blown 40 years later in
Mahnich v. Southern S.S. Co. [
Footnote 4] as an absolute and nondelegable duty which the
owner of a vessel owes to the members of the crew who man her. The
justification for this rigid standard was clearly stated in the
Court's opinion in
Mahnich:
"He [the seaman] is subject to the rigorous discipline of the
sea, and all the conditions of his service
Page 358 U. S. 617
constrain him to accept, without critical examination and
without protest, working conditions and appliances as commanded by
his superior officers."
321 U. S. 321 U.S.
96, at
321 U. S.
103.
With the nature of the duty thus defined, it remained for two
other decisions of the Court to amplify its scope.
Seas
Shipping Co. v. Sieracki and
Pope & Talbot, Inc. v.
Hawn [
Footnote 5] made
clear that the shipowner could not escape liability for
unseaworthiness by delegating to others work traditionally done by
members of the crew. Whether their calling be labeled "stevedore,"
"carpenter," or something else, those who did the "type of work"
traditionally done by seamen, and were thus related to the ship in
the same way as seamen "who had been or who were about to go on a
voyage," were entitled to a seaworthy ship.
See 346 U.S.
at
346 U. S.
413.
Neither these decisions nor the policy that underlies them can
justify extension of liability for unseaworthiness to the decedent
in the present case. The work that he did was in no way "the type
of work" traditionally done by the ship's crew. It was work that
could not even be performed upon a ship ready for sea, but only
when the ship was "dead," with its generators dismantled. Moreover,
it was the work of a specialist, requiring special skill and
special equipment -- portable blowers, air hoses, gas masks, and
tanks of carbon tetrachloride, all brought aboard the vessel for
this special purpose, and none connected with a ship's seagoing
operations. [
Footnote 6]
Indeed, the work was so specialized that the repair yard engaged to
overhaul the vessel was not itself equipped to perform it,
Page 358 U. S. 618
but had to enlist the services of a subcontractor. A measure of
how foreign was the decedent's work to that ordinarily performed by
the ship's crew is that it could be performed only at a time when
all the members of the crew were off the ship.
It avails nothing to say that the decedent was an "electrician,"
and that many modern ships carry electricians in their crew.
Pope & Talbot, Inc. v. Hawn explicitly teaches that
such labels in this domain are meaningless.
See 346 U.S.
at
346 U. S. 413.
It is scarcely more helpful to indulge in the euphemism that the
decedent was "cleaning" part of the ship, and to say that it is a
traditional duty of seamen to keep their ship clean. The basic fact
is, in the apt words of Judge Lumbard's dissenting opinion in the
Court of Appeals, that the decedent "was not doing what any crew
member had ever done on this ship or anywhere else in the world so
far as we are informed." 251 F.2d 708 at 715. To extend liability
for unseaworthiness to the decedent here would distort the law of
Mahnich, of
Hawn, and of
Sieracki beyond
recognition. We therefore hold that it was error to instruct the
jury that the shipowner could be held liable in this case even if
they should find that the shipowner had exercised reasonable care.
[
Footnote 7]
As to the claim based upon negligence, for which the New Jersey
Wrongful Death Act clearly gives a right of action, [
Footnote 8] we agree with the Court of
Appeals that "the evidence created an issue that could be decided
only by a verdict." The defendants owed a duty of exercising
reasonable
Page 358 U. S. 619
care for the safety of the decedent. They were charged with
knowledge that carbon tetrachloride was to be used in the confined
spaces of the engine room. It was for the triers of fact to
determine whether the defendants were responsibly negligent in
permitting or authorizing the method or manner of its use.
It follows from what has been said that a new trial will be
required, for there is no way to know that the invalid claim of
unseaworthiness was not the sole basis for the verdict.
Vacated and remanded.
[For concurring opinion of MR. JUSTICE FRANKFURTER,
see
ante, p.
358 U. S.
597.]
[
Footnote 1]
Carbon tetrachloride, a somewhat volatile compound five times
heavier than air, is toxic to humans if present in the atmosphere
in concentrations of more than 100 parts to 1,000,000. It therefore
is essential, when working with this chemical, to provide adequate
ventilation, a task that is complicated because the density of the
compound may result in a high concentration of the fumes in the
lower portions of an enclosed area.
[
Footnote 2]
See Gilmore and Black, The Law of Admiralty, p.
316.
[
Footnote 3]
189 U. S. 189 U.S.
158,
189 U. S.
175.
[
Footnote 4]
321 U. S. 321 U.S.
96.
[
Footnote 5]
328 U. S. 328 U.S.
85 and
346 U. S. 346 U.S.
406.
See also Alaska S.S. Co. v. Petterson, 347 U.
S. 396, and
Rogers v. United States Lines, 347
U.S. 984.
[
Footnote 6]
It was established that the ship's own ventilating system was
entirely adequate to perform its intended function of ventilating
the engine room while the ship was in regular operation.
[
Footnote 7]
We do not reach the question, discussed in the
amicus
curiae brief of the United States, whether a shipowner can
ever be liable for the unseaworthiness of a vessel
"to a shore-based worker who performs labor on a ship which is
not ready for a voyage, but is out of navigation and docked in a
private shipyard for its annual overhaul and repair."
[
Footnote 8]
N.J.Stat.Ann. 2A:31-1;
see The Tungus v. Skovgaard,
supra.
MR. JUSTICE BRENNAN, with whom The CHIEF JUSTICE, MR. JUSTICE
BLACK, and MR. JUSTICE DOUGLAS join, dissenting.
On September 29, 1951, the pilot boat New Jersey was standing at
a pier in the Jersey City repair yard of a marine overhaul and
repair firm for its annual overhaul. The overhaul job was scheduled
to take three weeks, and the 29th was the Saturday after the first
week of work. Crew members participated in maintenance work on the
vessel during this period, on a five-day work-week basis. Cleaning
the vessel's generators was the work scheduled for the 29th, and,
since the cleaning work was to be done with carbon tetrachloride,
known to have toxic properties, a Saturday was chosen for the job
to minimize the number of persons aboard the vessel. Walter
Halecki, respondent's decedent, was an employee of an electrical
firm doing the cleaning job as a subcontractor to the general
overhaul contractor; he and another employee of the subcontractor
came aboard and spent the day spraying the generators in the ship's
engine room. Halecki did most of the work in the engine room. The
men wore gas masks,
Page 358 U. S. 620
and from time to time, rest periods above decks were observed.
At the end of the day, Halecki complained of an odd taste in his
mouth, and he was thereafter admitted to a hospital, where he died
of carbon tetrachloride poisoning.
His widow commenced this action against the vessel's owners in
the Federal District Court for the Southern District of New York,
predicating jurisdiction on diversity of citizenship. The complaint
alleged unseaworthiness of the vessel in that harmful
concentrations of carbon tetrachloride were allowed to stand in the
engine room, unremoved either by the vessel's ordinary ventilation
system or by auxiliary equipment brought aboard the vessel by the
workmen for the purpose. It further alleged negligence in the
failure to use reasonable care in furnishing the decedent, as a
business invitee, a safe place to work. The New Jersey Wrongful
Death Act was pleaded by the plaintiff to support these claims. The
case went to the jury on both grounds, and a general verdict was
returned for the plaintiff; judgment thereon was affirmed by the
Court of Appeals.
The Court today reverses, holding that the verdict, which must,
of course, be supportable on each aspect in which the case was left
to the jury, cannot be supported on the grounds of unseaworthiness.
The Court, following its decision in
The Tungus v. Skovgaard,
ante, p.
358 U. S. 588,
holds that the basic source of law in this case, since it is a
wrongful death case, is the law of New Jersey. My separate opinion
in that case sets forth the basis on which I think that that
holding is erroneous. The Court, in the present, case holds,
apparently as a matter of federal law, that the vessel did not owe
any duty of seaworthiness to the respondent's decedent. Paradox may
be found in this after the Court's characterization of the
governing law as state law, and there well may be confusion as to
the precise role that federal law is to play in these maritime
death
Page 358 U. S. 621
actions as a result of the Court's holding. [
Footnote 2/1] But, in any event, since I view the
unseaworthiness question as a matter of federal law, as apparently
the Court does here, I shall set forth briefly the grounds on which
I think it has clearly erred in the light of the decisions in
Seas Shipping Co. v. Sieracki, 328 U. S.
85;
Pope & Talbot, Inc. v. Hawn,
346 U. S. 406, and
Alaska S.S. Co. v. Petterson, 347 U.
S. 396, none of which the Court today purports to
overrule.
In
Seas Shipping Co. v. Sieracki, the question was
whether the duty of maintaining a seaworthy vessel extended to
persons who performed the ship's service aboard the vessel, but who
were not employed directly by the shipowner. The Court concluded
that this duty was
"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."
328 U.S. at
328 U.S. 95.
The Court declared 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."
Id. at
328 U. S. 97.
The Court quoted with specific approval the language of the court
below in that case:
"when a man is performing a function essential to maritime
service on board a ship, the fortuitous circumstances
Page 358 U. S. 622
of his employment by the shipowner or a stevedoring contractor
should not determine the measure of his rights."
Ibid. The Court stressed that the division of labor due
to increased specialization did not operate to diminish the scope
of the duty of maintaining a seaworthy vessel. The shipowner, it
was said,
"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."
Id. at
328 U. S.
100.
In
Pope & Talbot, Inc. v. Hawn, the
Sieracki doctrine was reaffirmed and applied in another
fact situation, and it was pointed out that the protection of a
shipboard worker by the duty of seaworthiness was not based on the
title of the position he occupied in the doing of the shipboard
work, but "on the type of work he did and its relationship to the
ship and to the historic doctrine of seaworthiness." 346 U.S. at
346 U. S.
413.
Today, the Court holds that not all workers engaged in doing
"ship's service" aboard a vessel are entitled to the warranty. It
essays distinctions as to whether the ship's power is functioning
at the time of the accident, whether the ship is ready for an
immediate voyage. [
Footnote 2/2] It
stresses
Page 358 U. S. 623
that the work done by Halecki was specialized work on a modern
vessel, of a sort which is now habitually contracted out. But it
takes only a casual reference to the principles of the
Sieracki decision to be reminded that the fact that a
worker is doing specialized work on a modern vessel under a
contract is no reason for exempting him from the scope of the
seaworthiness duty's "humanitarian policy," 328 U.S. at
328 U.S. 95; it is, rather,
one of the very bases on which the
Sieracki doctrine was
bottomed. The Court refers to the extensive specialized equipment
the contractor was required to bring aboard, but, in
Petterson, this was, over dissent, rejected as a basis for
distinction of
Sieracki, 347 U. S. 396,
347 U. S. 400.
Nor would one think that the fact that the work being done posed
dangers to a degree which made it desirable that the crew members
not be present aboard the vessel militated against the existence of
the seaworthiness duty. The duty was held in
Sieracki to
extend to others than members of the crew precisely to avoid the
consequence that the shipowner would escape his responsibilities by
contracting out dangerous work.
The Court declines to find that Halecki was engaged in ship's
service of a sort that would entitle him to the warranty because
the precise sort of work he was doing is one which is habitually
contracted out. It rejects clear categorical analogies between
Halecki's work and that historically done by crew members, with the
observation that the work Halecki was doing was different because
the vessel was modern, had complicated equipment, and required
specialized treatment efficiently to perform the work on it. Thus,
the whole point of the
Sieracki decision is turned around,
and today's shipowner escapes his absolute duty because his vessel
is modern and outfitted with complicated and dangerous equipment,
and because a pattern of contracting out a sort of work on its has
become established.
Page 358 U. S. 624
The Court gives no reason based in policy for its inversion of
the
Sieracki principle. I fear also that it gives no
workable guide to the lower courts in this actively litigated field
of federal law. They may now have the impression that some degree
of specialization in the tasks performed by the injured shipboard
worker disqualifies him from the scope of the shipowner's duty,
but, further than that, there is left uncertain the extent to which
the decisions of the lower courts based on the
Sieracki
and
Hawn cases are now under a cloud. [
Footnote 2/3] And so confusion is left to breed
further litigation in an already heavily litigated area of the
law.
I would adhere to the principles of
Sieracki and
Hawn and affirm the judgment of the Court of Appeals.
[
Footnote 2/1]
Further paradox may be found in the Court's acceptance, without
independent examination, of the view of the Court of Appeals for
the Second Circuit as to the defenses available under the New
Jersey Wrongful Death Act as applicable to the negligence claim
here. The Court of Appeals held contributory negligence unavailable
as an absolute defense. The usual reasons given for deferring to
the Courts of Appeals on state law questions may not be entirely
applicable to a circuit not embracing the State in question. In the
Tungus case
ante, p.
358 U. S. 588, the
Court today affirms a judgment of the Court of Appeals for the
Third Circuit (which includes New Jersey), 252 F.2d 14, leaving
open this identical issue for the District Court. It would appear
clear, in the light of the Court's disposition of this case, what
the answer on this issue must be in the
Tungus case.
[
Footnote 2/2]
A brief filed as
amicus curiae by the United States
urges that the doctrine of seaworthiness imports only a warranty of
seaworthiness for a voyage, and that, since the ship was not about
to engage in a voyage, the duty was owed to no one at the time of
the accident. This theory, like the Court's, would result in an
unwarranted restriction of the
Sieracki doctrine,
particularly since there were crew members working aboard ship on a
regular workweek basis during the period in question who would be
denied the doctrine's protection under the Government's theory. The
Government's argument is based primarily on
Desper v. Starved
Rock Ferry Co., 342 U. S. 187,
where there was no issue of unseaworthiness and the vessels had
been hauled up on land for the winter. In
Rogers v. United
States Lines, 347 U.S. 984, the duty of seaworthiness was held
to be present in regard to a vessel which had completed a voyage
and which was not shown to be about to embark on a new voyage.
[
Footnote 2/3]
Cases in which holdings of the lower courts have interpreted
this Court's decisions in the
Sieracki and
Hawn
cases as extending the duty of seaworthiness to independent
contractors' employees substantially similarly circumstanced to
Halecki include
Torres v. The Kastor, 227 F.2d 664 (C.A.
2d Cir.) (cleaning vessel of pitch to make it suitable for future
voyages);
Read v. United States, 201 F.2d 758 (C.A. 3d
Cir.) (reconversion of Liberty Ship into troop carrier; worker
engaged in converting deep tanks);
Crawford v. Pope &
Talbot, Inc., 206 F.2d 784 (C.A. 3d Cir.) (boiler cleaning
company's employee cleaning accumulated rust and dirt from deep
tank);
Pinion v. Mississippi Shipping Co., 156 F.
Supp. 652 (D.C.E.D.La.) (plumbing repair contractor's helper
carrying on home port repairs).
See also Pioneer S.S. Co. v.
Hill, 227 F.2d 262, 263 (C.A. 6th Cir.) (vessel in winter
lay-up; regular officers and crew not aboard; substantial repairs
being effected; dictum that a shipfitter's helper "was probably
within the broadened class of workers to whom the protection of the
seaworthiness doctrine has now been extended");
Imperial Oil,
Ltd. v. Drlik, 234 F.2d 4, 8 (C.A. 6th Cir.) (shipbuilding
company employee engaged in repairing drydocked ship materially
damaged by explosion; dictum that worker "would fall within the
protection of the rule so extended");
Lester v. United
States, 234 F.2d 625 (C.A. 2d Cir.) (electrician working on
general overhaul of drydocked vessel; extension of warranty
assumed).