In an action by a seaman who was a member of the crew of a
fishing trawler to recover damages for personal injuries sustained
as a result of unseaworthiness due to the temporary presence on the
ship's rail of slime and fish gurry remaining there from recent
unloading operations, the shipowner's actual or constructive
knowledge of the temporary unseaworthy condition is not an
essential element of the seaman's case. Pp. 362 U. S.
(a) A shipowner's duty to furnish a seaworthy ship is absolute,
and it is not limited by concepts of common law negligence. Pp.
362 U. S.
(b) Liability of the shipowner for a temporary unseaworthy
condition is not different from the liability which attaches when
the unseaworthy condition is permanent. Pp. 362 U. S.
265 F.2d 426 reversed.
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was a member of the crew of the Boston fishing
owned and operated by the
Page 362 U. S. 540
respondent. On April 1, 1957, the vessel returned to her home
port from a 10-day voyage to the North Atlantic fishing grounds,
loaded with a catch of fish and fish spawn. After working that
morning with his fellow crew members in unloading the spawn,
] the petitioner
changed his clothes and came on deck to go ashore. He made his way
to the side of the vessel which abutted the dock, and in accord
with recognized custom stepped onto the ship's rail in order to
reach a ladder attached to the pier. He was injured when his foot
slipped off the rail as he grasped the ladder.
To recover for his injuries, he filed this action for damages in
a complaint containing three counts: the first under the Jones Act,
alleging negligence, the second alleging unseaworthiness, and the
third for maintenance and cure. At the trial, there was evidence to
show that the ship's rail where the petitioner had lost his footing
was covered for a distance of 10 or 12 feet with slime and fish
gurry, apparently remaining there from the earlier unloading
The district judge instructed the jury that in order to allow
recovery upon either the negligence or unseaworthiness count, they
must find that the slime and gurry had been on the ship's rail for
a period of time long enough for the respondent to have learned
about it and to have removed it. [Footnote 2
] Counsel for the petitioner requested that
Page 362 U. S. 541
the trial judge distinguish between negligence and
unseaworthiness in this respect, and specifically requested him to
instruct the jury that notice was not a necessary element in
proving liability based upon unseaworthiness of the vessel. This
request was denied. [Footnote
] The jury awarded the petitioner maintenance and cure, but
found for the respondent shipowner on both the negligence and
Page 362 U. S. 542
An appeal was taken upon the sole ground that the district judge
had been in error in instructing the jury that constructive notice
was necessary to support liability for unseaworthiness. The Court
of Appeals affirmed, holding that, at least with respect to "an
unseaworthy condition which arises only during the progress of the
voyage," the shipowner's obligation "is merely to see that
reasonable care is used under the circumstances . . . incident to
the correction of the newly arisen defect." 265 F.2d 426, 432.
Certiorari was granted, 361 U.S. 808, to consider a question of
maritime law upon which the Courts of Appeals have expressed
differing views. Compare Cookingham v. United States,
F.2d 213 (C.A. 3d Cir.), with Johnson Line v. Maloney,
F.2d 293 (C.A. 9th Cir.), and Poignant v. United States,
225 F.2d 595 (C.A. 2d Cir.).
In its present posture, this case thus presents the single issue
whether, with respect to so-called "transitory" unseaworthiness,
the shipowner's liability is limited by concepts of common law
negligence. There are here no problems, such as have recently
engaged the Court's attention, with respect to the petitioner's
status as a "seaman." Cf. Seas Shipping Co. v. Sieracki,
328 U. S. 85
Pope & Talbot, Inc. v. Hawn, 346 U.
; United Pilots Assn. v. Halecki,
358 U. S. 613
as to the status of the vessel itself. Cf. West v. United
States, 361 U. S. 118
was in active maritime operation, and the petitioner
was a member of her crew. [Footnote
Page 362 U. S. 543
The origin of a seaman's right to recover for injuries caused by
an unseaworthy ship is far from clear. The earliest codifications
of the law of the sea provided only the equivalent of maintenance
and cure -- medical treatment and wages to a mariner wounded or
falling ill in the service of the ship. Markedly similar provisions
granting relief of this nature are to be found in the Laws of
Oleron, promulgated about 1150 A.D. by Eleanor, Duchess of Guienne;
in the Laws of Wisbuy, published in the following century; in the
Laws of the Hanse Towns, which appeared in 1597; and in the Marine
Ordinances of Louis XIV, published in 1681. [Footnote 5
For many years, American courts regarded these ancient codes as
establishing the limits of a shipowner's liability to a seaman
injured in the service of his vessel. Harden v. Gordon,
Fed.Cas. No. 6,047, 2 Mason 541; The Brig George,
No. 5,329, 1 Sumn. 151;
Page 362 U. S. 544
Reed v. Canfield,
Fed.Cas. No. 11,641, 1 Sumn. 195.
] During this early
period, the maritime law was concerned with the concept of
unseaworthiness only with reference to two situations quite
unrelated to the right of a crew member to recover for personal
injuries. The earliest mention of unseaworthiness in American
judicial opinions appears in cases in which mariners were suing for
their wages. They were required to prove the unseaworthiness of the
vessel to excuse their desertion or misconduct which otherwise
would result in a forfeiture of their right to wages. See Dixon
v. The Cyrus,
7 Fed.Cas. 755, No. 3,930; Rice v. The Polly
20 Fed.Cas. 666, No. 11,754; The Moslem,
17 Fed.Cas. 894, No. 9,875. The other route through which the
concept of unseaworthiness found its way into the maritime law was
via the rules covering marine insurance and the carriage of goods
by sea. The Caledonia, 157 U. S. 124
The Silvia, 171 U. S. 462
The Southwark, 191 U. S. 1
Parsons on Marine Insurance (1868) 367-400.
Not until the late nineteenth century did there develop in
American admiralty courts the doctrine that seamen had a right to
recover for personal injuries beyond maintenance and cure. During
that period, it became generally accepted that a shipowner was
liable to a mariner injured in the service of a ship as a
consequence of the owner's failure to exercise due diligence. The
decisions of that era for the most part treated maritime injury
cases on the same footing as cases involving the duty of a
shoreside employer to exercise ordinary care to provide his
employees with a reasonably safe place to work. Brown v. The
4 Fed.Cas. 367, No. 2,002;
Page 362 U. S. 545
Halverson v. Nisen,
11 Fed.Cas. 310, No. 5,970; The
Noddleburn 28 F. 855;
The Neptuno, 30 F. 925; The Lizzie
31 F. 477; The Flowergate,
31 F. 762; The
43 F. 592; The Julia Fowler,
49 F. 277;
58 F. 913; The France,
59 F. 479;
The Robert C. McQuillen,
91 F. 685.
Although some courts held shipowners liable for injuries caused
by "active" negligence, The Edith Godden,
23 F. 43;
The Frank & Willie,
45 F. 494, it was held in The
City of Alexandria,
17 F. 390, in a thorough opinion by Judge
Addison Brown, that the owner was not liable for negligence which
did not render the ship or her appliances unseaworthy. A closely
related limitation upon the owner's liability was that imposed by
the fellow servant doctrine. The Sachem,
42 F. 66.
This was the historical background behind Mr. Justice Brown's
much quoted second proposition in The Osceola,
189 U. S. 158
189 U. S.
"That the vessel and her owner are, both by English and American
law, liable to an indemnity for injuries received by seamen in
consequence of the unseaworthiness of the ship, or a failure to
supply and keep in order the proper appliances appurtenant to the
In support of this proposition, the Court's opinion noted
"[i]t will be observed in these cases that a departure has been
made from the Continental Codes in allowing an indemnity beyond the
expense of maintenance and cure in cases arising from
unseaworthiness. This departure originated in England in the
Merchants' shipping act of 1876 . . . , and, in this country, in a
general consensus of opinion among the circuit and
Page 362 U. S. 546
district courts, that an exception should be made from the
general principle before obtaining in favor of seamen suffering
injury through the unseaworthiness of the vessel. We are not
disposed to disturb so wholesome a doctrine by any contrary
decision of our own."
189 U.S. at 189 U. S.
It is arguable that the import of the above-quoted second
proposition in The Osceola
was not to broaden the
shipowner's liability, but, rather to limit liability for
negligence to those situations where his negligence resulted in the
vessel's unseaworthiness. Support for such a view is to be found
not only in the historic context in which The Osceola
decided, but in the discussion in the balance of the opinion, in
the decision itself (in favor of the shipowner), and in the
equation which the Court drew with the law of England, where the
Merchant Shipping Act of 1876 imposed upon the owner only the duty
to use "all reasonable means" to "insure the seaworthiness of the
ship." This limited view of The Osceola's
to liability for unseaworthiness may be the basis for subsequent
decisions of federal courts exonerating shipowners from
responsibility for the negligence of their agents because that
negligence had not rendered the vessel unseaworthy. The Henry
141 F. 188; Tropical Fruit S.S. Co. v.
222 F. 867; John A. Roebling's Sons Co. v.
261 F. 986. Such a reading of the Osceola
opinion also finds arguable support in several subsequent decisions
of this Court. Baltimore S.S. Co. v. Phillips,
274 U. S. 316
Plamals v. The Pinar Del Rio, 277 U.
; Pacific S.S. Co. v. Peterson,
278 U. S. 130
] In any event, with
the passage of the Jones Act in 1920, 41 Stat. 1007, 46 U.S.C. §
688, Congress effectively obliterated all distinctions between
Page 362 U. S. 547
the kinds of negligence for which the shipowner is liable, as
well as limitations imposed by the fellow servant doctrine, by
extending to seamen the remedies made available to railroad workers
under the Federal Employers' Liability Act. [Footnote 9
The first reference in this Court to the shipowner's obligation
to furnish a seaworthy ship as explicitly unrelated to the standard
of ordinary care in a personal injury case appears in Carlisle
Packing Co. v. Sandanger, 259 U. S. 255
There, it was said,
"we think the trial court might have told the jury that without
regard to negligence the vessel was unseaworthy when she left the
dock . . . , and that, if thus unseaworthy and one of the crew
received damage as the direct result thereof, he was entitled to
recover compensatory damages."
259 U.S. at 259 U. S. 259
This characterization of unseaworthiness as unrelated to negligence
was probably not necessary to the decision in that case, where the
respondent's injuries had clearly in fact been caused by failure to
exercise ordinary care (putting gasoline in a can labeled "coal
oil" and neglecting to provide the vessel with life preservers).
Yet there is no reason to suppose that the Court's language was
During the two decades that followed the Carlisle
decision, there came to be a general acceptance of the view that
had enunciated a concept of absolute liability
for unseaworthiness unrelated to principles of negligence law.
Personal injury litigation based upon unseaworthiness was
, Gilmore and Black, The Law of Admiralty
(1957), p. 316. And the standard texts accepted that theory of
liability without question.
Page 362 U. S. 548
Benedict, The Law of American Admiralty (6th Ed.,
1940), Vol. I, § 83; Robinson, Admiralty Law (1939), p. 303 et
Perhaps the clearest expression appeared in Judge
Augustus Hand's opinion in The H. A. Scandrett,
"In our opinion the libellant had a right of indemnity for
injuries arising from an unseaworthy ship even though there was no
means of anticipating trouble."
"The ship is not freed from liability by mere due diligence to
render her seaworthy as may be the case under the Harter Act (46
U.S.C. §§ 190-195), where loss results from faults in navigation,
but, under the maritime law, there is an absolute obligation to
provide a seaworthy vessel, and, in default thereof, liability
follows for any injuries caused by breach of the obligation."
87 F.2d at 711.
In 1944, this Court decided Mahnich v. Southern S.S.
Co., 321 U. S. 96
it is possible to take a narrow view of the precise holding in that
case, [Footnote 11
] the fact
is that Mahnich
stands as a landmark in the development of
admiralty law. Chief Justice Stone's opinion in that case gave an
unqualified stamp of solid authority to the view that The
was correctly to be understood as holding that the
duty to provide a seaworthy ship depends not at all upon the
negligence of the shipowner or his agents. Moreover, the dissent in
accepted this reading of The Osceola,
claimed no more than that the injury in Mahnich
properly attributable to unseaworthiness. See
321 U.S. at
321 U. S.
In Seas Shipping Co. v. Sieracki, 328 U. S.
, the Court effectively scotched any doubts that might
Page 362 U. S. 549
as to the nature of the shipowner's duty
to provide a seaworthy vessel. The character of the duty, said the
Court, is "absolute."
"It is essentially a species of liability without fault,
analogous to other well known instances in our law. Derived from
and shaped to meet the hazards which performing the service
imposes, the liability is neither limited by conceptions of
negligence nor contractual in character. . . . It is a form of
absolute duty owing to all within the range of its humanitarian
328 U.S. at 328 U. S. 94
The dissenting opinion agreed as to the nature of the shipowner's
duty. "[D]ue diligence of the owner," it said, "does not relieve
him from this obligation." 328 U.S. at 328 U. S.
From that day to this, the decisions of this Court have
undeviatingly reflected an understanding that the owner's duty to
furnish a seaworthy ship is absolute and completely independent of
his duty under the Jones Act to exercise reasonable care. Pope
& Talbot, Inc. v. Hawn, 346 U. S. 406
Alaska Steamship Co. v. Petterson, 347 U.
; Rogers v. United States Lines,
984; Boudoin v. Lykes Bros. S.S. Co., 348 U.
; Crumady v. The J. H. Fisser,
358 U. S. 423
United Pilots Assn. v. Halecki, 358 U.
There is no suggestion in any of the decisions that the duty is
less onerous with respect to an unseaworthy condition arising after
the vessel leaves her home port, or that the duty is any less with
respect to an unseaworthy condition which may be only temporary. Of
particular relevance here is Alaska Steamship Co. v. Petterson,
In that case, the Court affirmed a judgment holding the
shipowner liable for injuries caused by defective equipment
temporarily brought on board by an independent contractor over
which the owner had no control. That decision is thus specific
authority for the proposition that the shipowner's actual or
constructive knowledge of the unseaworthy condition is not
essential to his liability.
Page 362 U. S. 550
That decision also effectively disposes of the suggestion that
liability for a temporary unseaworthy condition is different from
the liability that attaches when the condition is permanent.
There is ample room for argument, in the light of history, as to
how the law of unseaworthiness should have or could have developed.
Such theories might be made to fill a volume of logic. But, in view
of the decisions in this Court over the last 15 years, we can find
no room for argument as to what the law is. What has evolved is a
complete divorcement of unseaworthiness liability from concepts of
negligence. To hold otherwise now would be to erase more than just
a page of history.
What has been said is not to suggest that the owner is obligated
to furnish an accident-free ship. The duty is absolute, but it is a
duty only to furnish a vessel and appurtenances reasonably fit for
their intended use. The standard is not perfection, but reasonable
fitness; not a ship that will weather every conceivable storm or
withstand every imaginable peril of the sea, but a vessel
reasonably suitable for her intended service. Boudoin v. Lykes
Bros. S.S. Co., 348 U. S. 336
The judgment must be reversed, and the case remanded to the
District Court for a new trial on the issue of unseaworthiness.
Reversed and remanded.
In accordance with tradition, the employment agreement provided
that the proceeds from the sale of the fish spawn should be divided
among the members of the crew, no part thereof going to the
officers or to the owner of the vessel.
The instructions on this aspect of the case were as follows:
"In a case like this we have the argument presented here, which
you do not have to believe, that the ship was unseaworthy because,
at the time of the injury, there was on the rail of the ship some
kind of slime. Well, if that really was there and had been there
any period of time, and it caused the accident, then you would
find, as a matter of your conclusion of fact, that unseaworthiness
caused the accident."
"I haven't told you what unseaworthiness is. You will recognize
it is somewhat overlapping and alternative to, indeed quite similar
to, negligence, because it is one of the obligations of the owner
of a ship to see to it through appropriate captains, mates, members
of the crew, or someone, that there isn't left upon the rail of a
ship, especially a rail which is going to be utilized for leaving
the ship, to climb the ladder, any sort of substance such as
"It doesn't make any difference who puts it there. As far as the
owner-operator of the vessel goes, it is his job to see it does not
stay there too long, if he knows it is the kind of place, as he
could have known here, which is used by members of the crew in
getting off the ship."
"So I think it would be fair to tell you the real nub of this
case, which I hope has not been clouded for you, the real nub of
this case is, was there on the rail some slime; was it there for an
unreasonably long period of time; was there a failure on the part
of the owner-operator through appropriate agents to remove it; and
was that slime the cause of the injury which the plaintiff
"Was there something there, and was it there for a reasonably
long period of time, so that a shipowner ought to have seen that it
was removed? That is the question."
"Mr. Katz: May I make a further request? In your charge, you
specifically said 'and was it there for a reasonably long period of
time, so that the shipowner could have had it removed.'"
"I submit that would apply to the negligence count only, but,
with respect to unseaworthiness, if there is an unseaworthy
condition, there is an absolute situation, there is no time
required. It is the only --"
"The Court: Denied. Refer to the case in the Second
The trial judge instructed the jury as follows:
"In this case, on the basis of rulings I made earlier, I have
instructed you on the undisputed fact, Mr. Mitchell is to be
regarded as being an employee of the defendant, and therefore
entitled to those rights if any which flow from the maritime law
and flows [sic
] from the act of Congress."
In a memorandum filed almost a month after the trial, the
district judge, apparently relying upon the fact that the shipowner
had no direct financial interest in the spawn which had been
unloaded (see note 1
), stated that
"[T]here should have been a directed verdict for the defendant
on the unseaworthiness count. If there were slime on the rail, it
was put there by an associate and joint venturer of the plaintiff,
and not by a stranger or by anyone acting for the defendant. If
Sailor A and his wife go on board, and each of them has a right to
be there, but they are engaging in a frolic of their own, not
intended for the profit or advantage of the shipowner, say, for
example, that they are munching taffy, and the wife drops the taffy
on the deck, and the sailor slips on it, the sailor, if he is
injured, is not entitled to collect damages from the shipowner. In
short, absolute as is the liability for unseaworthiness, it does
not subject the shipowner to liability from articles deposited on
the ship by a co-adventurer of the plaintiff."
But this theory played no part in the issues developed at the
trial, where the district judge denied the respondent's motion for
a directed verdict and instructed the jury as indicated above.
All of these early maritime codes are reprinted in 30 Fed.Cas.
pages 1171-1216. The relevant provisions are Articles VI and VII,
of the Laws of Oleron, 30 Fed.Cas. 1174-1175; Articles XVIII, XIX,
and XXXIII, of the Laws of Wisbuy, 30 Fed.Cas. 1191, 1192; Articles
XXXIX and XLV of the Laws of the Hanse Towns, 30 Fed.Cas. 1200; and
Title Fourth, Articles XI and XII, of the Marine Ordinances of
Louis XIV, 30 Fed.Cas. 1209.
And, of course, the vitality of a seaman's right to maintenance
and cure has not diminished through the years. Calmar S.S.
Corp. v. Taylor, 303 U. S. 525
Waterman S.S. Corp. v. Jones, 318 U.
; Farrell v. United States, 336 U.
; Warren v. United States, 340 U.
For a more thorough discussion of the history here sketched,
Tetreault, Seamen, Seaworthiness, and the Rights of
Harbor Workers, 39 Cornell L.Q. 381, 382-403; Gilmore and Black,
The Law of Admiralty (1957), pp. 315-332. See also
illuminating discussion in the opinion of then Circuit Judge Harlan
in Dixon v. United States,
219 F.2d 10, 12-15.
Where it was said
"[u]nseaworthiness, as is well understood, embraces certain
species of negligence; while the [Jones Act] includes several
additional species not embraced in that term."
278 U.S. at 278 U. S.
An earlier legislative effort to broaden recovery for injured
seamen (the La Follette Act of 1915, 38 Stat. 1164, 1185) had been
emasculated in Chelentis v. Luckenbach S.S. Co.,
247 U. S. 372
As one commentator has chosen to regard it. See
Tetreault, op. cit., supra, note 7
as simply overruling the decision in Plamals
v. The Pinar Del Rio, 277 U. S. 151
that unseaworthiness cannot include "operating negligence."
Gilmore and Black, op. cit., supra,
The persuasive authority of Petterson
in a case very
similar to this one has been recognized by the Court of Appeals for
the Second Circuit. Poignant v. United States,
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN and MR. JUSTICE
WHITTAKER join, dissenting.
No area of federal law is judge-made at its source to such an
extent as is the law of admiralty. The evolution of judge-made law
is a process of accretion and erosion. We are told by a great
master that law is civilized to the
Page 362 U. S. 551
extent that it is purposefully conscious. Conversely, if law
just "grow'd" like Topsy, unreflectively and without conscious
design, it is irrational. When it appears that a challenged
doctrine has been uncritically accepted as a matter of course by
the inertia of repetition -- has just "grow'd" like Topsy -- the
Court owes it to the demands of reason, on which judicial lawmaking
power ultimately rests for its authority, to examine its
foundations and validity in order appropriately to assess claims
for its extension.
Our law of the sea has an ancient history. While it has not been
static, the needs and interests of the interrelated worldwide
seaborne trade which it reflects are very deeply rooted in the
past. For the most part, it has not undergone the great changes
attributable to the emergence and growth of industrialized society
on land. In the law of the sea, the continuity and persistence of a
doctrine, particularly one with international title deeds, has
The birth of the current doctrine of unseaworthiness, now
impressively challenged by Chief Judge Magruder's opinion under
review, can be stated precisely: it occurred on May 29, 1922, in
Carlisle Packing Co. v. Sandanger, 259 U.
. The action was brought in the Washington state
courts by Sandanger, an employee of Carlisle, who was injured while
working on its motorboat on a six- or eight-hour trip. The injury
occurred when he lighted fuel from a can on board marked "coal oil"
in order to start a cookstove, and it exploded. It appeared
thereafter that the can had mistakenly been filled with gasoline.
In a suit based on a claim of negligence, Sandanger won a verdict
on a finding of negligence, which was challenged in the Supreme
Court of Washington on the ground that the exclusively applicable
maritime law did not afford relief by way of compensation for
negligent injury of an employee. The Washington court held that
Page 362 U. S. 552
injury caused by a negligently created unseaworthy condition was
compensable even when, under the rule laid down in The
Osceola, 189 U. S. 158
negligent injury without unseaworthiness would not be. 112 Wash.
480, 192 P. 1005.
The matter was dealt with in this Court in the few lines
innovating the rule of absolute liability:
"we think the trial court might have told the jury that, without
regard to negligence, the vessel was unseaworthy when she left the
dock . . . , and that if . . . one of the crew received damage as
the direct result thereof, he was entitled to recover compensatory
259 U.S. at 259 U. S. 259
(The full text is quoted in the margin. [Footnote 2/1
]) No explication accompanied this dogmatic
pronouncement on an issue not presented by an issue of the affirmed
judgment. It was strangely deemed sufficient to rely on the
unelaborated citation of two cases in this Court (The
Silvia, 171 U. S. 462
171 U. S. 464
and The Southwark, 191 U. S. 1
191 U. S. 8
were concerned not with the rights of seamen, but with the
shipowner's liability for cargo damage. The abrupt, unreasoned
conclusion was reached without benefit of argument: the parties had
presented the case solely on the basis on which the action was
instituted and in the terms in which it had been decided by the
Supreme Court of Washington -- liability founded on negligence.
Neither our own investigation nor that of the parties here has
disclosed a single case in an English or an American court prior to
in which the absolute duty to
Page 362 U. S. 553
provide a seaworthy vessel for cargo carriage and marine
insurance contracts was applied to a seaman's suit for personal
was an unillumined departure in the law
of the sea. Reasoned decision of the case before us, in which
extension is sought of a rule so dubiously initiated, [Footnote 2/2
] requires that its rational,
historical and social basis be scrutinized, and not merely accepted
as unquestionable dogma.
We must take it as established that the petitioner, a seaman
employed on the Racer,
fell from her rail while using it
as a customary stepping place in leaving the vessel; that the
resulting injury was caused by the presence of fish spawn on the
rail, rendering it slippery; that it was not negligent for
respondent to allow the spawn to get on and remain on the rail.
] It further appears
that the spawn was deposited on the rail shortly before the injury,
when bags of it were handed across the rail in the course of the
unloading of the vessel.
The claim now before the Court rested on the alleged
unseaworthiness of the vessel. Petitioner asserts that, if the
presence of spawn on the rail rendered it not reasonably fit for
its function, then, without more -- and particularly without regard
to the length of time the spawn had remained on the rail --
respondent was liable to compensate him for his consequent
injuries. He asserts that these conclusions flow from the rule of
that the owner's liability to
Page 362 U. S. 554
seamen for injuries caused by the unseaworthiness of his vessel
Respondent contends, and the lower courts held, that the fact
that spawn on the rail caused petitioner's injury is not, of
itself, sufficient to establish respondent's liability. It urges
two related propositions in the alternative in support of its
judgment. The first of these -- the express ground of Judge
Magruder's decision and the primary ground urged here in its
support -- is that, since this unseaworthy condition concededly did
not arise until after the commencement of the voyage, it did not
create liability unless it persisted so long before the injury as
to have afforded the owner notice of its existence. This view makes
liability for an unseaworthy condition created without negligence
after the start of the voyage turn on the existence of negligence
in permitting the condition to persist. Respondent also urges that,
even if negligently caused or allowed to persist, this transitory
hazard arising after the start of the voyage in equipment otherwise
sound was not an unseaworthy condition.
We are thus confronted with two questions of the nature and
scope of the duty of a shipowner to seamen to provide a seaworthy
ship. The decision in Sandanger, supra,
in light of the
facts from which its generalization was drawn, certainly did not
foreshadow the result urged by petitioner, a result characterized
by Judge Magruder as "startlingly opposed to principle." 265 F.2d
at 432. There was in that case no such analysis of the reasons upon
which the rule announced was rested as to govern or even suggest
the present decision. The Court does not deny force to the
distinctions urged by respondent, but regards the questions now
presented as foreclosed by Alaska S.S. Co. v. Petterson,
347 U. S. 396
fact, today's decision rests on an unrevealing per curiam opinion,
itself founded on prior decisions affording no justification for
the result here.
Page 362 U. S. 555
As the opinion of the Court of Appeals shows, 205 F.2d 478, that
case held a shipowner liable for injuries to a longshoreman caused
by defective equipment brought on board his vessel by a contract
stevedore for use in loading operations. The owner gave the
stevedore permission, at his option, to substitute his own
equipment for that of the vessel, and the equipment which caused
the injury was a snatch-block, standard ships' equipment, supplied
pursuant to that permission. Following Seas Shipping Co. v.
Sieracki, 328 U. S. 85
Pope & Talbot, Inc. v. Hawn, 346 U.
, which had held that the owner's duty to provide
a seaworthy ship runs to non-seamen engaged in seamen's work,
at best, added to this doctrine the rule that
that duty could not be delegated by giving the stevedore control
over loading operations and an option to substitute its own
equipment for that of the vessel. The parties did not raise or
argue either (1) that the vessel was seaworthy at the start of her
voyage and no absolute liability attached to subsequently arising
conditions, or (2) that, because the condition was temporary, in
the sense pertinent here, there was no unseaworthiness. There is
therefore no foundation, either in what the per curiam revealed or
in the history of the case, to warrant the inference that the Court
was conscious of the distinctions now squarely pressed upon us,
much less that it rejected them. Such a conclusion is the more
fanciful because, even had the Court considered and accepted the
contentions now urged, it might well have found them insufficient
to avoid liability, and have held that, by giving permission to
have substitution made for warranted ships' equipment, the owner
adopted the substitute as his own.
In view of the insubstantial foundation in authority of what is
today decided, I deem it incumbent upon me to examine the history
of the evolution of the doctrine of
Page 362 U. S. 556
absolute liability in injury cases upon which petitioner rests
Although it was reasonably well established by the middle of the
nineteenth century that the maritime carrier of goods, in the
absence of express provisions to the contrary, warranted their safe
delivery against all hazards save acts of God or the public enemy,
see, e.g., 62 U. S. Cordes,
21 How. 7, 62 U. S. 23
origins of such strict liability are not entirely clear. The
English admiralty courts apparently confined the shipowner's
liability to losses resulting from his fault or that of his
Fletcher, The Carrier's Liability, 51-79.
The imposition of stricter liability appears to have begun not in
the admiralty at all, but in the common law courts, as the
jurisdiction of the admiral gradually declined. See
The History of the Admiralty Jurisdiction, in 2 Select Essays in
Anglo-American Legal History, p. 312 et seq.
published in Roscoe, Admiralty Jurisdiction and Practice, pp.
1-61). They increasingly regarded the carrier by sea as a common
carrier, whether or not he fitted the traditional concept,
Paton, Bailment in the Common Law, 233-236, and it
does not appear that they predicated his strict liability to
redeliver cargo on any peculiarly maritime aspects of the
In any event, with the sanction of the English -- and, to a
lesser extent, the American -- courts, it early became possible for
the maritime carrier to use the contract of carriage by way of
limiting this extraordinary liability, and the significance of a
carrier's liability, as such, shrank. See Pope v.
3 Story 465. Disclaimers of any duty beyond the
exercise of diligence were valid and common, and, in England,
disclaimers of liability even for negligent damage were sustained.
I Parsons, Maritime Law, 177-179, n. 1; compare In
re Missouri S.S. Co.,
42 Ch.D. 321 (1889), with Liverpool
& G. W. Steam Co. v. Phenix Ins. Co., 129 U.
, 129 U. S.
Page 362 U. S. 557
It was against the background of such limitations of the
carrier's strict duty to redeliver cargo, and in derogation of
them, that the more limited, though absolute, duty to furnish a
seaworthy vessel emerged. Unlike the strict duty imposed on
carriers in general to redeliver cargo, it was a concept rooted in
the peculiarly maritime hazards of carriage by sea. It expressed,
and became the focus of, American judicial resistance to broad
disclaimers, and was implied despite relatively specific
limitations in the contract of carriage. See, e.g., The
Caledonia, 157 U. S. 124
157 U. S. 137
The reasons for the development are evident. The hazards of the sea
were great even in vessels properly maintained and outfitted; in
imperfect ships, they became intolerable. Since, at the start of a
voyage, the familiar facilities of the home port were ordinarily
available to the owner to permit him to reduce the risk, it was not
unreasonable to require him, at the peril of extensive liability,
to make the vessel seaworthy -- reasonably fit for the intended
voyage, see The Silvia, 171 U. S. 462
171 U. S. 464
The Southwark, 191 U. S. 1
191 U. S. 9
thereby remove a profitable temptation to add to the hazards of the
sea. Though the fact that the duty was absolute is in some measure
indicative of an unstated determination that the carrier's ability
to distribute the risk justified regarding him as an insurer,
cf. Seas Shipping Co. v. Sieracki, 328 U. S.
, 328 U. S. 94
the dominant reason appears to have been that, under the conditions
existing before the start of a voyage, it was fair to demand the
increment of additional safety which could be obtained by barring
the defense of due care. The instances of defects in fact
undiscoverable under the comparatively ideal pre-voyage
circumstances would be predictably low, and the extraordinary
character of the risk, coupled with the exclusive knowledge and
control of the owner and his ability to contract away the risk in
Page 362 U. S. 558
dealings with suppliers and service companies, justified
imposing the burden on him.
This judicial evolution was doubtless influenced as well by the
similarly absolute implied warranty in contracts of marine
insurance by which the assured, whether shipowner, charterer, or
shipper, warranted the seaworthiness of the vessel at the start of
its voyage as a condition upon the attaching of the policy. The
origin of this rule has been attributed to the customary
understanding of the risks actually undertaken by the insurer.
Tetreault, Seamen, Seaworthiness, and the
Rights of Harbor Workers, 39 Cornell L.Q. 381, 395. But whatever
role custom may have played, the implied warranty appears to have
sprung, at least in part, from considerations of policy unrelated
to the insurer's understanding.
"I have endeavoured, both with a view to the benefit of commerce
and the preservation of human life, to enforce that doctrine [of
the implied warranty of initial seaworthiness] as far as, in the
exercise of a sound discretion, I have been enabled to do so. . .
Lord Eldon, in Douglas v. Scougall,
4 Dow. 269, 276
; cf. The Caledonia, 157 U.
Toward the end of the nineteenth century, these different
considerations, which had given rise to a single duty, became
imperceptibly fused. This Court held that the warranty of assured
to insurer was identical to that of carrier to shipper, even
explaining the carrier's implied promise in terms of the
undertaking of the shipper. The Caledonia, 157 U.
The divergence of attitude between American and English courts
which appeared in the scope of the contractual disclaimers of
liability each would recognize was more sharply exemplified by the
scope they respectively attributed to the warranty of seaworthiness
in cargo and insurance cases. By 1853, English courts had clearly
limited the warranty to the condition of the vessel at the
Page 362 U. S. 559
start of the voyage, while recognizing that American courts had
just as clearly held the owner liable and the insurer exonerated
for losses occasioned by unseaworthy conditions subsequently
arising and allowed to persist through the negligence of
responsible servants. See, e.g.,
Baron Parke in Gibson
4 H.L.Cas. 353, 398-399; I Parsons, Marine
Insurance, 381-383; Union Ins. Co. v. Smith, 124 U.
, 124 U. S. 427
The English courts were strongly influenced by the inherent
limitations of the owner's actual control of a vessel (see,
e.g., Gibson v. Small, supra,
at 404), while the American so
highly esteemed the protection of life and property presumably to
be so gained as to have held the owner, in effect, absolutely
liable to select master and crew who would, in fact, diligently see
to the continuing seaworthiness of the vessel. In America, the
result of the conflicts created by this divergence in the law of
two maritime nations was the Harter Act of 1893, 27 Stat. 445. The
carrier was thereby permitted to disclaim any duty other than to
exercise due diligence in the preparation of the vessel. If he in
fact exercised such diligence, he was freed of liability for losses
"resulting from faults or errors in navigation or in the
management" of the vessel. The purpose and effect of the Act was to
strike a compromise between the English and American standards, so
as to reduce conflicts between them. [Footnote 2/4
Gilmore and Black, The Law of
Admiralty 122. One collateral effect of the Act was largely to
remove from concern of the
Page 362 U. S. 560
courts questions of liability for cargo damage caused by
unseaworthy conditions arising after the start of the voyage.
Cf. The Silvia, 171 U. S. 462
171 U. S. 463
May v. Hamburg-Amerikanische, 290 U.
. After, and probably because of, the Harter Act,
the statement frequently appears in cargo damage cases that the
warranty of seaworthiness applies only at the start of the voyage;
subsequently arising deficiencies are treated as aspects of
"navigation or management." See, e.g., May v.
at 290 U. S. 345
The Steel Navigator,
23 F.2d 590, 591 (C.A. 2d Cir. 1928).
However, even that Act did not diminish the tendency of the
admiralty courts to find that a contractual disclaimer did not
apply to the warranty of seaworthiness at the start of the voyage,
and the absolute warranty of initial seaworthiness therefore
remained. See, e.g., The Carib Prince, 170 U.
The most striking differences between English and American
courts as to the scope of the warranty of seaworthiness occurred in
the area of compensation for seamen's injuries. [Footnote 2/5
] The law of both nations early
recognized unseaworthiness as a condition upon the contract of
employment, which, upon the employer's default, operated to
exonerate the seaman from forfeiture of wages if he quit the ship.
1 Parsons, Maritime Law, 455; The Arizona v. Anelich,
298 U. S. 110
298 U. S.
-122, note 2. But
Page 362 U. S. 561
though the duty to provide a seaworthy vessel was thus held to
run to seamen, the seaman's remedy was for a considerable time
restricted to this limited form of self-help.
In England, the question of a seaman's right to compensatory
damages for injuries resulting from the unseaworthiness of the
vessel was first presented for decision in Couch v.
 3 El. & Bl. 402. The plaintiff claimed
compensation for damage from illness brought about by the leaky
condition of the vessel. The court, apparently assuming that the
vessel was unseaworthy, declared that the warranty did not run to
seamen, for the reason that it was unknown whether the deficiencies
of the vessel were taken into account in the contract for wages.
Coleridge, J. (at 408), distinguished the insurance warranty as
turning on doctrines which "have no place in any other branch of
the law," and confined the duty of owner to seamen to the scope of
master-servant law on land. A similar disposition to analogize
maritime to non-maritime activity on the part of the English common
law courts was manifested in Readhead v. Midland R. Co.,
 L.R., 4 Q.B. 379, where the claim was advanced that a
railway passenger injured when a wheel broke was, by analogy to the
warranty of seaworthiness as to cargo, entitled to compensation for
his injuries. The court disposed of the contention by describing
the warranty of seaworthiness as solely responsive to the need,
early noted in Coggs v. Bernard,
 2 Ld.Raym. 909, to
prevent common carriers generally from colluding with thieves.
Couch v. Steele, supra,
was modified by the Merchant
Shipping Act of 1876, 39 & 40 Vict., c. 80, sec. 5, by which a
duty was imposed on the owner to exercise due care to provide and
maintain a seaworthy vessel. For injuries resulting from breach of
the duty, a seaman could recover compensatory damages. But even
that Act was narrowly
Page 362 U. S. 562
construed as to conditions arising after the start of the voyage
in the course of operation of the vessel. See Hedley v. Pinkney
& Sons S.S. Co.,
 A.C. 222. In the United States,
Couch v. Steele, supra,
was early disapproved. See,
e.g., The Noddleburn,
28 F. 855 (D.C.Or.1886); 2 Parsons,
Shipping and Admiralty 78. The liability which lower courts
generally found to exist, however, was not founded upon the
absolute warranty rejected in Couch,
but upon fault.
See, e.g., The Noddleburn, supra; The Flowergate,
762 (D.C.E.D.N.Y.1887); The Lizzie Frank,
31 F. 477, 479
(D.C.S.D.Ala.1887) (which followed Readhead v. Midland R. Co.,
in explaining the cargo warranty as stemming only from
common carrier status).
In 1903, this Court decided The Osceola, 189 U.
, and laid down its oft-cited four propositions
(at 185 U. S. 175
governing the liability of vessel and owner to injured seamen. As
has frequently been noted, the second proposition, a dictum
declaring a right to indemnity for injuries
"received by seamen in consequence of the unseaworthiness of the
ship, or a failure to supply and keep in order the proper
appliances appurtenant to the ship"
(at 185 U. S. 175
does not appear to have announced a doctrine of liability without
fault. No cargo or insurance cases were relied upon, and none of
the cases cited had found such liability. The only reliance on
English law was on the Act of 1876, supra,
the duty as requiring the exercise of due diligence to render the
vessel seaworthy. It appears instead that it was the intention of
to adopt the analysis of Judge Addison Brown
in The City of Alexandria,
17 F. 390 (D.C.S.D.N.Y.1883),
which it cited, under which a seaman could recover only for
injuries resulting from that limited species of negligence which
resulted in an unseaworthy condition. Such is the tenor of the
third and fourth propositions of The Osceola.
Page 362 U. S. 563
After The Osceola,
a number of decisions denied
recovery for negligently caused injury on the ground that
unseaworthiness was absent. See, e.g., Tropical Fruit S.S. Co.
222 F. 867 (C.A. 5th Cir. 1915); John A.
Roebling's Sons Co. of New York v. Erickson,
261 F. 986 (C.A.
2d Cir. 1919). After an abortive attempt by Congress, see
38 Stat. 1164, 1185; Chelentis v. Luckenbach S.S. Co.,
247 U. S. 372
there followed in 1920 the remedial legislation now familiarly
known as the Jones Act, extending relief against the owner for all
forms of negligent injury to seamen, free of the so-called fellow
servant rule of admiralty.
It was against this background that Carlisle Packing Co. v.
Sandanger, 259 U. S. 255
quite out of the blue, citing cargo cases, declared that the
owner's duty to a seaman to provide a seaworthy vessel was as
absolute as that established by the implied warranty as to cargo.
] In so ruling, the
Court gave expression to a policy, long discernible in American
admiralty decisions, of implying the warranty not merely because of
the customary expectations of the parties to an agreement -- the
English court's basis for rejection of the warranty in Couch v.
-- but as well in order to increase protection
to life and property against the hazards of the sea. They had
previously manifested this conception of the source of the warranty
in the degree to which they departed from the English common law
courts in confining attempted disclaimers of the warranty, and in
their willingness to find a duty to maintain the condition of
seaworthiness throughout the voyage.
The reasons which justified the implication on grounds of policy
as to cargo, justified it as to employed seamen,
Page 362 U. S. 564
and there was no countervailing extensive increase in the nature
of the duty to give the Court serious pause in extending to the
protection of life a policy designed in significant part for the
protection of property. Despite the Harter Act, the absolute
warranty of initial seaworthiness as to cargo survived, and, under
the strict rules of shipboard organization and conduct, the safety
of the seaman was, in a very real sense, subject to the same
It was predictable that there would be few, if any, matters with
which the owner would have to be concerned under the warranty so
extended, that he could reasonably have ignored as creating no
threat to the safety of cargo. At the start of the voyage, his
opportunity would be ample, as in the case of cargo, to undertake
that effective diligence which would, in fact, avoid all but a very
few injuries resulting from unseaworthiness, and he would be able
to protect himself from the consequences of most deficiencies
undetectable by him by agreement with suppliers, or service
companies, and from the rest by the purchase of insurance. The
additional burden created by extension of the warranty to seamen
was thus not unduly heavy, and the interest to be vindicated had
for long been a traditional concern of American admiralty.
now stood alone, it would be plain that
the absolute warranty it announced was no greater in scope than the
warranty as to cargo which preexisted the Harter Act of 1893, and
the question now presented -- whether the warranty is also absolute
as to subsequently arising conditions -- would clearly present a
novel issue for decision. Subsequent decisions in this Court have
not deliberately closed the gap.
It was twenty-two years before the question of the existence and
scope of absolute liability came before
Page 362 U. S. 565
this Court again, and, in the interim, the lower courts
manifested sharp disagreement whether it existed at all.
Compare The Rolph,
299 F. 52 (C.A. 9th Cir. 1924), and
80 F.2d 792 (C.A. 5th Cir. 1936), with The H.
87 F.2d 708 (C.A. 2d Cir. 1937). (In this case,
Judge Augustus N. Hand followed Sandanger
in relying upon
In 1944, this Court decided Mahnich v. Southern S.S.
Co., 321 U. S. 96
suit was brought by a seaman under the general maritime law (the
statute of limitations having run on Jones Act claims) for injuries
which he incurred at sea when a rope, with which the staging on
which he was working fifteen feet over the deck was rigged, parted
and he fell. The mate in charge had taken the rope, which was
unused, but at least two years old, from the Lyle Gun (a
life-saving device) box. After the accident, it appeared that the
rope was decayed.
The District Court, 45 F. Supp. 839, found that the mate's
selection of the rope was negligent, but dismissed the libel on the
ground that, apart from the Jones Act, negligent injury alone was
not compensable, and that the vessel, since it had other good rope
on board sufficient for the job, was not unseaworthy. The Court of
Appeals affirmed. 135 F.2d 602. It assumed, without deciding, that
the rope was negligently selected (a dissenting judge found no
negligence, 135 F.2d at 605), and agreed with the District Court's
conclusion that the vessel was not unseaworthy. Though it reversed,
this Court, too, found it unnecessary to decide the contested
question of negligence. It gave as its primary reason that "the
exercise of due diligence does not relieve the owner of his
obligation to the seaman to furnish adequate appliances." (321 U.S.
at 321 U. S. 100
Although this statement was the critical major premise of an
opinion which went on to decide that such absolute liability would
not be barred by
Page 362 U. S. 566
the mate's intervening negligence, it was rested primarily on
Carlisle Packing Co. v. Sandanger, supra,
There is no more disclosure in the opinion or history of this
case than there was in Sandanger
to warrant attributing to
this statement a deliberate or authoritative ruling that liability
is absolute for all injuries resulting from unseaworthy conditions.
Confined to the facts of the case, the decision that intervening
negligence would not constitute a defense to an action for injuries
resulting from an unseaworthy condition is consistent with the rule
of the cargo and insurance cases, confining the absolute warranty
to damage resulting from initial unseaworthiness. The rope, which
was new, had decayed from overlong or improper storage, not from
use, and was, it is right to assume defective from the start of the
voyage. Cf. The Edwin I. Morrison, 153 U.
, 153 U. S.
Moreover, a claim for extending the scope of the absolute
warranty was not raised or argued by the parties. They simply
assumed that liability would follow unseaworthiness unless
intervening negligence was a defense. Their major concern, and the
primary focus of the Court's attention, was the earlier case of
Plamals v. The Pinar Del Rio, 277 U.
, where it was held, on substantially identical
facts, that the mate's negligence did not create liability for
unseaworthiness where there was an adequate supply of sound rope on
board. In Mahnich, Plamals
was held to have rested on one
of two mistaken premises: (1) either that the question of
seaworthiness turned solely on the supply of rope, and not on the
condition of the appliance rigged in the course of the voyage, or
(2) that liability for provision of an unseaworthy appliance in the
course of a voyage would be barred where the unseaworthiness
resulted from the mate's negligence. The Court in Mahnich
was not remotely called upon, in rejecting those premises as it
did, to consider whether the absolute warranty
Page 362 U. S. 567
of seaworthiness extends to conditions arising after the
commencement of the voyage. Finally, there is evidence that, if the
Court made any assumption about the scope of the warranty, it
assumed that, as in the case of cargo until the Harter Act, it was
absolute, but only as to conditions existing at the commencement of
the voyage. It said:
"It required the Harter Act to relax the exacting obligation to
cargo of the owner's warranty of seaworthiness of ship and tackle.
That relaxation has not been extended, either by statute or by
decision, to the like obligation of the owner to the seaman."
(321 U.S. at 321 U. S.
Seas Shipping Co. v. Sieracki, 328 U. S.
, is no better authority for petitioner's contentions
here. The action was instituted by a longshoreman who was injured
while loading respondent's vessel when a forged shackle supporting
the vessel's ten-ton boom gave way because of a latent defect in
the forging. The defect had existed from the time of the
construction of the ship. Both parties conceded that the vessel was
unseaworthy, and that, if a seaman had been injured in the same
way, he could have recovered compensatory damages. The District
Court gave judgment for the owner on the ground that it was not
negligent for it to have failed to discover the defect. 57 F. Supp.
. The Court of Appeals reversed on the ground that Sieracki
was entitled to recover under the warranty of seaworthiness. 149
F.2d 98. The turning point of the case in this Court was whether
the warranty of seaworthiness, concededly absolute on the facts,
covered longshoremen doing seamen's work.
The Court's extended discussion of the sources and rationale of
the warranty is entirely consistent with the history noted above.
328 U.S. at 328 U. S. 90
Page 362 U. S. 568
was said or implied casts any light whatever on the question
whether the initial absolute warranty carried over by
from the cargo cases extends to subsequently
arising conditions, unless, as in Mahnich,
equation of the warranty running to seamen with the pre-Harter Act
warranty as to cargo bespeaks its assumption that the warranty was
absolute only as to the start of the voyage.
No other case in this Court is further enlightening on the
question of the scope of the absolute warranty. Alaska S.S. Co.
v. Petterson, 347 U. S. 396
already been discussed. See also Rogers v. United States
347 U.S. 984. Pope & Talbot, Inc. v. Hawn,
346 U. S. 406
irrelevant here. The injury occurred in port in the course of
loading the vessel, the question of unseaworthiness was not an
issue in this Court, and the jury had found the defendant guilty of
negligence. Boudoin v. Lykes Bros. S.S. Co., 348 U.
, concerned unseaworthiness predicated upon the
incompetency of a crew member which, as the Court found, was a
traditional aspect of the initial warranty of seaworthiness.
Crumady v. The Joachim Hendrik Fisser, 358 U.
, found unseaworthiness as a result of the
vessel's failure to use "safe practice," 358 U.S. at 358 U. S. 426
n., in the preparation of a winch for unloading operations, on its
face a negligent act, although its negligent character was not the
overt basis of the decision. None of the several parties to the
case raised the objections now urged upon us, and no more than in
were they considered or adjudicated.
Against this background of prior adjudications, it assumes what
is required to be established to assert that
"[t]here is no suggestion in any of the decisions that the duty
is less onerous with respect to an unseaworthy condition arising
after the vessel leaves her home port. . . ."
In fact, there is no overt suggestion in any of our decisions
that the duty is not less onerous, and the origin
Page 362 U. S. 569
of the duty in cargo and marine insurance cases strongly
suggests that it is. Even the admiralty courts of the nineteenth
century, during the growth of American shipping, found no
justification in peculiarly maritime concerns for imposing an
absolute duty at all times after the start of the voyage to
maintain the vessel in seaworthy condition. Once the vessel was
made safe, it was thought sufficient to entrust its safe conduct to
an appropriate standard of diligence. This view undoubtedly
involved the weighing of a number of factors, all of which remain
pertinent today: the unavailability of the familiar facilities of
the home port, or of any port, to make inspections or repairs; the
unfairness of holding the vessel accountable for losses resulting
from damage, detectable or otherwise, caused, without fault of the
vessel, by perils of the sea; the likelihood that those whose
safety depends on the vessel will, in any event, use every
reasonable precaution to preserve it and that, in the circumstances
of operation of the vessel, no additional care could be exacted by
the imposition of absolute liability; and the determination that to
impose absolute liability for injuries caused by defects arising
without fault in the complex operation of a vessel would be, in all
the circumstances, unduly burdensome.
This latter consideration is especially pertinent in cases of
so-called "transitory" unseaworthiness such as is before us. For
disposition of this case, it may be assumed, though with
considerable misgiving, that the condition here created wholly
without fault after the journey had begun rendered the vessel
unseaworthy. But the unreasonableness of imposing liability on the
vessel for injuries occasioned by the unavoidable consequences of
its proper operation need not therefore be ignored. No compensating
increase in the caution actually to be exercised can be anticipated
as a result of the creation of such a duty. Nor can the owner pass
along the risk to suppliers or
Page 362 U. S. 570
service companies. The only rational justification for its
imposition is that the owner is now to be regarded as an insurer
who must bear the cost of the insurance. But the Court offers no
reason of history or policy why vessel owners, unlike all other
employers, should, in circumstances where the only benefit to be
gained is the insurance itself, be regarded by law as the insurers
of their employees. If there were a sufficient reason for the
judicial imposition of such a duty, it would be arbitrary in the
extreme to limit it to cases where, by chance, the injury occurs
through the momentary inadequacy of a prudently run vessel. All
accidental injury should fall within such a humanitarian policy,
provided only that it occurs in the service of the ship. It was
such a policy which, from the earliest times, has justified the
imposition of the duty to provide maintenance and cure; but nothing
in the nature of modern maritime undertakings justifies extending
to compensation a form of relief which, for more than five
centuries, has been found sufficient.
I would affirm the judgment below.
"Considering the custom prevailing in those waters and other
clearly established facts, in the present cause, we think the trial
court might have told the jury that, without regard to negligence,
the vessel was unseaworthy when she left the dock if the can marked
'coal oil' contained gasoline; also that she was unseaworthy if no
life preservers were then on board; and that, if thus unseaworthy
and one of the crew received damage as the direct result thereof,
he was entitled to recover compensatory damages."
Chief Judge Magruder has appropriately noted that no previous
decision in this Court has considered whether liability for
unseaworthiness existing at the start of the voyage extends to
subsequently arising conditions. 265 F.2d at 432; see also
Dixon v. United States,
219 F.2d 10 (C.A. 2d Cir.).
It was not contended that the failure to provide the vessel with
a different mode of access, or other means for unloading, rendered
it unseaworthy from the start of the voyage. Cf. Poignant v.
225 F.2d 595 (C.A. 2d Cir.).
The considerations urging harmony of law for international
carriage, especially as between the United States and the United
Kingdom, led, in 1936, to the enactment of the Carriage of Goods by
Sea Act, 49 Stat. 1207, substantially adopting the recommendations
of an international convention on the problem. See
and Black, The Law of Admiralty, 122-124. Where applicable, the
1936 Act imposes only the duty to use due diligence to provide a
seaworthy ship at the start of the voyage.
From the time of the earliest maritime codes, seamen injured in
the service of the vessel have, to varying extents, been entitled
to maintenance and cure at the expense of the ship. See The
Osceola, 189 U. S. 158
189 U. S.
-170. But the seaman's right to compensation for
injuries is a relatively modern development, probably originating
in cases concerning the negligent failure of the vessel to
discharge the duty to provide maintenance and cure. See Brown
4 Fed.Cas. 418 (D.C.Mass. 1859); Tetreault,
Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell
L.Q. 381, 385. However, there appears to have been no connection
between the elaboration of the duty to provide maintenance and cure
and the emergence of the doctrine of absolute liability for
It is not irrelevant to note that the spokesman for the Court
was the Justice under whose lead the most unhappy admiralty
doctrines were promulgated: Southern Pacific Co. v.
Jensen, 244 U. S. 205
Knickerbocker Ice Co. v. Stewart, 253 U.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE
WHITTAKER join, dissenting.
In joining my Brother FRANKFURTER's dissent, I wish to add a few
words. I believe the Court's decision not only finds no support in
the past cases, but also is unjustified in principle, and is
directed at ends not appropriately within our domain. The Second
Circuit's decision in Poignant v. United States,
595, provides a useful point of departure for what I have to
the libellant, a crew member, slipped on a
small piece of garbage lying in a passageway of the ship. The
vessel lacked garbage chutes, and the garbage was pulled, in cans,
through the passageway to a railing, where it was jettisoned. The
Court of Appeals first expressed the view that any unseaworthy
condition which existed
Page 362 U. S. 571
had in all probability arisen after the voyage had commenced. It
said, much as the Court now holds, that Alaska Steamship Co. v.
Petterson, 347 U. S. 396
required it to apply a rule of absolute liability nonetheless. It
then put, as the critical issue, the question whether the presence
of some garbage in a public passageway constituted an unseaworthy
condition, and, finding the matter to turn on an issue of fact,
remanded the case for trial. However, it is important to note the
manner in which the court dealt with the problem. Although, at the
outset of the opinion, the allegedly unseaworthy condition was
assumed to be the presence of garbage in a passageway, 225 F.2d at
597, the remand was in fact directed to the question whether the
absence of garbage chutes rendered the vessel not reasonably fit
for the voyage, and therefore unseaworthy. Id.
This, of course, would be a condition going to the proper
outfitting of the vessel for sea travel, and a clear case of
initial unseaworthiness. In such event, the injury would have been
the proximate result of that unseaworthiness, for it was by reason
of the lack of chutes that garbage was carried through the
passageways at all.
For me, this approach indicates the rule which should govern the
case before us. Had the petitioner contended and proved that a
properly outfitted trawler of this type should have had a
particular device for unloading fish, or an alternative means of
facilitating petitioner's egress from the vessel, so that either
the railing would not have been slippery or the petitioner would
not have been required to use the railing in debarking, the case
would have been governed by the absolute liability rule of
and its successors, and respondent's opportunity
to remove the spawn from the rail would properly be held
immaterial. As the case is decided, however, we are told that, even
though there is no claim that the vessel should have made different
provisions for the unloading of its
Page 362 U. S. 572
catch or the debarking of its crew, the shipowner is liable for
an injury caused by a temporary unsafe condition arising from the
normal operation of the vessel, not the result of fault or
mismanagement of anyone on board, and which no one had a reasonable
opportunity to remedy. Had there been negligence either in
permitting the spawn to accumulate or in failing to remove it, the
admiralty principles developed in the cargo cases, and taken over
into personal injury cases, would warrant an imposition of
liability, although, as to cargo damage, the Harter Act and the
Carriage of goods by Sea Act would, of course, bar recovery.
The Silvia, 171 U. S. 462
where, as here, there is neither a claim that the vessel was
initially unseaworthy, nor any showing of negligence, the
imposition of liability seems to me borrowing from Judge Magruder,
a "hard doctrine," "startlingly opposed to principle." 265 F.2d at
The Court is not fashioning a rule designed to protect life,
cf. Bullard v. Roger Williams Ins. Co.,
4 Fed.Cas. 643,
No. 2,122 at 646, for there appears no real basis for expectation
that today's decision will promote the taking of greater
precautions at sea. See
dissenting opinion of FRANKFURTER,
p. 362 U. S. 557
The respondent is held liable without being told that there was
something left undone which should have been done, for petitioner
is not asked to show, as was the libellant in Poignant,
that the vessel ought to have been outfitted differently, that is,
in a fashion which would have prevented the dangerous condition
from arising at all. Nor is the respondent permitted to show that
such condition was not due to its fault.
The sole interest served by the Court's decision is
compensation. Such an interest is, of course, equally present in
the case of an undoubted accident, where, under the Court's ruling,
no right of recovery is bestowed as it is in the present case. But,
because of the Court's inherent
Page 362 U. S. 573
incapacity to deal with the problem in the comprehensive and
integrated manner which would doubtless characterize its
legislative treatment, cf. Dixon v. United States,
F.2d 10, 15, this arbitrary limitation is preserved. This internal
contradiction in the rule which the Court has established only
serves to highlight a more central point: it is not for a court,
even a court of admiralty, to fashion a tort rule solely in
response to considerations which underlie workmen's compensation
legislation, weighty as such considerations doubtless are as a
legislative matter. Citation is not needed to remind one of the
readiness of Congress to deal with felt deficiencies in judicial
protection of the interests of those who go to sea. We should heed
the limitations on our own capacity and authority. See Halcyon
Lines v. Haenn Ship Corp., 342 U. S. 282
342 U. S.
I would affirm.