Isolated, personal act of negligence by a fellow longshoreman
resulting in injury to petitioner did not make shipowner liable on
ground of unseaworthiness of vessel, as injury was not caused by
ship's condition, appurtenances, cargo, or crew. There is a
"complete divorcement of unseaworthiness liability from concepts of
negligence."
Mitchell v. Trawler Racer, 362 U.
S. 539,
362 U. S. 550.
Pp.
400 U. S.
496-500.
413 F.2d 984, affirmed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, MARSHALL, and BLACKMUN, JJ., joined.
DOUGLAS, J., filed a dissenting opinion in which BLACK and BRENNAN,
JJ., joined,
post, p.
400 U. S. 501.
HARLAN, J., filed a dissenting opinion,
post, p.
400 U. S.
503.
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner, a longshoreman employed by an independent
stevedoring contractor, was injured while engaged with his fellow
employees in loading cargo aboard
Page 400 U. S. 495
the S.S.
Edgar F. Lickenbach. He brought this action
for damages against the respondents, the owner and the charterer of
the ship, in a federal district court, alleging that his injuries
had been caused by the ship's unseaworthiness.
In the course of pretrial proceedings, the circumstances under
which the petitioner had been injured were fully disclosed, and
they are not in dispute. On the day in question, the ship lay
moored to a dock in New Orleans, Louisiana, receiving cargo from a
barge positioned alongside. The loading operations were being
performed by the petitioner and his fellow longshoremen under the
direction of their employer. Some of the men were on the ship,
operating the port winch and boom at the No. 2 hatch. The
petitioner and others were on the barge, where their job was to
"break out" the bundles of cargo by securing them to a sling
attached to the fall each time it was lowered from the ship's boom
by the winch operator. The loading operations had been proceeding
in this manner for some time, until, upon one occasion, the winch
operator did not lower the fall far enough. Finding the sling
beyond his reach, the petitioner motioned to the flagman standing
on the deck of the ship to direct the winch operator to lower the
fall farther. The winch operator then lowered the fall, but he
lowered it too far and too fast. The sling struck the petitioner,
knocking him to the deck of the barge and causing his injuries.
Neither before nor after this occurrence was any difficulty
experienced with the winch, boom, fall, sling, or any other
equipment or appurtenance of the ship or her cargo.
The respondents moved for summary judgment in the District
Court, upon the ground that a single negligent act by a fellow
longshoreman could not render the ship unseaworthy. The District
Court denied the motion, but granted the respondents leave to take
an interlocutory
Page 400 U. S. 496
appeal under 28 U.S.C. § 1292(b). [
Footnote 1] The United States Court of Appeals for the
Fifth Circuit allowed the appeal and, reversing the District Court,
directed that the respondents' motion for summary judgment be
granted. 413 F.2d 984. It was the appellate court's view that
"'[i]nstant unseaworthiness' resulting from 'operational
negligence' of the stevedoring contractor is not a basis for
recovery by an injured longshoreman."
413 F.2d at 98986. We granted certiorari, 397 U.S. 933, because
of a conflict among the circuits on the basic issue presented.
[
Footnote 2]
The development in admiralty law of the doctrine of
unseaworthiness as a predicate for a shipowner's liability for
personal injuries or death has been fully chronicled elsewhere, and
it would serve no useful purpose to repeat the details of that
development here. [
Footnote 3]
Suffice it to recall
Page 400 U. S. 497
that from its humble origin as a dictum in an obscure case in
1922, [
Footnote 4] the doctrine
of liability based upon unseaworthiness has experienced a most
extraordinary expansion in a series of cases decided by this Court
over the last 25 years. [
Footnote
5] The Court's decisions in some of those cases have been
severely questioned, by dissenting Justices and by others, on the
basis of history, reason, and logic. [
Footnote 6] The present case, however, offers no occasion
to reexamine any of our previous decisions. We may accept it as
fully settled that a shipowner's liability for an unseaworthy
vessel extends beyond the members of the crew and includes
Page 400 U. S. 498
a longshoreman like the petitioner. [
Footnote 7] We may accept it as settled, too, that the
shipowner is liable though the unseaworthiness be transitory,
[
Footnote 8] and though the
injury be suffered elsewhere than aboard the ship. [
Footnote 9] But these propositions do not
dispose of the case before us. For the question here goes to the
very definition of what unseaworthiness is and what it is not.
A major burden of the Court's decisions spelling out the nature
and scope of the cause of action for unseaworthiness has been
insistence upon the point that it is a remedy separate from,
independent of, and additional to other claims against the
shipowner, whether created by statute [
Footnote 10] or under general maritime law. [
Footnote 11] More specifically, the
Court has repeatedly taken pains to point out that liability based
upon unseaworthiness is wholly distinct from liability based upon
negligence. [
Footnote 12]
The reason, of course, is that unseaworthiness is a condition, and
how that condition came into being -- whether by negligence or
otherwise -- is quite irrelevant to the owner's liability for
personal injuries resulting from it.
We had occasion to emphasize this basic distinction again in
Mitchell v. Trawler Racer, 362 U.
S. 539. There, the unseaworthy condition causing the
plaintiff's injury
Page 400 U. S. 499
was a ship's rail made slippery by the presence of fish gurry
and slime. The trial judge had instructed the jury that the
shipowner could be held liable for this unseaworthy condition only
upon a finding that the slime and gurry had been on the ship's rail
for a time long enough for the respondent to have learned about it
and to have removed it. The Court of Appeals affirmed the judgment
for the defendant shipowner, 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. We
reversed the judgment, holding that the trial and appellate courts
had been wrong in confusing liability for negligence with liability
for unseaworthiness. What has evolved in our case law, we said, is
the "complete divorcement of unseaworthiness liability from
concepts of negligence." 362 U.S. at
362 U. S.
550.
Trawler Racer involved the defective condition of a
physical part of the ship itself. But our cases have held that the
scope of unseaworthiness is by no means so limited. A vessel's
condition of unseaworthiness might arise from any number of
circumstances. Her gear might be defective, [
Footnote 13] her appurtenances in disrepair,
[
Footnote 14] her crew
unfit. [
Footnote 15] The
number of men assigned to perform a shipboard task might be
insufficient. [
Footnote 16]
The method of loading her cargo, or the manner of its stowage,
might be improper. [
Footnote
17] For any of these reasons, or others, a vessel might not be
reasonably fit for her intended service.
Page 400 U. S. 500
What caused the petitioner's injuries in the present case,
however, was not the condition of the ship, her appurtenances, her
cargo, or her crew, [
Footnote
18] but the isolated, personal negligent act of the
petitioner's fellow longshoreman. To hold that this individual act
of negligence rendered the ship unseaworthy would be to subvert the
fundamental distinction between unseaworthiness and negligence that
we have so painstakingly and repeatedly emphasized in our
decisions. [
Footnote 19] In
Trawler Racer, supra, there existed a condition of
unseaworthiness, and we held it was error to require a finding of
negligent conduct in order to hold the shipowner liable. The case
before us presents the other side of the same coin. For it would be
equally erroneous here, where no condition of unseaworthiness
existed, to hold the shipowner liable for a third party's single
and wholly unforeseeable act of negligence. The judgment of the
Court of Appeals is affirmed.
It is so ordered.
Page 400 U. S. 501
[
Footnote 1]
28 U.S.C. § 1292(b) provides as follows:
"When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion
that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in such
order. The Court of Appeals may thereupon, in its discretion,
permit an appeal to be taken from such order, if application is
made to it within ten days after the entry of the order:
Provided, however, That application for an appeal
hereunder shall not stay proceedings in the district court unless
the district judge or the Court of Appeals or a judge thereof shall
so order."
[
Footnote 2]
Compare Candiano v. Moore-McCormack Lines, 382 F.2d 961
(CA2);
Alexander v. Bethlehem Steel Corp., 382 F.2d 963
(CA2);
Cleary v. United States Lines Co., 411 F.2d 1009
(CA2);
and Venable v. A/S Det Forenede Dampskibsselskab,
399 F.2d 347 (CA4),
with Grisby v. Coastal Marine Service,
412 F.2d 1011 (CA5),
and Tim v. American President Lines,
409 F.2d 385 (CA9).
[
Footnote 3]
See Mitchell v. Trawler Racer, 362 U.
S. 539;
id. at
362 U. S. 550
(Frankfurter, J., dissenting);
see also G. Gilmore &
C. Black, The Law of Admiralty 315-332 (1957); Tetreault, Seamen,
Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L.Q.
381.
[
Footnote 4]
Carlisle Packing Co. v. Sandanger, 259 U.
S. 255. There it was said,
"[W]e 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.
[
Footnote 5]
Mahnich v. Southern S.S. Co., 321 U. S.
96;
Seas Shipping Co. v. Sieracki, 328 U. S.
85;
Pope & Talbot, Inc. v. Hawn,
346 U. S. 406;
Alaska Steamship Co. v. Petterson, 347 U.
S. 396;
Rogers v. United States Lines, 347 U.S.
984;
Boudoin v. Lykes Bros. S.S. Co., 348 U.
S. 336;
Crumady v. The J. H. Fisser,
358 U. S. 423;
Mitchell v. Trawler Racer, 362 U.
S. 539;
A. & G. Stevedores v. Ellerman
Lines, 369 U. S. 355;
Gutierrez v. Waterman S.S. Corp., 373 U.
S. 206;
Waldron v. Moore-McCormack Lines,
386 U. S. 724.
[
Footnote 6]
See, e.g., Mahnich v. Southern S.S. Co., supra, at
321 U. S. 105
(Roberts, J., joined by Frankfurter, J., dissenting),
Seas
Shipping Co. v. Sieracki, supra, at
328 U. S. 103
(Stone, C.J., joined by Frankfurter and Burton, JJ., dissenting);
Pope & Talbot, Inc. v. Hawn, supra, at
346 U. S. 419
(Jackson, J., joined by Reed and Burton, JJ., dissenting);
Alaska Steamship Co. v. Petterson, supra, (Burton, J.,
joined by Frankfurter and Jackson, JJ., dissenting);
Mitchell
v. Trawler Racer, supra, at
362 U. S. 550
(Frankfurter, J., joined by HARLAN and Whittaker, JJ., dissenting);
Gutierrez v. Waterman S.S. Corp, supra, at
373 U. S. 216
(HARLAN, J., dissenting);
Waldron v. Moore-McCormack Lines,
supra, at
386 U. S. 729
(WHITE, J., joined by HARLAN, BRENNAN, and STEWART, JJ.,
dissenting).
See also G. Gilmore & C. Black, The Law of
Admiralty 315-332 (1957); Tetreault, Seamen, Seaworthiness, and the
Rights of Harbor Workers, 39 Cornell L.Q. 381.
[
Footnote 7]
Seas Shipping Co. v. Sieracki, 328 U. S.
85.
[
Footnote 8]
Crumady v. The J. H. Fisser, 358 U.
S. 423;
Mitchell v. Trawler Racer, 362 U.
S. 539.
[
Footnote 9]
Gutierrez v. Waterman S.S. Corp., 373 U.
S. 206.
[
Footnote 10]
E.g., the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688.
The petitioner in the present case was fully covered, of course, by
the provisions of the Longshoremen's and Harbor Workers'
Compensation Act, 33 U.S.C. § 901
et seq.
[
Footnote 11]
E.g., maintenance and cure.
See Calmar S.S. Corp.
v. Taylor, 303 U. S. 525;
Waterman S.S. Corp. v. Jones, 318 U.
S. 724;
Farrell v. United States, 336 U.
S. 511;
Warren v. United States, 340 U.
S. 523.
[
Footnote 12]
E.g., Seas Shipping Co. v. Sieracki, 328 U. S.
85,
328 U. S. 94:
"[T]he liability is neither limited by conceptions of negligence
nor contractual in character."
[
Footnote 13]
Mahnich v. Southern S.S. Co., 321 U. S.
96.
[
Footnote 14]
Seas Shipping Co. v. Sieracki, 328 U. S.
85.
[
Footnote 15]
Boudoin v. Lykes Bros. S.S. Co., 348 U.
S. 336.
[
Footnote 16]
Waldron v. Moore-McCormack Lines, 386 U.
S. 724.
[
Footnote 17]
A. & G. Stevedores v. Ellerman Lines, 369 U.
S. 355;
Gutierrez v. Waterman S.S. Corp.,
373 U. S. 206.
[
Footnote 18]
No member of the ship's crew was in any way involved in this
case.
[
Footnote 19]
The petitioner's reliance upon our summary per curiam reversal
of a judgment for the shipowner in
Mascuilli v. United
States, 387 U. S. 237, is
misplaced. There, a longshoreman had been killed during a loading
operation aboard a Government vessel when, under the strain of the
opposing pull of two winches, a heavy shackle parted, recoiled, and
struck him. The petition for certiorari posed three questions: (1)
did a prior unseaworthy condition come into play by the tightline
condition? (2) did the negligent handling of proper equipment by
the longshoremen create a dangerous condition rendering the vessel
unseaworthy? (3) was the vessel unseaworthy because the
longshoremen were not "equal in disposition and seamanship to the
ordinary men in the calling," as was found in
Boudoin v. Lykes
Bro. S.S. Co., 348 U. S. 336?
Our per curiam reversal cited two cases:
Mahnich v. Southern
S.S. Co., 321 U. S. 96, and
Crumady v. The J. H. Fisser, 358 U.
S. 423.
Mahnich involved a defective rope,
Crumady, a defective winch. It seems evident, therefore,
that it was the first question posed by the petition for certiorari
to which the Court gave an affirmative answer.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE
BRENNAN concur, dissenting.
While petitioner was working on a barge loading cargo into a
hatch of the ship, he was injured as a result of the negligent
operation of a winch. The winch was part of the ship, and the winch
operator was a member of the crew of the stevedores. The injury was
caused by a lowering of a sling, which carried the cargo too
quickly and too far. Prior to the 1970 Term, the judgment denying
recovery would have been reversed, probably out of hand. We held in
Mahnich v. Southern S.S. Co., 321 U. S.
96, that the obligation of an owner to furnish a
seaworthy ship extends to seaworthy appliances. We also held that
the owner was not insulated from liability by the "negligent
failure" of his officers or members of the crew to furnish
seaworthy appliances.
Id. at
321 U. S. 101.
In
Mahnich, the staging from which the seaman fell was an
unseaworthy appliance because of the defective rope with which it
was rigged. There was sound rope on board, but defective rope was
used. The fact that the mate and boatswain were negligent in
selecting defective rope was held to be no defense.
In
Crumady v. The J. H. Fisser, 358 U.
S. 423, a winch was not inherently defective as was the
rope in
Mahnich. But it was used in a way which made it
unsafe and dangerous for the work at hand. While the rigging would
take only three tons of stress, the cut-off of the winch, "its
safety device," was set at twice that limit.
Id. at
358 U. S. 427.
And so the rope sling broke and injured the seaman. The vessel
which paid the damages was allowed to recover over from the
stevedores whose negligence with the winch made the vessel
pro
tanto unseaworthy. In
Mascuilli v. United States,
387 U. S. 237,
negligent use of a winch in a loading operation so obviously
made
Page 400 U. S. 502
the vessel
pro tanto unseaworthy that we reversed out
of hand a judgment of no liability, citing
Mahnich and
Crumady.
What we said in
Mitchell v. Trawler Racer, 362 U.
S. 539,
362 U. S. 550,
about the "complete divorcement of unseaworthiness liability from
concepts of negligence" related to a condition which made the
vessel not "reasonably suitable for her intended service." Yet
alongside that conventional type of unseaworthiness there developed
the concept of unseaworthiness resulting from operational
negligence.
Indeed, the doctrine of operational negligence which causes
unseaworthiness has had a sturdy growth. Chief Justice Stone,
writing for the Court in
Mahnich, showed that this
doctrine goes at least as far back as
The Osceola,
189 U. S. 158,
decided in 1903.
See 321 U.S. at
321 U. S.
101-104. The intervening decision of
Plamals v.
Pinar del Rio, 277 U. S. 151,
which looked the other way, was decided in 1928. It was around that
case that Justices Roberts and Frankfurter turned their dissent,
saying that, unless the Court followed precedent, "the law becomes
not a chart to govern conduct, but a game of chance; instead of
settling rights and liabilities, it unsettles them." 321 U.S. at
321 U. S. 112.
They added:
"Respect for tribunals must fall when the bar and the public
come to understand that nothing that has been said in prior
adjudication has force in a current controversy."
Id. at
321 U. S.
113.
Justices Roberts and Frankfurter bitterly expressed that view in
Mahnich when
Pinar del Rio was overruled -- a
freak decision not in keeping with the mainstream of the law that
had come before.
Changes in membership do change decisions, and those changes are
expected at the level of constitutional law. But when private
rights not rooted in the Constitution
Page 400 U. S. 503
are at issue, it is surprising to find law made by new judges
taking the place of law made by prior judges.
Up to today, operational negligence has been one sturdy type of
unseaworthiness.
* I would let it
continue as the prevailing rule unless Congress in its wisdom
changes it.
* The Second Circuit adopted the view that, while one act of
operational negligence would not make a vessel unseaworthy,
unseaworthiness did result if the negligent act was incident to a
continuous course of operation as where a wrong hatch cover was
used,
Grillea v. United States, 232 F.2d 919, but not by
an isolated act as where a boom was carrying a dangerous stress due
to a negligent act.
Puddu v. Royal Netherlands S.S. Co.,
303 F.2d 752. The difference in the two cases was stated as
follows:
"A ship is not unseaworthy because it has glass in a window
which might be broken. The injuries of a seaman who negligently
breaks such a glass are not the result of unseaworthiness, nor are
the injuries of a seaman who is cut by the falling glass. But
injury incurred in stepping on the broken glass does result from
unseaworthiness."
Id. at 757.
The Second Circuit, however, refused to follow
Grillea
after our
Mascuilli decision.
Candiano v.
Moore-McCormack Lines, 382 F.2d 961;
Alexander v.
Bethlehem Steel Corp., 382 F.2d 963;
Cleary v. United
States Lines Co., 411 F.2d 1009;
Tarabocchia v. Zim Israel
Navigation Co., 417 F.2d 476. The Fourth Circuit followed
suit.
Venable v. A/S Det Forenede Dampskibsselskab, 399
F.2d 347;
Lundy v. Isthmian Lines, 423 F.2d 913.
Only the Fifth Circuit in the instant case and in
Grigsby v.
Coastal Marine Service, 412 F.2d 1011, and the Ninth in
Tim v. American President Lines, 409 F.2d 385, stood
against the rule of
Mascuilli.
MR. JUSTICE HARLAN, dissenting.
Past decisions of this Court have expanded the doctrine of
unseaworthiness almost to the point of absolute liability. I have
often protested against this development.
See, e.g., the
cases cited by the Court,
ante at
400 U. S. 497
n. 6. But I must in good conscience regard the particular issue in
this case as having been decided by
Crumady v. The J. H.
Fisser, 358 U. S. 423
(1959), even if prior decisions
Page 400 U. S. 504
did not inexorably point to that result. As my Brother DOUGLAS
states,
Crumady cannot justly be distinguished from the
case before us. Much as I would welcome a thoroughgoing
reexamination of the past course of developments in the
unseaworthiness doctrine, I fear that the Court's action today can
only result in compounding the current difficulties of the lower
courts with this area of the law.