Skovgaard v. The M/V Tungus, 12

• Decision Date: 23 December 1957
• Docket Number: 031.,No. 12,025,12
• Citation: 252 F.2d 14
• Parties: Olga SKOVGAARD, Administratrix ad Prosequendam of the Estate of Carl E. Skovgaard, Deceased, and Olga Skovgaard, Administratrix of the Estate of Carl E. Skovgaard, Deceased, Libellant-Appellant, v. THE Vessel M/V TUNGUS, Her Boilers, etc., and Den Norske Afrika-Og Australielinie, Wilhelmsens Dampskibsaktieselskab, et al., Respondents-Appellants (El Dorado Oil Works, Respondent-Impleaded-Appellee).
• Court: U.S. Court of Appeals — Third Circuit

252 F.2d 14 (1957)

Olga SKOVGAARD, Administratrix ad Prosequendam of the Estate of Carl E. Skovgaard, Deceased, and Olga Skovgaard, Administratrix of the Estate of Carl E. Skovgaard, Deceased, Libellant-Appellant, v. THE Vessel M/V TUNGUS, Her Boilers, etc., and Den Norske Afrika-Og Australielinie, Wilhelmsens Dampskibsaktieselskab, et al., Respondents-Appellants (El Dorado Oil Works, Respondent-Impleaded-Appellee).

Nos. 12,025, 12,031.

United States Court of Appeals Third Circuit.

Reargued October 22, 1957.

Decided December 23, 1957.

Nathan Baker, Bernard Chazen, Hoboken, N. J. (Baker, Garber & Chazen, Milton Garber, Hoboken, N. J., on the brief), for Olga Skovgaard.

J. Ward O'Neill, New York City (McAleer, Connell & Corridan, Jersey City, N. J., Haight, Gardner, Poor & Havens, New York City, David P. H. Watson, New York City, on the brief), for The Tungus, and others.

Joseph M. Cunningham, New York City (Wilbur A. Stevens, Newark, N. J., Kirlin, Campbell & Keating, New York City, on the brief), for El Dorado Oil Works.

Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

This admiralty appeal urges upon us the contention that the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1, is broad enough to encompass an action for death based upon a breach of the warranty of seaworthiness.

Carl E. Skovgaard met his death by suffocation and shock when he slipped and fell into a tank of heated coconut oil aboard the M/V Tungus. On December 5, 1952, the Tungus, with a cargo of coconut oil, was docked at a pier in navigable waters at Bayonne, New Jersey. The respondent-impleaded El Dorado Oil Works agreed with the owners of the oil cargo in the port deep tank to discharge the oil from the vessel and to store it. Employees of El Dorado began to discharge the oil from the tank around 8:00 p. m. of December 5, 1952. Two officers and two crew members of the Tungus remained aboard on duty; the latter two were specifically assigned to assist El Dorado in the discharge operations. The pump owned by El Dorado and used in the operation was apparently in good working order until around 12:15 a. m., December 6. It was then that an air injection nipple burst, causing tons of hot coconut oil to be pumped directly onto the shelter deck of the Tungus. It was the crew of the vessel that first discovered the leak and took temporary steps to stop it.

The deceased Skovgaard was a maintenance foreman of El Dorado. He was called from his home shortly after the leak developed to assist in repairing the pump. He arrived on board around 1:25 a. m. As Skovgaard walked aft of the port tank, he stepped on the hatch beams and then attempted to step onto the top of the tank. He slipped on the spill and fell to his death in the hot oil.

The suit was brought by Olga Skovgaard, administratrix of the estate of the deceased. Her libel pleads principally two causes of action, one predicated on unseaworthiness, the other on negligence. Both of these causes of action were based upon the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1. After trial was held, the district court dismissed the libel, deciding that an action for death by unseaworthiness did not lie in the general maritime law, and as to the negligence question, that the vessel owed no duty to the deceased to clean up the oil spill. D.C.N.J.1956, 141 F.Supp. 653. The impleading petition against El Dorado was dismissed; respondent took a precautionary appeal from this action.

It is an established principle of maritime law that in the absence of statute there is no remedy for wrongful death. The Harrisburg, 1886, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Levinson v. Deupree, 1953, 345 U.S. 648, 650, 73 S.Ct. 914, 97 L.Ed. 1319. "Death is a composer of strife by the general law of the sea as it was for many centuries by the common law of the land." Justice Cardozo in Cortes v. Baltimore Insular Line, Inc., 1932, 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368. In an effort to obviate a plain inequity, Congress in 1920 enacted the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq., which provided a remedy in admiralty for death occurring more than a marine league from shore. This statute, of course, does not apply to death occurring on territorial waters. Nonetheless, when death occurs on navigable waters within a state whose statutes have created a cause of action for death by wrongful act, admiralty courts will entertain such an action by permitting the state statute to supplement the general maritime law. Western Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Just v. Chambers, 1941, 312 U.S. 383, 388, 668, 61 S.Ct. 687, 85 L.Ed. 903.

It follows that whatever right appellant has in seeking redress for the death of Skovgaard must be based upon the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1, which reads as follows:

"When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime."

Appellant urges that unseaworthiness is a "wrongful act, neglect or default" within the meaning of the New Jersey Act.

We are of the opinion that the district court misconceived the nature of the first cause of action as a death action under general maritime law. It was in fact brought specifically under the New Jersey death act.

In the determination of whether unseaworthiness is such a "wrongful act, neglect or default" as will admit of recovery, we must look to the construction given to the Act by the New Jersey courts. They have held that the Act is in the highest sense remedial, and is entitled to a liberal construction, for its aim was to abolish a harsh and technical rule of the common law. Haggerty v. Central Railroad Co., 1865, 31 N.J.L. 349; Cibulla v. Pennsylvania-Reading Seashore Lines, 1946, 25 N.J.Misc. 98, 50 A.2d 461.

The nature of the conduct which will create liability under the New Jersey statute is of crucial importance. The legislature describes it as "wrongful act, neglect or default." It is presumed that the legislature did not employ useless verbiage and that each word has independent meaning. Ford Motor Co. v. New Jersey Department of Labor and Industry, 1950, 5 N.J. 494, 76 A.2d 256, 260; 82 C.J.S. Statutes § 316 at pages 551-552 (1953). The conduct required to impose liability, therefore, is not limited to that conduct embraced in the historical concept of negligence. The words encompass something more. See, e.g., The H. S., Inc., No. 72, 3 Cir., 1942, 130 F.2d 341; Judson v. Peoples Bank & Trust Co. of Westfield, 1954, 17 N.J. 67, 110 A.2d 24, 35-36.

It is urged that since unseaworthiness is spoken of as a species of liability without fault, it cannot be a "wrongful act, neglect or default" within the meaning of the statute. However, the characterization of unseaworthiness as liability without fault is dangerously deceptive. For urgent and sound reasons of public policy, the law has imposed the absolute duty upon the shipowner to provide a seaworthy vessel, and liability results only as a consequence of the breach of that duty. If "fault" means negligence alone, of course no fault is required, and to that extent only, the phrase "liability without fault" is accurate. But to say that one who breaches a duty is without fault is a logical as well as a legal incongruity.

The seaman possesses the legal right of a seaworthy ship. Whenever this legal right is infringed and harm results by reason of the ship being unseaworthy, a "wrong" occurs, whether it be of omission or commission. The Supreme Court of New Jersey has defined "wrongful act" as "any act which in the ordinary course will infringe upon the rights of another to his damage, except it be done in the exercise of an equal or superior right." Louis Schlesinger Co. v. Rice, 1950, 4 N.J. 169, 72 A.2d 197, 203. Culpability is not necessary to constitute a wrong. It is the liability-creating quality of an act which makes it wrongful.

If it be said that the New Jersey act provides redress for tortious conduct alone, we answer that providing an unseaworthy ship is a tort. As was said in Strika v. Netherlands Ministry of Traffic, 2 Cir., 1950, 185 F.2d 555, 558:

"It would follow from that analysis that the breach of the `obligation\' to furnish a seaworthy ship is a tort; and that is a result consonant with the historical attitude towards breaches of warranty, which until 1778 had to be sued in tort, and which may still be so treated if the distinction is important."

The New York Court of Appeals has decided in a food poisoning case that the breach of the warranty of fitness for human consumption, imposed by law upon considerations similar to the imposition of the warranty of unseaworthiness, is a "wrongful act, neglect, or default" within the New York wrongful death statute. Greco v. S. S. Kresge Co., 1938, 277 N.Y. 26, 12 N.E.2d 557, 560, 115 A. L.R. 1020.

The New Jersey statute further refers to the "wrongful act, neglect, or default" as one "such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury." This language may admit of alternative interpretation. It may be construed as defining the nature of the "wrongful act, neglect or default" — i. e., if the conduct would have been actionable by the decedent had he lived, by virtue of that very fact his named beneficiaries would have an action in the event of his death. Or the clause may be construed as a limitation or an additional requirement — i. e., the conduct upon which the suit is based must be...