Mitchell v. Trawler Racer, Inc.

Docket Number176.
Decision Date16 May 1960
Citation362 U.S. 539,4 L.Ed.2d 941,80 S.Ct. 926
CourtU.S. Supreme Court

Morris D. Katz argued the cause and filed a brief for petitioner.

James A. Whipple argued the cause for respondent. With him on the brief was Paul J. Kirby.

Briefs of amici curiae urging reversal were filed by Samuel A. Neuburger, by Arthur J. Mandell, and by Philip F. DiCostanzo.

Walter E. Maloney, Thomas E. Byrne, Jr., M. L. Cook, J. Ward O'Neill, Louis J. Gusmano and James M. Estabrook filed a brief for the American Merchant Marine Institute, Inc., as amicus curiae, urging affirmance.

MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioner was a member of the crew of the Boston fishing trawler Racer, owned and operated by the 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,1 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 operations.

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.2 Counsel for the petitioner requested that 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.3 The jury awarded the petitioner maintenance and cure, but found for the respondent shipowner on both the negligence and unseaworthiness counts.

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, 184 F. 2d 213 (C. A. 3d Cir.), with Johnson Line v. Maloney, 243 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. S. 406; United Pilots Assn. v. Halecki, 358 U. S. 613, or as to the status of the vessel itself. Cf. West v. United States, 361 U. S. 118. The Racer was in active maritime operation, and the petitioner was a member of her crew.4

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 1681.5

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, 2 Mason 541; The Brig George, 1 Sumner 151; Reed v. Canfield, 1 Sumner 195.6 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 & Kitty, 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; I 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 D. S. Cage, 4 Fed. Cas. 367, No. 2002; Halverson v. Nisen, 11 Fed. Cas. 310, No. 5970; The Noddleburn, 28 Fed. 855; The Neptuno, 30 Fed. 925; The Lizzie Frank, 31 Fed. 477; The Flowergate, 31 Fed. 762; The A. Heaton, 43 Fed. 592; The Julia Fowler, 49 Fed. 277; The Concord, 58 Fed. 913; The France, 59 Fed. 479; The Robert C. McQuillen, 91 Fed. 685.

Although some courts held shipowners liable for injuries caused by "active" negligence, The Edith Godden, 23 Fed. 43; The Frank & Willie, 45 Fed. 494, it was held in The City of Alexandria, 17 Fed. 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 Fed. 66.7

This was the historical background behind Mr. Justice Brown's much quoted second proposition in The Osceola, 189 U. S. 158, 175: "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 ship." In support of this proposition the Court's opinion noted that "[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 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 175.

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 was 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 pronouncement as 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 B. Fiske, 141 Fed. 188; Tropical Fruit S. S. Co. v. Towle, 222 Fed. 867; John A. Roebling's Sons Co. v. Erickson, 261 Fed. 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. S. 151; Pacific Co. v. Peterson, 278 U. S. 130.8 In any event, with the passage of the Jones Act in 1920, 41 Stat. 1007, 46 U. S. C. § 688, Congress...

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