Caldarola v. Eckert, 332 U.S. 155 (1947)

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Author: John Rutledge

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Caldarola v. Eckert, 332 U.S. 155 (1947)

MR. JUSTICE RUTLEDGE, dissenting.

I agree with respondents’ counsel and the Court that Hust v. Moore-McCormack Lines, 328 U.S. 707, does not rule this case. Nevertheless I cannot agree with the Court’s view that either New York law of the so-called "agency contract," identical with that involved in the Hust case, immunizes respondents from the consequences of their negligence causing petitioner’s injury.

The Hust case involved the rights of seamen, not of longshoremen.{1} Also, it arose under the Jones Act, 46 U.S.C. § 688, whereas here liability is grounded upon maritime tort. And the Hust decision rested in part upon the effects of the so-called Clarification Act of 1943, 50 U.S.C. App. § 1291, which has no bearing in this case, since seamen are not involved.

The Hust decision flatly rejected the view that the events there in question{2} had been effective to strip the seaman of his various preexisting remedies, replacing them with the single remedy of suit provided by the Suits in Admiralty Act.{3} 46 U.S.C. § 742. The necessary result was to preserve not merely the seaman’s rights under the Jones Act, but also his other preexisting ones.{4} For if the conjunction of events put forward in the Hust case as having made the Suits in Admiralty Act remedy the only one available to the seaman was thus effective, the Jones Act remedy, as well as others, was thereby excluded. And if it was not excluded, neither were those others long possessed by seamen.{5} The Hust decision was therefore not merely a construction of the Jones Act. That Act was simply a specific fulcrum for turning the broader issue presented.

But seamen’s rights are not longshoremen’s rights, and the events combining to present the question concerning seamen’s rights in the Hust case were not conclusive upon longshoremen’s rights. This is true although, in some instances, longshoremen, through legislation or by virtue of their succession to seamen occasioned by the industry’s evolution in some phases of ship and shore duty, have been held entitled to similar protections. Seas Shipping Co. v. Sieracki, 328 U.S. 85; Atlantic Transport Co. v. Imbrovek, 234 U.S. 52. The question in this case, therefore, is not one necessarily governed by the same considerations as applied in the cases of seamen covered by the Hust decision.

But, as the Court recognizes, it is one of maritime tort, although longshoremen, rather than seamen are involved, and is, moreover,

suable in the State courts by virtue of § 9 of the Judiciary Act of 1789, which saves "to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it."

Notwithstanding the characterization as maritime tort, the Court skirts the question whether the source of the right is New York law or, on the contrary, is federal law for which New York, pursuant to § 9, merely supplies a means for enforcement. For, in either event, it says,

[New York’s] determination is decisive that there is no remedy in its courts for such a business invitee against one who has no control and possession of [the] premises.

From this conclusion, I disagree. For, if the liability here is founded in federal law, as creating the maritime tort, then New York law has nothing to do with creating or nullifying the substantive right. Its sole function is to supply the remedy commanded by § 9 of the Judiciary Act. Testa v. Katt, 330 U.S. 386. And, in my judgment, the liability here, since it arises from a maritime tort, is a creature of federal law in its entirety, not of state law.{6} I therefore do not agree that any substantive issues in the case "exclusively concern New York law," or that in any respect that state’s Court of Appeals "had the final say in holding that one in the relation of the respondents to the petitioner is not liable for the tort of which the latter complains." I do not understand how the Court can leave open the question whether New York law has a hand in creating the right sued on, or one only in supplying a forum and remedy, and, at the same time, can rely on New York law as having any part in creating the right or nullifying it, as it seems to do. The result does not simply entangle state law with federal law in the substantive phase of the case. It entangles hypothetically applicable state law in one phase with federal law in another.

Regarding the case, as I do, as being controlled in its substantive aspect altogether by federal law, I do not think that law requires or should permit the result the Court reaches. Regardless of whether the so-called "agency" contract makes the operating company an "agent," an "owner pro hac vice," or technically something else in relation to the United States, the federal maritime law, in my opinion, well might hold responsible to an injured longshoreman one who has knowledge that such persons will come aboard and who undertakes to keep the vessel and its equipment in safe condition for their use.{7} More especially should such a rule apply when the person so undertaking is the only one constantly on board to observe the creation of hazardous risks in the vessel’s daily routines and, in addition, has such a degree of control over their creation as the "agent" did here.

But, in any event, the same result should be reached on the basis of construction of the contract. Whether this is put upon the ground stated in the opinion of MR. JUSTICE DOUGLAS, that the "agent" became owner pro hac vice, or in the view of the contract taken in the Hust case, with reference to application of the Jones Act, is largely immaterial, perhaps only a matter of words.{8}

That view, incorporating the rule of the Hearst case,{9} we have only recently extended to apply in cases of coverage of the § official Security Act and the Fair Labor Standards Act. United States v. Silk, 331 U.S. 704; Rutherford Food Corp. v. McComb, 331 U.S. 722. While the liability here is not legislative in origin, nevertheless, as in the Hust case, application of the common law "control" test to defeat the longshoreman’s remedy under the state procedure, as provided by § 9 of the Judiciary Act of 1789, cannot "be justified in this temporary situation unless by inversion of that wisdom which teaches that `the letter killeth, but the spirit giveth life.’" 328 U.S. at 725.

Finally, in my opinion, the terms of the agreement in its provisions for indemnity confirm the conclusion that liability of the "agent" in such a case as this was contemplated. Not only is there broad indemnity

for all expenditures of every kind made by it in performing, procuring or supplying the services, facilities, stores, supplies or equipment as required hereunder,

with specified exceptions not covering such liabilities as are now in question. The indemnity also expressly provided:

To the extent not recovered from insurance, the United States shall also reimburse the General Agent for all crew expenditures (accruing during the term hereof) in connection with the vessels hereunder, including, without limitation, all disbursements for or on account of wages, extra compensation, overtime, bonuses, penalties, subsistence, repatriation, travel expense, loss or personal effects, maintenance, cure, vacation allowances, damages or compensation for death or personal injury or illness, and insurance premiums, required to be paid by law, custom, or by the terms of the ship’s articles or labor agreements. . . .

(emphasis added), as well as for payments made to pension funds and for social security taxes. This clause specifically contemplated that the "agent" should be responsible for paying claims not only for maintenance and cure, but also for "damages or compensation for death or personal injury or illness," and should be indemnified for such payment. A narrow construction, of course, would limit the provisions for payment and indemnity to payments made without resort to suit. On the other hand, even a literal interpretation would cover payments made by the "agent" upon judgments recovered against it on claims of the character specified. I know of no good reason why the narrow view should be accepted, or why the Government, by its contract, should desire to uproot seamen and others, including longshoremen insofar as they have acquired seamen’s rights aboard ship, from their normally applicable remedies, in the absence of either explicit statutory command or express contractual provision to that effect. Moreover, in view of the scope of the indemnity provided, I see no possible harm that could be inflicted on the "agent" from interpreting the contract so as to allow the normally applicable remedies to apply.

Accordingly, I would reverse the judgment of the Court of Appeals.

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Chicago: John Rutledge, "Rutledge, J., Dissenting," Caldarola v. Eckert, 332 U.S. 155 (1947) in 332 U.S. 155 332 U.S. 162–332 U.S. 167. Original Sources, accessed April 23, 2018, http://www.originalsources.com/Document.aspx?DocID=D1U8J33VUGGQ85L.

MLA: Rutledge, John. "Rutledge, J., Dissenting." Caldarola v. Eckert, 332 U.S. 155 (1947), in 332 U.S. 155, pp. 332 U.S. 162–332 U.S. 167. Original Sources. 23 Apr. 2018. www.originalsources.com/Document.aspx?DocID=D1U8J33VUGGQ85L.

Harvard: Rutledge, J, 'Rutledge, J., Dissenting' in Caldarola v. Eckert, 332 U.S. 155 (1947). cited in 1947, 332 U.S. 155, pp.332 U.S. 162–332 U.S. 167. Original Sources, retrieved 23 April 2018, from http://www.originalsources.com/Document.aspx?DocID=D1U8J33VUGGQ85L.