Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960)

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, Fed.Cas. No. 6,047, 2 Mason 541; The Brig George, Fed.Cas. No. 5,329, 1 Sumn. 151;Reed v. Canfield, Fed.Cas. No. 11,641, 1 Sumn. 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. 2,002;Halverson v. Nisen, 11 Fed.Cas. 310, No. 5,970; The Noddleburn 28 F. 855; The Neptuno, 30 F. 925; The Lizzie Frank, 31 F. 477; The Flowergate, 31 F. 762; The A. Heaton, 43 F. 592; The Julia Fowler, 49 F. 277; The Concord, 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.{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 F. 188; Tropical Fruit S.S. Co. v. Towle, 222 F. 867; John A. Roebling’s Sons Co. v. Erickson, 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.S. 151; Pacific S.S. 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 effectively obliterated all distinctions between 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.{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. 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 inadvertent.{10}

During the two decades that followed the Carlisle decision, there came to be a general acceptance of the view that The Osceola had enunciated a concept of absolute liability for unseaworthiness unrelated to principles of negligence law. Personal injury litigation based upon unseaworthiness was substantial. See, Gilmore and Black, The Law of Admiralty (1957), p. 316. And the standard texts accepted that theory of liability without question.See Benedict, The Law of American Admiralty (6th Ed., 1940), Vol. I, § 83; Robinson, Admiralty Law (1939), p. 303 et seq. Perhaps the clearest expression appeared in Judge Augustus Hand’s opinion in The H. A. Scandrett, 87 F.2d 708:

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. While it is possible to take a narrow view of the precise holding in that case,{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 Osceola 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 Mahnich accepted this reading of The Osceola, and claimed no more than that the injury in Mahnich was not properly attributable to unseaworthiness. See 321 U.S. at 105-113.

In Seas Shipping Co. v. Sieracki, 328 U.S. 85, the Court effectively scotched any doubts that might have lingered after Mahnich 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 policy.

328 U.S. at 94-95. 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 104.

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.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; United Pilots Assn. v. Halecki, 358 U.S. 613.

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, supra. 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. 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.{12}

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.

1. 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.

2. 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 slime.

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 suffered.

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.

3.

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 Circuit.

4. 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 (seenote 1, supra), 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.

5. 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.

6. 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.S. 724; Farrell v. United States, 336 U.S. 511; Warren v. United States, 340 U.S. 523.

7. For a more thorough discussion of the history here sketched, see 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 the illuminating discussion in the opinion of then Circuit Judge Harlan in Dixon v. United States, 219 F.2d 10, 12-15.

8. 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 138.

9. 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.

10. As one commentator has chosen to regard it. See Tetreault, op. cit., supra,note 7, at 394.

11. I.e., as simply overruling the decision in Plamals v. The Pinar Del Rio, 277 U.S. 151, that unseaworthiness cannot include "operating negligence." See Gilmore and Black, op. cit., supra, at 317.

12. 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, 225 F.2d 595.