# Gutierrez v. Waterman Steamship Corp./Dissent Harlan

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Harlan
United States Supreme Court
373 U.S. 206
Gutierrez v. Waterman Steamship Corp.
Argued: March 21, 1963. --- Decided: May 13, 1963
Mr. Justice HARLAN (dissenting).
The decision in this case has importance in admiralty law beyond what might appear on the surface. It marks another substantial stride toward the development by this Court of a doctrine that a shipowner is an insurer for those who perform any work on or around a ship subject to maritime jurisdiction. While my primary disagreement with the Court goes to its holding on unseaworthiness, I am also unable to agree with its views on the negligence issue.
The shipowner's duty with respect to seaworthiness is a duty to furnish a vessel that is reasonably fit for its intended use one that is staunch and strong, that is fitted out with all proper equipment and in good order, and that carries a sufficient and competent crew and complement of officers. Gilmore and Black, The Law of Admiralty, 158. As developed by this Court in cases involving injury to seamen and dock workers, the duty has become absolute and has been found to reach even transitory conditions arising after the outset of the voyage. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. But, except for the few unpersuasive instances noted in this opinion, the obligation has remained one relating essentially to the ship and its appurtenances. See id., at 550, 80 S.Ct. at 933. Although the doctrine has been extended in my view, quite questionably-to equipment brought on board by a stevedore, see Alaska S.S.C.o. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, the shipowner has not been deemed an insurer of the condition of the cargo. His duty with respect to cargo has been to see that it is stowed in a manner that does not make the ship itself an unsafe place to work. See, e.g., Palazzolo v. Pan-Atlantic S.S.C.orp., 2 Cir., 211 F.2d 277; Curtis v. A. Garcia y Cia., 3 Cir., 241 F.2d 30; Rich v. Ellerman & Bucknall S.S.C.o., 2 Cir., 278 F.2d 704; Carabellese v. Naviera Aznar, S.A., 2 Cir., 285 F.2d 355.
The Court, however, has concluded that it is bound by the determination last Term, in Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798, to hold that defective cargo may in and of itself render the shipowner liable for unseaworthiness. I must admit that some language in that case (369 U.S., at 364, 82 S.Ct., at 786) does appear to stand for this proposition. But I think it fair to suggest that it was negligence, not unseaworthiness, on which attention was focused there-indeed unseaworthiness was neither briefed nor argued. At all events I am frank to say that in concurring in the result in that case, unseaworthiness as a distinct issue entirely eluded me, as it evidently did the dissenters, who interpreted the majority opinion as suggesting that the jury's finding was premised on a negligent failure to inspect the cargo containers. See 369 U.S., at 365, 82 S.Ct. at 786. Moreover, the case cited by the Ellerman Court in support of its unseaworthiness conclusion, Weyerhaeuser S.S.C.o. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491, did not even touch upon such an issue. So casual a determination should not be blindly accepted as fastening on the law of admiralty such a far-reaching innovation. At least it should not preclude us from considering the question anew when it is now fully and squarely presented.
The Court's decision after Ellerman, in Morales v. City of Galveston, 370 U.S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412, is the strongest evidence that Ellerman was not regarded as establishing the fundamental change in the law of unseaworthiness for which it is now cited. In Morales, a longshoreman working in the hold of a ship had been injured by the fumes emanating from grain that had been improperly treated with an excessive amount of a chemical insecticide. The grain in question had been found to be 'contaminated,' although not due to the fault or with the knowledge of the city or the shipowner, and the question before this Court was whether the longshoreman could recover for unseaworthiness. The Court sustained the conclusion of the lower courts that he could not, because under the circumstances the absence of a forced ventilation system in the hold did not constitute unseaworthiness.
'What caused injury in the present case, however, was not the ship, its appurtenances, or its crew, but the isolated and completely unforeseeable introduction of a noxious agent from without. The trier of the facts ruled, under proper criteria, that the Grelmarion (the ship) was not in any manner unfit for the service to which she was to be put, and we cannot say that his determination was wrong.' 370 U.S., at 171, 82 S.Ct., at 1230.
The crucial point for present purposes is that both the majority and the dissenting opinions in Morales viewed the issue in terms of the seaworthiness of the ship: whether or not it should have had a forced ventilation system in the hold. Nowhere was it even suggested that liability for unseaworthiness could arise solely by virtue of the defective state of the cargo itself, even though its contaminated and unsafe condition had clearly been established and was not in dispute. Thus the Court in Morales unanimously ignored the possibility of a doctrine which the Court today concludes was squarely established less than three months earlier, in Ellerman.
In order to conclude that the respondent shipowner was negligent in the circumstances presented here, it was necessary for the trier of fact to find that the respondent knew or should have known of the defective condition of the bags being unloaded. It is doubtful that such a finding was made by the trial judge in this case-the closest he came was the statement that the shipowner was negligent in permitting broken and weakened bags to be discharged 'when it knew or should have known that injury was likely to result.' This finding passes over the basic question: whether respondent had notice, or constructive notice, of the condition of the bags themselves.
Even assuming for present purposes that the necessary finding as to notice was made, I believe that the judgment on negligence cannot be sustained, for there is no evidence whatever to support such a finding. The evidence in the record, including the landing report, relates only to the stevedore company's knowledge of the condition of the bags. There is nothing to suggest that any agent or employee of the respondent was or should have been in the area, or knew or should have known of the condition of the cargo at the time of unloading. And of course there is no basis in law for charging the shipowner with responsibility for any negligence on the part of the stevedore company.
Whether from the standpoint of negligence or unseaworthiness I see no basis for the holding in this case. Presumably the result reached by the Court would be the same-at least consistency demands that it should be the same-if this accident had occurred on the dock while the beans were being loaded rather than unloaded. Yet in neither case is there warrant for holding the shipowner to have breached any obligation, for in neither case does it own or control the place where the accident occurred and in neither case is the ship's equipment, property, or crew in any way responsible, with or without fault, for the injury.
Accordingly, I would affirm.

## Notes

* ↑ A 6-3 unexplicated per curiam.
* ↑ The result in Reddick v. McAllister Lighterage Line, 2 Cir., 258 F.2d 297, the only other Court of Appeals case cited by the majority, is consistent with these decisions, for all three judges in Reddick agreed that the finding of unseaworthiness could be sustained on the basis of improper stowage. Two of the judges said, but only alternatively, that the finding could 'also be predicated on the latent defect in the cargo-crate.' 258 F.2d at 299. (Emphasis added.)
* ↑ I do not attach significance to the fact that in Ellerman the Court was asked in a petition for rehearing to reconsider whether cargo can itself be unseaworthy. Petitioners for rehearing lie within the broad discretion of the Court and are almost never granted. Indeed, this petition for rehearing serves principally to underscore the fact that the point had not been briefed, argued, or apparently even considered by the parties as germane to the case prior to its decision.
* ↑ The Court in Morales cited Ellerman, along with several other cases, only for the proposition that a ship might be unseaworthy because '(t)he method of loading her cargo, or the manner of its stowage, might be improper.' 370 U.S., at 170, 82 S.Ct., at 1230. Such a proposition, of course, is wholly different from the one for which Ellerman is cited today.
* ↑ The coopers sent aboard were employed by the stevedore company, not the steamship company.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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