# Pope & Talbot, Inc. v. Hawn/Concurrence Frankfurter

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United States Supreme Court
346 U.S. 406
Pope & Talbot, Inc. v. Hawn
Argued: Oct. 12, 1953. --- Decided: Dec 7, 1953
Mr. Justice FRANKFURTER, concurring.
We are told that Hawn's 'right of recovery for unseaworthiness and negligence is rooted in federal maritime law.' No case or student of admiralty is cited in support of this statement.
In 1903, this Court in The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, recognized for the first time the right of crew members to recover for the unseaworthy condition of their ship and denied a right of recovery against the shipowner for negligence. Not until 1920, and then by Act of Congress, 46 U.S.C. § 688, 46 U.S.C.A. § 688, were seamen given the alternatives of suing for negligence or unseaworthiness. See Pacific S.S.C.o. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 77, 73 L.Ed. 220. As for longshoremen, they could sue their own employer for negligence in not providing safe conditions of work. And in 1926 this Court extended to them the additional benefits of the Jones Act, by construing 'seaman' to include a longshoreman. International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 17 L.Ed. 157. Congress, preferring a different mode of recovery for longshoremen than for seamen, displaced their right to sue their employer for negligence by a workmen's compensation act applicable solely to longshoremen. 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. Like other business invitees, such as passengers and freight consignees, longshoremen could also sue the shipowner for negligence. Then on April 22, 1946, this Court in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, for the first time extended to longshoremen the right to recover for unseaworthiness from the owner of the ship. The decision was based on the fact that longshoremen were doing seamen's work and that therefore they should be entitled to a seamen's remedy. Until today, this Court has never held that longshoremen have the alternative rights of action for negligence or unseaworthiness which the Jones Act gave to crew members. This summary history hardly shows such deep roots of the alternative rights of recovery that this Court should needlessly decide that such rights exist.
I would affirm the judgment of the Court of Appeals, because the separate finding that the ship was unseaworthy supports recovery. This, of course, assumes Hawn was the kind of worker who we held in Sieracki could recover for unseaworthiness.
The right of seamen to recover for unseaworthiness is peculiarly a cause of 'admiralty and maritime jurisdiction,' 1 Stat. 73, 77. The right is in the nature of liability without fault for which contributory negligence is not a bar to recovery, although it may be relevant in assessing the damages. Seas Shipping Co. v. Sieracki, supra. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, is irrelevant in that unseaworthiness is a federally created right, so state law on a state cause of action is not an issue. We should not commingle federal admiralty and state common-law and should not engraft onto the federally created right to recover for unseaworthiness a common-law defense foreign to that right.
If negligence were the only count in the complaint and the jury found it, or if the jury had found the ship seaworthy but sustained the negligence claim, different considerations would come into play not now before us. The opinion below indicates that the application of Pennsylvania law would have completely barred recovery, since the plaintiff was contributorily negligent. Therefore, to recover solely on the basis of Pope and Talbot's negligence, Hawn would have to rely on a federal maritime cause of action for negligence to which contributory negligence is not a bar. Whether such a cause of action would be available in this case is a difficult question which should not be decided here, since its disposition is unnecessary in view of the separate finding of unseaworthiness.
Both before and after this Court's decision in The Osceola, recognizing the right of crew members to recover for unseaworthiness, longshoremen recovered for negligence-often described as 'negligence of the ship'-as did other business invitees. Compare Leathers v. Blessing, 105 U.S. 626, 26 L.Ed. 1192, with The Max Morris v. Curry, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586. Although these were cases where the elements of unseaworthiness were probably present, courts rarely used that term. The plaintiff's default in such cases did not bar recovery altogether, however, but rather served to reduce the damages to be awarded.
In Sieracki, this Court assimilated longshoremen to seamen and held that they could recover for unseaworthiness. That decision inevitably raises doubts whether longshoremen are still entitled to recover against a shipowner for negligence, except insofar as a state right of action for negligence, to which the state rule on contributory negligence would be applicable, is enforceable. Cf. The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264. For The Osceola, in recognizing crew members' right of action for unseaworthiness, also held that they had no such right against the shipowner for negligence. Did Sieracki, in holding that longshoremen laboring like seamen of old in the 'service of the ship' (328 U.S. 85, 66 S.Ct. 880) were entitled to recover for unseaworthiness, leave them also with the negligence cause of action which The Osceola denied to seamen?
On the one hand, it may be urged that Sieracki broadened the rights of shore workers; it gave them a seaman's status without depriving them of the right of action they had before they attained that status. On the other, it may be urged with equal reason that a longshoreman should not be able to 'play it both ways': be entitled, that is, to a seaman's remedy for unseaworthiness and also enjoy recovery from the shipowner for negligence which, prior to the Jones Act, was denied to a seaman. He would thus have available two non-statutory remedies to recover damages for his injuries, while the crew member, the true 'ward of admiralty,' has only one. And the fact that Congress in the Jones Act has given crew members a statutory cause of action for negligence hardly justifies this Court's according longshoremen alternative remedies, any more than we should now define the crew members' rights as including compensation under the Longshoremen's and Harbor Workers' Compensation Act.
Since unseaworthiness affords longshoremen recovery without fault and has been broadly construed by the courts, e.g., Mahnich v. Southern S.S.C.o., note 2, supra, it will be rare that the circumstances of an injury will constitute negligence but not unseaworthiness. Even if such a case should arise, the longshoreman, were he barred from suing the shipowner for negligence, has available the statutory remedy against his employer which Congress has given him in the Longshoremen's and Harbor Workers' Compensation Act.
But the practical importance of the question is no measure of its difficulty. It raises subtle issues of such judicial lawmaking as is the main source of maritime law. We ought not to embarrass future answers to such a question by premature pronouncements, especially without the benefit of mature submissions by counsel.
Since the Erie problem is not here, it is also irrelevant to decide what remedy a state court could give or decline to give. We should not even imply that if suit had been brought in a state court and the Supreme Court of Pennsylvania had held that its law prevented a contributorily negligent plaintiff from recovering in Pennsylvania courts, we would overrule that judgment and require the state courts to provide a remedy.
Of course, when state courts purport to enforce federally created rights, they must apply the contents of those rights as determined by this Court. Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239. But whether it is federal law that a state court is enforcing or the state fails to afford a remedy in its courts is too complicated a question to be passed upon when not before us. The answer depends much too much on what the state court decides. E.g., Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968.
Mr. Justice JACKSON, with whom Mr. Justice REED and Mr. Justice BURTON join, dissenting.

## Notes

* ↑ No objection was raised at any point in this case to the trial by jury, so the question is not before us whether the plaintiff was entitled to a jury in a suit based on both maritime and common-law causes of action.
* ↑ Although this holding was based in part on the fellow servant rule, it went further. For it stated that while it was doubtful whether the master of the ship was a fellow servant, the crew member could not recover against the owner for the master's negligence. The Osceola's holding that negligence is not available as a cause of action against the shipowner has been reaffirmed by this Court in Mahnich v. Southern S.S.C.o., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, and Chelentis v. Luckenbach S.S.C.o., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1172.
* ↑ The Sieracki case itself was wholly unconcerned with a stevedore's right to recover for negligence of the shipowner and also hold him for unseaworthiness. There is not the remotest intimation in either the majority or the minority opinion that any thought was given to the question whether the stevedore was to have these two rights, although a member of the crew was denied them prior to the Jones Act and the Jones Act does not apply to longshoremen.
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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