Warren E. Burger: We will hear arguments next in Scindia Steam Navigation v. Lauro de los Santos. Mr. Staring.
Graydon S. Staring: Mr. Chief Justice, and may it please the Court: This case presents to the Court one of the four principal purposes for which the 1972 amendments to the Longshoremen's Act were made, according to the Senate committee report, and that purpose, as the report stated it, was to provide a special cause of action for damages against third parties. The court below, and the respondent here--
William H. Rehnquist: Well, another purpose was to get rid of a Sieracki-type cause of action, wasn't it?
Graydon S. Staring: --Yes, Your Honor, it was. I was simply quoting from the four stated purposes, stated principal purposes in the Senate report, and I think that probably that purpose of getting rid of Sieracki was subsumed in that statement in this purpose, to provide a new or specified cause of action. I quite agree that that was the intent. Very much a part of it. The court below, and the respondent here in defining that specified cause of action would, we submit, impose upon the vessel a responsibility for longshoremen's injury which is without counterpart in any significant body of law, and let me explain it. First, I'd like to remind the Court of the relations involved. The longshoreman here, as in most such cases, was not an employee of the shipowner, and thus the shipowner was not by virtue of that relationship under those special duties of care which employers traditionally have toward their direct employees. The longshoreman was, instead, as usual, an employee of an expert independent stevedoring company. This Court in Italia, some years ago, noted that such companies are usually in the best position to enforce safety for their employees. This is because the stevedore contractor is in practical control of the area that's been turned over to him, is in control of the operations he's conducting there, and of the men who are doing it. But more than that, the stevedore contractor here as in other cases has imposed upon him by positive law under Section 41 of the Longshoremen's Act and the numerous regulations which are issued by the Department of Labor, a primary and very positive duty of care for the safety of his employees in the work. And before we get farther into this case, let me point to the specific regulation which bears most sharply on this case. There is, or was at the time of this case, as there still is, a regulation issued by the Department of Labor under the Longshoremen's Act, that any defect or malfunction of a winch be reported immediately to the officer in charge of the vessel. But what is much more, the regulation goes on and says that in the case of an electrical winch, when the electromagnetic or other service brake is unable to hold the load, as is alleged in this case, the winch shall not be used. And thus the stevedore contractor was confronted with positive law commanding him to report immediately and not to use the winch if that defect manifested itself. Against that background, then, we ask what was the duty of the vessel owner? The respondent here in his brief says that the essential question is not one of duty but whether his "interests are entitled to be protected against the defendant's conduct. " and to that we ask rhetorically, what conduct? Because there is a great deal of difference in this field between conduct and--
William H. Rehnquist: Isn't even simple negligence traditionally outlined in terms of duty and breach of duty owed to a particular person or group of persons?
Graydon S. Staring: --I think that is... yes, I do think that is very common, and I think that in any ordinary negligence case one must first find the duty based upon some status or relationship which imposes upon the defendant an obligation to look out for another. Now, in some instances, the status or relationship is simply proximity, such as my proximity to another man which puts me in a position to hurt him.
William H. Rehnquist: Driving an automobile.
Graydon S. Staring: Yes.
Thurgood Marshall: That's not maritime law, though.
Graydon S. Staring: I beg pardon?
Thurgood Marshall: That's not exactly maritime law.
Graydon S. Staring: That has not been the traditional maritime law, no, sir.
Potter Stewart: Well, it is true that a duty could exist to every single member of the public. That's just another way of saying it. That's true of maritime law or land-based tort law.
Graydon S. Staring: Well, I think I must agree that such a duty can exist; yes.
Potter Stewart: Regardless of any special relationship, just there's a duty to every member of the public to not injure that person negligently.
Graydon S. Staring: Yes. But negligence, again--
Potter Stewart: Or with fault, to use the admiralty wording.
Graydon S. Staring: --A duty not to conduct ourselves in a way which carelessly or recklessly endangers those about us; yes. I quite agree with that.
Thurgood Marshall: For example, if you stumble on a piece of grease on the stairway going up to your office, you don't recover the same way as you do if you stumble on a piece of grease on the Queen Mary. Is that right.
Graydon S. Staring: I believe that's right, Your Honor.
John Paul Stevens: Mr. Staring, what in your view, what was the duty of the vessel owner with regard to the condition of the winch? Did he have any duty to the longshoreman and if so, what was it?
Graydon S. Staring: If the condition of the winch... in the circumstances of this case, I do not think that the vessel owner had any duty to the longshoreman with respect to the condition of the winch. I would--
John Paul Stevens: No duty whatsoever, even if the winch were defective, he knew it was defective, he knew it was dangerous, he knew that people would be working with it.
Graydon S. Staring: --Ah, now--
John Paul Stevens: And I'm saying, what the duty is, not what the facts show.
Graydon S. Staring: --All right. The vessel owner has no duty, I submit, with respect to the condition of the winch unless he was in a position of superior knowledge or superior means of preventing harm.
Harry A. Blackmun: Not merely knowledge but superior knowledge?
Graydon S. Staring: Superior knowledge. If, therefore, he was as--
John Paul Stevens: Superior to whom?
Graydon S. Staring: --Superior to the stevedore company.
John Paul Stevens: Supposing they have equal knowledge. If they both know it's defective? Is there any duty to do anything about it?
Graydon S. Staring: I think he has none. I think that in that situation I would pose the question whether the shipowner cannot reasonably hire a stevedore who is subject to the legal mandate that I've described and look to the stevedore to see that his longshoremen are not subjected to the danger.
John Paul Stevens: Well, what is the purpose of the Secretary of Labor's requirement that defects in the winch be reported to the vessel owner? Why do they have that requirement, then?
Graydon S. Staring: In order that the vessel owner can then make repairs if repairs should be made.
John Paul Stevens: Then he has the duty to repair, right?
Graydon S. Staring: Well, he doesn't have a duty as such, he has an opportunity. He has an opportunity to repair.
John Paul Stevens: No duty?
Graydon S. Staring: Since the stevedore, if he has obeyed the regulation, has stopped work, it's a question whether the shipowner's duties--
John Paul Stevens: Maybe the stevedore hasn't. Maybe the stevedore says, the winch seems to be acting up a little bit. I don't know much about this particular winch, but it looks fishy to me. And what does the vessel owner have to do then?
Graydon S. Staring: --The vessel owner then has, I would say, an opportunity to repair it and certainly--
John Paul Stevens: No, but I want to ask about duty. Does he have any duty?
Graydon S. Staring: --I beg... Your Honor. I agree. He has a duty. In certain circumstances--
John Paul Stevens: Well, but if you say he has a duty, then you've got Sieracki right back.
Graydon S. Staring: --No, I don't believe so. I believe that he has a duty, then, to look into the condition of the winch and exercise due care with respect to whether it is operating properly before the stevedore goes forward and works with it further. But he does not have an absolute duty as under Sieracki to see if that winch is free of defect.
William H. Rehnquist: What if the shipowner and the employee had equal knowledge? Do you say that... do you concede that the stevedore can recover from the shipowner?
Graydon S. Staring: No. Your Honor, is Your Honor using the term stevedore here to mean the longshoreman?
William H. Rehnquist: The longshoreman.
Graydon S. Staring: If the knowledge is equal, then we do not concede that a recovery can be had from the vessel. Let me--
Byron R. White: Let's suppose, when the job starts, they hire the stevedore and the shipowner says, by the way, this winch is acting up a little, but I think if you're really careful with it, it'll be all right. And the stevedore says, well, I'll watch it. And it does what it did in this case. Now, all the shipowner's done is to point out a piece of defective machinery and the stevedore says, well, we'll go ahead anyway, in effect. He goes ahead and somebody gets hurt.
Graydon S. Staring: --What has happened, Your Honor, in that case, is that the vessel owner has pointed out a report of, let us say, a winch that operates less than perfectly. I don't know whether that's a defect or not, but it doesn't... maybe not be operating perfectly. And the stevedore, who is an expert in this field and in the matter of safety for his employees in this field, is then asked to consider whether it is or is not a safe operating winch. And he may be looked to, we submit, to make that determination. And if he thinks--
Byron R. White: So you... the short answer is that the extent of his duty is to make known any unsafe things that are known to him, the shipowner, that is?
Graydon S. Staring: --Yes, Your Honor.
Byron R. White: And that he has no affirmative duty to repair the winch?
Graydon S. Staring: He has no affirmative duty in that circumstance to repair the winch for the benefit of the stevedore and the longshoreman.
Byron R. White: Or for the benefit of the longshoreman?
Graydon S. Staring: That's right.
William J. Brennan, Jr.: Now, Mr. Staring, where is it in the statute you said supports this interpretation?
Graydon S. Staring: The statute that I point to is not in the amendments, Your Honor, but is Section 41 of the Longshoremen's Act, which has been there somewhat more years than the 1972 amendments.
William J. Brennan, Jr.: This being the duties you read us. I thought you said those were regulations of the Secretary of Labor?
Graydon S. Staring: Your Honor, the statute is the general direction and the authority for the regulations, and then regulations have been issued under that statute, Your Honor.
William J. Brennan, Jr.: And we don't find this in the '72 amendments, we find it in these regulations issued under the older statute?
Graydon S. Staring: That's right, Your Honor. The respondent, here, of course, says no to the question whether the vessel owner may look to the stevedore in the circumstances which we have just been discussing; and we say, seeks to impose on the vessel a novel responsibility, one which if accepted would be peculiar to the maritime law. And so it would be contrary to the legislative history that counsels us that under Section 5 of the Act, as amended, landbased law is to be applied, and we are to reject... and I quote here, "reject any theory of liability, and specifically to reject any nondelegable duty of a shipowner. " I'd like to address for just a moment the meaning of this term, "nondelegable duty" and what might be meant by its absence, once it's rejected. We don't ordinarily delegate duties. We delegate powers and we delegate functions, and what in context this term means is a duty which someone is required to retain after he has delegated by contract the function which is related to it. And I submit that in the context of the maritime industry, and the Longshoremen's Act, what Congress meant here when they rejected the nondelegable duty was to insure that a shipowner hereafter would have the capacity to contract work out free of a retained duty to oversee that work, to protect workmen involved from the consequences of the work. Now, provided, of course, that the shipowner has truly delegated the work, turned over the control of it, which of course means that he must have disclosed what he had superior knowledge of or made available the superior means which he might have had. Because if he has not done that, he has not fully delegated. But surely Congress intended, if nondelegable duty means anything, that the shipowner was in the future to be in the position of contracting work out with those consequences--
Byron R. White: So in my example to you you would say, is that the stevedore, if he didn't like it, he didn't want to work with it, if his judgment was that the winch was unsafe or that he didn't want to take the risk, that he would just not work. He'd say, either fix it or get another stevedore.
Graydon S. Staring: --Oh, he would say, fix it, and he would go on standby and collect his charges for doing nothing until you have. And... or until you've got another stevedore.
Byron R. White: Do you think that's what the restatement standard means? The Court of Appeals apparently rejected the landbased restatement standard, duty of the landowner. And didn't you urge that that should govern or not?
Graydon S. Staring: I do urge--
Byron R. White: Did you in the Court of Appeals urge that?
Graydon S. Staring: --I did not handle the case in the Court of Appeals.
Byron R. White: But was it urged?
Graydon S. Staring: At this... it was urged in the Court of Appeals.
Byron R. White: And do you agree that it's--
Graydon S. Staring: I agree that that would be a good standard to apply. But may I say, Your Honor, that--
Byron R. White: --Well, I'm wondering, because the last part of that standard says, with regard to the landowner, "He should realize that it involves an unreasonable risk of harm and fails to exercise reasonable care to protect the invitees against the danger. " Now, you say all he has to do to protect the invitees against the danger is to tell them about it.
Graydon S. Staring: --Your Honor, if he should, in many instances that's what--
Byron R. White: Well, in this case, for example, all he would have to do is tell them about the--
Graydon S. Staring: --If he had known about it in advance. But in this case, Your Honor--
Byron R. White: --A fortiori, in this case, if he didn't know about it in advance but suppose the stevedore told him that, gee, you've got a defective crane here, and he just shrugged his shoulders. It's the same thing.
Graydon S. Staring: --In this case, Your Honor, the stevedore knows it and is asserted to have known it throughout the record and did not stop work, as he was commanded by law to do, and it would do no good to tell him. We have no record, and the judge below had no record to indicate that the vessel knew this in advance of the stevedore, and it didn't matter, because the stevedore knew it well in advance of the accident.
William J. Brennan, Jr.: Mr. Staring, incidentally, on the issue of superior knowledge, does the shipowner before he turns ships' equipment over to a stevedoring company, have any duty of inspection of the equipment, to find out if there is anything wrong with it?
Graydon S. Staring: None has been established by law, none is shown in the record of this case. There is no general legal duty of inspecting the premises, inspecting the equipments other than what is imposed by Coast Guard and other applicable regulations. But they do not enter the record here.
William J. Brennan, Jr.: Unless he happens to stumble on knowledge of the defect, he has nothing in the way of a duty to say a word to the stevedore about it? Does he?
Graydon S. Staring: That is generally correct. He has no way to do this, but he engages the stevedore as was cited in the Hugev case as an expert in the field who knows that he meets vessels that come in in all kinds of conditions and for all sorts... because of all sorts of stresses, and may encounter many of these things as familiar conditions. I'd like to dilate a little bit more on this distinction between latent and obvious or known defects which you are focusing on. This is very much at the heart of the contention here that the doctrine of assumption of risk is somehow involved. The key to the question is the validity of the distinction between latency and knowledge or obviousness. This Court, years after it had disposed of the question of assumption of risk in the maritime law, has continued to recognize in its jurisprudence the distinction between latency and knowledge and the significance of those facts. In Weyerhaeuser v. Nacirema in 1958, the Court noted the significance of latency as giving rise to a need to warn, and by implication in contrast, to a known, obvious condition. The following year, 1959, in West v. United States, this Court observed the same distinction again. In 1969, this Court decided Federal Marine Terminals v. Burnside, and in that case quoted in full the portions from the Hugev case in the 9th Circuit and the Mickle case, which we have relied on and quoted in our briefs... quoted them, I venture to say, with at least a modicum of approval. And those sections of those quotations were explicit on the distinction between latency and knowledge obviousness. This case quoted them in close conjunction with citation and quotation, and indeed application of its Kermarec case, which has also been urged here by the respondent, and incorrectly, we think, as a reason why our formulation cannot be applied. Let me come back for a moment to a question that Mr. Justice White focused on which concerned the 343 and 343(a). We do not embrace 343 and 343(a), precisely because they have been embraced somewhere and rejected somewhere. When the state court cases which form the body of law from which these rules must be drawn are examined, we find, of course, that some of them deal with real property, some of them deal with other matters. The restatement synthesizes them and formulates their rules, and if we choose to use the restatement, as a number of courts below have done, we still have choices within the restatement. But the result doesn't make much difference, or any at all. Whether you choose from the restatement those sections which have to do with real property and analogize the vessel to real property, or choose sections which relate to chattels, since the vessel is in law and in fact a chattel, the result comes out the same way, because the principle is the same, and it's expressed in both sections, that the vessel is only liable in those case. The occupier, the furnisher of the chattel, the vessel is only liable on the basis of superior knowledge, means, and control.
John Paul Stevens: May I ask, when you say "superior knowledge", superior to whom, to the stevedore or the longshoreman?
Graydon S. Staring: Superior to the stevedore.
John Paul Stevens: Because the restatement talks about the invitee who's injured.
Graydon S. Staring: The difficulty about the restatement formulation is this:
John Paul Stevens: I know you're not relying on the restatement, but it seems to me there's quite a difference, whether you look at it from the point of view of the boss or the employee. Superior to the plaintiff, is that what you mean?
Graydon S. Staring: --I don't just mean superior to the plaintiff. I do mean superior to the stevedore and his crew. Let me say this about--
John Paul Stevens: Crew other than the plaintiff, the man running the winch in this case?
Graydon S. Staring: --All of them, including the plaintiff.
John Paul Stevens: What if the plaintiff himself doesn't have any knowledge whatsoever? Is he somehow... the knowledge of his employer imputed to him?
Graydon S. Staring: The employer... the question of... Mr. Justice Stevens, it seems to us that if you are going to abolish nondelegable duty, it has to be possible to delegate to a contractor as one can under the great body of state land law the responsibility for protecting your employees from dangers of this sort by inspecting, examining, supervising, and stopping them from doing unsafe things.
John Paul Stevens: I'm sure it's possible if they'd enter into an agreement that the stevedore would assume all risk of liability, he could do that.
Graydon S. Staring: But if the shipowner is going to continue then to have a direct duty of care for all these longshore employees exactly as though they were his employees and his seamen, his duty having by this Act been restricted only as it pertains to that person or that corporation called the stevedore, then this change in the law was a very, very hollow change indeed.
John Paul Stevens: There's a difference between proving negligence and proving under... what was the doctrine before? unseaworthiness, there's difference between negligence and unseaworthiness, isn't there?
Graydon S. Staring: There is, Your Honor. I say that the shipowner does not have a duty to oversee to prevent the consequences of known and obvious conditions which are known to or obvious to the employee. But what I'd like to point out is that the restatement speaks only bilaterally. And that's one of the shortcomings of its sections. Even 343, 343(a) are inadequate, as Judge Friendly has pointed out somewhere; they set too liberal a standard, because they don't take into account the existence of an intermediary who is an expert stevedore contractor specially charged with the function of safety by law and by contract. They don't take that into account. And they deal with the individual invitee, the individual person, always, coming on board without anybody else to protect his interests except the furnisher of the chattel, except the furnisher of the premises. And in the case we deal with, we deal with something that the restatement doesn't contemplate at all, which is the special circumstance of the existence of this expert contractor charged by law with a program of safety. I should like to say--
Byron R. White: Could I ask you just... I should know this. In an ordinary negligence action, if there is such a thing, by a longshoreman against a shipowner claiming negligence, is the defense of assumption of risk available to the shipowner?
Graydon S. Staring: --The defense of assumption of risk is not generally available in maritime law to a shipowner or to anyone else.
Byron R. White: Or to anyone else? And the same with respect to contributory negligence. Except to say they divide... it's comparative fault?
Graydon S. Staring: Yes, sir.
William H. Rehnquist: And the statute in '72 said that it wanted to go to landbased principles of negligence rather than maritime law?
Graydon S. Staring: Yes, sir.
Byron R. White: Except for that?
Graydon S. Staring: Except that it wants to preserve the elimination of the bar of assumption of risk, and the bar of contributory negligence.
Byron R. White: And part of the argument here is that the ALI standard really recognizes assumption of risk.
Graydon S. Staring: That's not my argument.
Byron R. White: I'm sure it isn't.
Graydon S. Staring: But the argument is made and we think it is fallacious because... for reasons which we have discussed in my brief. I want to reserve a couple of moments, if I may, and before doing so, may I just draw one brief parallel--
Warren E. Burger: Mr. Staring, you have only about two left.
Graydon S. Staring: --All right. I had better start reserving now, then. Thank you.
Warren E. Burger: Mr. Grutz.
James A. Grutz: Mr. Chief Justice, and may it please the Court: My name is James Grutz. I represent the respondent, Lauro De Los Santos, individual longshoreman, who was injured in the way that is described in the statement of facts in the brief. I would like to start with what I believe the amendments, 1972 amendments, did in this case, or as they apply to this case. First of all, the amendments said that if there was negligence and that negligence of a shipowner injured a longshoreman, that he had a suit for negligence against the shipowner. Secondly, it did away with any indemnity actions by the shipowner against the stevedoring company for the breach of the warranty of workmanlike service. That's the Ryan case. And thirdly, it did away with the doctrine of unseaworthiness. There is no mention in the statute about standards involving landbased duties. There is no mention in the statute about invitees. There is no mention in the statute about independent contractors, and so forth. There is simply the statement that negligence actions are permitted by longshoremen who are injured against shipowners.
William H. Rehnquist: Well, Mr. Grutz, if we apply landbased principles of negligence in this area as set out in the restatement or in some other treatise or some other line of cases, do you lose this case?
James A. Grutz: Landbased, Your Honor, is not a term of art. It can mean probably 150 different things. For instance, within the law of invitees, the premises liability areas of landbased law probably... there are 50 different tests within the United States. There are probably three or four different subtests within each of those tests within the United States. So, I don't know what landbased means, Your Honor.
William H. Rehnquist: So you say, Congress has in effect given us no guidance and we've simply got to choose from among the various courts of appeals, or--
James A. Grutz: No, I think Congress has given us some guides, Your Honor. I think the Congress intended and I think the statute is clear, and unambiguous. The statute does away with unseaworthiness, with the warranty of seaworthiness. It preserves the maritime negligence action which existed prior to the amendments.
Byron R. White: --But it doesn't say what the extent of the duty of the shipowner is, though.
James A. Grutz: It doesn't say what it is but I think that it's--
Byron R. White: That's the argument.
James A. Grutz: --That's correct. It doesn't say what it is, Your Honor, but I think that we can assume that Congress was aware of the negligence cases which existed prior to the amendments, and that they are said then to have adopted what the courts had said about what those duties were.
William J. Brennan, Jr.: Is there anything at all in the legislative history which--
James A. Grutz: Yes, Your Honor, there is. Now, I would take the position that the statute is clear and the legislative history is not necessary. But all the courts that have examined the question have found it helpful to go to the legislative history. The legislative history, I maintain, is perfectly consistent with my position. That is, the legislative history discusses several items. Number one, they wanted a uniform national federal standard, and I would submit that prior to the amendments there was a national, uniform federal standard, and it was the general maritime law--
William J. Brennan, Jr.: --With respect to the duty of the shipowner? Was there a uniform national federal standard?
James A. Grutz: --Yes.
William J. Brennan, Jr.: What was that?
James A. Grutz: I think it was the general maritime law as it applied to negligence actions.
William J. Brennan, Jr.: Well, specifically as to duty?
James A. Grutz: As to duty, it came out of the various cases that were, that wended their way up the court system in those decisions.
Byron R. White: Well, it must have been before--
James A. Grutz: Pardon?
Byron R. White: --Weren't most cases on the seaworthiness basis?
James A. Grutz: I think most cases were on the seaworthiness basis.
Byron R. White: Well, where do you get much law about negligence before '72?
James A. Grutz: Well, you get it--
Byron R. White: It was between the shipowner and the longshoremen.
James A. Grutz: --Most of the time it's connected. Most of the time they overlap. But there are some cases, Your Honor, and--
William H. Rehnquist: From this Court?
James A. Grutz: --Well, I think that Pope & Talbot v. Hawn recognizes a duty that--
William H. Rehnquist: That was just a refusal to overrule Sieracki, wasn't it?
James A. Grutz: --But it also recognized the fact that Sieracki did not do away with the negligence action.
Potter Stewart: No, except most of the cases are seaworthiness cases, because from the plaintiff's point of view, seaworthiness, unseaworthiness is much easier to prove than negligence.
James A. Grutz: Much easier to prove? That's correct.
Potter Stewart: So you could always go with unseaworthiness, if you were a plaintiff's lawyer.
James A. Grutz: That's correct. And so, most of the cases that come up are in that vein; that is correct. But I think that--
William J. Brennan, Jr.: Well, what I was asking, Mr. Grutz, is there anything in the legislative history that addresses itself specifically to the duty of the shipowner to the longshoreman?
James A. Grutz: --Absolutely, Your Honor.
William J. Brennan, Jr.: Well, what does it say?
James A. Grutz: It says that the shipowner owes a duty of due care under the circumstances to maintain a safe place to work and to correct dangerous conditions aboard the vessel.
William H. Rehnquist: Where does one find this in the... is it in that committee report, or?
James A. Grutz: Yes, sir. It's page I-10 of the appendix to my brief. I put the whole committee report as--
William H. Rehnquist: Is it a Joint House-Senate report?
James A. Grutz: --Yes, yes. The language is exactly the same in both.
William H. Rehnquist: But it's not in the statute?
James A. Grutz: It is not in the statute. The language in the Senate report... and it's identical in the House report... is that nothing... "Thus, nothing in this bill is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition. "
William J. Brennan, Jr.: Well, what's the previous sentence mean, Mr. Grutz?
James A. Grutz: And the one before that--
William J. Brennan, Jr.: "Will still be required to exercise the same care as landbased person in providing a safe place to work. "
James A. Grutz: --All right. I think it means that the shipowner has an obligation to exercise reasonable care to make sure that the working place is safe. The landbased language is used... it's in several instances in the legislative history. And I would submit, Your Honor, that the landbased language is not used as a term of art, it is used as a descriptive term which differentiates it from the Sieracki unseaworthiness cases which are being done away with by the amendments to the Act.
William H. Rehnquist: Well, what would be the difference if the shipowner has an obligation to provide a safe place to work and Sieracki is done away with?
James A. Grutz: Well, the difference is, Your Honor, notice. The difference between a seaworthiness case and a negligence case is basically notice. And I think that a full reading of the committee report points out the difference, and I think this Court in cases has recognized the difference. In Gutierrez there's a discussion of the difference between negligence and unseaworthiness. In one case the actor to be negligent must be put on notice or have an opportunity to know, either actual or constructive notice, of the the danger. Otherwise, he cannot be said to have the duty.
William H. Rehnquist: And to whom must the notice run? To the--
James A. Grutz: To the shipowner.
William H. Rehnquist: --Well, on the other side, to the stevedore employer or to the actual longshoreman?
James A. Grutz: Oh, the notice as regards contributory negligence or comparative negligence?
William H. Rehnquist: Well, the notice of the unsafe condition.
James A. Grutz: It is my position that the notice would have to run to the individual longshoreman, because he's the one... for instance, in this case... that the district court said, knew and appreciated this particular risk, and subjected himself to it. So that he barred the district court on a motion for summary judgment barred the plaintiff from any recovery or from ever going to the jury on the basis, simply, of was there an open and obvious danger?
William H. Rehnquist: Well, if the plaintiff knew there was an open and obvious danger, why shouldn't he have been barred?
James A. Grutz: As a matter of law, Your Honor, he cannot be barred because the open and obvious danger becomes assumption of the risk.
William H. Rehnquist: Well, it could just as well be a fellow servant or a failure to submit sufficient proof to the district court.
James A. Grutz: Your Honor, it seems to me that if there is evidence put on that there was negligence, that there was a failure to remedy the winch, which was an integral part of the ship, and the shipowner reserved the right by regulation and by practice to repair that winch, that to simply say that if a longshoreman recognized some danger, an individual longshoreman recognized some danger, that he as a matter of law cannot recover, is simply to say that he then knows and appreciates a risk, accepts the risk, and then we're into the assumption of risk argument, which Congress in the legislative reports has proscribed.
William J. Brennan, Jr.: Well, I must say, Mr. Grutz, that at page I-10: "Nothing in this bill is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition. " seems to be contrary to the argument of your colleague, that all they have to do is, if he knows about something, tell the stevedore about it?
James A. Grutz: Absolutely. And the oil spill example--
Potter Stewart: That language that my brother Brennan has read says nothing of liability to anybody else. It's just his responsibility to do it.
James A. Grutz: --But the responsibility to someone else--
William J. Brennan, Jr.: No, the next paragraph illustrates what it--
James A. Grutz: --It illustrates it perfectly.
William J. Brennan, Jr.: --It talks about a longshoreman who slips on an oil spill on a vessel's deck.
James A. Grutz: And it talks about the notice.
Potter Stewart: That's the difference between unseaworthiness and negligence; yes.
James A. Grutz: So the illustration--
William H. Rehnquist: Why didn't Congress put this in the statute rather than leaving it all to a joint congressional committee report if it was this critical?
James A. Grutz: --I think Congress did not put it in the statute because they assumed that negligence had a meaning, that the significant meaning of negligence... that there had been a negligence action preserved in the Longshoremen and Harbor Workers' Act ever since its inception... and that it had a meaning which they were willing to accept.
William J. Brennan, Jr.: Well, I don't know why you don't rely on what they said on I-11: "Under this standard"... that is, the negligence standard... "as adopted by the committee, there will of course be disputes as to whether the vessel was negligent in a particular case. " "Such issues can only be resolved through the application of accepted principles of tort law and of the ordinary process of litigation, just as they are in cases involving alleged negligence by landbased third parties. "
James A. Grutz: I think that they're saying that to resolve these questions, there are going to be trials, there are going to be cases submitted to factfinders to decide whether there was the failure to operate with ordinary care.
Byron R. White: Well, it sounds like the Committee at least thought that under ordinary landbased law, the injured longshoreman would recover on this oil spill matter.
James A. Grutz: Absolutely.
Byron R. White: They may have been wrong about what they thought landbased law was.
James A. Grutz: That's right. I think--
Byron R. White: Or thought it was.
James A. Grutz: --That's correct. There's no doubt that they are indicating their belief that Sieracki... they take two oil spill examples and juxtapose them, the first one, they say there is no notice but under Sieracki the longshoreman could recover. The second one, they describe, as Mr. Justice Brennan has read here, and what is retained, then, is the negligence action. And so they believe... yes... that he can recover. And earlier in the discussions they advocate that this is good, this is something that they want to preserve, because it encourages safety considerations. So that Mr. Staring's approach would be that if the danger is open and obvious enough, that a longshoreman walking up the gangplank could or should have seen grease on the deck or you-name-it, the winch is rusty, there is a hole in the deck, and so on and so forth, or there's a sign saying, here are all the deficiencies of this vessel, that at that point they're immunized. Now, that is not consistent with what the legislative history says over and over again, that nothing in this bill is to derogate from their duty to exercise reasonable care to furnish a safe place for this person to work.
Warren E. Burger: Is this a new form of legislative technique, to draft a skeleton statute and then give us a legal opinion as to what it means?
James A. Grutz: I'm not sure, Your Honor. It may very well be.
Warren E. Burger: You've got two or three pages that reads like a legal opinion or a judicial opinion--
James A. Grutz: That's correct.
Warren E. Burger: --Telling us what... now, who's telling us that? Congress telling us that?
James A. Grutz: I think it's an advisor to Congress, a law clerk, perhaps, or a... I don't know.
Speaker: You mean a legislative clerk?
James A. Grutz: Legislative clerk of some sort who is... The problem, though, is that they have misunderstood, I think, the impact of landbased. Landbased in and of itself doesn't convey anything. There can be so many meanings for the term that all it does is confuse, and it's only--
John Paul Stevens: Mr. Grutz, can I ask you about the meaning as applied to this particular case?
James A. Grutz: --Yes, sir?
John Paul Stevens: Do you agree that there has to be evidence beyond evidence that the winch was defective? In other words, doesn't there have to be some evidence of notice to the shipowner?
James A. Grutz: I think there has to be evidence of either actual or constructive notice of some sort; yes, Your Honor.
John Paul Stevens: So that you would not contend that you are entitled to go to the jury merely by proving a defect in the the winch?
James A. Grutz: Absolutely not. I have to come within the guidelines of the second oil spill example where--
Speaker: Reasonable notice.
James A. Grutz: --reasonable notice.
John Paul Stevens: And what in this record is there to indicate that the vessel owner had any notice of the defective winch?
James A. Grutz: Well, there's this, that the winch had been malfunctioning for about 2-1/2 days prior to this accident.
John Paul Stevens: Yes, but the stevedore was running it for more than 2-1/2 days.
James A. Grutz: The stevedore was running it... by the evidence, Your Honor, this was the third report.
John Paul Stevens: Is this true, the stevedore had been on the job more than 2-1/2 days?
James A. Grutz: I don't think that's in the record as such. I think that my understanding of the record is that the stevedore's use of the winch was contemporaneous with testimony about the malfunctioning of the winch. Does that answer your question?
John Paul Stevens: No, I'm still puzzled. Do you have to prove knowledge on the part of the shipowner before the stevedore went on the job?
James A. Grutz: No. And the reason I say that--
John Paul Stevens: Well, then, how does the 2-1/2 day testimony tend to prove that the vessel owner knew anything?
James A. Grutz: --It's... it was there that the--
John Paul Stevens: Well, the test is whether he had reason to know, isn't it?
James A. Grutz: --Whether he should have known.
William J. Brennan, Jr.: If the condition existed for 2-1/2 days wouldn't that create a jury question? Whether or not he has reason to know?
James A. Grutz: Whether he should have known under the circumstances that the--
William J. Brennan, Jr.: It's the ordinary negligence standard, isn't it?
James A. Grutz: --That's the lettuce leaf on the floor in the grocery store.
William J. Brennan, Jr.: If you slip on something in the department store, that's all you have to prove, that it was there long enough that he should have known about it.
James A. Grutz: Absolutely. It was there long enough... so that in terms of reasonable care, the owner of the establishment could have discovered the situation.
William H. Rehnquist: Well, then that's certainly a rejection of the landowner-invitee landbased test.
James A. Grutz: There's no question in my mind, Your Honor, that the landowner-invitee test is absolutely inconsistent and incompatible with the amendments to the statute. There's absolutely no question about it.
William H. Rehnquist: But several circuits have adopted it.
James A. Grutz: That's correct, and I think they're wrong. And I think they've recognized their errors. If you read Gay and Napoli, the thrust of those opinions talks about adopting 343 and 343(a) but there is a lot of cautioning going on within the course of their discussions, so that they know they're treading on very thin ice, and the problem is, is that you get into situations in which you take from the jury, that the questions by simply focusing on, was it open and apparent? And so that, if the inquiry begins and ends with, was it open and apparent, you foreclose the longshoreman from ever looking at the negligence of the shipowner.
William H. Rehnquist: Well, that's just the way the cookie crumbles under the statute, maybe.
James A. Grutz: The statute does not talk about invitees, landbased law, independent contractor, et cetera. It talks about maintaining the negligence action. The legislative history talks about retaining the negligence action. And the retention of the negligence standard, I would submit, means that if the shipowner has failed to exercise reasonable care to fix something... in other words, there is a duty to do something about it, it isn't simply to warn, it isn't simply to say, you should have seen it, therefore it's your problem.
Byron R. White: You seem to think that that would be enough under landbased law to warn him.
James A. Grutz: Well, under the 343--
Byron R. White: You say, the regular landbased rule is inconsistent with your submission.
James A. Grutz: --343 and 343(a) is; no question about that, Your Honor. I don't know about other landbased law, but the ones that have been suggested here are definitely inconsistent--
Byron R. White: With your submission and with--
James A. Grutz: --And with the statute.
Byron R. White: --Even though this committee report keeps referring to landbased standards.
James A. Grutz: It's been suggested in some of these cases that the use of that term is not a term of art. It is simply a descriptive term which differentiates the former seaworthiness warranty versus negligence. And I think that's... if you read the two oil spill examples, it becomes clear, that what we're talking about--
William J. Brennan, Jr.: They might have been oil spill examples in department stores.
James A. Grutz: --They could have been, absolutely.
William J. Brennan, Jr.: And, in that sense, the landbased rule and this rule would be the same.
James A. Grutz: I am reluctant to say, yes, because I don't know what the landbased rule means, Your Honor. I think that--
William J. Brennan, Jr.: Well, as a state court judge for a lot of years, I had a number of them.
James A. Grutz: --I think that the state courts are all tending toward the duty of a person, of a landowner, to exercise reasonable care under the circumstances, which is exactly the standard of care which the 9th Circuit adopted in this case. So that the tendency is that direction, Your Honor, even though there are remnants of the old, of the feudal idea that the landowner is king on his premises and nobody shall tread there, and he's in a special status.
William H. Rehnquist: Well, if there is any landbased element or component to this new standard laid down in 1972 or preserved in 1972, as you say, would you say it changes as state law changes, or is it fixed as of 1972?
James A. Grutz: I think if the Court adopts 343 and 343(a), it's dependent on state law, the law of--
William H. Rehnquist: What if it doesn't?
James A. Grutz: --Pardon?
William H. Rehnquist: What if the Court--
James A. Grutz: If it doesn't, I think the 9th Circuit test and the Kermarec test are statements of a test which are uniform and federal, and would--
Byron R. White: --Don't all the courts of appeals agree that the statute intended a uniform test?
James A. Grutz: --Absolutely. They want a uniform test. The problem is that you... if you incorporate, generally speaking, the 343 and 343(a) test, we don't know the various ways in which it's been interpreted by all the different jurisdictions.
William H. Rehnquist: But that's true of any number of possible negligence tests. They may differ now or they may change in the future.
James A. Grutz: That may be true, Your Honor, but I think what we've got with the 9th Circuit opinion is a negligence test that everyone can understand. It's easy of application, it's simple, it's practical, and it's correct in the sense that there preserves the negligence action. It does not bring into the picture the Sieracki doctrine again. It has to be notice, either constructive or actual, in order for a longshoreman to recover. And so that, I would submit, that the decision and the test which is stated by the 9th Circuit Court of Appeals is the correct one.
William J. Brennan, Jr.: Well, I suppose, in federal employer liability cases, in Jones Act cases, we have a single federal standard of negligence, don't we?
James A. Grutz: Yes, sir.
William J. Brennan, Jr.: And that hasn't been affected by any state law changes in the negligence standards, if there have been any.
James A. Grutz: That's correct, but I would assume it's because--
William J. Brennan, Jr.: Well, I gather your argument would be, if we can have it under those two statutes, surely we can have a uniform federal standard here.
James A. Grutz: --Absolutely. There's no question about it, but one way of doing it is not to incorporate by reference feudalism.
Harry A. Blackmun: Did you yourself advance the theory that the 9th Circuit adopted.
James A. Grutz: Absolutely. At the 9th Circuit it was asked, well what about all of these opinions? Because most of the opinions were the other direction at that time, and I stated that I believed that they were in left field and that they simply were wrong. You cannot reconcile 343 and 343(a) in its use of assumption of risk and contributory negligence with what Congress was saying here. Congress said very clearly in the reports that assumption of the risk has no place in these cases and that contributory negligence has no place in these cases, and yet the district court in this case as a matter of law said that once Mr. Santos saw some danger, he was forever foreclosed from going any further.
Harry A. Blackmun: Under this standard is summary judgment really ever possible?
James A. Grutz: Under the standard of the 9th Circuit? Oh, yes, certainly there is, if there is... in other words, if a motion for summary judgment is brought as a respondent I would have the obligation of putting on some evidence that there was some notice to the shipowner of a defect.
Lewis F. Powell, Jr.: Mr. Grutz, it's agreed in this case, as I understand it, that the stevedore had control of the workplace. Is that correct?
James A. Grutz: No. It isn't, Your Honor. The Joint Appendix in, I think it's paragraph 7, page 11, the pretrial states that the... I think it says control of the workplace.
Lewis F. Powell, Jr.: It says, "and particularly the foreman, hatchtender and winchdriver. " --oh, the stevedore "through its employees, and particularly. " those employees, "was in control of the loading at the No. 3 hatch on the evening of plaintiff's accident. "
James A. Grutz: Right. That's correct. They were in control of the loading, but they were not in control of the winch. They were in control, but they were allowed... pardon?
Lewis F. Powell, Jr.: Is it clear that they were not in control of the winch?
James A. Grutz: Yes. I think the regulation that I have cited in my brief indicates that in the case of a malfunctioning electrical winch, the stevedore company has absolutely no right to touch or try to repair that winch. So the only person or entity that has the power to remedy what we advocate is going wrong on the ship at the time of this injury is the shipowner.
Lewis F. Powell, Jr.: As to whatever the stevedore had control, the analogy of a storeowner would be incomplete, would it not?
James A. Grutz: The analogy of what, Your Honor? I'm sorry.
Lewis F. Powell, Jr.: You discussed at one point a little earlier in the argument the possible analogy of a landbased store owner for, say, a grease spot on the floor, but in this case, to the extent that the stevedore company controlled the workplace, that would be different from a store, where the storeowner himself controlled the workplace.
James A. Grutz: That's correct. But, again, I think what you get down to is, what does the workplace mean? What is the... I'm sorry... what does control mean? Control over the workplace is different than control over the winch. In other words, the ability to repair the difficulty was within... the shipowner.
William H. Rehnquist: The finding here was that the stevedore had control of the loading at the No. 3 hatch on the evening of plaintiff's injury.
James A. Grutz: Control of the loading, yes, sir. But not control of the winch, not control of the ability to remedy the problem with the winch.
Byron R. White: Why shouldn't he have quit work?
James A. Grutz: Why shouldn't he? He probably should have, Your Honor.
Thurgood Marshall: And he gets part time while he's waiting, doesn't he, while he's waiting for the winch to be repaired, isn't he paid part time or something? Standby, isn't it the rule?
James A. Grutz: That's not in the record, Your Honor. I don't know the answer to that, to be honest with you.
Byron R. White: Well, but you just gave me the answer that he should have quit work.
James A. Grutz: I said, perhaps he should have quit work.
Byron R. White: And if he'd have quit work, the longshoreman wouldn't have been working. If the stevedore had said, we've got a bad winch here, I've got to tell the shipowner and wait till he fixes it, because I have no right to fix it.
James A. Grutz: That's correct.
Byron R. White: So, what's... shouldn't it also be open to question as to whether the stevedore has the duty, as soon as reasonably possible, to notify a shipowner about a defective winch? Why should it be left to, "should have known"? Couldn't the stevedore have told him, as soon as he knew the winch was defective? He knew it for 2-1/2 days.
James A. Grutz: I think there is inference from the evidence that he did tell him, but it's an inference, I suppose.
William J. Brennan, Jr.: Why visit that responsibility on the injured longshoreman?
James A. Grutz: Absolutely. I don't think the injured longshoreman... in fact, there's evidence in this case the injured longshoreman didn't even know or appreciate what it was that the specific--
William H. Rehnquist: Well, the longshoreman wants the money.
James A. Grutz: --He was trying to do his job, he was working. He was... he had a sense of duty to clean up a mess and that's what he was doing.
Byron R. White: Well, what if there was something that... what if this had gone on for a week? You'll just say, well, there's all the more reason for the shipowner knowing it?
James A. Grutz: I think there's... yes, sir. I think there's all the more reason for the--
Byron R. White: You don't think there's ever... it never should make a difference if the stevedore didn't give notice to the shipowner about the defect?
James A. Grutz: --Not in terms of the tort action, the negligence tort action between the shipowner and the stevedore individual.
Speaker: You mean the longshoreman?
James A. Grutz: Injured longshoreman.
Byron R. White: Even though the longshoreman is covered by the Work-Pay Compensation Act?
James A. Grutz: That's correct. And I think that the statute, the discussion in the legislative reports, support that, Your Honor.
John Paul Stevens: I'm still puzzled. I hate to reveal my ignorance about this question of notice to the vessel owner. And, as Justice Powell pointed out, it's not like a store where you're in a public area. Does the record tell us... and, again, maybe I should know this... whether personnel, rather, employees of the vessel owner were regularly aboard the ship during the loading operation?
James A. Grutz: Yes. There is some evidence in the record--
John Paul Stevens: And the various people who testified, as I understand it, are all longshoremen?
James A. Grutz: --That's correct. The only persons who testified are longshoremen. And they testified that the representatives of the shipowner were back and forth in the area.
John Paul Stevens: I see, were back and forth, on and off?
James A. Grutz: In the area.
John Paul Stevens: In places where they would have seen the winch, is that the theory that?
James A. Grutz: Yes.
John Paul Stevens: It isn't as though it was a fully manned vessel with a lot of people representing the vessel, is it?
James A. Grutz: The evidence, again, is... this was summary judgment, Your Honor, so there isn't very much evidence. But the evidence is that the representatives of the shipowner were back and forth in the area where this was going on.
John Paul Stevens: But... I see.
James A. Grutz: And there's also evidence that on the first day the winch driver reported to his supervisor that the winch was jumpy, it was not holding, the brakes were not holding, and at that time he was told that the day shift was having trouble with it too, but that they could not do anything with it. And I think there's an inference that the "they" that they're talking about was the shipowner. Because "they" were the only ones who had the ability. Thank you.
Warren E. Burger: Very well, Mr. Staring.
Graydon S. Staring: May it please the Court: There was discussion here as to whether the passage of time should be taken as charging the vessel, passage of time alone should be taken as charging the vessel with notice of a defect. That was exactly the problem in the Albanese case which we cited in our brief, where the trial court charged the jury that if it determined the condition had existed long enough, to charge the shipowner with notice of it; they could hold the shipowner. The Court of Appeals for the 2nd Circuit said, that was erroneous. This Court said, we believe the judgment of the Court of Appeals was erroneous, and therefore set it aside, citing as the single case of Gutierrez v. Waterman Steamship, which was aptly cited for the purpose. This was one of the cases which was cited as in the legislative history as one which... it was not supposed to happen again, in principle at least. Now, the Gutierrez case, which had been cited here as authority for the Albanese case, was a case which itself explicitly rested upon nondelegable duty. Well, this Court said, as a basis for its decision, the shipowner had an absolute and nondelegable duty of care toward petitioner and not to create this risk for him. And you were dealing with negligence at that time. There are, however, other negligence cases, not so many for the reason that Mr. Justice Stewart and others pointed out, but there are other negligence cases before 1972, which we have cited in the brief and which we submit are harmonious with the formulation of duty which the restatement would lay down and which we have adopted here.
John Paul Stevens: May I just interrupt you right there? As I understood your opening argument, you did not buy 100 percent the restatement's formulation of the standard of duty.
Graydon S. Staring: No. I said, we don't have to buy it.
John Paul Stevens: You don't have to? Well, is there anything in the written materials that tells us precisely what your position is?
Graydon S. Staring: Yes, indeed, Your Honor. We have stated--
John Paul Stevens: Because I sort of had the view you were adopting the restatement position.
Graydon S. Staring: --No. We have stated it separately, and not in restatement terms, and we feel it can be reconciled or can be supported by the restatement, by any of a number of other sources. The oil spill was discussed and I'd like to point out that as we read the oil spill illustration, it illustrates the difference between unseaworthiness before and negligence after. And where it refers to notice, what it means is that in negligence notice is necessary, but it doesn't mean that notice is always sufficient. There are instances, of course, in which the vessel owner would be held for the oil spill, and instances in which he wouldn't. It depends on whether the spill is obvious or not, whether it's in an area that's under the control of the stevedore, whether it was created by the vessel's personnel, when it was created, and so on. If it's an oil spill in an area over which the vessel has retained essential control but which longshoremen have to pass through, that presents an entirely different situation and one which arises in the course of work. So, there's no pat result so far as oil spills are concerned. Finally, it was suggested... it's been suggested that there was a big difference here, whether... as to what rule you might apply to the stevedore and to the longshoreman himself. And I'd like to suggest that, as was explicitly said by this Court in Federal Marine Terminals v. Burnside, if Kermarec does mean anything in these circumstances in abolishing the distinction between licensees and invitees and other irrational distinctions, it means as was pointed out in Federal Marine Terminals v. Burnside that the same rule of duty, the same duty of care applies to the stevedore contractor and to his employees and that that distinction should not be made. That was quite explicit there. The fortuity, finally, of presence of someone on the vessel should not determine the duty. There is no duty to be there and inspect, as this Court recognized in West, and therefore no special duty because one happens to be there. Thank you, Your Honors.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Earl Warren: Number 39, James P. Mitchell, Secretary of Labor, versus King Packing Company. Mr. Johnston, you may proceed.
Willard S. Johnston: Thank you, Your Honor. May it please the Court. Yesterday, we we're discussing the question whether or not, the decision of this Court, one way or the other, might resolve and one or more of the Senators, having been mislead as a result of what occurred on the Senate when the Portal Act was passed. I think that if the decision of the United States Court of Appeals for the Ninth Circuit is affirmed, no Senator can fairly be said to have been mislead. I will explain the basis for that. I base it in part upon the statement in the Senate Report, which is so heavily relied upon by counsel for the Government in which we have quoted at page 18 of our brief in which, the report, upon which the Senate acted specifically said that the purpose of the Act was to make noncompensable activities and I quote, “Such as the preliminary activities which were involved in the Mt. Clemens case.” It seems to me that that's most significant. The very kind of activities with which this Court is concerned in this case were involved in the Mt. Clemens case, tool sharpening occurring preliminary to the regular work and in its formal document upon which it acted. The Senate specifically said that it intended by this Act to make those activities non-compensable. And I think that that is far more persuasive if we are to go into the legislative history than casual remarks made by any of the senators on --
Hugo L. Black: You can include the word “such as” to be the same as though that you said “all.”
Willard S. Johnston: Yes, it's a -- it -- that appears to me to be the case. It's -- the activities are to be made non-compensable, which are either alike or similar. It's even broader, I would say, Mr. Justice Black, than the same as. It certainly includes those activities and any others that are like that. And I think this shows that the line is certainly not to be drawn at some point, farther than the line that was drawn in the Mt. Clemens case, which is what the Government is really contending in this case.
Earl Warren: Well, Mr. Johnston, what do you do with the language of the report as quoted starting at the bottom of page 13 and following over on 14 in the -- in the Government's brief?
Willard S. Johnston: Yes. There, at the bottom of page 13, the Senate Report emphasizes that the term “principal activity” includes activities, which are an integral part of the principal activity. Now, we agree with that, take no issue with that. The Ninth Circuit took no issue with that. But what the Government is doing and what I think Senator Cooper did was to, in -- in the debates but it's not in the report, I believe, use the word "indispensable” as synonymous with the word "integral.” They mean -- they're two different things. Certainly, they're overlapping, but they don't mean the same thing. Something that's integral is -- is a part of the principal activity, something that's integral to the principal activity. But many things may be indispensable to the principal activity and yet not be a part of it, not be integral to it. For example, it was indispensable that I come from San Francisco to Washington and make this argument, but that trip, that travel, was no part of this argument. There's a clear, obvious distinction between integral and indispensable not going on.
Earl Warren: But the -- but the statement of that just a moment, the -- the brief of the Government says the Senate Report accompanying the Portal-to-Portal Act declared that, “the term principal activities, activity or activities includes all activities which are integral part thereof.” And then, it says, “The Report then provides two specific examples of what is intended. One, in connection with the operation of a lathe, an employee will frequently, at the commencement of his workday, oil, grease or clean his machine or install a new cutting tool. Such activities are an integral part of the principal activity.” Now, how do you distinguish installing a new cutting tool from sharpening their knives with that --
Willard S. Johnston: Yes.
Earl Warren: -- has the same purpose?
Willard S. Johnston: Yes, I -- I think there is a very clear distinction.
Earl Warren: Well, that's what I -- that's what I wanted to get.
Willard S. Johnston: Fine, I was coming to that. I thought I'd better deal with the other point --
Earl Warren: Yes.
Willard S. Johnston: -- first.
Earl Warren: Yes.
Willard S. Johnston: The -- they're speaking here, as I understand it, of a machine tender, an -- an operator of a big piece of machinery, a lathe. This isn't a little knife and this man's principal activity, this lathe operator is to operate this lathe machine. That's his job, and whenever he does it, he's engaged in that activity. And whether he -- he does it on shift or off shift, he's operating that machine. That's his principal activity. It's just as if, in our case, the butchers came to work early and did butchering, that would certainly be compensable as part of their principal activity. But you can't say that -- that the knifemen in our case are -- are employed to 10 knives in the sense that the lathe operator was employed to attend the machine. It seems to me that they're just two wholly different things and that they are to be treated as wholly different things as made clear by the fact that the Senate Report itself draws the distinction that I've just mentioned between this example and the other example of the sharpening of tools that were involved in the Mt. Clemens case.
Hugo L. Black: Suppose the knife got dull in the middle of the afternoon.
Willard S. Johnston: Excuse me, what was that?
Hugo L. Black: Suppose the knife got dull in the middle of the afternoon.
Willard S. Johnston: Well, if the knife --
Hugo L. Black: They spent precisely the same amount of time in sharpening it that they did before him after. What would you say?
Willard S. Johnston: It's -- it's no more his principal activity than other incidental things that he might have to do in the middle of the afternoon. It was such as going to the restroom or whatever it might be would be his principal activity.
Hugo L. Black: You would say -- you would say that even though it was absolutely essential that in the middle of the afternoon or in the middle of his work, if that knife to be sharper, he couldn't keep his work out. That if he sharpened it for 10 to 15 minutes, then that wouldn't be work time compensable to --
Willard S. Johnston: Oh, oh, oh no, it would be compensable. Surely, it would be compensable under the -- the literal language of the statute.
Hugo L. Black: You would say that that would be?
Willard S. Johnston: Yes, if it happened at that time during shift and he is compensated for that too in this case and he is required to be compensated under the statute because the statute says, I am looking at page 36 of the Government's brief for the statute said forth, that they are excluded from compensability activities, which are preliminary to the principal activity which the employee is employed to perform. Now, this activity isn't preliminary when it occurs during the shift.
Hugo L. Black: Suppose he comes in 15 to 20 minutes earlier and finds out what the knife is dull, and he, instead of doing it before he starts down into the work, he waits until it gets at his place then he spends 15 minutes sharpening it, would he be -- would that be compensable?
Willard S. Johnston: If the employer employs in the command and the whistle blows, he goes to work and the employer, in effect, says, “Now, sharpen your knife.”
Hugo L. Black: So he didn't say, “Now, sharpen your knife.” The man knows it needs sharpening but he waits until the whistle blows.
Willard S. Johnston: Well, then, there must be some understanding either expressed or implied. If -- if --
Hugo L. Black: But your argument -- your argument is in fact is that from whistle to whistle.
Willard S. Johnston: No.
Hugo L. Black: That's compensable, for sharpening your knife.
Felix Frankfurter: That's why --
Willard S. Johnston: Yes. Yes, other activities would be compensable even outside of that time. Now, if the knife -- the sharpening could be a principal activity. It depends upon the terms of employment, Mr. Justice Black. I could be hired to sharpen knives and that will be my principal activity, and it doesn't matter whether I do it during the eight hours or whether the employer tells me on some day to come in early and do it.
Hugo L. Black: Yes, but the question I was asking you was not that you are hired merely to be a knife sharper. You are hired to cut meat and the knife had to be sharp and it was -- and you have to do the sharpening.
Willard S. Johnston: Yes.
Hugo L. Black: You would say that if he does that sharpening during the time from whistle to whistle, he can be paid for it, but if he does it in advance of the whistle or after the whistle, he cannot.
Willard S. Johnston: The statute is clear on that.
Felix Frankfurter: Well, the -- the short answer is that it -- that includes preliminary or post preliminary.
Willard S. Johnston: Certainly.
Felix Frankfurter: Those are times -- those are time excluded. And if for any reason, he chooses to wait and sharpen your knife until he gets going, whatever other consequence, whatever problems that may raise, does not affect outside the statute.
Willard S. Johnston: Certainly. He might get fired, but -- but it has nothing to do with the statute.
Felix Frankfurter: Those are times that were (Inaudible)
Willard S. Johnston: I -- I can't quite agree. I think they are time characterizations but there is something more. We consider if the employee came in early and -- and butchered. Now, the mere fact that he -- he was doing it early wouldn't mean that it was a preliminary activity.
Felix Frankfurter: Well, because that's the principal activity.
Willard S. Johnston: Exactly, exactly. I think a preliminary has this thought too, not only time, but it's preparatory to doing the main job. It's -- it's time, it's preliminary in time and it's preliminary in the sense that it has a relationship to the main job.
Felix Frankfurter: Mr. Johnston, I would like you to explain as why the report deemed to be appropriate to -- to define to have that include, all activities, which are in integral part thereof. Presumably, that was put in because the term itself principal activity wouldn't define its scope. Now, what do they mean to exclude or include by putting into that defining clause? Why should they probably say include all activity which are an integral part thereof?
Willard S. Johnston: Well, I -- I think that in a -- in use of the language, particularly in a Senate Report, we may say a thing in two or three different ways, and I don't think they were saying that it was something other than the principal activity. But what they were drawing attention to, I think, Mr. Justice Frankfurter, was the kind of thing in the illustration that we were just discussing where the machine tender comes in and installs a new cutting tool or does some oiling or that kind of thing.
Felix Frankfurter: So, you --
Willard S. Johnston: That was an integral part of his principal activity of operating that machine.
Felix Frankfurter: That is (Inaudible) the proper to answer. You say it isn't to guard against able lawyers to say that the time they take to grease the lathe is not to be taken into account because his job is to move the lathe, move or whenever it is. I think it's about the --
Willard S. Johnston: Presumably, it's to handle the lathe completely.
Felix Frankfurter: Handle the lathe and greasing is not the activity, and therefore, it's out of an abundance of quashing or put in to take care of those which were related to what he has been doing.
Willard S. Johnston: I think this is part of the whole thing.
Hugo L. Black: How do you draw the distinction between greasing his lathe and sharpening his knife when he can't --
Willard S. Johnston: Well --
Hugo L. Black: -- when he can't do his work without that either.
Willard S. Johnston: I think that it's a practical distinction. Congress had to draw the line at some place and the difference is, as I see it that in the lathe situation, the man is employed to operate a machine. In our case, he is an operator.
Hugo L. Black: He is employed to operate the knife.
Willard S. Johnston: He isn't employed too.
Hugo L. Black: And he employed the operator knife?
Willard S. Johnston: No. The -- the operation machine is the whole thing.
Hugo L. Black: So, what -- what did he do with the knife?
Willard S. Johnston: This is a big machine as contrasted to the little knife which he handles and -- and he is employed to kill and butcher cattle. That's what he is employed.
Hugo L. Black: Well, would he do that for the knife? Would he do that for the knife?
Willard S. Johnston: Sure, he does it with a knife. He does it with the refrigeration equipment. He does it with the shroud that they put over them. He does it with a lot of things, surely. But it seems to me that here is a practical distinction that you have to recognize that Congress was drawing when it used in the same Senate Report, both as illustration of the lathe and the illustration of the tool sharpening, the one being compensable and the other being non-compensable. Now, I don't think I have completed the answer to the Chief Justice's inquiry. We come to the next case. The next illustration --
Hugo L. Black: What is --
Willard S. Johnston: -- on page --
Hugo L. Black: What is -- what is the part of the report you referred to lathe, where they said tool sharpening was not enough?
Willard S. Johnston: Yes.
Hugo L. Black: Well, what -- what part is that?
Willard S. Johnston: That's in the report that's quoted in our brief at page 18.
Hugo L. Black: Page 18?
Willard S. Johnston: Yes.
Hugo L. Black: What does it say there?
Willard S. Johnston: It -- it specifically excludes from compensability activities, and I quote, “such as the preliminary activities which were involved in the Mt. Clemens case.”
Hugo L. Black: But what is it -- where did it specifically exclude tool sharpening?
Willard S. Johnston: Well, that is in the Mt. Clemens case.
Hugo L. Black: But you say it's because they had some tool sharpening there and they said, “This is such as that that's the same as though they had said tool sharpening is out.”
Willard S. Johnston: Well, I assume that they were -- when they knew it, they were talking about when they referred to the Mt. Clemens case. The Mt. Clemens case dealt with certain things, and -- and these things that were involved in the Mt. Clemens case as Senate said are excluded from the Portal Act.
Felix Frankfurter: Excluded, not explicitly, not merely that you have to go to the record and make it out.
Willard S. Johnston: Oh, that's right in the opinion.
Hugo L. Black: Right in what?
Willard S. Johnston: Right in this Court's opinion, the tool sharpening.
Hugo L. Black: Yes, but I'm talking about the report. I understood you to say it was clearly in your report.
Willard S. Johnston: Well, the report incorporates this Court's opinion. The report says --
Hugo L. Black: Why did it incorporate this Court's opinion?
Willard S. Johnston: Well, it says, “There shall be not compensable activity such as the preliminary activities which were involved in the Mt. Clemens case.” In the Mt. Clemens case, one of the principal activities was sharpening tools right at page 693. And on the previous page, this Court made clear that it was only talking about necessary indispensable sharpening of tools and other preliminary activities.
Felix Frankfurter: Are you attributing to the right of the report the fact that he read the opinion of this Court to Mt. Clemens, are you doing that?
Willard S. Johnston: Yes, I am.
Felix Frankfurter: Is that your argument?
Willard S. Johnston: I -- I think that's a fair assumption.
Hugo L. Black: Well, do you suppose Senator Barkley had read it and when he was asking and you suppose Senator Cooper had read it when he told him that it didn't do sharpening?
Willard S. Johnston: Senator Cooper or Senator Barkley specifically stated in the portion quoted that he had read the report, yes he did.
Hugo L. Black: He read the opinion?
Willard S. Johnston: That he read the report. Now, whether he read the opinion, I'm sure I don't know and I don't know whether Cooper had -- excuse me, Senator Cooper had read the opinion. However, I do think this. I have reviewed overnight Senator Cooper's language and what he said and I do think that fundamentally, Senator Cooper was not very far from where we are in this case and couldn't well disagree with the Ninth Circuit. Now, may I just point out one other major ground upon which I feel that the Ninth Circuit Court decision must be upheld. Whether suppose that you disagree with me and that you agree with Government that the test is -- is indispensability, whether it's indispensable, that is going to be the test to determine compensability. Assume that the Government is right and that you decide the Government's right there, you still have a question of fact as to what kind of the indispensability, not every kind of indispensability certainly is covered. The Government concedes that -- that checking in and waiting in line to get to work and travelling to work, that that kind of indispensability isn't enough. Well, on an adequate factual showing, this Court held that we didn't have the kind of a principal activity. They held that there were things that -- that made this activity. This knife sharpening, indispensable only in the sense in which we'll say travelling was indispensable or in which, sleeping or eating or any of those things that we must do to do our job are indispensable. In other words, the Court found that this knife sharpening was not done under the supervision of the employer. It found that the parties over a period of 20 years had treated it as a non-compensable and that this was reflected and a collected bargaining agreement made between the employer and the large labor organization representing the employees, the amount made by meat cutters and butchers, workmen of North America. This was the reality of the industrial situation which Ms. Margolin spoke of yesterday and she referred to the administrator's own report in which he said, “We must construe this Act in the light of the realities of the industrial situation and the agreements of the parties where all the realities here certainly requires that there'll be a holding of non-compensability, because those realities are, that here, we're dealing with something that isn't supervised by the employer. It hasn't been treated by the parties as compensable. It's difficult to Clark as Mr. Justice Burton pointed out with respect to this type of thing in his dissent in the Mt. Clemens Case. The Government offers no test where as we think we -- we offer a clearcut test as to where to draw the line here. You got a concurrent finding by two lower courts. The two courts below on this question of fact and I say that -- that their finding of fact that it was not a principal activity but was a principal, but was a preliminary activity is -- should be upheld in view of the factual support it has in the record even under the Government's test.
Felix Frankfurter: On this -- on this, what you must say about the bearing of this on the collective bargaining agreement party, do I understand you to say this is a subject matter of collective bargaining and rejected in the -- in the in the term briefed?
Willard S. Johnston: Well, there is a collective bargaining agreement, none to that collective bargaining agreement this time is not treated separately. There are only great employees. They're paid for the (Voice Overlap), whistle to whistle.
Felix Frankfurter: What you mean to say is that the party did not agree on this subject, I mean, it did not included in that problem.
Willard S. Johnston: That's right or admits --
Felix Frankfurter: And does it shows that it was proposed in the collective bargaining?
Willard S. Johnston: No, I don't think it does.
Felix Frankfurter: It's just wasn't included.
Willard S. Johnston: And of necessity, therefore, this type of thing was absorbed into the rate of pay that was arrived at, which I think is comparable to the situation that Mr. Justice Burton discussed in his dissent in the Mt. Clemens case. Thank you very much.
Earl Warren: Ms. Margolin.
Bessie Margolin: May it please the Court. I think that Mr. Johnston's argument demonstrate clearly, as it did (Inaudible) that their position rests exclusively on the consideration, the time consideration, that is, that it is prior after the scheduled workday. And I believe that the legislative history that I reviewed yesterday from Senator Cooper demonstrated beyond doubt that that was not his intent and he drafted the provision. But in addition to Senator --
Hugo L. Black: Does the record show that, that he grants a certificate.
Bessie Margolin: Well, the Subcommittee, the Senate Judiciary Subcommittee drafted it. It was composed of Senators Donnell, Wiley, and Cooper. And Senator Donnell, we do not quote his statements in the legislative history, I mean in the -- in our brief, but his statement corroborates Senator Cooper's views of -- of what was intended by principal activity. The legislative history is variable eminently, and I think even without reading the report to the legislative history and just looking at the succession of bills that the Senate Judiciary Committee considered that it will be apparent that the principle activities was deliberately selected, instead of the scheduled or contract work -- workday. Because in the bill, which went to hearing, Senate Bill 70, in the bill, which went to hearing, precisely what Mr. Johnston is urging here was provided. That is the preliminary and postliminary activities were tied in with the scheduled workday, with the contract workday. And Senator Donnell and I believe these two citations with the Court, if I may, because this confirmed Senator Cooper conclusively. Senator Donnell was explaining what happened to Senate while that provision was abandoned and principle activities was -- was adopted, and he explained that some of the amalgamated clothing company representatives and Mr. (Inaudible) who's somewhat of an authority on this Act, he was very active in -- in its original enactment and was advising Senator Donnell. He said, “Mr. (Inaudible) and these union representatives had come to him and -- and criticized that definition of making it dependent on this contract work -- workday.” He had told him that that would operate to -- particularly to the disadvantage of unorganized workers because it would permit the employer to write his own ticket as to when he would let the workday start and end. That it was particularly to the disadvantage of unorganized workers and workers within -- in relatively weak union. And he said, “For that reason, for that reason, if seven day was resubmitted and then -- and then they came out with, for the first time, with a bill principle activities in it.” Now, I say that that fully corroborate Senator Cooper's view of what they intended by -- by a principle activity. And by the way, it's principle activity and activities in the plural. So, in answer to Justice Frankfurter's comment, I think something was meant by that plural, and the integral part of the principle activity was intended to be covered in that plural term activity.
Felix Frankfurter: Well, that would be equally true if the man works as -- as busy and do possibly in the same place.
Bessie Margolin: Well, now, I'd like to just mention a few of the facts about the meat cutting industry, I mean the meat cutting -- the knife sharpening facts. It's not indispensable as Mr. Johnston, what have you think, simply because as just as running to work putting on clothes is indispensible to go into any job. Obviously, this is indispensible in -- in the sense that it's peculiarly related to this type of meat-to-meat cutting work. Just as the clothes wash, the clothes changing, and the washing and the chemical battery plant -- plant is just not ordinarily, just not putting on clothes for an ordinary work, but because it is required, necessitated by the peculiar hazardous character of that specific kind of work. Now, that's the type of integral principle activity, which Senator Cooper was obviously referring to. That's the type that the examples in the Senate Report referred to. That's what Senator Barkley was giving, Senator McGrath was giving, and every one of those were prescheduled workdays, prscheduled or post schedule work day. They were not activities carried on in the scheduled workday. And I --
Speaker: What's the significance of the Mt. Clemens argument in your view?
Bessie Margolin: Pardon me.
Speaker: What is the significance to the Mt. Clemens argument that Mr. Johnston makes?
Bessie Margolin: Well, I think that Justice Black's observation is -- is it points up the deficiency on that. Reference was made to Mt. Clemens. Now, what the -- but it didn't say all the activities. The Mt. -- the Mt. Clemens case involved a variety of activities, checking in, checking out, walking to the workbench, putting on apron. Now, we admit that the putting on the apron, the checking in, checking -- punching the clock and -- and walking to the work bench, we admit that those are the incidental preliminary type of activities that were intended, but this didn't say all of the activities mentioned in -- in -- practically mentioned in -- in Mt. Clemens.
Felix Frankfurter: It didn't say some. It didn't say --
Bessie Margolin: It says such as, such as.
Felix Frankfurter: It didn't say some of the (Voice Overlap) --
Bessie Margolin: Now, what I say about that? It says such as and it doesn't say all. What I say about that is that Senator Cooper made it perfectly clear in his colloquies with the Congress, with the other Senators that -- that they didn't intend to include all such things because some of the very example, to sharpening and some of the very examples mentioned in Mt. Clemens was specifically put to Senator Cooper and he said, “We're not intending to -- to remove all of those from compensation of that.” I would like to close with one, with Senator Cooper's summary of what they intended to deal, which I think, Mr. Justice Harlan, shows pretty clearly that he wasn't saying that all Mt. Clemens' activities were to be excluded. He says, “In summarizing the provisions of the Committee built for the future, I would like to say again, that in the period for the scheduled workday, the Committee did not legislate, and in that period, every right which the worker has secured under the Fair Labor Standards Act is preserved. And second, second, in addition to that, in our concept, in the term principal activity, we believe it's sufficiently broad to embrace within its terms such activities that are indispensable to the performance of productive work. Third, we have clearly eliminated walking, traveling, riding, and other activities, which are not an integral part of the employment for which the work is employed. And I shall repeat that instead of legislating against the Fair Labor Standards Act, instead of attempting to destroy it, this is the first legislation, which confirms the interpretations, which have been given by the wage and hour administrative prior to this date. We have simply setout standards and criteria.” Now, what he was saying there is except for those few things as to the future, except for the walking, riding, and traveling, and the other incidental things not a part of integral -- not an integral part of principal activity, they were confronting the previous administrative interpretation. Now, this was tocompromise with the House. The Senate agreed that as far as to pass a cause of an emergency created by Mt. Clemens, they agreed to the drastic remedy of -- of denying liability for all of those passed claims. But for the future, for the future, they intended to preserve pretty much what had been held compensable prior to the Portal Act. May I leave the -- two citations just to bear?
Earl Warren: Yes, you may. You may, Ms. --
Willard S. Johnston: May I have a copy?
Earl Warren: Yes, you may, of course, the part of yours too if you wish.
Willard S. Johnston: Thank you.