Earl Warren: Number 22, Joseph Kermarec, Petitioner, versus Compagnie Generale Transatlantique. Mr. Malament --
Edward J. Malament: May it please the Court.
Earl Warren: -- you may proceed.
Edward J. Malament: This is an appeal from a judgment of the Court of Appeals for the Second Circuit affirming an order of the District Court for the Southern District setting aside a jury verdict in favor of the plaintiff and dismissing his complaint. The action was brought by the plaintiff-petitioner to recover damages for personal injuries sustained by him in 1948 while a guest of a crew member on the S. S. Oregon, a passenger vessel owned by the defendant-respondent cooperation. The vessel at the time was berthed at a pier in the North River in the port of New York. The complaint alleged the negligence of the defendant, the unseaworthiness of the vessel and set forth the diversity of the parts. The accident which gives rise to the suit occurred out of the following circumstances. A crew member by the name of Yves of the S. S. Oregon obtained a pass from the commanding officer of the vessel so that Kermarec could visit him aboard the vessel when the vessel arrived in New York. This pass was issued in accordance with the customary practice permitting crew members to entertain guests that visit their family aboard the vessel. This pass was obtained by the crew member and was retained by him throughout this incident. It was never shown the plaintiff. It was never explained to him. He never saw and knew its contents. And in due course pursuant to arrangement, Kermarec boarded the vessel. After some time and as he was leaving, the visit -- the visit having terminated, Yves, the crew member directed him to a central stairway, a stairway used in common by passengers as well as by crew members. The stairway at the time was covered by a canvas runner, a single piece of linen about an eighth of an inch thick, which ran the entire length of the stairway. Photographs of the stairway including the affixed canvas runner are attached to the transcript at pages 89 and 91. As Kermarec started to descend the stairway, it appeared to him in all respects normal and safe. About four steps from the bottom however, the canvas suddenly slipped from under his feet. He fell to the bottom of the stairway fracturing his hip. As he was lying on the deck at the base of the stairway, he noticed that the canvas was hanging loose from the edge of the fourth step. The testimony for the most part is uncontested and is obtained chiefly from the defendant's own witnesses by way of deposition. That it was the routine and customary practice for a porter, by the name of Bourdon to wash, cleans the stairway and to cover it with a canvas runner as soon as the vessel arrived in port, to keep it clean until the new batch of passengers embark. And the facts disclosed that the vessel had arrived the day preceding the accident at which time Bourdon had performed the routine duty. And that at 8 o'clock the following morning, the day of the accident, he had to remove the canvas and wash the stairs a second time because of what appeared to be the heavy traffic of the crew on the stairway causing the need within less than 24 hours of renewing the cleanliness of the stairway. This witness also testified that he had been instructed to keep this canvas runner tight so there would be no trouble. The testimony further is clear that he affixed the stairway, the canvas runner to the stairway by the use of two tacks at the front edge of each step, the two tacks being at the extreme edge -- edges of the canvas runner. On one of the photographs, I think on page 90, Bourdon, the porter, marked two crosses indicating the place where he affixed the two tacks on each step. The copy in the transcript is not too clear. If the Court has any difficulty seeing the two crosses, we have photographs which make that a little bit clearer. Now, the two tacks which were used for each of these two steps about 12 or 14 in all were the normal carpet size tacks. And Bourdon, the porter, in court made a diagram of what those tacks looked like -- looked like, and you can find those, Your Honor, on page 89. It is conceded that these two tacks per step were the only means used to keep the canvas against the stairway. There were no tacks at the rear of the step holding the canvas toward the rear of the step. There were no tacks used or other means to keep the canvas firm and straight against the riser to the step above. And Mr. Bourdon also testified, without contradiction, that it was quite easy to remove this canvas runner and the tacks. And in his own words, it was simply, “You take hold of the canvas and the tacks come out by themselves.” This case was tried twice to a jury. On the first trial, there was a disagreement. On the second trial, before the second trial judge, the Court dismissed the course of action on the basis of unseaworthiness and ruled that in this case, a maritime tort was not tendered to the Court for adjudication, notwithstanding the undeniable testimony that the accident had occurred on an oceangoing vessel. The accident had occurred on the vessel while the vessel was berthed in navigable waters, that the accident occurred on the vessel due to a defectively maintained canvas runner on a ship stairway, that the accident occurred because of an invitation from a crew member in a foreign port, who had a friend visit him with the authorized consent and knowledge of the shipowner notwithstanding that the complaint raised the general maritime law questions and issues of negligence and unseaworthiness. Because the Court was convinced that this was not a maritime tort which was tendered to him, he felt obliged to apply the law of New York and accordingly said and held that contributory negligence would be a defense and not comparative negligence. And compelled by the conclusion that this was not a maritime tort, he ruled out the application of the doctrine of unseaworthiness. He further held that the plaintiff-petitioner was a licensee, the words “mere licensee”, “bare licensee”, “gratuitous licensee” were used. And accordingly under what he thought to be the applicable law of New York, the jury was charged that the plaintiff could not be covered unless the jury found that the shipowner had actual knowledge that the stairway created a dangerous condition which the shipowner either failed to repair or warn the petitioner about. Because of the restrictive clause as to liability on the pass, the trial judge also charged the jury that the pass would not be binding upon the plaintiff unless the jury found that the contents of the pass had been brought to the plaintiff's attention. The jury brought in the verdict for the plaintiff. Now, thereafter upon motion, the judge, in a rather brief memorandum opinion, dismissed the complaint instead of first set aside the verdict than dismiss the complaint on the ground that there was a complete absence of proof that the shipowner-defendant knew that this stairway presented a dangerous condition. The court below affirmed by divided court, Judges Watermen and I believe, Harlan --
Potter Stewart: Lumbard.
Edward J. Malament: -- Lumbard affirming and Chief Judge Clark dissenting.
William O. Douglas: Did they -- the majority apply New York law?
Edward J. Malament: It is not quite clear, sir, whether they did or not from the opinion. They did not address themselves to what I think were fairly probable errors on the part of the trial judge. There is the reference to New York law and federal cases so that there isn't -- except for the -- the discussion of the Court as to the doctrine of unseaworthiness, there is no clean expression of what the applicable law was. The court below merely affirmed the classical definition of the duty owned -- owed to a licensee and then held that both under the test of a licensee as well as the test laid down by this Court in Hawn versus Talbot -- Pope & Talbot versus Hawn under neither situation for the plaintiff recover.
William O. Douglas: What law do you think?
Edward J. Malament: In my opinion, sir, I think there's absolutely no question from the decisions of this Court that this was a maritime tort and therefore, the general or federal maritime law applies exclusively. And in view of the supremacy of the general maritime law, this Court is free to decide three questions which are before it for the first time. There are five issues though, which I would like to bring to the attention of the Court. Three of those issues are really novel. And in the order of which I have developed them in the brief, I would like to enumerate these questions. First, was it error on the part of the trial judge to refuse to hold that this was a maritime tort, that the general maritime law was applicable? Second, assuming that the federal maritime law is applicable, is the plaintiff entitled to the protection of the doctrine of unseaworthiness as one of the applicable doctrines on the general maritime law?
William J. Brennan, Jr.: (Inaudible)
Edward J. Malament: No, sir.
William J. Brennan, Jr.: It did not.
Edward J. Malament: It did not.
William J. Brennan, Jr.: (Inaudible)
Edward J. Malament: I'm sorry, sir?
William J. Brennan, Jr.: There's another ground (Inaudible) that it's negligence?
Edward J. Malament: There's negligence. There's the whole question as I would develop it, sir, as to whether or not there was sufficient evidence to satisfy the -- in short the verdict as found by the jury even under the erroneous charge of the law that this man was the licensee.
Potter Stewart: Pursuing for just a moment, Justice Brennan's question. Let's assume that this Court answered, yes, to your first question, this -- the general maritime law is applicable, but assume further that we answered no to your second question that this man was not covered by the doctrine of -- of unseaworthiness, then, what -- then what would be the law be? Is a -- is a negligence action part of the general maritime law?
Edward J. Malament: We submit that --
Potter Stewart: That's -- that's a common law action, isn't it?
Edward J. Malament: No, we -- we submit, sir, that under the decisions of this Court, as we understand them and as I recently adverted to by the Court in the decision of Pope & Talbot versus Hawn that the plaintiff, in a situation like this, lawfully authorize this to be aboard the vessel is entitled to the protection of the general laws of negligence as well as unseaworthiness.
Potter Stewart: But negligence is a common law action, is it not?
Edward J. Malament: Well, no. Not --
Potter Stewart: (Voice Overlap) --
Edward J. Malament: -- necessarily, sir. I think that this Court has held that in the application of doctrines of negligence, some of the common law requirements need not be followed by this Court under its unique capacity to declare the federal maritime law. In other words --
William J. Brennan, Jr.: Confession are on rules of negligence.
Edward J. Malament: Exactly, sir. As you did --
William J. Brennan, Jr.: Oh, that's what I thought.
Edward J. Malament: Precisely. As you did, sir, when you decided -- this Court decided that the doctrine of contributory negligence would not be imported into the general maritime law. So the first question being whether it was a maritime tort, the second question being whether or not --
Felix Frankfurter: Was that -- was that -- please inform me. It's the decision of this Court that -- that common law doctrine of contributory negligence is not to be imported on to the laws or is that a decision in which the course of action was for negligence or was it where the course of action was for unseaworthiness?
Edward J. Malament: My recollection is, sir, and I authored this differently, my recollection is that these -- the cases in which the doctrine of comparative negligence was adopted, Max Morris case, then later on annunciated, and the Pope & Talbot case were cases involving both negligence and unseaworthiness. And I would not, at this point, be sure of which cases held which. In any event, we say that the doctrine of unseaworthiness apart assuming that it's not applicable and is not in the case. This Court, for the first time, is presented with the opportunity of declaring definitively whether what is the standard of care owed to a person lawfully aboard a vessel. Put it another way. For the first time, this Court has asked to declare whether it adopts the common law categories of invitee and licensee or whether since it is the -- before the Court for the first time, whether it may not or should not adapt to a single standard of care for all persons who are lawfully aboard a vessel. Question number four, assuming that the Court decides that it is found to perpetuate these common law distinctions, then the next question is whether or not the courts below erred in holding that the plaintiff was a licensee and not an invitee. The fifth and last question is, assuming that the courts below were correct in classifying the plaintiff as a licensee, was there sufficient evidence to justify the verdict in his favor and wasn't the setting aside of the verdict an improper interference with the judicial jury function of the trial court?” I will not spend too much time on the first question. I think that the cases are fairly clear, Imbrovek and the rest, that this was a maritime tort and that the general maritime law is applicable, and that the Court erred in refusing to apply the doctrine of comparative negligence and the courts below erred in refusing to hold that the plaintiff was entitled to the protection of the doctrine of unseaworthiness.
Potter Stewart: Of course, in this case, in view of the jury's verdict in favor of the plaintiff, is the question merely before us as to whether comparative negligence -- as to whether contributory negligence is a complete bar or -- or (Voice Overlap) --
Edward J. Malament: I'm just about to address myself to that. In view of the plaintiff's verdict, the refusal of the charge comparative negligence was non-prejudicial. The refusal however to charge unseaworthiness was prejudicial because in light of the attitude of the courts below that there was no proof of actual notice that application or refusal to apply the doctrine of unseaworthiness was most prejudicial since it would have obviated the need for notice had the doctrine been found to be applicable to the petitioner. I agree with you, sir, that contributory negligence in this case was a non-prejudicial error.
Potter Stewart: Now, in view again of the jury's verdict in favor of the plaintiff, doesn't it follow that the jury necessarily found that the -- that there was actual notice in -- because of the instructions?
Edward J. Malament: Well, except --
Potter Stewart: (Voice Overlap) --
Edward J. Malament: -- that -- I would say so, I would say so. No question about that.But the Court, as you will find in his opinion, the memorandum opinion on page 80 -- 93, followed notwithstanding, the jury's finding and the Court's charge, there was no proof, complete failure of proof that the shipowner knew, defendant-shipowner knew that the stairway presented a dangerous condition. I turn then now to the question as to whether or not this troublesome question of the doctrine of unseaworthiness is or should be applicable to the authorized guest of a seaman aboard the vessel. It is only 14 years, I believe, since the Mahnich decision. All together this doctrine has had a development under the auspices of this Court of less than 55 years, Osceola, 1903. In the past decade, this Court has developed the doctrine to the point where it is not only applicable to seamen but to longshoremen and to non-longshoremen, old men who are doing the equivalence of ship's work. It has gone beyond that. It has said that the logic of the doctrine and for the reasons that gave it rise the doctrine should apply whether or not the ship or its appurtenance becomes unseaworthy through negligent maintenance as the Mahnich case. It has held that the doctrine applies whether or not the appurtenance is brought on to the vessel by the stevedore or the longshoreman and even though the appurtenance of the new equipment that's brought on may be under the control of the longshoreman. It has said that when a member of a crew, that's the Alaska-Petterson case, this Court has held that when a member of the crew is not equal in temperament to the ordinary seaman aboard the vessel and such seaman injures another with a dangerous weapon, that unequal seaman also creates an unseaworthy condition that were joined up. These recent decisions by the Court, as we see it, are grounded on two premises. The first that the nature of a maritime operation onboard a commercial vessel was still a hazardous occupation. But in view of the highly-industrialized nature of modern merchant marine, many new classifications of workers are exposed to the hazards which, at one time, confronted only the seamen in the days of the sailing vessel. The danger remains the same in 1958 as before. The second rationale for these recent decisions is that as between the victim of an unseaworthy condition and his dependants, the shipowner still remains best able to assume and spread the risk in the industry. That without the protection of this liberal doctrine, victims of unseaworthy appurtenances who are not able to discover it or remove it may be left without a remedy if they are required to prove their case under the usual laws of negligence. Perhaps as was to be anticipated, these recent decisions have left the maritime bar and bench in some degree of uncertainty as to the ultimate scope of the doctrine. I think in one of our footnotes, we have collated the cases which arose in the last year. I doubt that there is a circuit that had -- had one or more of these cases before it. I know that this Court in the brief history of this term has already heard argument on two such cases. Now, one says ours presents an extreme situation. We cannot come within any immediate translation of ship's work. And yet we urge upon the Court that the reasons which gave rise to the extension of the doctrine are applicable to anyone who has was injured aboard a vessel in furtherance of the welfare or the operation of the vessel whether in direct or indirect degree because otherwise an anomalous situation develops. The longshoreman, the carpenter can be protected but what about the governmental inspector, the immigration official, the customs guard or coast guard agent? What about the host of other classifications who necessarily must visit a vessel with the knowledge and consent of the shipowner in order to conduct a modern and safe merchant marine?
Charles E. Whittaker: (Inaudible)
Edward J. Malament: I wish that were so but I think you will find -- in fact, there is one case that's now pending before this Court, the McDaniel's case, I believe, where there is some question as to whether these government officials, in one fashion or another, may be invitees. I know there is some confusion in the case of the law. I have a -- fixed a rather short appendix to the -- to the end of my brief showing the confusion that exists in the state law cases as to what is the precise duty and status of a fireman or policeman, a government -- semi-governmental official or a government --
Felix Frankfurter: By confusion, you mean different States have different view?
Edward J. Malament: Precisely. And all my -- and what's more, sir, as I will develop the point later, within the same jurisdiction, you can find contrary opinions, the cases are just completely irreconcilable because the doctrine by this time has become so completely confounded that there is no longer any rationale or usefulness for the entire doctrine.
Potter Stewart: Well, this very -- this very case illustrates that. You have three very competent and qualified judges of the United States Court of Appeals for the Second Circuit. Two of them disagreed completely with the other one as to what this case is about.
Edward J. Malament: Correct. And two juries disagreed -- two juries had a test --
Potter Stewart: Well, that's -- that's different. That's a fact matter.
Edward J. Malament: Well, any -- I agree with you, Your Honor, and just a right ahead of myself a little bit.
Felix Frankfurter: But it makes a difference (Inaudible) whether -- what the answer to Justice Douglas' question. It's less confusing to find the -- whether state law applies or doesn't. If state law applies, New York law, then you have the usual problem of finding out what the New York Court of Appeals has decided.
Edward J. Malament: I agree, Your Honor, if -- in New York state law --
Felix Frankfurter: What you call confusion is no more of confusion than the -- than different shades of decisions on rightly a different fact from this Court and offers every subject to the law.
Edward J. Malament: If I may, sir, I would say that -- well, that is basically correct. In the area of invitee, the semantics, the -- the stretching -- the reaching for essential of justice by the courts who are confronted with this morass of irreconcilable decisions is in quality and in degree worse than the situation that you are referring to, Your Honor.
Felix Frankfurter: I have a very different problem if my job, as to the best of my ability, to be able to state with my conscience and my mind what the New York law on that subject is. I think that I can accomplish that feat. If I'm asking to summarize what the generalized law of the 48 States, that's a very problem.
Edward J. Malament: I agree with Your Honor.
Felix Frankfurter: And so there's a different problem if you ask us and in a way you should or should (Inaudible)
Edward J. Malament: Well, I --
Felix Frankfurter: But you'd rather not that we should decide what the federal law is about.
Edward J. Malament: Exactly what --
Felix Frankfurter: Made out of false laws.
Edward J. Malament: But precisely, you'll find out in my -- in my third point and which I say the time has come to exorcise this body of law and to do, by judicial declaration, what was done last year in 1957 in England.
Felix Frankfurter: You've put in an appendix. It would show there's another way of doing it.
Edward J. Malament: There -- I --
Felix Frankfurter: Did you put in that appendix?
Edward J. Malament: I did, sir.
Felix Frankfurter: So that's another way of doing it, if may say so, much better way, I believe.
Edward J. Malament: I -- I thought that it was time to -- to bring it to the attention of the Court.
Felix Frankfurter: Yes, but that's not -- it's not having the Court exorcise all the past.
Edward J. Malament: I will accept the suggestion. Anyway, coming back -- so that I could pass this point of unseaworthiness, the courts have been troubled by the doctrine and they have taken two views, which I've attempted to explain and describe in the brief. There are those who indicate a -- a -- an antipathy toward the doctrine. They don't like it. They talk pretty colloquially. And they are restricting it. There are those, on the other hand, who believe that the logic of the doctrine should be extended to its ultimate conclusion. And whether the Court decides it today or in the future, without any way attempting to -- to urge upon the Court a waiver or a modification of its usual reluctance to meet an issue unless it's necessary, I pose these two questions to the Court. If the block and tackle which had brought aboard the vessel by a longshoreman or stevedore is defective and as a result, a sling load falls injuring another longshoreman, that longshoreman may recover from the vessel on the ground of unseaworthiness. But assume that the same block and tackle broke, the same sling load fell and instead of hitting a longshoreman or a seaman, it hits one of these inspectors who are on the vessel, should it make any difference? Let me put it another way. The same man who runs amuck and who knives a crew member or a longshoreman in -- the victim can recover because the vessel has rendered unseaworthy. But suppose the same victim, the same seaman should injure the -- the union official that comes aboard to -- to settle some grievances under the collective bargaining agreement or the marine insurance underwriting investigator who comes aboard to investigate a claim, should that make any difference what the status of the victim is in a situation where the vessel itself is unseaworthy? And when we ask this Court to transcribe and extend the doctrine to its logical conclusion, all we're asking the Court to -- to enlarge the responsibility in reality of the shipowner who must, by law, provide a seaworthy vessel or are we by that asking and guaranteeing that the shipowner will buy that much more, execute his responsibility and make sure that the vessel is seaworthy. This is the scope of the problem. The case in which the Court has utterly divided do not compel them to go as far as I would have the Court go on the facts of this case. But eventually the question of whether a man who was lawfully aboard the vessel must be answered as to whether or not the doctrine extends to him. It'll be better if the Court should hold that it does extend to an invitee as distinguished from a licensee. But the minute the Court begins to affix this status, that it's more important to the law, the general admiralty law, the confusion which I will now address myself to, which should not be permitted, namely, the classification should not be used at least so far as the federal maritime law is concerned. Now, with respect to my third point, as I've said before, this Court has never definitively stated the duty owed to a lawfully authorized visitor. And we have indicated the confusion which now exists, we only, I think, for our purposes, direct the Court's attention to the occupiers -- the -- the 1957 Act passed in England in -- which abolished the distinction between licensee and invitee and imposed a single standard of care upon all persons or upon all occupiers in favor of persons lawfully upon the premises whether or not the premises were movable or fixed including vessel. Copies of the Act as well as the Law Reform Commission's Report, Committee Report have been made available to the Court.
William O. Douglas: That's the British.
Edward J. Malament: The British Act. But 1957 is when the Act went into effect, the Occupiers Liability Act and the Law Reform Committee Report was released in 1954. And in our brief, I've adverted to the development of the English law to -- to show that even before the Law Reform Committee Report was released, there had been widespread protest at the development. And the absurdity of perpetuating a distinction which placed a premium on negligence and rewarded the careless, the occupier who did not bother to inspect this premise -- premises who plead that there was no subjective knowledge and therefore could escape his responsibility to a licensee. But --
Felix Frankfurter: If New York law governed, there would be liability for negligence.
Edward J. Malament: There certainly would, sir, in any event.
Felix Frankfurter: Well, that's your statement of rewarding a person with negligent that means -- cover this case.
Edward J. Malament: Except --
Felix Frankfurter: And the problem really is whether New York law should govern or whether this is action of general admiralty law. This is a very different thing from saying to impose all restrictive responsibility on the shipowner.
Edward J. Malament: I consulted the Court in that distinction except that I think that these -- these are not separate issues. I think that as the cases hold in New York, you can find the cases which would -- which would make the shipowner responsible both to -- as a licensee, to him also as an invitee. There's no question about that. But as -- for reason which I've already developed, we would ask the Court not to resort to the New York --
Felix Frankfurter: I understand that. I was addressing myself to your suggestion that not to allow the damage of recovery would be doing -- encourage negligence. That isn't the question, referring to by the New York law (Inaudible) we could fashion or but could see would have to be (Inaudible) fashioned.
Edward J. Malament: Except for one observation, Your Honor. I think if you read the opinion of Judge Murphy below and if you read the majority opinions of the court below, you will find in effect that they are subscribing to the doctrine that the shipowner, the occupier who does not inspect his premises, therefore has no subject of knowledge of the condition and therefore escapes liability. These two courts below attempting, I believe, to apply and describe the New York law have done so. And I think in the appendix, if I recall --
Felix Frankfurter: All I'm saying is -- I don't know what the facts are and what the jury found, all they are saying is that you can't (Inaudible) negligence to them, to the shipowner, you should be held liable.
Edward J. Malament: Well, I suppose that is perhaps a permissible interpretation. I -- I don't follow that. I would call the Court's attention to one case in the appendix where a driver of a car was held -- was not held responsible to passengers who are injured because, as the Court put it, if he knew there was something that was wrong but he did not think that it was anything serious, then there's no liability. But if he, as an intelligent man, should have been concerned that this knocking or (Inaudible) that he heard was -- might be something serious, then he was responsible.
Felix Frankfurter: Well, that's a negligence claim. The -- or Judge Hand's case in the Galveston illustrates it very well, doesn't it? The father was (Inaudible)
Edward J. Malament: Correct.
Felix Frankfurter: (Inaudible) and it's found there wasn't any (Inaudible) found there was no negligence.
Edward J. Malament: That was the holding of the case except that there were overtones in that case if the Court recalls, that as to the father, there was no danger, no real -- that the vessel in a sense was unseaworthy because of the arrangement of the place for that tack, if I recall the holding correctly. In other words, it was a case where there were other factors which were not addressed, which the Court did not address itself to. Also, I believe, as I recall that case, the argument that the son was -- no matter what he had done before, no matter how usefully he may -- he might have been to his father had outlived his usefulness because he finished putting the tank into place and therefore he didn't get off the vessel immediately.
Felix Frankfurter: He was a guest.
Edward J. Malament: He was a guest. And I think that in our modern jurisdiction, so long as the guest is lawfully aboard the vessel, the single stand of the cash should be given to him. And that these distinctions, the licensee and invitee mere bare gratuitous about their usefulness. The doctrine itself, I think it's pretty well recognized, is rooted in a futile system and has a class base, a narrow class base. In any event, if this is Court should feel that it must perpetuate these distinctions between invitee and licensee, we hold that the plaintiff in this case was an invitee, an invitee under every possible test. In terms of invitation, there's no question that a test was issued to -- directly to this man in his name, so that his presence was known and authorized. The cases hold that under that circumstance, invitation is enough to ground a status of invitee. There was economic benefit for many reasons. Judge Clark said, and I don't think we can improve on his words, the potency of his reasoning, that is to the shipowners' benefit to keep his crew members aboard the vessel because if it's for a foreign port or any port, they go ashore and now injured, then under the (Inaudible), and the Warner and the Caroline (ph) case, and the (Inaudible) case, the shipowner is responsible for at least maintenance and cure. And so it is in the interest of the shipowner to keep his men aboard the vessel and to extend to him those courtesies which will keep them on the vessel, so that in case of emergency they are available, so they will not be late in rejoining the vessel, requiring pure head jumps and replace these on short notice. It takes into account that it's in the interest of the shipowner to keep his men aboard the vessel in our modern day, when tankers and passenger vessels and even commercial vessels keep tight schedules and meet the tide sometime within 12 hours so that the realities of life are that the average seaman must transact his personal business aboard the vessels, see his friends, see his family, take care of personal needs. He may not be able to take four hours off to come from bay on to New York when the tanker will leave in about 12 hours.
Charles E. Whittaker: (Inaudible)
Edward J. Malament: I should like to answer that question in two ways, sir. First, if it is not in the shipowner's interest to accept this liability, then all it need to do is to refuse to grant a pass to those people who, we say, if given a pass, become invitees. In other words, if it is -- it is a discretionary act whether Kermarec or anyone else might board the vessel in the interest of a crew member. To that extent, there is control.
Charles E. Whittaker: One may not board (Inaudible)
Edward J. Malament: A pass. Correct.
Charles E. Whittaker: You must speak for someone for --
Edward J. Malament: Correct.
Charles E. Whittaker: -- to get permission.
Edward J. Malament: Precisely.
Charles E. Whittaker: And these owners would ship as a (Inaudible)
Edward J. Malament: Precisely.
Charles E. Whittaker: That's a question for shipowners not (Inaudible)
Edward J. Malament: Correct. I think it would be anomalous situation. If we should permit a guest of a passenger to be held to be an invitee, as the cases do, but the guest of a crew member should be denied the same status should there be a difference between the passenger's guest and the crew member's guest. Judge Clark said there was never anomalous phase of this case. It is recognized the New York law and in many jurisdictions that the guest of a tenant, the guest of a janitor may hold the landlord responsible in the case of a multiple dwelling when the guest is injured on a common stairway which is defectively maintained. And there should be, therefore, no difference between the liability and responsibility of the ship in the maintenance of the common stairways used by crew members, passengers and the guest of crew members and the guest of passengers. The court below felt there was an interesting analogy but it was not free to adopt it because of the pressing. Lastly, we turn to the question, assuming that the courts below were correct and that our client, Mr. Kermarec was not an invitee but he was a licensee. Even so, this condition of the stairway, the tacking on of the canvas runner was done as an affirmative act by an employee of the defendant in the regular course of his business. In that sense, he satisfies the test of an affirmative act. And the shipowner is responsible under the doctrine of respondeat superior. And subjective knowledge on the part shipowner under that condition is not necessary.
Charles E. Whittaker: (Inaudible)
Edward J. Malament: Where it is -- the act of negligence is an affirmative act of an employee acting within the scope of his duties.
Charles E. Whittaker: (Inaudible)
Edward J. Malament: I would -- I'd go along with that, of course. The courts below didn't see that way. But assuming that this is not the kind of the affirmative act of negligence which would make the shipowner responsible, we have a second proposition which is recognized by the authorities, that the condition of the stairway, the condition of the stairway was known to the employee who had created the condition. And there were other cases which hold that where the condition is known by the employee or created by the employee, whether or not that condition is a dangerous condition, is a matter of the objective test of reasonable knowledge of notice. And applying the doctrine, the facts of the case through the last situation, the licensee situation, I should like to read from this one paragraph of the brief in which I say, on page 31, as to the first question as to whether a dangerous condition existed, the question was not only the size or the adequacy of the facts but whether considering the length of the runner, the canvas runner, the heavy traffic on the stairway, two carpet tacks removable by hand alone and placed only at the front-end -- at -- at the front of each tread with nothing to hold the canvas in place at the rear of the step or against the riser to the step above were sufficient to keep the canvas from coming loose and slipping both the step under the cumulative weight and the repeating jarring of those using the stairway. We may assume that had a sufficient number of tacks been used, the canvas could have been held in place, but the question before the jury was simply whether two tacks alone were enough under the circumstance. To say therefore, as did the court below that there was no evidence that the tacks were inadequate for their purpose, in whatever sense the term adequate was used, is simply to ignore the evidence and defy reality. The jury unquestionably could find and then, that a dangerous condition existed on the stairway as Kermarec started to descend. If Kermarec was a licensee, he was entitled to his verdict. And as we pointed out before, where courts have been divided on the facts in the law and where two juries have disagreed, can one say under the circumstances that a reasonable man could not have differed and that there was no evidence to justify the verdict. Two additional comments and I will conclude my argument.
Hugo L. Black: May I ask you one question? How did the court below hold that the defendant could have known?
Edward J. Malament: Well --
Hugo L. Black: Is it a corporation?
Edward J. Malament: Yes, the Court said that under certain circumstances, knowledge could be imputed.
Hugo L. Black: I'm not talking about imputed, how did you say they could ever get knowledge?What would guilt show now?
Edward J. Malament: I think, in fairness to what Judge Murphy was trying to say in his request to charge where a colloquy with counsel, it was that a corporation can only be held responsible through the acts of employees, he did say that.
Hugo L. Black: Well, I -- I just haven't quite understood yet with your argument, what the Court held with reference to knowledge. How could they get knowledge except through their employee?
Edward J. Malament: I -- I would agree but on -- the Court said that, and yet found that it -- they did not have knowledge. I -- the -- the opinion of the Court is a rather -- brief. It was a page and a -- less than two pages.
Hugo L. Black: What do you understood they meant by that?
Edward J. Malament: Giving the Court every benefit of the doubt, I think what it was driving at was this. There was no knowledge -- there was no evidence that a dangerous condition existed.
Hugo L. Black: Well, that's quite different from your --
Edward J. Malament: And therefore --
Hugo L. Black: -- other contrary.
Edward J. Malament: There was therefore no basis for the application of the doctrine that the employer, the defendant would be chargeable with knowledge of the nature of the condition, the dangerous condition, namely, the distinction between knowledge of the condition and the nature of the condition being imputed. Now, I don't know whether I have answered your question, Mr. Justice Black, but I find it somewhat difficult to -- to understand precisely what the Court was driving at myself because the test goes off on the inadequacy of the tacks. There was no evidence that the tacks were inadequate. I don't know what that means. I never did.
Hugo L. Black: That -- that could be true, couldn't it? You would have something that was -- of search in neutral nature that no reasonable man can draw an inference (Inaudible) The -- the only point I was interested in was how you could give them knowledge if not through the employee?
Edward J. Malament: I agree. Everything I know how anytime an employer or a corporate employer can get knowledge. But in this case that finally, the Court was saying, “Either that, we don't have to reach that question because we don't find a dangerous condition existed.”
Charles E. Whittaker: (Inaudible)
Edward J. Malament: No.
Charles E. Whittaker: Is that what you're saying?
Edward J. Malament: No. I would say this. With respect to an invitee by hypothesis --
Charles E. Whittaker: Yes.
Edward J. Malament: -- then the ordinary rules of negligence apply. The reasonable man would think.
Charles E. Whittaker: But I'm talking about licensee.
Edward J. Malament: The licensee. With respect to a licensee, if the condition is created --
Charles E. Whittaker: And there is knowledge.
Edward J. Malament: -- and there is knowledge, there's no question the licensee can hold the -- the occupier. But that doesn't --
Charles E. Whittaker: (Inaudible)
Edward J. Malament: The duty is now to -- within the classical language of the -- of the majority. The occupier is under a duty not to inflict wanton or willful injury, nor expose the guest or the licensee in hidden danger. But beyond that --
Charles E. Whittaker: (Inaudible)
Edward J. Malament: To the -- to the licensee, that is the old spring gun practice. Beyond that, there being no wanton or willful affirmative act, the affirmative negligence, there being no hidden danger, then the licensee may not recover unless it proves, according to the courts below, the owner had subjective knowledge, as Mr. Justice Douglas' question is, still the -- the imponderable in these cases, subjective knowledge of the condition exists.
Charles E. Whittaker: (Inaudible)
Edward J. Malament: Well, the test of the -- of the situation is this, that this -- the semantic morass into which my client found himself is one that confronts every person who has this problem, whether he's a licensee or invitee. And you'll find the exact words in the opinion of Mr. -- of -- of Judge Murphy. What did he say? “Under the charge as it applied to these facts, the question is not whether the defendant should have known of the dangerous conditions if in fact it was dangerous, but whether he'd actually did know of it.” Now, I don't know what that means, frankly, in any event. We believe that under all these circumstances, there was sufficient evidence under the erroneous charge of the Court. It would satisfy even the least desirable classification my client made of the licensee. And that the courts below should not have tampered with the verdict, they should have allowed it to stand.
Speaker: (Inaudible)
Edward J. Malament: Under --
Speaker: (Inaudible)
Edward J. Malament: Because of the inherit nature of the facts which would have satisfied any test. Thank you.
Earl Warren: Mr. Garvey.
George A. Garvey: Mr. Chief Justice, and all the members of this bench. I will not belabor the Court with the repetition of the facts, except to point out perhaps two or three things that were not referred to. It was -- I don't think that the plaintiff here, the petitioner makes any contention that the visit to this vessel was solely for social reason, wholly unrelated to the business of the defendant. In that, the injured man, a native-born Frenchman but naturalized and United States citizen wanted to bring aboard the vessel a package to a friend who was a steward on the ship and who in turn would bring that package to France. The package served no purpose in the furtherance of the -- of the ship's business. He arrived aboard the vessel at about noon on the -- over the gangway. He visited in the -- in his friend's room until between 4 and 5 o'clock in the afternoon. There was some drink to be -- had there and he went to a bar too for purpose of having a drink. At about 5 o'clock, he admitted that he was in a hurry to leave the vessel. And he took a stairway of whether -- either 10 or 12 steps, which have been covered by what is known as ship's canvas, about the thickness of a paper match cover, or perhaps an eight of an inch in thickness. And customarily that -- that cover, or one like it, was put on the steps while the ship was moored in New York harbor. And it was secured by tacks which ran through not only the canvas, but also the rubber covering on the side, on the thread but also into the wood beneath. That is the undisputed testimony .There was drawing made that the taking of the deposition I have the exhibits here, if the Court decides to see any of them, I'd be very glad to leave them here, the original photographs, the drawing and -- and so forth. Now, it is true he said that the tacks could be removed by lifting the -- the canvas. Well, I -- I think we, perhaps, are all familiar that even in our households that the general way for removing a carpet from any stairway is not by screwdriver or -- or a hammer but generally, you can lift it up without too much force. That's how it was done customarily. This -- cover had been put on the stairway at about 8 o'clock that morning. Some nine hours had gone by when this accident happened. The man who laid it had gone up and down. One of the other men, a man by the name of Dufy had used it at least eight or 10 times that day. When the accident happened, the plaintiff when -- he said it looked all right to him, he descended to four steps to the bottom when he says that the -- that his foot slipped or the canvas slipped under his foot. It so happened that he didn't go to a hospital until the following day. And then in the history on the hospital, he said he didn't know just how the accident did happen. But he said that the only step even now -- even while he looked at it from the bottom stairway that appeared to be in any way out of order was the fourth one, all the other steps the -- the canvas was in place. As a matter of fact, two of his friends or one of his friends and another member of the crew went down that same stairway immediately after the accident and went up again and found nothing wrong with the stairway. Now, I -- I concede that there has been no clarification at the level of this Court as to the status of a person such as -- since a man was, and whether or not he is entitled to the rights of the seaworthy doctrine. However, I do feel -- and I'm not in -- in dispute nor do I in any way voice any displeasure with the laws as has been expressed by this Court in reference to longshoremen, their rights of the -- of the seaworthy doctrine to fully recover the rights that a member of the crew could, nor a carpenter who's engaged in making safe the ship, or anyone else who's furthering the business of the ship because they are all exposed to the hazards that the -- that the seamen themselves who had been in -- in other days. But even this Court has said in the Pope & Talbot case, has pointed out that even as between a longshoreman or a carpenter, whatever the case may be, that he does not have all the rights that a sea -- that -- that a member of the crew has. It was pointed out by this Court that he is limited to recovery for personal injuries and for a pain suffering, for loss of wages but it was pointed out that he is not entitled to the right of maintenance and cure, which a -- a member of the crew has. Now, there is a distinction and this Court recognized it, as to the rights and the limitation of the rights as between a -- a crew member and someone else who has come into part of the -- of the work of what formerly was performed by a member of the crew. Now, I -- I believe that this is not a maritime tort. I think it comes under the doctrine of common law rights and obligations. And if that is so, I think the doctrine as applied in the -- in this case was promptly followed by the Court in its decision. I think that the relationship here was that of a -- a social visitor who has no right of recovery except where there is a hidden trap or where there's wanton or willful misconduct on the part of the host, with whom he is visiting or unless this is an affirmative act of negligence created after the arrival on the premises. There might be a guest on your -- in your stable or your farm or whatever it might be, and if you operate a normal bill, of course, that will be one form of affirmative negligence. Well, in this instance here, there is no proof that there was anything that was done wrong which would -- created the trap for the honorary person such as the plaintiff in this case. Hours had gone by, the -- the stairway had been used for many hours by several people. It was -- there was no proof that there was anything unusual about the type of tack, or that was inadequate or that it had not served this purpose. As a matter of fact, the proof in the case to the contrary, that was the kind of tack that was customarily used in -- of tacking down the -- the canvas on the ship on -- on this and other occasions. Now, I have not attempted, Your Honors, as it's obvious from my brief, to have answered all of the citations referred to by counsel for the petitioner. And my brief would have been much longer than this Court would perhaps have the patience to -- to look at. Essentially, I think that this is a common law case that he was a social visitor and was entitled to the rights as defined not only by Judge Lumbard in the prevailing majority opinion but also I'd say to the -- the authorities in New York, because I believe that the law of New York should govern. Now, that -- those reference here of -- of some time ago by one of the justices to the effect that there is a difference between one person and another. The Galveston case is a classic example of it decided by the Court of Appeals and -- and which a -- a writ was denied by this Court and the -- on the rehearing, it was also denied. And it was pointed out there that the father who's the master of the ship could recover because his relationship was that of -- in the nature of crew worker. But the son who was merely a social visitor was not entitled to recover. I don't think that -- that if there is to be a change of the rights as defined in the cases that have come and -- before the courts up to this point, if there is to be a change, I -- I think it should be by a legislation and not by -- by the decision of this Court. That was what was done in England. Apparently, it was considered over there, to the need of the change of the rights owing to what the business prestige should be done by legislation. Very briefly, that's my position and --
Hugo L. Black: You said there's been -- if there had -- I understood you to say that there's been some kind of a trap there.
George A. Garvey: Pardon me?
Hugo L. Black: I understood you to say there had been some kind of a trap there (Inaudible)
George A. Garvey: I said if --
Hugo L. Black: In spite that he came, there would liability.
George A. Garvey: If there was a hidden danger in the nature of a trap.
Hugo L. Black: So, what would that be?
George A. Garvey: Well, suppose -- suppose --
Hugo L. Black: Would that be a tort?
George A. Garvey: What? Pardon me?
Hugo L. Black: Would that be a tort?
George A. Garvey: It -- it would be a tort.
Hugo L. Black: Would it be a maritime tort?
George A. Garvey: I think it'd become a law in any event because I --
Hugo L. Black: (Voice Overlap) --
George A. Garvey: -- I think it would be a common law.
Hugo L. Black: Why?
George A. Garvey: Well, I don't see why it would be anything else and the relationship between the -- the plaintiff here and the shipowner.
Hugo L. Black: Do you -- do your -- I'm just trying to get clear. I think that maybe as to -- do you -- do you argue that unless there's some kind of a relationship of employee-employer, employer to employee and something of that (Inaudible)
George A. Garvey: That's right.
Hugo L. Black: -- that it would not be a maritime tort --
George A. Garvey: That's -- that --
Hugo L. Black: -- although it would be a -- a tort?
George A. Garvey: That's -- well, it could be a tort.
Hugo L. Black: Depending on the --
George A. Garvey: Yes.
Hugo L. Black: -- relation --
George A. Garvey: That's -- that's correct.
Hugo L. Black: (Voice Overlap) fact showed.
George A. Garvey: That's exactly my position.
Hugo L. Black: Depending on the relation.
George A. Garvey: That's exactly my position.
Felix Frankfurter: And you say that because the vessel was moored?
George A. Garvey: Not necessarily because it was moored.
Felix Frankfurter: But suppose --
George A. Garvey: It -- it --
Felix Frankfurter: -- suppose it's from the high sea.
George A. Garvey: Well, I -- I think there -- the common law would apply and I don't think that seaworthiness has been --
Felix Frankfurter: Oh, I'm not talking about seaworthiness. Suppose the conditions that you require for a practice for -- for the coming into being of a -- of a claim for negligence on the high seas, would it be a common law negligence or would it be his option by admiralty or --
George A. Garvey: Well, I -- I would have to conceive that the admiralty jurisdiction there because -- I mean --
Potter Stewart: Mr. Garvey, this could hardly happen on the high seas.This man wouldn't be aboard, would he?
Felix Frankfurter: I'm talking about --
George A. Garvey: No, that's -- that's --
Felix Frankfurter: -- I'm assuming --
George A. Garvey: Well, I --I appreciate that.
Felix Frankfurter: I'm talking about a passenger
George A. Garvey: Yes.
Felix Frankfurter: A suit -- a trap or as the case of a passenger or -- or some -- some want of care owing to the passenger.
George A. Garvey: Well, I -- I --
Felix Frankfurter: And -- and it occurred at the -- on a high sea. Was that -- following Justice Black's question, would you conceive it? Would that be the enforcement either in the English courts or ours of a common law negligence or would it be an absorption by -- by admiralty -- of admiralty (Voice Overlap) --
George A. Garvey: Well, I don't say -- I -- I think probably would be entitled to a jury trial, that it could not be limited as a seaman might be limited to an admiralty action.
Felix Frankfurter: Well, is it -- is it -- it would require a jury trial [Laughs] --
George A. Garvey: Well --
Felix Frankfurter: -- it would require a jury trial if it's common law.
George A. Garvey: That's right.
Felix Frankfurter: All right.
George A. Garvey: Thank you, sir.
Earl Warren: (Inaudible)
Charles E. Whittaker: (Inaudible)
George A. Garvey: No, Your Honor, unless it -- that is such a defect that it amounts to a trap such as the --
Charles E. Whittaker: As to the amount of a trap?
George A. Garvey: But -- as to amount to a trap. But for a structural defect in itself, there is no responsibility under the New York law to a social visitor or licensee. And I have collated the cases at pages -- I've cited in sum of -- on pages 6, 7, 8 and 9. All of which uphold that proposition which I have just stated, Your Honor.
Charles E. Whittaker: (Inaudible)
George A. Garvey: That's right. All -- on -- on a trap -- a trap situation.
Charles E. Whittaker: (Inaudible)
George A. Garvey: Well, that -- that's -- amount -- amounts to the same thing, that's one lately.
Hugo L. Black: I -- I don't quite understand the transporting. Applying -- applying to defects, let's see if I can understand. Suppose -- assume now that I understand you --
George A. Garvey: Yes, Your Honor.
Hugo L. Black: -- he was not permitted that (Inaudible) But assume that this tack was there, the employee who put it in and knew it wouldn't -- it wouldn't hold up and it was dangerous to walk down and that a man just walking up and down wouldn't see that, would that be the kind of thing you called a trap?
George A. Garvey: Well, if he was aware of -- of all those things, Judge, I think that that would constituted that. But I -- I don't think that there is anything in the record to it that would support that situation.
Hugo L. Black: I'm just trying to find out exactly --
George A. Garvey: That's right.
Hugo L. Black: -- what you're saying.
George A. Garvey: That's right.
Charles E. Whittaker: You say “if he was aware”, you mean by “he”, the shipowner?
George A. Garvey: Pardon me?
Charles E. Whittaker: By your use of the term “he” --
George A. Garvey: Oh, I --
Charles E. Whittaker: -- you mean the shipowner?
George A. Garvey: Shipowner.
Felix Frankfurter: But not in person if an appropriate agent of his, wasn't it?
George A. Garvey: Or absolute because -- I mean if they -- it has to act through its agent.
Felix Frankfurter: Yes, of course. I mean the way a corporation gets (Inaudible)
George A. Garvey: Well, it may get it actually by -- in all this verbally given or it may be constructible or because of the condition that has prevailed over a period of time.
Charles E. Whittaker: (Inaudible)
George A. Garvey: That's correct.
Charles E. Whittaker: (Inaudible)
George A. Garvey: If -- if there was any proof that that was a negligent act. There was no proof of that in this record though.
Charles E. Whittaker: Well, what maybe a truth in finding from all the facts that the conduct was not consistent to compare.
George A. Garvey: Well, I don't -- and I don't think there's -- that will be a proof of -- of the facts that there was a trap, however, Your Honor.
Charles E. Whittaker: But I understood you to say in answer to Justice Black, that all these things would be (Inaudible)
George A. Garvey: Well, I thought Judge Black added some things that he realized that if a -- a potential danger to somebody and all of those things, I --
Charles E. Whittaker: Yes.
George A. Garvey: -- I thought that you would uphold more than the simple statement that -- that Justice just asked me.
Hugo L. Black: What I meant was (Inaudible) suppose a reasonable man could infer from this -- this evidence. This tack was put in there by the employee and he knew it would (Inaudible) employee and he knew that the man walking up and down the steps couldn't tell it was danger and that the man then fell down on account of that fact, would that be a trap?
George A. Garvey: I would --
Hugo L. Black: (Inaudible)
George A. Garvey: I would be very -- quite closely approach it, I think.
Felix Frankfurter: You don't -- you're not using the word “trap” in any technical sense?
George A. Garvey: Not in the sense of a bare --
Felix Frankfurter: What (Voice Overlap) --
George A. Garvey: -- trap. I don't mean -- some one who's lured into a position of danger which is unusual --
Felix Frankfurter: (Voice Overlap) --
George A. Garvey: -- and not discoverable.
Felix Frankfurter: And which -- and which the jury may find constitute what the alternative called negligence.
George A. Garvey: Well, no, it goes further than that, Your Honor.
Felix Frankfurter: But wouldn't negligence be enough if -- if acting on behalf of the shipowner, a fellow had carelessly in -- in putting down carelessly?
George A. Garvey: With the intention, almost the intention of harm in order to have the trap.
Felix Frankfurter: And that should be clear.
George A. Garvey: Yes. That's right.
Felix Frankfurter: But that's a question of fact which you --
George A. Garvey: Well, that --
Felix Frankfurter: -- a general principle. You (Voice Overlap) --
George A. Garvey: Well, I've -- I've cited the cases and many of much I think I've -- I've cited from.
Felix Frankfurter: It all depends on whether this is summoned by New York law by something (Inaudible)
George A. Garvey: All right, that very much requires this case, I think.
Hugo L. Black: Well, but that -- from what you say there I would think that'd be the same as nearly all other law. In other words, if there's enough evidence to show who -- if there's danger there and should have been protected against, then that's (Inaudible) under New York law or the other --
George A. Garvey: Well --
Hugo L. Black: -- I gather.
George A. Garvey: Well, if -- and that must be something of a -- of particularly hazardous condition of which the party would know nothing. This would be an ordinary -- this would, I would consider, an -- an ordinary act of negligence and -- and not with any intention of harm or hurt like setting a bad trap or something of that kind.
Hugo L. Black: Suppose they didn't intend to harm but they just -- they knew it was dangerous at the time they put it there, did and left it there.
George A. Garvey: Well, I don't -- the cases -- I don't know if that constitute a trap, Mr. Justice Black.
Hugo L. Black: Don't -- do they hold in New York that a man couldn't (Inaudible)
George A. Garvey: That's correct. That's right.
Hugo L. Black: And that's what you think?(Voice Overlap) --
George A. Garvey: That's right. And all the cases that counsel refers to is the case of Mason against Higgins. It was one where a man owned an automobile. And he knew that there was something wrong with it but did not anticipate that it would lead to an accident. He invited somebody in the car he was riding and that -- that defect was the cause of the accident. Under New York law and the Court of Appeals decision held that that was not a -- a trap. That -- it was -- the guest took the car as is -- as in the condition that it was, in the absence of the owner realizing that it was apt to produce injury or harm to his guest. And that -- that -- the Court of Appeals, I think it was an undivided court, if -- if I'm not mistaken in the opinion that was written.
Earl Warren: Thank you. (Inaudible)
Mr. Attorney General: Thank you (Inaudible)
Earl Warren: Thank you.
Mr. Attorney General: Thank you.