Earl Warren: Number 11 Edgar, Allen West, Petitioner, versus United States of America, et al. Mr. Freedman you may commence or then whenever you're ready.
Abraham E. Freedman: Thank you. Thank you, sir.
Earl Warren: So it's clear, really?
Abraham E. Freedman: May it please the Court, there are two basic issues in -- in this case. The first is whether or not the warranty of seaworthiness attaches so an injured maritime worker working on a vessel which is being prepared for sea. There are some facets to that, but that basically is the first issue which relates to the maritime -- with the warranty of seaworthiness. The second issue relates to negligence and it's whether or not the shipowner, when he lets out his barge or his vessel for repairs or for any overhauling, anything of that sort whether he is under a duty under his nondelegable duty to see that the work is carried on safely or if he leaves it to the contractor whether under that same nondelegable duty, he is responsible for the negligence of the contractor, so that we have in this case the two issues; one, based on the warranty and the other in terms of negligence. Coupled with either or both of these theories, there is the duty to provide a safe place to work and we say that it is embraced primarily in the warranty of seaworthiness although it is also a part of the duty with respect to negligence also. I will touch on those as we come to them, sir. Briefly, the important facts in the case are these. The Government had a vessel called the Mary Austin laid up in what they called a “moth-ball fleet” in Norfolk, Virginia. In 1951, the Government decided to take the vessel out of the laid-up status, and to prepare it for sea. Those were the words in the contract. There was no doubt about the fact that the vessel was to be prepared for sea. And it drew up a series of specifications which are of importance in determining the nature of the work which is to be done because that basically determines the duties which are to be attached here. The work involved not in any respect any major structural repairs. Indeed, they involved no structural repairs whatever. They involved overhauling of the vessel, cleaning, and maintenance cleaning out the pipes and so on which had been drained of water during this period of lay-up. This vessel, the Mary Austin was taken from its laid-up status in Norfolk, taken out and then towed or I should say navigated. It's just as much navigated when it's towed as a dead vessel as it is when it's -- when it proceeds under its power over the high seas. It was navigated under tow from Norfolk, Virginia out the Chesapeake Bay, then along the East Coast and up the Delaware Bay into Philadelphia where it was moored to a pier. There were two or three piers where it was shipped but it went to another but that's not -- it's not important that we demonstrate that at this point because we have already demonstrated, she was in navigation. She was towed all the way up from Norfolk and then put at this pier for these repairs. The repairs were extensive only in the sense that they involved a great deal of the same type of repairs. There was, I think $142,000 bid for the contract. That was the contractor, bid that and got the contract. However, as Your Honors will see from a -- an examination of the contract itself which is in evidence that there was not -- that were not in any respect any structural repairs as I -- and as I said let alone major structural repairs which is an important aspect of this case. Now, the vessel was manned from the time she left Norfolk with a crew of six men, a captain, two mates, two engineers, and a steward who apparently did the cooking for the others. These men stayed whether they stood watch onboard the ship. They did everything else that was necessary onboard this vessel. During the trip, the logbook shows all of that. And then when it came to Philadelphia, and the contractor sent his men aboard to start doing the work, these same men undertook to inspect and check and finally approve the work as it went along. I -- I think it's important that these six men did that because everyone of these six men was a merchant mariner, a seaman, a seaman in the real sense of the word and if these seamen were the men assigned to check and inspect and observe this work as it went along, then it's perfectly clear, at least this seemed so to me, that it was work within their can. It was work they knew themselves, it was work that they did themselves and as a matter of fact, the record is replete, I think the record clearly sustains the proposition that this type of work was normally and traditionally done by seamen since time immemorial. West himself was injured while working, West was a marine engineer, I should say too, and there were two marine engineers -- merchant seamen on this vessel.
Potter Stewart: Mr. Freedman, I'm -- I'm --
Abraham E. Freedman: Sir?
Potter Stewart: -- I'm afraid I may not have completely followed you in your last point. Do you mean the -- the overall job being done or the specific job being done by this -- by this injured man was work traditionally done by seamen.
Abraham E. Freedman: The overall job, Your Honor.
Potter Stewart: That is getting a ship -- making a ship seaworthy --
Abraham E. Freedman: Seaworthy, yes Your Honor.
Potter Stewart: -- that it'd been in overhauls?
Abraham E. Freedman: Preparing the vessel for sea, overhauling it. As a matter of fact, there was no dearth of authority on that point. Chief Judge Parker, the late Chief Judge Parker in United States versus Lindgren, in a decision which was affirmed by this Court, although the -- the particular point was not under -- under consideration of this Court, held that this type of repair, overhauling and as a matter of fact, the repairs, if I recall correctly were even more extensive, repairs more extensive to the structure of the vessel than they were in this case, but in any event, the court there held that such repairs were seamen's work, and Lindgren who was employed in that case was held to be a seaman, as a matter fact, under the Jones Act.
Potter Stewart: Now, is what you told us a matter of evidence in this case or something of which we're supposed to take judicial notice or for everyone.
Abraham E. Freedman: As to what a seaman's work, Your Honor?
Potter Stewart: Yes, yes.
Abraham E. Freedman: I would say, Your Honor, that it would be pretty much impossible to get all of the evidence to show what is and what is not seaman's work. I think that when Your Honors wander through the cases, and you see what is -- what has been held to be seaman's work, carpenter's work, a complete overhauling of the vessel, then a vessel is divided into three parts so to speak. First, we have what we call the deck crew, then the engine room crew and finally, the steward's department. The deck crew takes care of everything outside of the engine room. They maintain it. You have licensed officers who are required under Coast Guard regulations to know how to operate a vessel, how to take care of a vessel. We have the manuals, normal manuals which are available to Your Honors put out by the Coast Guard and also by others, private text writers in which they show how to maintain the various parts of the vessel, the winches, and the booms and the masts and the tackle and then everything else. These are all matters which necessarily have to be done by the members of the crew. If the vessel encounters a hurricane at sea for example and she suffers some damage, it is the crew which repairs it. If we go way back, if we -- we might even note in the Laws of Oleron and the Laws of Wispy and so on, we see provision made under circumstances where a man, even when we get back to the pirate days, there's even provision made for some remedies where the vessels are invaded by pirates and damage inflicted. Now, what likewise were the damage is inflicted by storms, hurricanes or any of the other elements, then it is the members of the crew who necessarily have to make the repairs. They not only clean the vessel. The deck at -- the deck crew not only has to know everything about it but they do take care of, maintain and even repair, even structural repairs where a vessel suffers damage at sea because of -- of heavy hurricane.
Potter Stewart: What I had in mind Mr. Freedman that was causing me difficulty is this. That's it's a little hard for me to conceive something so new, a technique so new as the technique of mothballing a vessel which is a post-World War II technique as I understand it. To think of de-mothballing a vessel is something that is so traditionally a function of the crew of the vessel and there're no traditions about it. It's a brand new technique.
Abraham E. Freedman: Well, Your Honor, this -- this was not mothballing the vessel. This is was taking it --
Potter Stewart: De-mothballing it.
Abraham E. Freedman: -- out of mothballs.
Potter Stewart: It's de-mothballing.
Abraham E. Freedman: Just as preparing it for sea. And whether --
Potter Stewart: Make it seaworthy.
Abraham E. Freedman: Well, Your Honor, perhaps the methods have changed -- methods of laying a ship up, but laying a ship up is nothing new Your Honor. It's been going on now ever since shipping was known. There are certain seasons particularly in some areas where vessels are laid up for the season. In other areas, vessels are laid up either for lack of business or for other reasons necessary -- sufficient on to the owners. They lay them up. Sometimes, they lay them up for a few months and sometimes for years. Now, when they lay them up, they use all of the preservatives that are known then at that time in order to preserve the equipment, to preserve the machinery, the deck machinery and the engine room machinery and so on in order that it shouldn't rust and in order that no more damage than is absolutely necessary should occur. Now, when that vessel is taken out of laid-up status, and as I said, Your Honor, one of the best examples that I can cite is the Lindgren case which was decided by Chief Judge Parker. There, when it's taken out and there -- and that's not alone, there are legions of cases which say the same thing, when it's taken out and it's got to be to be overhauled, this is seaman's work and it's always been seaman's work.
Potter Stewart: (Voice Overlap) any evidence you might consider?
Abraham E. Freedman: In this record?
Potter Stewart: As a matter of evidence?
Abraham E. Freedman: That -- that it's overhauling work, Your Honor?
Potter Stewart: Or that this work is -- is a seaman's work.
Abraham E. Freedman: Well, there is no work in any contract is characterized as such, as seaman's work, Your Honor. We only have to reach -- that's a conclusion which we have to draw from the facts which are --
Potter Stewart: Just -- I wonder if you can answer the question first?
Abraham E. Freedman: I know of nothing in the record --
Potter Stewart: No evidence.
Abraham E. Freedman: -- which -- which says that it is or is not seaman's work that is using that tag of using the term itself. There is however, ample evidence in the record from which it can be demonstrated that the work itself has always been regarded by the courts as being seaman's work but --
Potter Stewart: How many court opinions are there involving this mothballing, de-mothballing procedure?
Abraham E. Freedman: Well, Your Honor when you -- when you say de-mothballing, --
Potter Stewart: It's this one, there is this one in the Court of Appeals in which it was not regarded by the courts as involving seaman's work, is that correct?
Abraham E. Freedman: Well, I think Your Honor, it would be fair to state that every vessel which is laid-up, is really put in mothballs. The technique which is used, the preservatives which are used may vary, they may not, but they may vary. But the term mothballing a vessel here, Your Honor, is a label which was put on it by someone somewhere along the line. You won't find it in the contract. It was just a laid-up status. Somebody -- someone gave it that name. Someone gave it that label. But that was a label which was given to it for want of a better expression. But the real, the -- the legal terminology which would apply to it would be laid-up status. Now, as I said, as -- as science develops, science figures out perhaps some better preservatives to maintain the various different pieces of apparatus. It's no more mothballing a vessel if you used a more scientific method of -- of preserving the structure and its various pieces of equipment. And I -- it just seems to me, sir that mothballing the vessel is simply a term which someone in this case applied to it and it's a term which some lawyer applied to it but it's not a term which was applied to it by the Government itself in the -- in the letting of the contract. I read through this contract and I don't recall seeing the term mentioned even once in the contract. It just says it's laid-up and I think that Your Honor will find pretty much the same type of language in this contract in referring to the vessel here as Your Honor will find in any other case where a vessel has been laid up and then was taken over for overhaul.
Potter Stewart: Well now, how much -- is there any -- what evidence is there that a vessel's annual overhaul is the work of seaman rather than of a shipyard?
Abraham E. Freedman: Well, Your Honors, we'll go through the -- again, that's a conclusion which I think Your Honors must consider judicially.
Potter Stewart: Well, if I've -- if you're asking me to decide this case on my knowledge, my knowledge is contrary to that based on four and a half years experience as a -- a seaman. But (Voice Overlap) -- I'm wondering what evidence there is.
Abraham E. Freedman: I -- I venture, Your Honor that -- Your Honor was in the navy.
Potter Stewart: Naval Reserve.
Abraham E. Freedman: Naval Reserve.
Potter Stewart: And I thought we would like to hear the --
Abraham E. Freedman: There's a big difference Your Honor --
Potter Stewart: -- being accused of having had me in it.
Abraham E. Freedman: Well, Your Honor, I assume that Your Honor was in military service. There's a -- there's a big difference between the techniques and the services which are done by men in the military service than what is done in the merchant marine generally. Now, if Your Honor was involved in a laying-up -- in the laying-up of a destroyer or something of that sort, Your Honor probably saw these preservatives applied and perhaps in some instances, they put this rubberized material over some of it. But I submit to Your Honor whether it's the rubberized material or whether that's some other form of preservative in the pipes, it doesn't matter so long as it's laid-up. And then the problem becomes -- you see Your Honor the --
Potter Stewart: I see your point and I don't want to interfere with your argument.
Abraham E. Freedman: Well I -- I --
Potter Stewart: I understand --
Abraham E. Freedman: I would prefer to reach any question in Your Honor's mind. My brief has my argument in it and I -- I would much prefer Your Honor do interrogate me on these points, I would like to reach it.
Felix Frankfurter: If you -- if you think of relying on the case of novo, there could really ignorant men other like me, you must apply some materials where I can find your -- that which I'm supposed to know.
Abraham E. Freedman: Well, having heard some of Your Honors' opinions in maritime cases, I think --
Felix Frankfurter: I approved my point, had I?
Abraham E. Freedman: No, no, Your Honor.[Laughter] Well, Your Honor has demonstrated quite a tremendous wealth of knowledge in the opinions that I've read regarding the activities in the -- merchant marine field and Your Honor, will say we go back to Pope & Talbot --
Felix Frankfurter: I'm denying any of what you say. What I'm saying is, you'd have to inform my mind. I may admit that I can take in what you tell me but -- but trust me, I am quite empty on this subject.
Abraham E. Freedman: Well, sir, let me go back on that point then.
Felix Frankfurter: You can take your time, I just -- I -- I -- if it's on your brief, I'll read it.
Abraham E. Freedman: Alright, sirs. As I've said, I would prefer to reach the questions which may occur to the Court now because it's all in my brief.
Felix Frankfurter: Unlike -- unlike my brother Stewart, I'm not spoiled by experience.
Abraham E. Freedman: [Attempt to Laughter] Well, sir, let's take the Pope & Talbot case versus Hawn which this Court decided after Sieracki. There was a case involving a ship's carpenter. The question there was whether or not the work on a vessel involving a repair, and this was to some extent a structural repair, a repair to a grain feeder which permitted the grain to flow down through chutes into the various holds. Hawn on that case was a carpenter, a repairman. Now, prior to that time, I don't know that this Court had ever passed specifically on the point that whether a carpenter engaged in a grain feeder's work was seaman's work. Actually, Your Honors, the point is there are two factors which have to come together in determining whether or not it is seaman's work and whether or not it's covered by the warranty which is after all what we're concerned with here. Number one is it afloat to navigable waters so that if a tort occurs, we have a maritime tort. Number two, is it the kind of work which is an aid of navigation. Now, on this point, I would like to make this distinction. When we talk about navigation, I think the court below went wrong here and distinguished -- and failing to distinguish what -- what may be known as active navigation from a vessel on idle status. Of course both vessels are in navigation, one is inactive, but the fact that the other one is on idle status doesn't make it any the less in navigation, it is nevertheless in navigation. Now, if the work which is done is in a -- is to put her back into commerce is to prepare for sea, this -- this Court has said in -- in virtually all of the cases on the subject and as I said in the Lindgren case, it made it clear, even in the Third Circuit, other panels in the Third Circuit have made it clear. If it's designed to either maintain the vessel in commerce or if it's designed to put it into commerce if it's been laid-up, it is in aid of navigation. Now, the only other thing that we've got to determine at that point is whether the services which this particular man is involved in, is the type of traditional seaman service which brings with it, which carries with it the warranty of seaworthiness. Judge Hand on that point made the distinction in the Halecki case which came before this Court recently and he said that all of these services short of a complete reconstruction of the vessel itself, a rebuilding of the vessel itself, all of these services are effectively or may be termed seaman's services. They are in the aid of navigation. They are designed to put the vessel back in navigation or in active navigation. The fact that the vessel is afloat brings it within the admiralty jurisdiction so we get them outside of the tort if there is one there and secondly, if the services short of the major structural repairs which involve a complete reconstruction. For example, in the Berge case, Berge versus United States, Judge Hand there and speaking for the Second Circuit had this situation. He said that here we had a complete tearing out of the entire interior of the vessel, complete tearing out. It was a vessel that was going to be transformed, converted into some other service. And there was then a complete rebuilding of bulk heads, decks and everything. It was a complete rebuilding job. Judge Hand there said that the seaman services terminate somewhere along the line. And when we have a complete reconstruction, that's the word to be used or a complete -- a virtually, a complete rebuilding of the vessel then at that point, Judge Hand drew the line and said he couldn't recognize that as seaman's services. I don't think that this Court need reach that question at this point, whether --
Potter Stewart: Well, Mr. Freedman, isn't your difficulty of that argument the fact that this Court has reached that question and reasonable and philosophically right as Judge Hand may have been, he was overruled in that case, wasn't he?
Abraham E. Freedman: That on this point. Oh, no. Your Honors affirmed him on that point.
Potter Stewart: On what -- on which point? And I don't understand what you're saying.
Abraham E. Freedman: On the point -- on the point of the services, the seaman services. He was not overruled on that point. So far as the (Voice Overlap) --
Potter Stewart: In the Halecki case?
Abraham E. Freedman: The point in the Halecki and also the Skovgaard. The -- the only --
Potter Stewart: Halecki was that case.
Abraham E. Freedman: Yes, Your Honor.
Potter Stewart: Halecki and the other one decided the same day in the Second Circuit (Voice Overlap) --
Abraham E. Freedman: Right, sir. Skovgaard, the two of them were companion cases --
Potter Stewart: Correct.
Abraham E. Freedman: -- in a sense. The -- the -- in the Halecki case, Your Honors didn't touch that part of Judge Hand's opinion which I've just quoted.
Felix Frankfurter: Well, it couldn't have been affirmed.
Abraham E. Freedman: Well, it seems to me that if Your Honors only -- only reversed part of it. Well, there were -- there were other cases too. We have -- we have the -- we have the Berge case, we have the Halecki case, we have the Gerini case where Judge Hand said that -- that were never reached Your Honors.
William J. Brennan, Jr.: (Inaudible)
Abraham E. Freedman: Sir?
William J. Brennan, Jr.: I wondered -- what my difficulty as you just quoted about, more likely (Inaudible)
Abraham E. Freedman: I think on the interpretation of the Death Act, Your Honor. I think in Halecki, I think Your Honor held, Mr. Justice Brennan, that in any case of maritime tort even though the -- you may follow the state statute --
William J. Brennan, Jr.: Well, if you get covered.
Abraham E. Freedman: I thought Your Honor was referring to Halecki.
William J. Brennan, Jr.: I thought Halecki (Inaudible)
Abraham E. Freedman: Yes, it's -- well Halecki and -- Halecki and Tungus so far as the State Death Act involved pretty much the same principle that is under the Death Act. Your Honors there held -- Your Honor, Justice Brennan – Mr. Justice Brennan, filed a dissent on a ground that when you -- even when you seek the remedy under a state death act, the substantive law in determining the liability of the parties must be drawn from the maritime law, whereas, Mr. Justice Stewart in that case held that when you take the remedy out the state statute, out the state Court, you take the substantive law of a state which was limited. In other words, under the law of the State, normally, there's a question. There's no warranty of seaworthiness. Your Honor held that in testing the liability -- the -- Your Honor distinguished between the right and the remedy. The remedy would be under the state death act whereas the right involved the substantive rights of the parties and that the -- and the determination of that right had to be drawn from the maritime law itself.
William J. Brennan, Jr.: It is your (Inaudible) filed on the facts.
Abraham E. Freedman: On that point, Your Honors, Your Honors (Voice Overlap) specifically reserved.
William J. Brennan, Jr.: (Inaudible)
Abraham E. Freedman: Your Honors, I think the -- the majority specifically reserved the question that we have right here in Halecki, namely -- namely whether or not in this situation where there is a -- a service involving the repair or placing a vessel back in operation, Your Honors specifically in that case -- that is the majority specifically in that in case, I think Your Honor, Mr. Justice Brennan pointed in your dissenting opinion that -- that it covered just citing Pope & Talbot that it did cover, but I think that the majority did reserve that point in the Halecki case. I think I had reached the point and stating that the vessel was manned by a crew of five. I would like to make this observation -- or six rather. That actually while we make the point here and while it demonstrates that actually, there was, the vessel was manned, I do not believe it makes any difference. In fact, I'm -- I'm quite sure that the cases indicate this would be an honor -- an -- an answer to Your Honor, Mr. Justice Harlan's question in the preceding argument if I may -- if I may refer to it while Your Honor was on this point and I think that whether a vessel is manned, actually doesn't matter. This Court in Warner versus Norton, 321 U.S., involving a barge, a dead barge as -- which is what we're talking about here, when we say dead barge, we really mean it, a -- a vessel without any motor power of its own and -- and this, the Mary Austin was pretty much the same. So long as the men who are working on it, if they are performing these maritime services in aid of it, then they take the place of the men who normally would be her crew for this purpose and therefore, actually it wouldn't make a difference if the vessel itself was or was not manned by a regular crew, (Inaudible) is entirely irrelevant or -- and -- and even unimportant. The point is that if the vessel itself is in navigable waters, if the service being performed is a maritime service, in aid of navigation, then I think the cases pretty clearly hold that the warranty applies. In this situation, and I think Mr. Justice Stewart, I think perhaps this might be relevant in answer to Your Honor's question before. In determining the question of laid-up status, whether the nature of the service themselves, Judge Hand, speaking for the Court in the Berge case and -- and several other cases, the Gerini case and I think another one that we've cited in our brief, pointed out after he reviewed the cases, but where the vessel is being laid up, the services which are being performed to lay it up, may not be maritime services, may not be the kind of services which are designed in aid of navigation. These are the cases which were cited by my friend in his brief which involved Jones Act cases which are not the issue here. Here, we do not have any Jones Act case because we're not suing the employer and that's a -- an important distinction. I would to reserve -- I've lost track of my time but I would to reserve some time for rebuttal, but I would like to make this point which I think is in further answer to Your Honor, Mr. Justice Stewart's question before and I think rounds it up. If the services are supported in laid-up status or whatever we want to call it, whether it's in mothballs or anything else, then it's to take it out of act of navigation and some courts have held that that service is not a maritime service. That service is in not in furtherance of navigation and therefore that service is not traditionally seaman's service. However, up to that point when we get to the opposite extreme, anything which is done to maintain it in the service, in the -- in navigation or to put it into navigation is exactly the opposite and every single one of the cases which my friends cite in their brief here say exactly that, everyone of them. Like the Antus case, where there was a question of laying it up. We had the -- the Horn case where the vessel was being laid up for -- to be used as a storage for soya beans, the Court there held that wasn't any maritime service. I see that I have five minutes left. I would like to reserve that for rebuttal, sir.
Earl Warren: You may. Mr. Colby.
Leavenworth Colby: Mr. Chief Justice and may it please the Court. I should like first to direct attention to a bit of the facts here and ask the Court to remember that as my brother has pointed out, here we have a vessel which has been for many years in what I believe is called the “moth-ball fleet” which is probably all the mothballing there is about this. She had then been brought up to Philadelphia where the cheapest bidder on the reconditioning contract was situated in order that she might be put in shape to be seaworthy to go in to maritime service after this long lay-up. During the period of the lay-up, they opened up all of her piping, take all of the little plugs and things out of the piping, drain it, blow it out, fill it full of preservatives and put these plugs and things back with just a turn or two to keep the preservative in warm weather from flowing out. Now, thus, the plugs and whatnot will not stay in place under any pressure. So she was brought up and she entered upon her period of reconditioning which the District Court said was the equivalent of homeport structural repairs. Now, I don't it all, what the District Court meant by that expression, but that's what it said. Now, what took place was that she was in repair for 36 days. The libelant here was injured on the 16th day and 20 more days more of repair was required before the vessel was in condition to be seaworthy for a voyage. So you have him injured right in the middle of the thing, of the repair period. Now, when injured, Mr. West, who was an engineer was kneeling down on his right knee, with his left knee elevated in the low pressure cylinder of the engine. So you will please note that the repairs were sufficiently major that they had her engines all torn apart and he was down in the cylinder. While thus kneeling, one of these plugs hit him on the left knee, doing the injuries for which this suit is brought. Now, the record shows that nobody ever did figure out exactly how the plug dropped and hit him on the knee. But because there was some moisture on the deck or rather I guess on the -- in the cylinder underneath where the plug dropped and because it was known that employees of the repair contractor had put a pressure, a water head pressure on the pipes, it was thought that the repair contractor's people by putting this pressure on the pipes had blown the plug which was only one thread in out and that it had fallen through an arc in space and clipped Mr. West on the knee, doing in the injuries for which suit is brought. Now, I call your attention to the fact as to the seriousness of the repairs that it went on for 36 days and this was in the middle of thing so that it was 20 days more after this before the vessel became seaworthy in any ordinary and real sense and we say she was seaworthy for the purpose. That is to say she was in the shape that a vessel that goes in to be repaired is in. Now, the specifications were rather specific that this was the job that had to be done on this piping, so that the Government had disclosed the condition. There was nothing inherently latent about this, everybody knew about it. It was a case of Mr. West and others coming aboard to take care of these things. So now, that is the situation on the amount of repairs and their character so far as the record discloses. Now, the District Court said that she did not have a crew aboard. By that, the District Court obviously meant she didn't have a crew of some 48 men which would have been her normal complement. There were aboard some people who I believe later became her crew to take her to sea along with a complete complement of seamen, who were not on the Government payroll but were on the personal payroll, if you will, of United States lines, the Government's husbanding agent to see to the supervision of the repair. They were as my brother said, six in number, not a crew of 48 but six. They of course stood watches and they kept logbooks just like you do on a construction or repair job onshore, where also the people stand watches and keep logbooks. So they were of course seamen, because only seamen have the proper people to see whether a repair contractor is doing the job that he's paid to do under the specifications of the contract, now so much for the manning. Now my brother has suggested that the crew is of course divided into three departments, the deck, the engine and the steward's. Well, that's true in this kind of a ship, but it should also be borne in mind that on a passenger ship, you also have the pursers department and that entertainers including singers and hair dressers and all such people are of course seamen. Seaman as the Court said in Warner and Norton, which my friend here has cited to you, quoting the very great admiralty judge, Judge Hough, “are people who do anything for the benefit of a voyage, not necessarily those who hand, reef and steer.” So the singer, who appears with the band is also doing seaman's work. And this is why we think that any attempt to approach the analysis of this problem by asking whether a particular thing is seaman's work or not, is apt to be a little empty. In other words, there is very little that some seaman on some type of ship doesn't do. All passenger ships have upholsterers and drapers aboard as part of the crew. So I assume that upholstering and draping is obviously seaman's work and so we go. So we submit to Your Honors that this attempt to decide the scope of the warranty of seaworthiness by the nature of the task involved is one that gives rise to very great difficulties. In the Halecki case, if Your Honors will recall, great difficulty was experienced and Mr. Justice Brennan in a very knowing opinion said that he couldn't quite see the distinction. Well now, like Mr. Justice Brennan, I have the same difficulty in attempting to do this by the task involved. Let us, however, look at the history of the warranty of seaworthiness. Now, after all, Mr. Freedman's client is trying to recover here for breach of the warranty of seaworthiness. Now, this is an implied warranty. Now, let us think for a moment in the abstract, what are requirements for recovery for a breach of warranty, implied warranty of any sort. First, the implied warranty must not be negated by something express in the contract or implicit in the circumstances. Second, there must be reasonable reliance such as a prudent person would have upon the warranty that is implied. Finally, the plaintiff or libelant must rely upon the warranty and be damaged by its breach. Now, let's look at the history of the breach -- of the implied warranty for seaworthiness. Aside from cargo and passenger cases, it takes its origin in the case of Osceola where the Court said there was an implied warranty of the sea -- of seaworthiness of a vessel for the voyage. And that it made no difference that the sea that the -- the defect was one that existed without the fault or knowledge of the shipowner. Now Your Honors will recall that Osceola was a case of the ship having been equipped with some gear for putting out the gangway when she came to shore and this was found to be stated in the question certified to be entirely seaworthy and proper. The difficulty in Osceola was that the master put out the rigging to hold the gangway while she was out where the wind would catch her. The vessel was making some 11 knots and there was an 8-knot wind. And the gangway thrashed around and hurt the man who was injured and that was the way the case came up. So now you'll notice that this is a question of warranty of seaworthiness for a voyage which is in actual operation. Now, that is the first time that we have the warranty of seaworthiness implied in favor of a seaman. Now the next case, if Your Honors please, was Mr. Justice McReynolds' opinion in Carlisle Packing Company against Sandanger. I'm sure we all remember this in the classical way. This is the coal oil can case as opposed to the malice case or something like that. They had a coal oil can, marked coal oil aboard and it had gasoline in it. And it was held by the Court that this was a breach of the warranty of seaworthiness because a coal oil can was warranted to have coal oil in it and not gasoline and therefore, Mr. Sandanger was entitled to a recovery. Now, once again please note that this is an implied warranty of seaworthiness for a voyage. This happened while he was on the voyage. We come next -- oh I might say in -- in Sandanger that Mr. Justice McReynolds emphasized the point by giving as his authority the Silvia and the Southwark. Now, Silvia was a case involving whether there was a breach of the warranty of the seaworthiness to cargo where a perfectly proper porthole was left open. And that it was held there was no breach of the warranty of seaworthiness that these was just negligent management by the officers and crew in not shutting up the porthole when they got in bad weather. Southwark was a somewhat similar type of situation in respect to refrigerator machinery. Now, this again is the development of the concept and the scope and what have you of the warranty of seaworthiness of a vessel. It is for a voyage. The next case in this Court of importance was of course the Mahnich case this is the Wolf case. The shipowner put aboard unsound line and sound line. And he didn't cut the unsound line up into small lengths so the mate took some of the old defective line and rigged the boatswain's chair or something of the sort with it, held that their having of the line aboard in such lengths that it might be used for a boatswain's chair was an unseaworthiness of the vessel. Now, once again, in the course of the voyage, the implied warranty of seaworthiness for the voyage is just same as the warranty of seaworthiness which is made to the shipper of cargo and to the passenger, it is for the voyage. Now, we come next to Sieracki. You will recall that in loading the vessel, a shackle broke, held that even though the man was not a seaman in the literal sense and was not subject to the discipline which the Court had referred to in Mahnich as the reason why you have the same kind of a warranty in favor of a seaman as in favor of passengers and cargo that is to say that they couldn't look into the thing. The shipper and the -- the passenger have no chance, the seaman by reason of the discipline was thought in Mahnich to have no genuine opportunity to do so. Now, we come to Sieracki and although there is this difference and although there is no privity of contract between the shipowner and the injured repairman -- the injured stevedore employee, still by analogy to MacPherson and Buick, the privity of contract is ignored and we go on. But still again all, it is the implication of a warranty of seaworthiness for the voyage. It is in the course of the loading. Next in order in this Court comes Pope & Talbot against Hawn. Now, that was a case where with the complete crew aboard, the vessel was almost through loading to go out -- the grain fittings became defective in some particular and the injured man who was a carpenter of a very special type, the kind of carpenters who see to looking after grain fittings. It's a type of stevedoring work but at the same time it's a type of repair work. He was injured, held that the warranty extended to him. Now, that seems obvious. The vessel was loading for the voyage. The shipowner had represented that she was seaworthy. Cargo was already aboard. Certainly, there was no doubt at that point that there hadn't been a warranty of seaworthiness to every pound of cargo that had been on laden. So it's held that the warranty extends also to this carpenter who comes aboard. Nothing is more natural, but notice it's in the course of the voyage. Next we have Alaska Steamship and Peterson. This is again loading or unloading for the voyage. The stevedore is allowed by the ship to bring aboard a defective snatch block instead of requiring him to use vessel's snatch block, they let him use their own. This was defective, Peterson was injured, but it is once more a breach of a warranty implied of seaworthiness for the voyage. Now, Rogers is of course the same. Now, we had it last term, again, in connection with Skovgaard and the Tungus. There again, the injury was in the course of the voyage. They were off loading at that time. Now, no case in this Court has held that there may be a recovery on account of breach of an implied warranty of seaworthiness not for a voyage but at some other time. Now my brother, I see by his argument, urges that this Court say that there is an implied warranty of seaworthiness from the moment the vessel is completed building until she is done and finished and goes to the grave yard. He appears to make an exception to take care of certain cases on account of some kind of major structural repairs. Well, of course any such major structural repairs are obviously not in the course of a voyage, but the thing it seems to me that the Court should address itself to instead of looking at the tasks of the workmen, to look at what is the representation and warranty of the shipowner. Now clearly, in the case of Mr. West, and the Mary Austin here, there was no representation by the shipowner that the vessel was seaworthy for a voyage. In fact, the whole thing was, she was unseaworthy except to the extent that they were able to tow her up from the reserve fleet down by Norfolk up to Philadelphia where the cheap bidding contractor was situated and then turned her over. Now, they went on for 20 days after Mr. West was injured in order to get her in shape to be properly seaworthy for a voyage. Now, this is the only kind of seaworthiness, it seems to me, which is real seaworthiness, worthy to go to sea. This is what is meant by the warranty of seaworthiness where passengers and where shippers are concerned. Now, Mr. Freedman not unnaturally says, “Let us imply a warranty of seaworthiness,” seaworthiness now means something else. Seaworthiness means being in good enough shape to be in a repair yard. Now, in our brief, we have very carefully pointed out that two courts below have found correctly in our view that this vessel was in proper shape and in that sense seaworthy to go into a repair yard. We don't think that this is any proper use of the term seaworthiness at all, although goodness knows there have been dozens of judicial opinions which have used the word that way. One of the earliest is that of Judge Parker in United States and Lindgren where he spoke about the seaworthiness of a vessel which had just come from repairs. It's a rather special case of course. The man had joined on as the ship's officer the very morning that he was injured and the vessel was just about ready to go to sea. So it differs only a little bit from a vessel really ready to go out. That is why all of the decisions and all of the decisions as to the warranty of seaworthiness to -- to cargo shippers say, “Well, it's not a matter of principle, it's a matter of fact in each case.” Another case that Mr. Freedman relies on at length in his brief is the Reed case. Now, the Reed case was a repair case so called, but what we have there was, without ever discharging the crew, at any time, because there was a war on, we had to keep them, they might get -- we might be without a crew. They proceeded to -- in five days, set up latrines and wooden bunks in the cargo holds in order to make a make-shift troop transport. Now, in that case one of the repairmen was injured. We think that under our conception of the warranty of seaworthiness, of course there was a warranty of seaworthiness there because the vessel was -- ended one voyage and began the other. And five days is no more than a normal turnaround even if you didn't have to put some buck -- bunks in it.
Speaker: (Inaudible) come to a conclusion that the ship was in navigation or that the rule was broad enough to make the seaworthiness doctrine applicable. You don't concede, do you that this condition was an unseaworthy condition?
Leavenworth Colby: No, Your Honor.
Speaker: I'm wondering why you have to argue on this broad basis rather than the narrow basis.
Leavenworth Colby: Because I think we've had a number of cases in this Court now on this problem and in view of the difference of opinion between Mr. Justice Brennan and Mr. Justice Stewart, we thought that so far as the admiralty work of the Government is concerned, it might be well if these problems were explored now because they're going to go on as we have observed they're factual. We cannot have a couple of cases coming up to this Court at each term. So that if Your Honor please (Voice Overlap)--
Speaker: Still, you could prevail -- you could prevail in this --
Leavenworth Colby: Yes.
Speaker: -- case on the narrow ground, couldn't you?
Leavenworth Colby: That's right.
Speaker: So it's the natural question of a lawyer wanting to get the broadest route.
Leavenworth Colby: That is right, sir, because we have many hundreds, such cases.
Speaker: And have been --
Leavenworth Colby: To my recollection, I'm probably wrong, is that we have now pending in the admiralty section something in the neighborhood of 75 cases involving this problem. Now, addressing ourselves to the narrow ground, yes if seaworthiness merely means fit for a purpose, this vessel was fit for the purpose. In other words, everyone was on notice that the piping system was in a precarious shape and Mr. West and others came aboard to see to it. There's nothing latent about it. She was in that state proper to be repaired. Now, we just don't feel that that is what, under this Court's decisions and indeed the best considered decisions of lower courts which we've explained at length in our brief that the implied warranty of seaworthiness is an implied warranty of seaworthiness where there is no going to sea upon a voyage involved but merely a matter of the fitness of equipment.
Felix Frankfurter: In short -- in short if she had been, from your point of view in navigation or out at sea, the precarious condition of the pipes would not -- would have rendered her unseaworthy.
Leavenworth Colby: That is right.
Felix Frankfurter: So, one really doesn't get very far in getting special meaning to what is fit for a situation which fundamentally, according to your view, isn't the navigation.
Leavenworth Colby: That is right. In view of the origin of the implied warrant of seaworthiness which is founded by this Court upon the implied warranty of seaworthiness for a voyage which was made to cargo shippers and to passengers who were people who were concerned only with what goes on with the voyage from the time they begin to put the first parcel of cargo, undertake all to the time they get the last parcel off and of course, the same way with passengers, first one goes up the gangway and the last one comes down. Now even these cases that we have some more coming along of involving this so-called transitory seaworthiness like Mr. Justice Harlan's decision in Dickson and -- Mr. -- Judge Magruder's decision in Mitchell and the Trawler Racer and the Cookingham case in Third Circuit. These are all questions of -- during the voyage. What is the scope? How -- how about these situations where the vessel is seaworthy when she leaves port on the voyage if something happens in the course of it? Now, that's -- that is another problem, but those again are during the voyage and we submit that here, there is no warranty of seaworthiness to be in a repair yard that if there is something which is not a warranty of seaworthiness but some kind of new warranty of fitness, which is to be implied by this Court for the first time during repairs and we think that it should not, that it should be done by the same principles as the construction of a ship originally then of course we say that the vessel is clearly fit for the purpose of repairing.
Earl Warren: Do any -- do any of these of cases, Mr. Colby, specifically limit seaworthiness to the voyage?
Leavenworth Colby: Well, under the cases with respect to cargo, they are very specifically limited. Now, so far as this Court has gone yet in each case for seamen and repairmen and longshoremen, this Court has not yet extended an implied warranty of seaworthiness to a situation which did not involve seaworthiness for the voyage and I come back to my analysis of the concept of the breach of the implied warranty. In other words, is there an implied warranty or are there facts and circumstances which show that no warranty was implied? Now, we represented and warranted in this case that the vessel had to have 20 days more work done on her before she was seaworthy for a voyage. On the other hand, we say that she was in fit shape to undertake the repairs. There were no -- no traps for a workman aboard. Now, we might say a word about the --
Speaker: Can I ask you a question --
Leavenworth Colby: Please, sir.
Speaker: -- on your -- on your broader argument? Would from your point of view, the ship has been in navigation after she was released from her dry dock for these major -- for these repairs, but before she had gotten back to her home port and commenced a voyage or had any voyage in prospect, would she be in navigation or not?
Leavenworth Colby: If Your Honor please, the conception of what is and is not navigation as Mr. Freedman has shown you is a very difficult and surely factual problem. We suspect that the vessel is impliedly warranted as seaworthy for a voyage about the time she takes aboard a crew, but that wouldn't necessarily be so. The crew comes on very often one by one and so forth. In other words, this is the same thing it, is a factual problem. The same as it is with respect to shippers and passengers.
Speaker: But your broader rule doesn't serve the element of a case by case -- it doesn't get around the case by case --
Leavenworth Colby: There will still have to be --
Speaker: -- problem, doesn't it?
Leavenworth Colby: -- factual determinations, yes if Your Honor please, but we do feel that the factual determination should be put on something, on some base which is consonant with prior decisions of this Court which have limited it to loading, course of voyage and unloading and which are consonant with the warranty of seaworthiness to shippers and passengers from which the one in favor of seamen and other workers has been implied.
Felix Frankfurter: Mr. Colby, the -- all this talk about implied warranty holding out the so-called -- that is legal reasoning, relevant legal reasoning derived from a still broader consideration, namely the relation of the ship to the cargo and the passengers and the crew. And the kind of relation to be imposed, the kind of duties to be imposed by law, whether they like it or not, whether the shipowner likes it or not, these are duties imposed by law in view of the relationship, the economic relationship, the social relationship, the bearing in other words that a -- that a shipper and the passenger and the seaman has that those are the seaman's duties, whatever they may be, occupy the functions of seamen. The relationship they have, the freedom they enjoy, the self protection as against the economic coercive element or social coercive element in the situation.
Leavenworth Colby: That is right, sir.
Felix Frankfurter: Isn't that right?
Leavenworth Colby: That is right, sir.
Felix Frankfurter: In the essence of the matters?
Leavenworth Colby: That is right, sir.
Felix Frankfurter: You've got to go beyond merely analyzing analytically what an implied warranty is as we lawyers find it to the underlying source of economic elements --
Leavenworth Colby: That is right.
Felix Frankfurter: -- out of which this imposed duty derives.
Leavenworth Colby: That is right. And that is why as I conceive it, Mr. Freedman is asking for the development and creation of a new rule, one which this Court at any rate has not yet created, although there is some confusion in lower courts and some of them seem to have thought that they found one.
Earl Warren: Mr. Freedman.
Abraham E. Freedman: I would like to briefly reply to some of the points which my friend -- let me address myself first to this question about seaworthiness. It's so -- as Your Honor, Justice Frankfurter has stated, it's a -- it's a duty imposed by law. It's not contractual in a sense that the parties say I contract, I warrant that it's seaworthy or not seaworthy whatever it may be. The law imposes it on them, and the duty is on the shipowner to make sure or to provide, not to make sure but to provide a safe and seaworthy vessel. And if in fact it's not safe, this Court said in Sieracki at so many times that the shipowner is liable. In some sense in -- in some of the cases, they called it a warranty, in some other cases this Court has called it the doctrine of unseaworthiness. Now, I may say now, I've only already got a couple of minutes left and I would like to cover some of the points that is made here. I would like to say now that the Government has already taken a very, very sharp attack away from the argument which they made in their in brief. As Your Honors will read they briefs, you'll see that they make the big distinction on the basis of major home port structural repairs, if I may quote them. That's the way -- that's way that Your Honors will find it in the brief, major home port structural repairs. Now, they come along and they say that makes no difference. As a matter of fact, the point is that that is the difference. That does make the issue in this case. I said before in -- in answer to Mr. -- Mr. Justice Brennan's question that we need not reach the point. What I meant was, we need not determine whether if they are major home port -- home port structural repairs, whether the warranty applied in those cases, it applies -- what I meant to say was and this Court should find that it applies at least to that point as Mr. Judge Hand has said as this Court has said in both in Talbot, Justice Hand in Sieracki and the other cases which followed, Peterson. And I may say too that the -- I disagree very strongly with my friends over here that in all of these cases, that the warranty was applied only in contemplation of a voyage. As a matter of fact, despite the contrary, the famous Rogers, there was no voyage in question. In the case of famous Rogers, there was no voyage in contemplation. They -- this Court found an unseaworthy condition and they overruled -- they overruled this Third Circuit to concur. Now, there are other cases, the Johansen file that Your Honor said (Inaudible) where that was never made a condition, not once was never made a condition that it must be part in with the voyage. How about all of these inland water vessels, the tugboats, the drudgers that never go to sea, they never make any sea voyages. These too had been held to be mind with under the warranty, the so called warranty to seaworthiness. But whether we call it the warranty of something else, the point is it is a liability for an unsafe condition aboard the ship. And this Court said in Sieracki, if in fact in some statement, it makes no difference whether they could discover or whether they couldn't discover, there is an absolute liability and that's -- that's the plaintiff's argument. There was one other point too that I started to make in this case which I might probably had touched on, and that is the liability, concerns the case of negligence and he says, we gave it all over to the contract and this is what they've argued in the brief. In other words, we really push control on the entire vessel. This Court in Peterson said that there is no such thing as relinquishing control of the vessel. The Ninth Circuit Court of Appeals opinion which was adopted for trial by this Court, said, that where the shipowner engages a private contractor, to do and work on aboard the ship he doesn't relinquish control. The responsibility of this regardless of who engages and the Court in so many words said there -- and Judge Hand said in -- in the Halecki case too, that the -- and rather of which -- and the -- and the -- just as Halecki (Inaudible) reviewed all of these -- control this cases related to control. But that was an old concept emanating out of the Second Circuit and only out of the Second Circuit, which is now repudiated by the decisions of this Court in Peterson and Pope & Talbot versus Hawn and -- and in most likely in Crumady versus Fisser.
Felix Frankfurter: Those cases, -- well, those cases are different. Those cases involve the question, “Who is the beneficiary of the doctrine? Who's kind of related within its benefits for the obligation as part of the shipowner, not whether the area within which the doctrine operates?
Abraham E. Freedman: It's both, Your Honor, Peterson versus Hawn it was (Voice Overlap) --
Felix Frankfurter: But wasn't that -- wasn't that Talbot so --
Abraham E. Freedman: Your Honor (Voice overlap) --
Felix Frankfurter: Let's do that. Those are the people who are -- go to -- this duty as a seaman is always what contends in --
Abraham E. Freedman: This -- (Voice overlap) this Court had this situation, Your Honor. We had a situation of a private contractor not merely doing the wrong, but bringing his own equipment on board which was -- which was defective and this Court held that under the control theory, they couldn't say that they came to --
Felix Frankfurter: But it was onboard -- or the question -- there wasn't any question that it was a -- whether it was a -- the ship was in action or non-action, wasn't it? This definitely --
Abraham E. Freedman: This ship was --
Felix Frankfurter: -- a question was whether you could distribute, whether you could unroll your responsibility and chuckle it all around the contractor, again do we know?
Abraham E. Freedman: That's right. In other words, that nondelegable duty is such Your Honor, that the --
Felix Frankfurter: But you first got to resolve the duty in order to find out whether it's delegable or not.
Abraham E. Freedman: Well, that duty -- that duty was made clear by this Court in Sieracki and the Pope & Talbot versus Hawn, most recently in Crumady and I might say that the distinction which my friend, the assignment would say, Mr. Justice Brennan and Mr. Justice Stewart does cover the point that friend just made. The -- the distinction there was only on the one point as to what the application of the state statute involved as to the question of what a seaworthiness means. Mr. Justice Stewart joined with the majority in the Crumady case in holding quite to the contrary. I see that my time is up, sir.
Felix Frankfurter: In other words, the opportunity is still open for my -- whether we would disagree on your present question.
Abraham E. Freedman: No, they had already agreed on my questions in the -- in the Crumady case. And Crumady, Your Honors know Mr. Justice Stewart joined with Mr. Justice Brennan on the majority.
Felix Frankfurter: I'm not my Brother Stewart to that extent.
Abraham E. Freedman: Sir?
Felix Frankfurter: He'll have to decide for himself whether this --
Abraham E. Freedman: Of course.
William O. Douglas: And has been issued to everybody to keep the --
Speaker: This contention to your suggestion.