Alaska Steamship Company v. Petterson/Dissent Burton

Mr. Justice BURTON, with whom Mr. Justice FRANKFURTER and Mr. Justice JACKSON join, dissenting.

The Sieracki and Pope & Talbot cases cited as the basis for the Court's decision do not justify the result announced. They evidence this Court's latest and broadest statement of a shipowner's liability for the unseaworthiness of his ship and its equipment, but they do not reach the instant case. They assert the liability of a shipowner to stevedores and carpenters who, in consequence of the unseaworthiness of his ship or its equipment, are injured on board in navigable waters while engaged in work connected with loading or unloading the ship. Those cases establish that such liability for unseaworthiness exists although the injured maritime workers are not employees of the shipowner but are employees of a third party who is under contract to supply stevedoring services.

The question presented by the instant case goes further. It asks whether a shipowner is liable for injuries suffered on his ship by a stevedore, even when those injuries result from unseaworthiness of equipment that does not belong to the shipowner and is not part of the ship's equipment, but belongs to the stevedore's independent employer, is part of that employer's loading equipment, and is brought on board by such employer. There is no suggestion in the cited cases that the shipowner's responsibility extends beyond the seaworthiness of his ship and its equipment, and I see no adequate reason for judicially extending it beyond that limit.

As the instant case offers a new precedent, it is important to recite its facts so that its effect may be accurately measured and limited in the absence of a supporting opinion.

The Court of Appeals stated the question which it decided as follows:

'The question presented is whether a vessel's owner is liable     for injuries received by an employee of a stevedoring company      (an independent contractor) on board ship while engaged in      the loading of the ship where the injuries are caused by a      breaking block brought on board by the stevedoring company.'      Petterson v. Alaska S.S.C.o., 9 Cir., 205 F.2d 478.

Respondent Petterson was an able bodied stevedore, 73 years old, employed as a longshore foreman by the Alaska Terminal and Stevedoring Company. That company was engaged by petitioner Alaska Steamship Company, Inc., to load the latter's vessel, the S. S. Susitna. In May 1950 respondent thus became engaged in loading that vessel while it was docked in what is assumed to be navigable water in the State of Washington. Petterson's employer, the stevedoring company, was authorized by the shipowner to use, in the loading operation, the contractor's own gear or the gear of the ship, at the contractor's option. Respondent and his fellow employees rigged a snatch block which had been standing or lying unused upon the deck of the vessel. It was of a type often found as part of a ship's gear aboard such vessels and also as part of a stevedoring company's gear. The block was treated by each court below as having been brought on board by the stevedoring company and as belonging to that company.

While being put to a proper use in a proper manner, the block broke, thus causing some of the loading gear to fall and crush respondent's leg as he was engaged in supervising the work of longshoremen aboard the ship.

Petterson filed a libel in personam in the United States District Court for the Western District of Washington against the shipowner claiming $35,000 damages resulting from the unseaworthiness of the block. After trial, the libel was dismissed without a reported opinion. The Court of Appeals for the Ninth Circuit reversed the decree and remanded the cause for determination of damages. 205 F.2d 478. Because of an alleged conflict with Lopez v. American-Hawaiian S.S.C.o., 3 Cir., 201 F.2d 418, and the importance of the decision in relation to a shipowner's liability for unseaworthiness, we granted certiorari. 346 U.S. 914, 74 S.Ct. 272.

The doctrine of seaworthiness was stated as a settled proposition in The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760, as follows:

'That the vessl and her owner are, both by English and     American law, liable to an indemnity for injuries received by      seamen in consequence of the unseaworthiness of the ship, or      a failure to supply and keep in order the proper appliances      appurtenant to the ship.'

That doctrine was a natural outgrowth of the dependence of a ship's crew upon the seaworthiness of the ship and its equipment. Services of a crew must be rendered with whatever equipment the shipowner supplies. Such seamen are not expected to supply maritime or loading equipment and it is only fair for the law to subject shipowners to an absolute liability to them for the unseaworthiness of the shipowner's ship or equipment.

In the Sieracki case, this Court extended the shipowner's traditional obligation so as to bring within its protection stevedores while engaged in loading or unloading the ship. This was largely on the premise that the stevedores were then rendering services usually and formerly performed by the crew. The decision assumed that the stevedores, like their predecessors, used the ship's equipment. 'For these purposes he (the stevedore) is, in short, a seaman because he is doing a seaman's work and incurring a seaman's hazards.' 328 U.S., at page 99, 66 S.Ct. at page 880. The historical analogy disappears in the instant case. The modern stevedores, who supply substantial loading equipment, are a far cry from the traditional wards of the admiralty around whome the Court threw its protection in The Osceola case.

While the doctrine of absolute liability for unseaworthiness, expounded in Mahnich v. Southern S.S.C.o., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, is reasonable enough when applied to a shipowner in relation to his own ship and to its equipment, there is no comparable justification for applying it to equipment owned by others and brought on board by them. Thus to extend such absolute liability would make the shipowner responsible for the result of latent dangers he cannot prevent. The burden should be upon those best able to eliminate the hazard-in this case, the stevedoring contractor.

Petitioner also has emphasized the fact that Petterson was injured while working in a part of the ship that was under the control of the stevedoring contractor rather than of the shipowner. This distinction, in favor of the shipowner, was relied upon in Lopez v. American-Hawaiian S.S.C.o., supra, and has been considered decisive in other cases. However, if the unseaworthy equipment in the instant case had been a part of the ship's equipment, the principles underlying the Sieracki and Pope & Talbot decisions, supra, might justify the shipowner's liability, regardless of who was in control of the part of the ship where that equipment caused the injury. It is precisely because the equipment in the instant case was not the ship's equipment that the general principles underlying those cases do not reach the issue before us.

Finally, the extension of a shipowner's absolute liability so as to include the unseaworthiness of equipment owned and brought on board by a stevedoring contractor makes such a marked change in the traditional responsibility of a shipowner as to call for legislative authorization rather than mere judicial recognition. 'The legislative process is peculiarly adapted to determine which of the many possible solutions to this problem would be most beneficial in the long run.' Halcyon Lines v. Haenn Ship Corp., 342 U.S. 282, 286, 72 S.Ct. 277, 280, 96 L.Ed. 318. That statement was made when this Court declined to recognize judicially the doctrine of contribution between joint tort feasors as a shipowner's remedy against a stevedoring contractor. The statement is equally appropriate here. In fact, Congress already has demonstrated its interest here through the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C. § 901 et seq., 33 U.S.C.A. § 901 et seq. That Act insures compensation to stevedores in comparable cases without proof of negligence. It specifically excludes from its operation members of the ship's crew and persons employed by the master to load, unload or repair 'any small vessel under eighteen tons net'. It was thus tailored, in 1927, to provide precisely the kind of relief that Congress preferred in lieu of that provided by this Court, in 1926, through International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157.

For the foregoing reasons, the judgment should be reversed and the extension of liability which it introduced should be left to legislative initiative. In any event, the effect of it should be restricted to its facts.