Usner v. Luckenbach Overseas Corp./Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.

While petitioner was working on a barge loading cargo into a hatch of the ship, he was injured as a result of the negligent operation of a winch. The winch was part of the ship and the winch operator was a member of the crew of stevedores. The injury was caused by a lowering of a sling, which carried the cargo, too quickly and too far.

Prior to the 1970 Term the judgment denying recovery would have been reversed, probably out of hand. We held in Mahnich v. Southern S.S.C.o., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, that the obligation of an owner to furnish a seaworthy ship extends to seaworthy appliances. We also held that the owner was not insulated from liability by the 'negligent failure' of his officers or members of the crew to furnish seaworthy appliances. Id., at 101, 64 S.Ct. at 458. In Mahnich, the staging from which the seaman fell was an unseaworthy appliance because of the defective rope with which it was rigged. There was sound rope on board but defective rope was used. The fact that the mate and boatswain were negligent in selecting defective rope was held to be no defense.

In Crumady v. The J. H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413, a winch was not inherently defective as was the rope in Mahnich. But it was used in a way which made it unsafe and dangerous for the work at hand. While the rigging would take only three tons of stress, the cutoff of the winch, 'its safety device,' was set at twice that limit. Id., at 427, 79 S.Ct. at 447 448. And so the rope sling broke and injured the seaman. The vessel which paid the damages was allowed to recover over from the stevedores whose negligence with the winch made the vessel pro tanto unseaworthy.

In Mascuilli v. United States, 387 U.S. 237, 87 S.Ct. 1705, 18 L.Ed.2d 743, negligent use of a winch in a loading operation so obviously made the vessel pro tanto unseaworthy that we reversed out of hand a judgment of no liability, citing Mahnich and Crumady.

What we said in Mitchell v. Trawler Racer, 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941, about the 'complete divorcement of unseaworthiness liability from concepts of negligence' related to a condition which made the vessel not 'reasonably suitable for her intended service.' Yet alongside that conventional type of unseaworthiness there developed the concept of unseaworthiness resulting from operational negligence.

Indeed, the doctrine of operational negligence which causes unseaworthiness has had a sturdy growth. Chief Justice Stone, writing for the Court in Mahnich, showed that this doctrine goes at least as far back as The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, decided in 1903. See 321 U.S., at 101-104, 64 S.Ct. at 458-460. The intervening decision of Plamals v. Pinar del Rio, 277 U.S. 151, 48 S.Ct. 457, 72 L.Ed. 827, which looked the other way, was decided in 1928. It was around that case that Justices Roberts and Frankfurter turned their dissent, saying that unless the Court followed precedent 'the law becomes not a chart to govern conduct but a game of chance; instead of settling rights and liabilities it unsettles them.' 321 U.S., at 112, 64 S.Ct. at 463. They added:

'Respect for tribunals must fall when the bar and the public     come to understand that nothing that has been said in prior      adjudication has force in a current controversy.' Id., at      113, 64 S.Ct. at 463.

Justices Roberts and Frankfurter bitterly expressed that view in Mahnich when Pinar del Rio was overruled-a freak decision not in keeping with the mainsteam of the law that had come before.

Changes in membership do change decisions; and those changes are expected at the level of constitutional law. But when private rights not rooted in the Constitution are at issue, it is surprising to find law made by new judges taking the place of law made by prior judges.

Up to today operational negligence has been one sturdy type of unseaworthiness. I would let it continue as the prevailing rule unless Congress in its wisdom changes it.