Victory Carriers, Inc. v. Law/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting.

Gutierrez v. Waterman S.S.C.orp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297, involved an injury to a longshoreman while he was on the dock unloading the ship. The injury was not inflicted by a defective appliance of the ship. He merely slipped on loose beans spilled on the dock from defective cargo containers belonging to the ship. Here the longshoreman was engaged in a phase of a loading operation; he was on the dock stacking cargo for loading and the appliance causing the injury belonged to the stevedore company.

The Court of Appeals properly concluded that the work was part of the loading process and that therefore the longshoreman was in the service of the ship. That gives pragmatic, realistic meaning to the concept of loading and avoids the narrow, grudging, hypertechnical definition.

Loading activity that involves work on the ship and on the dock. Longshoremen are both shipside workers and shoreside workers and move back and forth from deck to dock. At times an individual worker may be using the ship's appliances and a moment later the stevedore's appliances. But the work does not change in character. For example, although prior to his injury Law had nor mally been involved in loading or unloading, his specific assignments varied. On some days he was assigned to drive a forklift on board ship. On others, such as the day of the injury, he shuttled cargo between various points on the dock during the loading process. Respondent was subject to all the risks and hazards of loading the ship; and the humanitarian policy of the admiralty law has been to allow those who so service the ship to receive the protections usually afforded that class.

Equipment need not belong to the ship to be an appurtenance of the ship; and it may be such even though it belongs to the stevedore. We so held in Alaska S.S.C.o. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, over the strenuous dissent of Mr. Justice Burton, joined by Mr. Justice Frankfurter and Mr. Justice Jackson. The critical question is whether the injury occurred during loading or unloading. We there allowed recovery for injury to a longshoreman which occurred while he was loading the ship on the deck and which was caused by a defective block used by the stevedore company. And we followed that decision in Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120, the same three Justices dissenting.

I would adhere to our decisions in the Petterson and Rogers cases and affirm the judgment of the Court of Appeals.

This Court's decisions have rather consistently reflected the principle that because loading and unloading of vessels are abnormally dangerous such risks ought to be placed initially upon the shipowners and ultimately passed on through higher prices to the customers of the shipping industry. See International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926); Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914). The most well-known explication of this principle was advanced in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 93-96, 66 S.Ct. 872, 876-878, 90 L.Ed. 1099 (1946), which held that longshoremen, as well as seamen, were entitled to recover under the doctrine of unseaworthiness for injuries sustained aboard ship:

'That the liability may not be either so founded or so     limited would seem indicated by the stress the cases uniformly place upon its relation, both in      character and in scope, to the hazards of marine service      which unseaworthiness places on the men who perform it. These, together with their helplessness to ward off such     perils and the harshness of forcing them to shoulder alone      the resulting personal disability and loss, have been thought      to justify and to require putting their burden, in so far as      it is measurable in money, upon the owner regardless of his      fault. Those risks are avoidable by the owner to the extent     that they may result from negligence. And beyond this he is     in position, as the worker is not, to distribute the loss in      the shipping community which receives the service and should      bear its cost.

'All the considerations which gave birth to the liability and     have shaped its absolute character dictate that the owner      should not be free to nullify it by parcelling out his      operations to intermediary employers whose sole business is      to take over portions of the ship's work or by other devices      which would strip the men performing its service of their      historic protection. The risks themselves arise from and are     incident in fact to the service, not merely to the contract      pursuant to which it is done. The brunt of loss cast upon the     worker and his dependents is the same, and is as inevitable,      whether his pay comes directly from the shipowner or only      indirectly through another with whom he arranges to have it      done. The latter ordinarily has neither right nor opportunity     to discover or remove the cause of the peril and it is      doubtful, therefore, that he owes to his employees, with      respect to these hazards, the employer's ordinary duty to      furnish a safe place to work, unless perhaps in cases where the perils are obvious or      his own action creates them. If not, no such obligation     exists unless it rests upon the owner of the ship. Moreover,     his ability to distribute the loss over the industry is not      lessened by the fact that the men who do the work are      employed and furnished by another. Historically the work of     loading and unloading is the work of the ship's service,      performed until recent times by members of the crew. Florez     v. The Scotia, D.C., 35 F. 916; The Gilbert Knapp, D.C., 37      F. 209, 210; The Seguranca, D.C., 58 F. 908, 909. That the     owner seeks to have it done with the advantages of more      modern divisions of labor does not minimize the worker's      hazard and should not nullify his protection.'

Although subsequent holdings sustaining the applicability of the doctrine of unseaworthiness might alternatively have been grounded in more mechanical rules, the language of the cases has instead been the broader principle explicated in Sieracki. For example, in Reed v. The Yaka, 373 U.S. 410, 414-415, 83 S.Ct. 1349, 1353, 10 L.Ed.2d 448 (1963), holding that a longshoreman was not deprived by the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C. § 901 et seq., of his unseaworthiness remedy merely because the shipowner happened also to be his stevedore-employer, the Court relied upon the policy expressed in Sieracki:

'(W)e pointed out several times in the Sieracki case, which     has been consistently followed since, that a shipowner's      obligation of seaworthiness cannot be shifted about, limited,      or escaped by contracts or by the absence of contracts and      that the shipowner's obligation is rooted, not in contracts,      but in the hazards of the work. (Emphasis added.) Similarly, the 'humanitarian policy' rather than the more mechanical, albeit historical, maritime tests was the starting point in Waldron v. Moore-McCormack Lines, 386 U.S. 724, 728, 87 S.Ct. 1410, 1412, 18 L.Ed.2d 482 (1967):

'When this Court extended the shipowner's liability for     unseaworthiness to longshoremen performing seamen's work,      Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90     L.Ed. 1099-either on board or on the pier, Gutierrez v.     Waterman S.S.C.orp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d     297, either with the ship's gear or the stevedore's gear,      Alaska S.S.C.o. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98     L.Ed. 798, either as employees of an independent stevedore or     as employees of a shipowner pro hac vice, Reed v. The Yaka,      373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448-we noted that     'the hazards of marine service, the helplessness of the men      to ward off the perils of unseaworthiness, the harshness of      forcing them to shoulder their losses alone, and the broad      range of the 'humanitarian policy' of the doctrine of      seaworthiness,' id., at 413, 83 S.Ct., at 1352, should      prevent the shipowner from delegating, shifting, or escaping      his duty by using the men or gear of others to perform the      ship's work.'

A straightforward application of the sieracki principle to the instant circumstances would clearly warrant recovery by Law, if his allegations are proved at trial, under the doctrine of unseaworthiness. He was driving a forklift laden with cargo which was to be hosited aboard the S.S. Sagamore Hill. As he drove along the dock, a defective overhead rack became disengaged and crashed upon his head. The Court of Appeals correctly concluded that his activity had been part of the loading process and was protected by the Sieracki principle. And at least two other circuits have made similar conclusions under analogous conditions. See Huff v. Matson Navigation Co., 338 F.2d 205 (CA9 1964); Spann v. Lauritzen, 344 F.2d 204 (CA3 1965); see also Chagois v. Lykes Bros. S.S.C.o., 432 F.2d 388 (CA5 1970).

By ignoring completely the underlying reasoning of these cases and by focusing instead on the narrow facts involved in each of them, the majority gives short shrift to the policy of distributing loading and unloading risks of personal injury to the users of the shipping industry. The Court places special emphasis on the alignment in this case of three factual elements: (a) an injury to a longshoreman (rather than a seaman), (b) upon a dock (rather than upon a deck), (c) caused by defective equipment supplied by the stevedoring contractor (rather than by the shipowner). Thus the majority finds Gutierrez v. Waterman S.S.C.orp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), inapposite even though it involved both the first and second conditions, and presumably would view Alaska S.S.C.o. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954), inapposite even though it concerned both the first and last conditions. But the mere fact that this Court has never decided a controversy composed of these precise elements is not an adequate reason for excepting such a circumstance from the scope of the Sieracki principle.

The majority offers three reasons for the exception. First, the Court seems to argue that the Sieracki principle has already been limited by Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969), holding that Congress did not intend that the Longshoremen's and Harbor Workers' Compensation Act would apply to any injury occurring off a ship. In Johnson, however, the Court clearly acknowledged that Congress' constitutional maritime power does not cease at the shoreline. Id., at 223-224, 90 S.Ct., at 353 354. And, obviously, the reach of 28 U.S.C. § 1333, conferring upon district courts original admiralty and maritime jurisdiction, as extended by the Admiralty Extension Act of 1948, 62 Stat. 496, 46 U.S.C. § 740, is not governed by the reach of the Harbor Workers' Act. In fact, the Court, while denying a compensation remedy under the Harbor Workers' Act, noted that an action for unseaworthiness would lie against the ship. 396 U.S., at 223 n. 19, 90 S.Ct., at 354.

The primary reason offered to support the majority's exception to the Sieracki principle is that it is for Congress rather than the judiciary to determine the adequacy of state workmen's compensation laws, which, under the Court's holding, will now be the only remedy available to a longshoreman injured ashore during loading or unloading by pier-based equipment of the stevedoring Contractor. See Nacirema Operating Co. v. Johnson, supra. While Congress, of course, is better equipped for precison analysis than a judicial forum, the courts have not been unaware that state workman's compensation statutes provide puny awards compared to jury evaluations of personal injuries. See W. Prosser, The Law of Torts 555 (3d ed. 1964). Limited recovery was thought to have been necessary by most state legislatures in order to offset the imposition against an employer's liability regardless of fault. In keeping with admiralty courts' traditional solicitude for those injured in the maritime trade, the Court did not defer to Congress in other instances approving longshoremen's recoveries even though it might also have been argued in those cases that the Harbor Workers' Act or state schemes might have been adequate. No reason is suggested why deference is needed in these circumstances. In any event, referring a litigant to Congress is normally appropriate where the Court is reluctant to accept his invitation to upset an established rule. Inasmuch as the Sieracki-Petterson-Gutierrez principle would appear to be the controlling precedent, the appropriate referral to the legislative process ought to be Victory Carriers, not Law.

Finally the majority says that: 'Affirmance of the decision below would raise a host of new problems as to the standards for and limitations on the applicability of maritime law to accidents on land.' Such problems were quickly brushed aside in Gutierrez, supra, 373 U.S., at 210, 83 S.Ct., at 1188, in which '(v)arious far-fetched hypotheticals (were) raised, such as a suit in admiralty for an ordinary automobile accident involving a ship's officer on ship business in port, or for someone's slipping on beans that continue to leak from (defective cargo) bags in * *  * Denver.' Said the Court: 'We think it sufficient for the needs of this occasion to hold that the case is within the maritime jurisdiction under 46 U.S.C. § 740 when *  *  * it is alleged that the shipowner commits a tort while or before the ship is being unloaded, and the impact of which is felt ashore at a time and place not remote from the wrongful act.' As in Gutierrez, the accident here occurred on the dock, and the specter of troubling hypotheticals elsewhere ought not to deter landward extension to loading or unloading injuries on the dock. Moreover, if a brightline test is desirable, then the Sieracki policy would be less offended by a bright line drawn around both the ship and the dock than by a line cast only about the vessel. Statistical evidence suggests that the great bulk of high-risk maritime activity occurs on the ship and the adjoining pier. National Academy of Sciences-National Research Council, Maritime Cargo Transportation Conference, Longshore Safety Survey 75 (1956). See Comment, Risk Distribution and Seaworthiness, 75 Yale L.J. 1174, 1190 (1966).