Waldron v. Lines, Inc./Dissent White

Mr. Justice WHITE, with whom Mr. Justice HARLAN, Mr. Justice BRENNAN, and Mr. Justice STEWART join, dissenting.

Under the prevailing cases in this Court, there can be no doubt that a negligent or improvident act of a competent officer, crewman, or longshoreman can result in unseaworthiness if it renders otherwise seaworthy equipment unfit for the purpose for which it is used. Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445. Likewise, petitioner argues, an order of a ship's officer assigning too few men to do a particular task creates an unseaworthy condition because the ship is under-manned in this specific respect. He challenges therefore the prevailing rule in the Second Circuit requiring plaintiff in situations such as this to prove not only that the order was improvident but also that the officer issuing it was not equal in competence to ordinary men in the calling. See Pinto v. States Marine Corp. of Delaware, 2 Cir., 296 F.2d 1; Ezekiel v. Volusia S.S.C.o., 2 Cir., 297 F.2d 215, 91 A.L.R.2d 1013, and authorities cited therein. The majority agrees with the petitioner, at least where the improvident order requires the performance of tasks whose safe completion calls for the assignment of more men. The majority holds that the case should have gone to the jury on both the negligence and unseaworthiness claims.

In my view, however, this case should be disposed of on other grounds. While it is true that unseaworthiness is legally independent of negligence, Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, it cannot be denied that in many cases unseaworthiness and negligence overlap. And on the facts of this case I think the claim of negligence was identical with the claim of unseaworthiness. As the majority says, petitioner's sole assertion is that assigning two men instead of three or four to put out the line was 'negligence and made the vessel unseaworthy.' The testimony supporting the claim was that safe and prudent seamanship would require three or four men to move the line. But the jury ruled against petitioner on his negligence claim, thereby deciding that the mate employed ordinary care in assigning two men to do the task. To me, the jury simply disagreed with petitioner's witness and, based on the testimony of petitioner himself and that of the seaman who helped him, decided that it was not imprudent seamanship to have two men move the line rather than three or four. Had the jury thought otherwise and considered the job to require more than two men, it would have found the issuance of the order to be a negligent act. It is perhaps possible to conceive circumstances in which the assignment of two men to do the job of three would not be negligence, but I find no such special facts in this record. In my view, the adverse verdict on negligence makes unnecessary a retrial on the unseaworthiness claim even if one adopts the majority's resolution of the legal question presented by petitioner.