United New York and New Jersey Sandy Hook Pilots Association v. Halecki/Dissent Brennan
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS join, dissenting.
On September 29, 1951, the pilot boat New Jersey was standing at a pier in the Jersey City repair yard of a marine overhaul and repair firm for its annual overhaul. The overhaul job was scheduled to take three weeks, and the 29th was the Saturday after the first week of work. Crew members participated in maintenance work on the vessel during this period, on a five-day-work-week basis. Cleaning the vessel's generators was the work scheduled for the 29th, and since the cleaning work was to be done with carbon tetrachloride, known to have toxic properties, a Saturday was chosen for the job to minimize the number of persons aboard the vessel. Walter Halecki, respondent's decedent, was an employee of an electrical firm doing the cleaning job as a subcontractor to the general overhaul contractor; he and another employee of the subcontractor came aboard and spent the day spraying the generators in the ship's engine room. Halecki did most of the work in the engine room. The men wore gas masks and from time to time rest periods above decks were observed. At the end of the day, Halecki complained of an odd taste in his mouth, and he was thereafter admitted to a hospital where he died of carbon tetrachloride poisoning.
His widow commenced this action against the vessel's owners in the Federal District Court for the Southern District of New York, predicating jurisdiction on diversity of citizenship. The complaint alleged unseaworthiness of the vessel in that harmful concentrations of carbon tetrachloride were allowed to stand in the engine room, unremoved either by the vessel's ordinary ventilation system or by auxiliary equipment brought aboard the vessel by the workmen for the purpose. It further alleged negligence in the failure to use reasonable care in furnishing the decedent, as a business invitee, a safe place to work. The New Jersey Wrongful Death Act was pleaded by the plaintiff to support these claims. The case went to the jury on both grounds, and a general verdict was returned for the plaintiff; judgment thereon was affirmed by the Court of Appeals.
The Court today reverses, holding that the verdict, which must of course be supportable on each aspect in which the case was left to the jury, cannot be supported on the grounds of unseaworthiness. The Court, following its decision in M/V Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, holds that the basic source of law in this case, since it is a wrongful death case, is the law of New Jersey. My separate opinion in that case sets forth the basis on which I think that that holding is erroneous. The Court in the present case holds, apparently as a matter of federal law, that the vessel did not owe any duty of seaworthiness to the respondent's decedent. Paradox may be found in this after the Court's characterization of the governing law as state law, and there well may be confusion as to the precise role that federal law is to play in these maritime death actions as a result of the Court's holding.  But in any event, since I view the unseaworthiness question as a matter of federal law, as apparently the Court does here, I shall set forth briefly the grounds on which I think it has clearly erred in the light of the decisions in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, and Alaska S.S.C.o. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, none of which the Court today purports to overrule.
In Seas Shipping Co. v. Sieracki, the question was whether the duty of maintaining a seaworthy vessel extended to persons who performed the ship's service aboard the vessel but who were not employed directly by the shipowner. The Court concluded that this duty was 'not confined to seamen who perform the ship's service under immediate hire to the owner, but extends to those who render it with his consent or by his arrangement.' 328 U.S. at page 95, 66 S.Ct. at page 877. The Court declared that the 'liability arises as an incident, not merely of the seaman's contract, but of performing the ship's service with the owner's consent.' Id., 328 U.S. at page 97, 66 S.Ct. at page 878. The Court quoted with specific approval the language of the court below in that case: 'when a man is performing a function essential to maritime service on board a ship the fortuitous circumstances of his employment by the shipowner or a stevedoring contractor should not determine the measure of his rights.' Ibid. The Court stressed that the division of labor due to increased specialization did not operate to diminish the scope of the duty of maintaining a seaworthy vessel. The shipowner, it was said, 'is at liberty to conduct his business by securing the advantages of specialization in labor and skill brought about by modern divisions of labor. He is not at liberty by doing this to discard his traditional responsibilities.' Id., 328 U.S. at page 100, 66 S.Ct. at page 880.
In Pope & Talbot, Inc. v. Hawn, the Sieracki doctrine was reaffirmed and applied in another fact situation, and it was pointed out that the protection of a shipboard worker by the duty of seaworthiness was not based on the title of the position he occupied in the doing of the shipboard work but 'on the type of work he did and its relationship to the ship and to the historic doctrine of seaworthiness.' 346 U.S. at page 413, 74 S.Ct. at page 207.
Today the Court holds that not all workers engaged in doing 'ship's service' aboard a vessel are entitled to the warranty. It essays distinctions as to whether the ship's power is functioning at the time of the accident, whether the ship is ready for an immediate voyage.  It stresses that the work done by Halecki was specialized work on a modern vessel, of a sort which is now habitually contracted out. But it takes only a casual reference to the principles of the Sieracki decision to be reminded that the fact that a worker is doing specialized work on a modern vessel under a contract is no reason for exempting him from the scope of the seaworthiness duty's 'humanitarian policy,' 328 U.S. at page 95, 66 S.Ct. at page 877; it is rather one of the very bases on which the Sieracki doctrine was bottomed. The Court refers to the extensive specialized equipment the contractor was required to bring aboard, but in Petterson this was, over dissent, rejected as a basis for distinction of Sieracki, 347 U.S. 396, 400, 74 S.Ct. 601, 603. Nor would one think that the fact that the work being done posed dangers to a degree which made it desirable that the crew members not be present aboard the vessel militated against the existence of the seaworthiness duty. The duty was held in Sieracki to extend to others than members of the crew precisely to avoid the consequence that the shipowner would escape his responsibilities by contracting out dangerous work.
The Court declines to find that Halecki was engaged in ship's service of a sort that would entitle him to the warranty because the precise sort of work he was doing is one which is habitually contracted out. It rejects clear categorical analogies between Halecki's work and that historically done by crew members, with the observation that the work Halecki was doing was different because the vessel was modern, had complicated equipment, and required specialized treatment efficiently to perform the work on it. Thus the whole point of the Sieracki decision is turned around, and today's shipowner escapes his absolute duty because his vessel is modern and outfitted with complicated and dangerous equipment, and because a pattern of contracting out a sort of work on its has become established.
The Court gives no reason based in policy for its inversion of the Sieracki principle. I fear also that it gives no workable guide to the lower courts in this actively litigated field of federal law. They may now have the impression that some degree of specialization in the tasks performed by the injured shipboard worker disqualifies him from the scope of the shipowner's duty, but further than that, there is left uncertain the extent to which the decisions of the lower courts based on the Sieracki and Hawn cases are now under a cloud.  And so confusion is left to breed further litigation in an already heavily litigated area of the law.
I would adhere to the principles of Sieracki and Hawn and affirm the judgment of the Court of Appeals.
^1 Further paradox may be found in the Court's acceptance, without independent examination, of the view of the Court of Appeals for the Second Circuit as to the defenses available under the New Jersey Wrongful Death Act as applicable to the negligence claim here. The Court of Appeals held contributory negligence unavailable as an absolute defense. The usual reasons given for deferring to the Courts of Appeals on state law questions may not be entirely applicable to a circuit not embracing the State in question. In the Tungus case, 358 U.S. 588, 79 S.Ct. 503, the Court today affirms a judgment of the Court of Appeals for the Third Circuit (which includes New Jersey), 252 F.2d 14, leaving open this identical issue for the District Court. It would appear clear, in the light of the Court's disposition of this case, what the answer on this issue must be in the Tungus case.
^2 A brief filed as amicus curiae by the United States urges that the doctrine of seaworthiness imports only a warranty of seaworthiness for a voyage, and that since the ship was not about to engage in a voyage, the duty was owed to no one at the time of the accident. This theory, like the Court's, would result in an unwarranted restriction of the Sieracki doctrine, particularly since there were crew members working aboard ship on a regular work week basis during the period in question who would be denied the doctrine's protection under the Government's theory. The Government's argument is based primarily on Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205, where there was no issue of unseaworthiness and the vessels had been hauled up on land for the winter. In Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120, the duty of seaworthiness was held to be present in regard to a vessel which had completed a voyage and which was not shown to be about to embark on a new voyage.
^3 Cases in which holdings of the lower courts have interpreted this Court's decisions in the Sieracki and Hawn cases as extending the duty of seaworthiness to independent contractors' employees substantially similarly circumstanced to Halecki include Torres v. The Kastor, 2 Cir., 227 F.2d 664 (cleaning vessel of pitch to make it suitable for future voyages); Read v. United States, 3 Cir., 201 F.2d 758 (reconversion of Liberty Ship into troop carrier; worker engaged in converting deep tanks); Crawford v. Pope & Talbot, Inc., 3 Cir., 206 F.2d 784 (boiler cleaning company's employee cleaning accumulated rust and dirt from deep tank); Pinion v. Mississippi Shipping Co., D.C.E.D.La., 156 F.Supp. 652 (plumbing repair contractor's helper carying on home port repairs). See also Pioneer S.S.C.o. v. Hill, 6 Cir., 227 F.2d 262, 263 (vessel in winter lay-up; regular officers and crew not aboard; substantial repairs being effected; dictum that a shipfitter's helper 'was probably within the broadened class of workers to whom the protection of the seaworthiness doctrine has now been extended'); Imperial Oil, Ltd., v. Drlik, 6 Cir., 234 F.2d 4, 8 (shipbuilding company employee engaged in repairing drydocked ship materially damaged by explosion; dictium that worker 'would fall within the protection of the rule so extended'); Lester v. United States, 2 Cir., 234 F.2d 625 (electrician working on general overhaul of drydocked vessel; extension of warranty assumed).