THE TUNGUS v. SKOVGAARD
Argument of J. Ward O'neill
Chief Justice Earl Warren: Number 43, The Vessel M/V Tungus, etcetera, Petitioners, versus Olga Skovgaard, Administratrix Ad Prosequendum.
Mr. O'Neill --
Mr. J. Ward O'neill: Thank you.
Chief Justice Earl Warren: -- you may proceed.
Mr. J. Ward O'neill: Mr. Chief Justice and Members of the Court.
Just to outline a fact for this case of death, this action was originally started in the Southern District of New York.
But they're unable to get -- we're unable to join.
The employer of this man is a third party in New York so we had the case removed to New Jersey where it was eventually tried.
The facts giving rise to the action are these.
The Tungus is a dry cargo vessel, but in number three hatch, she has two deep tanks which are used apparently for carrying of oil or for dry cargo.
To that in the Philippine Islands and while there, a cargo of coconut oil was gotten.
And in accordance with the custom of the trade, it was carrying under what's known as a coconut oil contract.
Now, that contract among other things contain these provisions.
The shipper of the oil was to load the cargo, supervised the cargo, and pay for the loading of the cargo.
By the same token, the consignee in this country had the same obligation, namely, to supervise the unloading of the cargo.
Now, when the vessel came to New York -- I might say too that that contract was incorporated in the bill of lading so that became part of the contract of carriage.
When the vessel arrived in New York, she discharged general cargo in Brooklyn.
And while there, she received order to proceed to the El Dorado Oil Plant in Bayonne, New Jersey.
She arrived there about 5 o'clock.
Right after her arrival, the El Dorado people who had received this contract from the owners of the oil not only to discharge it but to store it, have made arrangements for Mr. Skovgaard, the decedent, to examine and prepare an electric pump for the discharge of this oil.
Under his guidance, one of the repairman placed this oil on a pallet or skid and took it down for the string piece on the dock.
After the vessel's arrival, a Mr. Sexton, an El Dorado supervisor, came aboard the vessel, examined the oil, took samples, and not being satisfied that the oil was pure, ordered the discharge to commence.
Now, after the vessel tied up the crew as customary after 5 o'clock were on the shore with the exception of two men and an officer, were always on guard on the vessel to watch the lines on tidal waters.
El Dorado didn't have anybody to run the winches so the two crewman ran the winches.
Before doing that, they went down, that is the El Dorado people, went down in this tank.
It's about nine feet long and about three feet wide.
And they took the lid off that tank and turned it at a 90-degree angle leaving about one-third of the tank open.
They then brought on the electric pump and placed it on the tank lid with the suction part towards this hole.
Now, every part of this pump, the hoses, the air injection lines, every part of it belong to El Dorado.
They supplied electricity from the shore to run the pump, and they had a man there sets just where he wanted the pump placed.
The pump was placed in that position and an answer to interrogatory, it was admitted that this pump was such and it required a man alongside the pump at all times.
About 9 o'clock that night, the officer on watch checking his lines and walking around the deck looked down and saw that the pump was smoking.
Not knowing anything about the pump, it was necessary for him to run ashore, which he did, brought an El Dorado man on board who fixed the pump.
Pumping continued then that was relieved for about 11 o'clock, a man by the name of Russell (ph) pump man who came aboard.
About 12:15, just after midnight, the third officer was taken over.
They watched, looked down and saw that this pump was leaking.
And then they say at this point, it was leaking to what they call a nipple.
And that simply means sort of an attachment on the pump where they attached an air hose to get suction.
And this nipple was an ethical part of the pump.
It was created by El Dorado people from their own shop.
Now, again, the crew was in a situation.
And not knowing anything about this pump not even knowing how to turn it off.
Again, we had a rundown to get somebody from the dock.
And by the time he came back, there were several tons of oils went into -- between the deck.
Well, the officer came out, they went down, they found that this oil had leaked down on other cargo.
And that resulted in an argument to dismiss the suction because we asked them to admit and it is his responsibility and he refused to sign any papers stating that the (Inaudible) and he couldn't see.
On the mean time, El Dorado had sent two people down to repair this pump.
They came to shore with the loose nipple, they sit down and they tried to get suction, they couldn't get suction.
They then called up the decedent who was at his home, told him of what happened and he came aboard while there was an argument going on on the deck between the chief officer and Mr. Sexton.
The chief officer offered Mr. Sexton who had made an entry in the log to that effect.
That you can sawdust or sand if you wanted to put on this oil.
Mr. Sexton said that conversation wasn't solved but his testimony was that he was in complete charge of this oil, he looked down after the tank he intended to salvage the oil.
And he looked into the tank and for what he could see, his men who were down there repairing the pump by cleaning the sufficient area.
So that it was unnecessary to sufficiently clean as he saw it.
And of course, the oil could not be salvaged if it were contaminated in any way by the sand or anything else that might have been put on it.
And Mr. Skovgaard came aboard, stood up on the deck, looked down into the hall, and gave orders to these two men who were working on the hatch.
He walked around up above and eventually he went down into the hatch.
He stood up, went into the -- the pump, walked around through this oil it was spread all over and up and tried to step on the tank cover and in so doing slipped and fell to his death.
I may say at this point that this particular pump, the ship knew nothing about it.
We had no part of it.
We knew nothing about it and the only man who seems to know anything about that pump was a Mr. Blaney.
Mr. Blaney was chief superintendent.
He came aboard immediately after the accident and then all he had to do is lower the pump and the pump worked and discharge continued the next morning.
Now, fortunately, the law in this case we had the situation of having all the witnesses live and testify.
And Judge Modarelli had to take the advantage of their testimony as well as watching them verbally testify in Court.
And on all the evidence he held, that there was no duty here on the part of the ship to this man and dismissed -- dismissed the libel.
In part, he relied on a decision of the New Jersey court that is the Workmen's Compensation Bureau, who went through this hearings.
And they decided that this man was entitled to his compensation under the New Jersey Act because he was in the twilight zone and was really not working for the ship, rather was working for the people at shore.
Now, in that connection I might say, sir that we have two causes of action on this case under the New Jersey Death Act one for negligence and one for unseaworthiness, and two causes of action under the survival statute.
I submit sir at the very time that this libel was filed.
The -- the appellant had in mind that there was no such thing as recovering except under the survival statute.
But on the trial as I explained the death of this man, there was nothing left under the survival statute.
He was practically dead when he fell into the tank.
The effect cause has been abandoned and then we went to the Jersey Death Act.
Now, in their brief, they tried to give the impression as not only a death statute -- statute, it's survival statute.
And I submit it is not the -- Congress didn't intend it to be such because when Congress passed, the Death on the High Seas Act, they specifically said -- I refer to page 17 of my main brief, "After giving a cause of action, a death of a person shall be caused by wrongful act, neglect or default occurring on the high seas beyond a marine league from shore."
Now, the second provision was, the provisons of any State giving or regulating rights of action for remedy for death shall not be affected by this statute.
Now, the statute of New Jersey that is a similar statute, the statutes of New Jersey has never been interpreted for the maritime law.
But in similar statutes, they've always held that rather it was a limitng statute.
In other words, you come up to the point if the man had a cause of action himself.
But that's the Jersey legislature didn't intend that that be a survival statute or to give any more than the Jersey law gave.
They then filled in the gap by giving a right of action to a -- to a survivor.
That is that that cause of action which he haven't solved for pain and suffering, medical expenses and other expenses in that line.
I'd also submit, sir, there's two that if we look at this statute, suppose that there were two men, left the El Dorado plant.
Two men went down because the holes would leak where the oil went in to the tank on shore and the other man sent aboard the ship.
I don't think it can be said that the New Jersey legislature intended in 1846 that there'd be two separate causes of action for its citizen, because I don't think there's any question about the fact the man would fall into the tank, he would only have -- have his rights that this man had them under the state act, he would have recovered his compensation.
Now, on the other hand, this other man, he goes on the ship and he derives his right under the decisions of this Court from a seaman.
He is a seaman.
But if he were a true seaman, he would have no cause of action in this case for unseaworthiness.
His -- his cause of action for unseaworthiness would die with his death.
And yet, this man stands in his shoes and his right claiming under the law.
Now, Mr. Baker and I assumed it will be followed up.
Makes more to the fact about the case being brought in admiralty.
But I think cases in this Court are uniform in holding that admiralty, and I cite them at page 20 of my brief, Western Fuel versus Garcia and Just versus Chambers.
In one, Western Fuel case we say, "Admiralty courts move in to obtain a libel in personam for damages sustained."
And the others they say, they won't force a wrongful death act.
And admiralty does no more and provide the forum, it doesn't provide any rights under the admiralty law.
It's just the forum that admiralty law provides.
Now, in the -- in the courts below, we might say it was agreed, all eight judges agreed that New Jersey's death statute was the only statute involved in this case.
And under that statute, of course, Judge Modarelli held no duty with respect toward conditions growing out of the nature of the work that the man was doing at the time.
Maybe I should save a few minutes or --
Chief Justice Earl Warren: You may.
Mr. J. Ward O'neill: -- unless you want -- want --
Chief Justice Earl Warren: You may.
Argument of Solie M. Ringold
Mr. Solie M. Ringold: (Inaudible)
Chief Justice Earl Warren: Very well Mr. Chazen.
Argument of Bernard Chazen
Mr. Bernard Chazen: If it please the Court.
I would like to emphasize two of the facts in the case and then proceed to the legal issues which I think the Court's primarily interested in.
In this particular case, I don't think there's any question, but that the petitioners' officers and crew were on board all during this period and that they participated in the operations which were involved in getting the pump on board.
They conducted inspections, they discovered the leak, they called the Mr. Sexton who was the employee of El Dorado on board, when the condition existed and shortly exercised control of everything that went on, on their vessel.
So that, I don't think there can be any issue in this case on the undisputed fact, but that the -- they remained in full control of every part of their vessel during this entire time.
Justice John M. Harlan: Disclosed, isn't that the so-called dead vessels?
Mr. Bernard Chazen: Well, this was not a dead vessel and they actually maintained housekeeping functions.
They actually were running their ship at that time and one of the --
Justice William J. Brennan: Tied up --
Mr. Bernard Chazen: She was tied up to discharge oil, which is a form of cargo.
Justice William J. Brennan: (Inaudible)
Mr. Bernard Chazen: Yes.
And I might mention it here so that I won't take it up in my argument.
In this case, Skovgaard was as analogous to Hawn as any individual could be short to being strained on the facts.
Because if you recall in the Hawn case, Hawn was -- ships carpenter or a carpenter repairmen who was called on board to adjust some grain fittings that were used in connection with unloading or loading some grain.
Now, in this particular case, here is oil that's being unloaded and they called him on board to get the pump started again so that they can discharge the oil from the vessel.So this is a completely analogous situation for the Hawn case.
Now, in this state of facts, the -- there's no question, but that the ship's officers knew of the condition of the deck at least an hour before this accident happened.
As a matter of fact, it's -- it was their factual contention that all they had to do was to tell the -- the El Dorado foreman, Skovgaard, that he should clean up the mess.
That that, it was -- their only responsibility.
But they admit it, appears in the log, it appears in the testimony.
They admit that they knew of this condition, they admit that it was a dangerous condition.
They suggested that sawdust and sand be put over this oil in order to prevent the hazard and as a matter of fact after the accident happened, the testimony is that when the El Dorado crew returned, there was sawdust put on the deck and the inferences, it was done by the crew and that the crew was actually putting up some lines around the open tank.
The deceased's injury in this case did not stem from a condition he was called upon to correct.
Now, we mentioned that fact because that was the point at which the trial judge stopped.
The trial judge did not make findings of facts relative to negligence, relative to unseaworthiness, relative to comparative or contributory negligence.
All he said in the case was that he felt it was not the duty, and that's the legal duty, of the vessel to clean up this acknowledged dangerous condition and he relied upon the Broecker case in New Jersey which I will discuss shortly.
Judge Modarelli said, “Here, Skovgaard boarded the vessel to help repair the defect and restore to operation the pump which caused the oil spill," and that's the only that could be considered a finding of fact.
He does not say that he was called on board to clean up this condition, to remove the oil on the deck, or to take any safety measures with reference to this oil.
He was called from his home after two other men had tried to get the pump to operate and acouldn't for the specific purpose of getting the pump back in operation.
I also would like to call attention to the fact that there was testimony that the two men who had been working on the pump had partially squeegee using some kind of a device, some of the oil from the deck.
I also call the Court's attention to the fact that unmistakably, since there's some mention of it in the dissenting opinion that the deceased here is entitled to a presumption that he exercised due care and certainly, in view of the fact that he -- when he came on the scene, two men were working in the area, it's not unreasonable to say that he, as a matter of law, assumed the risk of -- of the dangerous condition that would have been created by the oil spill on the deck.
Now those, I think are the important facts.
The other important fact is, of course, that the man fell into the tank of hot oil and as a result of it, died leaving a widow and children.
Now, our contentions in this case are, first, that the deceased, if he had lived, would have been entitled under the general maritime law to a cause of action for negligence, to a cause of action for unseaworthiness, and that the rule of comparative negligence would have been applied to him.
And we have already adverted to the fact that he was analogous to Hawn so I won't develop that point any further.
On the next point, our contention is, that the general maritime law both as to unseaworthiness and negligence and as to the defenses to be applied is the law to be applied in this case and we arrived at this result on two -- through two routes.
And I'd like to discuss one route first.
The first route is by an interpretation of the New Jersey Act itself.
Now, we all recognize the historical situation that has arisen in the case of wrongful death.
It's caused a great deal of trouble both in common law jurisdictions and an admiralty jurisdictions.
For some reason, the common law was unable to visualize a cause of action in terms of the laws of next of kin.
In other words, that common law, the common law was unable to recognize that the next of kin, a wife and children, suffer damage from a negligent tort committed, say to a husband.And so, the common law failed to provide a remedy.
This was the reason that Lord Campbell's Act came into existence.
For some reason, this doctrine had sinked over into maritime law and we have the statement that has been quoted and that appears that maritime law as such does not, from its own sources, provide a remedy for wrongful death.
And I think that the -- the thing that has caused the -- the Court's great trouble in fashioning a common law rule as -- as the courts or -- or a maritime law rule as the courts have done in -- with respect to business and by piece and other types of liability that have developed through the years has been that, there seems to be no model for determining who shall take, who has this right and how much they shouldn't get -- shall get.
And as Judge -- Mr. Justice Frankfurter has pointed out, the various states have enacted these wrongful death statutes and there is some variation as to who may recover and how much and so forth.
Now, the New Jersey statute is modeled after Lord Campbell's Act which is the English statute.
And we must start out by looking at the New Jersey statute and the interpretation of the New Jersey statute by the New Jersey courts.That's our starting point on our first leg.
And this is the case -- on -- on this approach, I can distinguish every other case and every other jurisdiction because I can say to Your Honors, I don't know how the courts have interpreted their statutes in Tennessee or in Florida or in Ohio, each State would have to be -- each statute would have to be interpreted in the light of its own state court decisions.
I can only discuss the interpretation in New Jersey.
Now, it's clear under the New Jersey decisions that the courts in New Jersey regard the action as to liability as derivative, as to liability.
It's a new cause of action in the sense that it creates a right for somebody who didn't have it before.
But -- and -- and one case I think it's a good example of it.
There's one case in New Jersey where there, the Court applied the two-year statute of limitations which does not appear in the Wrongful Death Act.
The Wrongful Death Act says, "You must start an action within two years, if you don't, you automatic -- two years from the date of death.
If you don't, you automatically loose your right to a cause of action."
In addition, there's a general statute which requires that suits be instituted for personal injury within two years.
Now, on this particular case, the deceased had been injured and had lived for more than two years and had not instituted the action.
Then the party came along, the next of kin came along and they attempted to institute suit on the Wrongful Death Act and the state personal injury.
The two-year claim was pleaded as a defense on the ground that at the time that the deceased died, he no longer had a cause of action.
And the Court said, "That's right.
You can only sue if the deceased had a cause of action at the time he died."
He lost it.
Because at the time he died, the two-year statute, the general two-year statute had applied.
Now, I quoted several of these decisions in my brief and I won't avert to all of them.
As far back as 1896, Chief Justice Beasley said, first -- the first question is, could the deceased, if he had survived, have maintained the action?
That's the first question under the New Jersey Act.
And here, we have a situation where at least, since the case of Hawn versus Pope & Talbot, the test of whether the deceased could have maintained his action is the general maritime law.
So that the New Jersey Act, by this reference language, refers to New Jersey law.
And this is reasonable, this is sensible.
We do the same thing in the case of Landlord and Tenancy.
This Act was not designed to specifically lay down each and every ground of liability.
This was simply designed to cure a defect, namely, to -- to say, "Who shall receive money, who shall have a right and how much they shall receive?"
But in all other respects, I submit, that the New Jersey statute, in terms of liability is coextensive with the liability rights of the deceased if he had lived.
In addition to that, the New Jersey courts have said again and again, the New Jersey statute is in the highest sense remedial.
It's intended to correct the defect in the law.It should be liberally and broadly construed.
It shouldn't be narrowly construed.
And I quoted from cases on that.
Now, as Judge -- Judge Hand said in the Halecki case, it would be incongruous to say that the New Jersey legislature would intend to give the widow less rights and liability than the deceased would have had.
In other words, if you sue on the survival or if the deceased have lived, the rule of comparative negligence, for example, would apply to the fullest.
But if he dies, we're going to make a construction of this statute and say, “Well, we're going to be harder on you than the general maritime law even though you weren't at fault.
We're going to say that you're going to have to apply the contributory negligence rule.
"I say that the only fair construction of the New Jersey statute is that it's a referral statute and that it incorporates the general maritime law.
And for this reason, if this action was -- were started in the state court on this analysis, the state court would say, “We will have to look to the rights of the deceased if he had lived and we would apply the general maritime law.”
Now, the second question that comes up under the interpretation of this Act is whether the words "wrongful act, neglect or default" includes an action for seaworthiness.
That's already been passed on.
I don't want to repeat it.
Mr. Justice Brennan, who iss sitting in this Court, wrote an opinion in the Jensen case indicating that the phrases could be broadly construed.
I also note that Judge Lumbard who dissented in the Halecki case had this question come up very recently in -- in the (Inaudible) case in interpreting the New Jersey statute of limitations.
The New Jersey statute of limitations uses the phrase “wrongful, neglect or default”.
And the New Jersey courts have generally construed that any personal injury case where the rising out of contract or tort -- in other words, including breach of warranty or -- would be governed or would -- be governed by this particular phrase “wrongful act, neglect, or default”.
And as a result of that in the (Inaudible) case, it was construed that an action based on unseaworthiness was barred by analogy under the New Jersey statute of limitations because of the broad scope of this phrase.
And of course, Judge Lumbard cited and referred to the Halecki and Skovgaard decisions which are the two prior cases on this point.
Justice John M. Harlan: (Inaudible) in your brief?
All of those?
Mr. Bernard Chazen: Yes.
That was cited in my brief.
As a matter of fact, the day I was reading proof in the Halecki, I got the copy from the printer.
And it came out just at the same time.
I have also cited Judge Walsh's opinion which was affirmed which was the District Court opinion which is cited in the brief.
Page 23, Your Honor.
Now, aside from the interpretation in the New Jersey law, I have cited cases, we have cited cases in the brief showing that certainly, New York State in the Greco case has -- has extended this language of wrongful act, neglect and default to include an action for breach of warranty.
And some of the language, particularly the quotation from Justice Cardozo, I think, is very appropriate, in which he says that the purpose and the policy of the courts is to -- is give life to these statutes, not to kill them by strict construction.
And that these statutes themselves are source of new law.
And I think that answers part of the argument that -- how could a New Jersey legislature back in 18 something have visualized unseaworthiness coming under this particular statute.
I say the New Jersey legislature didn't have to visualize because it doesn't enumerate what the grounds are for recovery.
It -- it deliberately takes a referral position.
It -- it goes to the rights under such as if the deceased had lived.
And because of that, I think that any fair construction of that statute comes to this result.
Now, in the -- on the issue of contributory negligence, there is another tact which I would like to raise and bring for the Court's attention.
Let us assume that the New Jersey statute specifically say, "Contributory negligence shall be barred to this action."
Now, I call the Court's attention to the fact it does not so state and I -- I submit to the Court that the only reason contributory negligence is a bar in New Jersey is because it is a bar to the -- to the deceased if he had lived.
Now, let's assume we come to New Jersey or perhaps another state where there is this positive rule in the statute.
There's no question about it that the intent is to cover everything including martime cases.
In that situation, I think we come back to fundamentals which were adverted before.
The maritime law has a void here which it's supplying by adopting the State Wrongful Death Act.
The maritime law as I understand it, grows in two ways.
It's -- it's analogous to the common law.
One is by assimilation of common law doctrines.
I think the business invitee doctrine is coming to maritime law by assimilation from common for example.
The other is when you get a situation like this where the maritime law hasn't a provision where it has a kind of a vacuum.
It will permit the state law to come in and for the specific type of cases, and which cases which occurred in New Jersey will adopt that statute and say, “It applies here.”
Now, in the maritime law, there is a strong positive rule against contributory negligence, or to put in another way, there's a strong positive rule of comparative negligence.
This is an affirmative doctrine of maritime law and one that I think maritime law is justly proud of.
And again, in the Hawn case, there is strong language indicating that fact.
And I think they refer to the contributory negligence rule as being a discredited rule if I recall correctly.
Now, when the New Jersey Act comes up assuming it did have the specific provision, I think that this is a situation where the maritime law can say, “We have a strong positive rule which we consider superior to the state rule.”
And since this is being adopted into the fabric of maritime law where we have a strong positive rule, we will not adopt the state rule, we will insist that our own rule be followed for the purpose of uniformity.
Justice John M. Harlan: (Inaudible)
Mr. Bernard Chazen: Yes, Your Honor.
I -- I feel that in the Court of Appeals, I -- I had to stick pretty close to -- to the book.
But I think in this Court, this Court is concerned with the overall picture and the whole field of maritime law today is -- is being in turmoil, it's -- it's developing very quickly and I think that the Court wants to consider or should consider this further approach.
It -- I say it's not necessary to -- to affirm my case.
Justice Potter Stewart: (Inaudible)
Mr. Bernard Chazen: And I think I do and I think that if the Court does, it will help to -- to make a little more uniform this problem.
And unless the Court is ready to fashion its own rule of -- on wrongful death cases, this is at least the step in that direction.
Justice John M. Harlan: What else I understanding on the proposition which the Court of Appeals decided as they involve where it has -- acceptable to you, we shouldn't substitute our own judgment for it?
Mr. Bernard Chazen: Well, basically, that's the bedrock of my position, Your Honor.
Justice John M. Harlan: You haven't said it yet, I believe.
Mr. Bernard Chazen: Well, I -- I say that we now have two Courts of Appeals who have test upon this question and have specifically held that the general standard of maritime law would apply.
And they have held that the doctrine of unseaworthiness comes within the scope of the action.
The Third Circuit Court of Appeals didn't come out flatly and say that comparative negligence would apply in the Skovgaard case.As I recall the opinion, they simply said the case should be sent back for further factual determinations as to what defenses, if any, are available.
Justice Hugo L. Black: Well, it hasn't been tried on the merits, has it?
Mr. Bernard Chazen: It has not been tried on the merits knowing --
Unknown Speaker: (Voice Overlap) --
Justice William J. Brennan: Well, I take it you're going to have to have a disposition of this question.
Mr. Bernard Chazen: Yes.
Factually, the case -- the case will have to be decided factually, Your Honor.
Justice William J. Brennan: And you'll have to have a standard, will -- will you not, on this matter of contributory negligence that has to go to trial?
Mr. Bernard Chazen: Yes.
Well, I -- I think that the -- that the case goes back for retrial and we haven't come here.
I think that the trial judge would have been bound by the Halecki decision with Judge Learned Hand.
Justice William J. Brennan: Yes, but am I -- am I right, this case has never been tried on the merits of the case.
Mr. Bernard Chazen: It -- it has been tried on the merits.
Please forgive me.
It has been tried on the merits.
There was a determination by Judge Modarelli but Judge Modarelli went off on the point that first he said, is -- he -- he recited the general rule, there's no recovery for wrongful death for unseaworthiness in maritime law and he stopped right there.
Justice William J. Brennan: So there's been not.
Well, in any event, there's an open disposition on the merits of any contributory negligence?
Mr. Bernard Chazen: No.
No, Your Honor.
Justice William J. Brennan: So that, will you not require some standard to be followed on the retrial of this case for distributory?
Mr. Bernard Chazen: Yes, Your Honor.
I -- I would hope in that respect that this Court would answer that question.
And as a matter of fact, if it decides the Halecki case, the question will be answered.
Justice Potter Stewart: Isn't it true or at least Judge Hasty in dissent indicates it's true that all seven members of the Court of Appeals in the Third Circuit concluded that this case would be governed by the principles of New Jersey law.
The majority of the Court did say that unseaworthiness was included within the New Jersey Wrongful Death statute.
Mr. Bernard Chazen: And if I recall correctly, they also said that the standard of the maritime law even if the negligence would apply.
I -- I'm not sure now but that was the impression I got from reading that opinion.
Now, that would apply as a matter of interpretation.
I think both -- both Learned -- Judge Learned Hand in Halecki and Judge Sterling in Skovgaard took the approach as a matter of interpretation of the New Jersey Wrongful Death Act --
Justice Potter Stewart: Yes.
Mr. Bernard Chazen: -- feeling that on that, we certainly were on firm ground.
Now, the only other thing that I would like to mention before I close and I think perhaps I should at this point is that the Bruszewski case which is the admiralty case following the Broecker case which is the New Jersey case relied on by Judge Modarelli is a very narrow type of holding.
And the Broecker case stands for the proposition that if a man is called to repair a hole in the floor, he can't complain that a place where the hole in the floor is an unsafe place to work.
That was the Broecker decision.
The Bruszewski case was a case that came out of the Third Circuit.
And in that case, a man was working, fixing a broken boom and among other things, the Court held that he couldn't complain that where he was called for the purpose of repairing a broken boom that that made the vessel unseaworthiness -- unseaworthy.
And the distinction has been followed in the (Inaudible) case, I think Judge Wright wrote a -- a very clear opinion on it.
In that case, which Mr. Baker has adverted to, the man was called on board to repair a broken -- a rusted pipe.
And in order to do so, he -- which was in a confined place, they rigged up some kind of very clumsy scaffolding.
And while he was doing that, the rusty pipe, I believe, gave way and he fell off the scaffolding and was injured.
And the judge's opinion said, the rusty pipe does not -- is not an unseaworthy condition, he was called to repair this thing.
But the scaffolding was an unsafe place to work and it rendered the vessel unseaworthy and gave him recovery on that ground.
Judge Goodrich in the (Inaudible) case and we've cited all these in our brief, has pointed out this distinction and has said that the Bruszewski case is one that is very narrow and is to be strictly confined to that type of case.
I might even add on the New Jersey in the Berquist case which is cited in our brief, Judge Goldman indicated that the Broecker case also is a case that is to be interpreted strictly in terms of the precise point it's raised.
Now, in this case, there is no question, not in the judge's opinion, not in the facts that are in the record, that it was not the duty of Mr. Skovgaard to clean up the oil on the deck.
He was called from home for the specific purpose of getting the pump back in operating order.
Rebuttal of J. Ward O'neill
Mr. J. Ward O'neill: On this route, I may say this, our position here is that the District Court dismissed this libel on the ground that there was no duty owed to this man because under the New Jersey law where somebody knows what the premises are like and goes in as Mr. Skovgaard did unquestioned.
Then there's no liability on the part of that owner to warn him.
Now, we have the additional fact in this case to that forgetting about Mr. Sexton refusing to correct that, and as fellow employees trying to correct it.
We have the additional fact that at the end of this loading, these men were going down into that tank, go down this ladder that had been submerged in the oil all the way from the Philippines to scrape it off the sides and get it -- and wallow in it to get near the -- the muzzle of the hose so they could get it out.
And the fact of the matter is that when this man fell, they did go down in that tank.
Now, here, the crew on the ship, here, they had men aboard whom they knew at some stage of the proceeding were going down after this oil.
And that was one of the reasons that the lower court held and under New Jersey law, there was no obligation to warn a man of the condition that was perfectly obvious.
Now, contributory negligence wasn't in this case at all.
As a matter of fact, the case was tried before the District Court on a theory of negligence.
I don't see where unseaworthiness came into this case of the reply brief in the Circuit Courts, tried it on a -- on a question of negligence.
Now, we say, sir, there's no -- no need to send this back because if this Court agrees or the judges below thought the libel should be dismissed that this Court agrees with those four judges on that point, there would be no need to send it back for new trial.
Argument of Attorney
Attorney: May it please the Court.
I -- I believe there's a negligence.
We have specifically alleged in the (Inaudible)
Well, I say, sir, all the cases is tried, at least is tried (Inaudible)