UNITED PILOTS ASSN. v. HALECKI
Argument of Lawrence J. Mahoney
Chief Justice Earl Warren: Number 56, United New York and New Jersey Sandy Hook Pilots Association et al., Petitioners, versus Anna Halecki Administratrix of the Estate of Walter Joseph Halecki.
Mr. Mahoney you may proceed.
Mr. Lawrence J. Mahoney: Mr. Chief Justice, may it please the Court.
We have four separate grounds of appeal here and so I will give you the facts as briefly as possible in order to have enough time to touch on each.
Now, this action was started by the administratrix of the decedent Walter Halecki in the Southern District of New York alleging diversity of citizenship and was based entirely upon the wrongful death statute of New Jersey.
The complaint alleged in substance negligence on the part of the defendant which was the pilot association that owned a boat called the pilot boat New Jersey and also alleged unseaworthiness of that pilot boat.
Now, the facts briefly were these.
In September of 1951, this pilot boat was turned over to a repair yard in New Jersey called Rodermond Repair Yard.
The boat was there for a period of several weeks undergoing annual overhauling and repairs.
The nature of the repairs was varied.
As a matter of fact, some of the crews stayed on the boat, some of them took part in some of the less substantial repairs such as painting and shipping.
The boat was tied up with a pier.
There's no question it was in navigable waters.
However, the boat was, during its period in the repair yard, a dead ship, that is, there was no power aboard.
Any power that was used or equipment and repair came from Rodermond Repair Yard.
Now, some of the work could be done included electrical repairs and Rodermond wasn't equipped to perform those repairs so they subcontracted the electrical work to a company called K. & S. Electrical Company, also a Jersey corporation and the employer of the decedent.
Neither Rodermond nor K. & S. were parties to this action.
The decedent was a shore-side electrician.
Most of his work was done at shore and pursuant to orders received from his employer K. & S., he and a fellow worker by the name of Doidge, also an electrician, came aboard the pilot boat on the day before they were to do the work in question.
The particular item of work that we are interested in today was cleaning the generators on the pilot boat.
Necessarily the power had to be ought to do that work because the generators supply the power of the boat.
The way the work was to be done was to spray these generators with a solvent called carbon tetrachloride to dissolve the grease on the generator.
The record discloses that this was the customary method when the -- the decedent and its co-worker Doidge had customarily used and had done many times.
Now, carbon tetrachloride was admittedly a dangerous substance.
It was known to be such by the decedent and its co-worker, dangerous that is if inhaled to a substantial amount.
Therefore, the ventilation system of the boat itself which consisted in the usual vents and blowers which were designed to take the fumes out of the engine room were supplemented or automated by various pieces of portable equipment, none of which belonged to the boat.
They all either were property of the repair yard or a property of K. & S. Electrical Company.
Very briefly, the day before the decedent Halecki and Doidge came in and assemble this equipment.
They put blowers and air hoses and portable fans, various devices to supplement the ship's equipment which was manifestly not designed to take out carbon tetrachloride which was heavier than air substance.
Briefly stated on, Saturday it was, they came aboard expressly then because no crewmen were around, no repair yard workers were present.
It was admittedly dangerous work.
The only person present in addition to the two electricians Halecki and Doidge was a watchman employed by the defendant and he admittedly had nothing to do with the work, he didn't take part in it.
As a matter of fact, they told him to leave because it was dangerous.
One of the pieces of equipment which they used were gas masks which belonged to K. & S. Electrical Company.
I wish to emphasize that this work was entirely done in the discretion of the two electricians, the manner in which they did it was up to themselves, the time of which was up to themselves, there was no supervision, no orders from anyone else.
The work proceeded for several hours without a vent, a boatman took part in it.
However, Doidge, because he had a sore arm, didn't do very much with the spraying, Halecki himself did most of it.
Very briefly, it consisted of spraying this carbon tetrachloride, a liquid, out-of-tank by means of an air hose and it will blows around to blow the fumes away.
At the completion of the work Mr. Doidge said that -- Mr. Halecki said that he didn't feel very well.
A few days later he took sick, he was hospitalized, two weeks later he died.
The hospital record which was put into evidence by the plaintiff disclosed that the cause of his death was carbon tetrachloride poisoning and that fact is not in dispute.
However, the record also disclosed that the decedent had consumed for a period of five months prior to his death a half a pint of whiskey a day.
The significance of that fact I will mention in a few moments.
The main factual issue with the trial was this.
The plaintiff contended that the cause of the death was inadequate ventilation system on the pilot boat New Jersey.
They said there was a dangerous condition there, that the decedent was exposed to an improper or dangerous concentration of carbon tetrachloride.
The defendant, on the other hand, introduced the testimony of Dr. Milton Helpern, a New York State medical examiner and a leading toxicologist, who testified that a person who consumed a large amount of alcohol was susceptible to a very small exposure, an exposure far less than the usual permissive percentage.
So small perhaps he cited an incident where a person using carbon at a household preparation could be severely injured if he had alcohol in his system.
At any rate, the jury returned a verdict in favor of the plaintiff in the sum of $65,000.
The verdict was upheld by the Circuit Court.
Now, there are four grounds for this appeal.
First that the decedent's -- that the plaintiff's action pursuant to the Wrongful Death Act of New Jersey, the sought of her right, should be determined by the state rule contributory negligence and not by the maritime rule of comparative negligence.
The second ground, it was contended by the defendant that in any event, the Wrongful Death Act of New Jersey applied only to negligence and was not broad enough to encompass unseaworthy.
Thirdly, the defendant contended quite apart from the previous ground that the decedent, by the nature of his employment, was not entitled to an unseaworthy vessel.
He wasn't one of the persons to whom the warranty extended.
And finally, the defendant contended that there was insufficiency that it had never been proved that a dangerous condition existed aboard the vessel.
Now, addressing myself first to the question of contributory negligence.
Justice Felix Frankfurter: Would you mind before you go on with the defense, tell me what's your right of -- what's the right action made on which your brought this proceeding?
Mr. Lawrence J. Mahoney: I beg your pardon.
The -- the New Jersey wrongful death action was the basis of this suit.
In fact, it's the only basis, Your Honor.
The New Jersey Wrongful Death Act.
Justice Felix Frankfurter: Now, is -- is that coming down between you and the --
Mr. Lawrence J. Mahoney: Yes, there's no question of that I believe.
Justice Felix Frankfurter: Your contention is what?
Mr. Lawrence J. Mahoney: Well --
Justice Felix Frankfurter: That the (Inaudible) New Jersey, the defenses also derived --
Mr. Lawrence J. Mahoney: Exactly.
Justice Felix Frankfurter: -- New Jersey at all.
Mr. Lawrence J. Mahoney: Exactly Your Honor.
And I might state just an anticipation, the New Jersey rule is contributory negligence.
Now, the trial judge charged --
Justice Felix Frankfurter: That would become -- that would be a (Inaudible) action brought in New Jersey court, if it could have been brought, couldn't it?
Mr. Lawrence J. Mahoney: I think that's correct Your Honor.
Justice Felix Frankfurter: What you are saying is that it makes no difference if it's brought in the federal court.
Is that your --
Mr. Lawrence J. Mahoney: Exactly.
That's my premise.
Justice Felix Frankfurter: (Inaudible)
Mr. Lawrence J. Mahoney: Yes, Your Honor.
The trial judge charged comparative negligence over the objections of the defendant and its question was more than academic because the decedent assembled the equipment.
Now the first point is that there's no question I think, it's not disputed that the general maritime law had no remedy for wrongful death.
And therefore, claimants in a situation like Halecki found himself are required to look to the state statute and the honorary courts had approved such a procedure.
They will permit the state statute to be -- to be used to supplement that gap in the maritime law.
This plaintiff suit under the Wrongful Death Act of New Jersey which gave her a right that she didn't have under the maritime law.
The issue then is as Mr. Justice Frankfurter indicated should these rights derived from the state be determined by state rules of contributory negligence or by maritime rules.
Justice Felix Frankfurter: When you say it's supplement, litigating is done in the federal court as part of the general maritime, as the enforceable of the maritime law to the federal court (Inaudible).
Mr. Lawrence J. Mahoney: Yes sir.
Justice Felix Frankfurter: When you say it's supplement, why then does this become (Inaudible) by adoption of the federal law?
Mr. Lawrence J. Mahoney: Well, I say supplement for this region that the maritime law has no provision for wrongful death.
Justice Felix Frankfurter: I know what you're saying it has none but it adopts (Inaudible) or whatever the verdict adopts.
Mr. Lawrence J. Mahoney: That's correct.
Justice Felix Frankfurter: What in itself does not give provide in the state witness.
Mr. Lawrence J. Mahoney: It does -- it does adopt himself.
Justice Felix Frankfurter: Now, my question is why -- when there is such adoption, why doesn't that will then become part of the federal law fabric?
Mr. Lawrence J. Mahoney: Well, perhaps it does Your Honor.
However, this Court has ruled that when it is adopted, it must be adopted together with its limitation.
Now, we have cited decisions only of this Court on that point and they have universally held the cases which we cite, the Harrisburg, Western Fuel against Garcia, Levinson against Deupree all decisions of this Court have said that where the actually court take the state rule and adopt them, they must take them together with their limitations.
For example, where the --
Unknown Speaker: (Inaudible)
Mr. Lawrence J. Mahoney: I beg your pardon?
Unknown Speaker: (Inaudible)
Mr. Lawrence J. Mahoney: Exactly, Your Honor.
The -- the Harrisburg case and Western Fuel said that with the Wrongful Death Act was used in the state they had to use the state --
Unknown Speaker: That's all that they thought; that's (Inaudible)
Mr. Lawrence J. Mahoney: That's correct, Your Honor.
Unknown Speaker: (Inaudible)
Mr. Lawrence J. Mahoney: This specific issue has not been before this Court to my knowledge.
However, in a case called Garrett against Moore-McCormack, Mr. Justice Black wrote an opinion which seems to answer the question well not specific terms as to the comparative negligence rule, it stated in his opinion very clearly that the right rooted in either jurisdiction either in maritime or a state must be determined in accordance with the substantive law of the jurisdiction of their origin and that's our major premise.
There's no question as Mr. Justice Black pointed out, his language is quoted in our brief on page 26, that this works in both directions not only as maritime law to be protected as in the Garrett case and Garrett attempt was made to limit the claimants rights to a state rule and he was a living claimant and the Court said no, that his Maritime right must be protected and they cannot be limited by state law.
However, if I may read very briefly from this opinion.
The constant objective of legislation and jurisprudence is to assure litigants full protection for all substantive rights intended to be afforded them by the jurisdiction by which the right itself originate.
Mr. Justice Black then referred to the Erie Railroad against Tompkins case.
And the final sentence in the excerpt which we quote and I think this is extremely germane to our issue, Admiralty court when invoked to protect rights rooted in state law endeavor to determining issues in accordance with the substantive law of the state.”
Justice Hugo L. Black: Well, that's the very issue here, that's that the (Inaudible) perhaps, the correct position of is the remedy was made (Inaudible).
Mr. Lawrence J. Mahoney: Oh, I think clearly, yes, Your Honor.
Justice Hugo L. Black: When I look to state law I find the relevance.
If it's your adoptment whatever the prosecutor (Inaudible).
Mr. Lawrence J. Mahoney: Well, if I may distinguish between the words rights and remedies here and as a matter of fact that specific point a little later in the argument the right sue at all to the defendant of the decedent comes in the state law.
The remedies maybe something quite different I just -- we distinguish somewhat later in our argument between survival statutes for example and Wrongful Death Act.
Unknown Speaker: (Inaudible)
Mr. Lawrence J. Mahoney: That's correct sir.
Now, I won't quote the Circuit Court's opinions on this but both before the Halecki decision and after it in the Third Circuit in the Hill case, all of the Circuit Court's opinions uniformly applied the state rule of contributory negligence to suits under wrongful death actions of the state.
Justice John M. Harlan: (Inaudible)
Mr. Lawrence J. Mahoney: Not on this point.
Justice John M. Harlan: (Inaudible)
Mr. Lawrence J. Mahoney: No sir, not on this point.
To my knowledge every decision before Halecki and even one after Halecki in the Hill case have applied the state rule of contributory negligence.
Justice William J. Brennan: Doesn't it (Inaudible) if -- if this becomes part of the statute or federal law, isn't (Inaudible)?
Mr. Lawrence J. Mahoney: Well, if I may say quite to the contrary Your Honor, that if these rights are not determined in accordance with their arguing we have extreme lack of uniformity.
Justice William J. Brennan: I know but if this man hadn't died and this had been an action for injury short of death, there would no doubt with the --
Mr. Lawrence J. Mahoney: Exactly.
Justice William J. Brennan: -- federal maritime rule contributory negligence was applied.
A lot of these deaths if the mere not the mere rather important, incidents of death is the thing that distinguishes this.
We do apply the rules of contributory negligence of the 48 states an area where we are looking for uniformity --
Mr. Lawrence J. Mahoney: I think so Your Honor.
Justice Potter Stewart: -- or rule.
Mr. Lawrence J. Mahoney: If you will permit me –
Justice Potter Stewart: What make you think so --
But I mean, why?
What -- what reason of policy whether I -- why should we do that?
Mr. Lawrence J. Mahoney: Well, my very next point deals exactly with that argument.
The reason it comes up is this, that in the Circuit Court, the majority of opinion in Halecki agreed that before the Pope & Talbot against Hawn case that contributory negligence would have been the rule but Mr., rather Judge Learned Hand read the Pope & Talbot v. Hawn case to change the rule.
And here, we -- I think we -- it comes to the issue which Your Honor has raised.
Hawn was an injured but living plaintiff and his right without question originated in the maritime law.
However, he didn't have to rely on the state law as Halecki did.
He had his own rights.
His rights were correctly measured by the maritime rule of comparative negligence.
However, the rights are completely different not only in origin but in nature.
A -- a living plaintiff has a right to recover for his own damages most primarily that of pain and suffering, medical expenses, and his lost income.
His dependents however on his death have an entirely different item of damage, an entirely different right which didn't exist either in maritime law or the common law and that is to recover for their lost not the decedent's lost.
Their own lost that is anticipated due to income occasioned by the death.
Now, the fact that -- that there is such an extreme difference is demonstrated by the existence in New Jersey as in other places of two separate statutes, the Wrongful Death Act which we have here and the survival statute which doesn't create a new right in the defendant but preserves the right that this decedent had prior to his death.
In other words, under survival statute an state can recover for the pain and suffering he -- he suffered before he died.
They can recover for his medical expenses, but that's not the statute we have before us.
Now, the respondent has raised exactly Your Honor's argument in what they have termed the such as wood argument, the language of the statute says in effect that an act such as wood have given rights to an action if the man had lived, she will give his defendants a cause of action and the wrongful death statute and the defendant has argued also that it's incongruous to say if the man had lived that he would have had a right to -- would narrow it to say comparative negligence but then if he died his family should be circumscribed by a liable contributory negligence.
However, bearing in mind that these rights are completely distinct.
It -- it is not only incongruous but it's -- it's inescapable.
Justice Felix Frankfurter: Mr. Mahoney may I ask you a question.
I have to call a general attention to it.
How many states have these death statute on waters that are recoverable under the general maritime law into federal courts, 48 states?
Mr. Lawrence J. Mahoney: Well Your Honor, I can't -- I am afraid I can't answer that except to say that the cases that we have cited have --
Justice Felix Frankfurter: I am talking about -- I am trying to get a meaning with these rather application concept (Inaudible).
I want to know what the exact thing of the statutes of law of the 48 state on this subject is which is then enforced in the federal court and I want to know if there is a uniformity.
Does the statute differ to the amount -- maximum amount recovered, as to the categories of people who may recover?
Mr. Lawrence J. Mahoney: I am quite certain Your Honor, there is difference in terminology and in application.
Justice Felix Frankfurter: I am not talking about terminology.
I am talking about who can recover for what and what amount.
Do the 48 states differ in (Inaudible)?
Mr. Lawrence J. Mahoney: I am sure they do.
Justice Felix Frankfurter: Well then, there isn't uniformity anyhow.
Mr. Lawrence J. Mahoney: Well, Your Honor, if I may address myself to the question of uniformity --
Justice Felix Frankfurter: Well not generally, but specifically, it makes a lot of difference if under Jersey you've got one right and under Carolina or Alabama law you've got a totally different right, both enforceable as supplementary to the general maritime law but what plaintiff actually gets or who can be plaintiff, it maybe very different in the two states.
Mr. Lawrence J. Mahoney: Well I think that --
Justice Felix Frankfurter: (Inaudible) to these things you haven't got uniformity, because it all depends on the varying -- on the varying statutes and legislation of the various states.
Mr. Lawrence J. Mahoney: I think it's safe to say this Your Honor that all of the Lord Campbell's act provides to dependents a cause of action to recover their damages which they did not have in absence of statute.
Justice Felix Frankfurter: Is it true or it isn't that a number of statutes, of Lord Campbell's statute, which states have enacted have -- have fixed amounts --
Mr. Lawrence J. Mahoney: I am -- I am sure that's correct Your Honor.
Justice Felix Frankfurter: Maximum amount.
Isn't it from the (Inaudible) have written into them specific limitations by way of statute of limitations (Inaudible).
Mr. Lawrence J. Mahoney: That's correct.
Justice Felix Frankfurter: So that you have got a great diversity of concrete ingredients in a specific state statute which however are enforceable in the federal court.
Mr. Lawrence J. Mahoney: Very true Your Honor.
Justice Felix Frankfurter: And you get a -- you get a Jacob's coat pattern and not the uniformity pattern in this field.
Mr. Lawrence J. Mahoney: Well if I may point out, Your Honor, if it wasn't for the statutes, these class of claimants would have no right whatsoever.
Justice Felix Frankfurter: That's the starting point, but it makes to me a lot of difference.
Whether you've got a general United States statute giving uniformity in results or when you've got a 48 diversified opportunities for suing in the federal court if the state gives you -- what right it gives you.
Mr. Lawrence J. Mahoney: Well, in our particular question on the point of uniformity that if the rights of these litigants are not enforced in accordance with the -- their origins, you'll have a situation like this that a maritime defendant is the only defendant that can be sued under the Wrongful Death Act and not have the right to defend on the basis of contributory negligence.
He is the only type of defendant that whose obligations arise out of state law.
Please bear in mind that this defendant could not be sued in this matter at all if it wasn't for the Wrongful Death Act of New Jersey, but at the same time it takes away from the defendant the right or the defenses that aren't here in the Act.
Moreover, on the other hand, a maritime claimant gets preferential treatment under the Wrongful Death Act, in that, their action did not circumscribe by contributory negligence or as every other --
Justice William J. Brennan: Well, isn't that the very point Mr. Mahoney?
Mr. Lawrence J. Mahoney: I beg your pardon?
Justice William J. Brennan: Isn't that the very point?
What are you enforcing here?
Are you enforcing a state claim or a federal claim in the proceeding of this kind?
Mr. Lawrence J. Mahoney: This is a state originated right, Your Honor.
Justice William J. Brennan: Well, I've heard you say that before but what law is being enforced, state or federal?
Mr. Lawrence J. Mahoney: State, Your Honor.
Justice William J. Brennan: State law?
Mr. Lawrence J. Mahoney: Yes, Your Honor.
Justice William J. Brennan: Well what about the next case, The Tungus case?
Is that a state claim I think also?
Mr. Lawrence J. Mahoney: It's also an action under the Wrongful Death Act of New Jersey, Your Honor.
Justice William J. Brennan: Maybe but it's an admiral unit.
Mr. Lawrence J. Mahoney: That's correct.
Justice William J. Brennan: And the Admiral decides.
Mr. Lawrence J. Mahoney: In our case -- in our case, we are in the federal court because of diversity.
Now he -- the claimant could just as well have gone under to the saving suited for into the state court and the same result would occur.
Justice Felix Frankfurter: But couldn't you in this case go into the federal court although there (Inaudible).
Mr. Lawrence J. Mahoney: Well Your Honor, that's the question in the previous case.
My opinion is no.
As I understand if there is a conflict in the circuits on that that has not been --
Justice Felix Frankfurter: I am not talking about the bringing it under law applies.
Can't you bring -- you cannot bring this except under diversities trial?
Mr. Lawrence J. Mahoney: That's my understanding.
Justice Felix Frankfurter: And you can't -- you can't bring it as an admiralty -- you can't make the federal admiralty law without jury available to a right as (Inaudible), are those -- did those cases rest on diversity?
Mr. Lawrence J. Mahoney: I am quite sure Levinson did Your Honor.
Justice Felix Frankfurter: (Inaudible)
Mr. Lawrence J. Mahoney: I am not certain about judge.
Justice William J. Brennan: Well, what about Tungus?
They're next too.
It's brought on the admiralty side, wasn't it, and required diversities?
Mr. Lawrence J. Mahoney: As a matter of fact I, I believe there was diversity in -- in the Skovgaard case.
Justice William J. Brennan: Well, may have been, but in Skovgaard it was in admiralty, wasn't it?
It was specifically admiralty remedy that was certainly enforced.
There was a trial before a District Judge without a jury.
Mr. Lawrence J. Mahoney: Well, Your Honor, I -- I am saying this, that the remedy doesn't change the origin of the right.
Justice William J. Brennan: No but you certainly have to meet I suggest more directly than you have whether actually this is a state remedy that's being enforced or a federal remedy that's being enforced, even though it depends upon -- on the source for which the -- upon which the claim is based is a state (Inaudible).
Mr. Lawrence J. Mahoney: It's a state right Your Honor, if you will, not a state remedy.
The remedy would have to deal with the manner in which it would draw, the form in which it was brought.
The right remains the state right.
Chief Justice Earl Warren: We will recess.
Argument of Lawrence J. Mahoney
Chief Justice Earl Warren: Mr. Mahoney, you may continue.
Justice Felix Frankfurter: Mr. Mahoney, I asked you (Inaudible) what was the last thing?
Mr. Lawrence J. Mahoney: I said I thought it was, Your Honor.
Justice Felix Frankfurter: Well, it specifically said, it wasn't.
Mr. Lawrence J. Mahoney: I was in error then, Your Honor.
Justice Felix Frankfurter: Are these the questions of your being in error (Inaudible) what problems that Justice Brennan put to you (Inaudible)
Mr. Lawrence J. Mahoney: Well, if I may say so, Your Honor, I don't --
Justice Felix Frankfurter: But it said that typically, it isn't diversity in theory and (Inaudible) there's nothing to (Inaudible)
Mr. Lawrence J. Mahoney: I don't think that our problem is necessarily one of diversities.
I think it's one of our --
Justice Felix Frankfurter: It can't be if -- if jurisdiction would sustain there when it's not derived from diversity and (Inaudible) to say there was no diversity in fact.
Mr. Lawrence J. Mahoney: Well, in my opinion, it doesn't matter whether it's in admiralty, whether it's on the civil side.
Justice Felix Frankfurter: Very well.
I -- I can follow that argument.
But it does make a difference in the analogies whether on (Inaudible) or whether the cause of action to derive approximately, and then the question, if I may say so, put by my Brother (Inaudible) a question that has to be faced or met, namely, to -- in the federal court because of admiralty jurisdiction may you have to answer the question.
Mr. Lawrence J. Mahoney: Well, if I may say so, the -- the question, I believe, was answered in the Garrett case by Mr. Justice Black when --
Justice Felix Frankfurter: I'm not suggesting if not -- they're not capable of answering when we put tough questions (Inaudible)
They're capable so it must be answered.
Justice Hugo L. Black: I thought his question was based on the assumption that the Garrett case did not have.
Mr. Lawrence J. Mahoney: Well, I must --
Justice Hugo L. Black: And I say it wasn't.
Mr. Lawrence J. Mahoney: Well, I -- I must respectfully defer, Your Honor.
In my whole approach to this, I haven't felt that diversity or the basis for bringing the case into either an admiralty or civil court was germane to the issue.
Justice Felix Frankfurter: So the claim wouldn't stop with that proposition otherwise we'll get lost because we got very different considerations if it is -- if they're addressed to the problem in the cases.
Mr. Lawrence J. Mahoney: Well, as -- as I understand the proposition, it is -- that if the Court is considering the right and the rules that are to be applied in determining it, it -- then -- I don't want to be redundant, but it must be decided in accordance with the law of the jurisdiction in which that right originated.
And that works both ways, in my -- not only in my opinion, but in the opinion of Mr. Justice Black.
And not to oversimplify it, but I -- I think that that states the problem and answers it.
Justice Hugo L. Black: It does if you accept the word, rooted in -- creating -- rooted in the state law or rooted in the other --
Mr. Lawrence J. Mahoney: Right.
Justice Hugo L. Black: -- as meaning that admiralty, a case which is enforceable and that rises on the high seas is rooted in the state law, rather than the federal.
As I understood his question, if we base on the assumption that there might be a difference, maybe I'm wrong, since here, what admiralty has done was to abolish its or to withdraw away from his whole idea in some instances that admiralty would not enforce a death claim, that it would enforce a death claim.
Therefore, the question is, if it doesn't enforce a death claim because it is allowed in the State, does it enforce it with all the limitations of state law, does it enforce it, but only in -- with such limitations only, as in accordance with and harmony with general principles of admiralty law.
Mr. Lawrence J. Mahoney: Well -- well, isn't it so, Your Honor, that the existence of the Death on the High Seas Act indicates an intention to leave to the various States the determination of a Wrongful Death Act where it happens within the confines of the State.
Justice Hugo L. Black: I was -- I wasn't arguing -- asking, I'm trying to tell you what I was thought was -- was a question --
Mr. Lawrence J. Mahoney: Well, I think also --
Justice Hugo L. Black: (Inaudible)
Mr. Lawrence J. Mahoney: -- if I may say so, the Death on the High Seas Act is appropriate to your question, Your Honor.
In -- in the time that I have left, I have to completely skip over my second point, because it's in common with this Skovgaard case, which immediately follows, and that's the argument that the Death Act of New Jersey doesn't include or encompass unseaworthiness at all.
And I'll have to leave that one to Mr. O'Neil because of the time.
Now, I would like to take a few moments on our third question which is the one in which the Government has joined as friend of the Court and also the one which elicited Mr. -- rather Judge Lumbard's strong dissent in the Second Circuit, and that is whether the -- the nature of the employment of this decedent, completely apart from any of other considerations, entitles him to unseaworthiness.
Now, in my brief, I've gone through Sieracki and Pope & Talbot against Hawn, we have no time for that now.
I can only say this about Halecki's work.
He was a shoreside electrician.
Most of his work was ashore.
He was employed by a subcontract, hired by the repair yard, which was not itself equipped to do the very specialized work that he had to do.
His work can only be done when the vessel was out of operation.
This ship had been a dead vessel for about two weeks.
The very nature of the work cleaning generators could only be done while the vessel's power was bought.
It was work, as far as we know that no seaman could ever do.
Seaman employed in cruise as electricians, do only maintenance work.
This was -- work so specialized that they had to take the seamen off the vessel, take the repair yard men off the vessel, in order to have it done.
Justice William J. Brennan: Well, was his work connected though of -- with furthering the use of the vessel or its operation is a going instrument of navigation (Voice Overlap) --
Mr. Lawrence J. Mahoney: I would say not, Your Honor.
Justice William J. Brennan: It was not?
Mr. Lawrence J. Mahoney: I would say it was not in this respect.
The Government has raised that issue in its brief and --
Justice William J. Brennan: Well, this was the propulsion machinery, right?
Mr. Lawrence J. Mahoney: That's correct, Your Honor, but this was in the nature of extensive overhauling and repairs, not incident to the voyage in the same way that cleaning cargo tanks for example, or cleaning pitch from a cargo compartment.
We maintain that this was not incident to the vessel and that the equipment itself, I may -- if I may take 30 seconds, the equipment, itself, was not the type of equipment that was considered in the Patterson case.
Justice William J. Brennan: tWill did I -- this issue go to the jury?
Mr. Lawrence J. Mahoney: I beg your pardon?
Justice William J. Brennan: This issue went to the jury?
Mr. Lawrence J. Mahoney: Unseaworthiness went to the jury.
Justice William J. Brennan: Well, I mean this particular part of element.
Mr. Lawrence J. Mahoney: Only in general terms.
They were permitted to consider the concept of unseaworthiness over the objections of the defendant.
Justice William J. Brennan: Well, with this as an element of that concept?
Mr. Lawrence J. Mahoney: No, Your Honor.
It was merely submitted to them in a general way and the charge in the trial judge.
Justice Felix Frankfurter: Was there any -- on this question, on the first thing that -- that's run by dissent, this was not the vessel.
This was not -- that's right.
There couldn't be unseaworthiness regarding this -- this vessel.
Was there any -- is that disputed or the fact about that disputed in the record?
Mr. Lawrence J. Mahoney: I -- I don't understand (Inaudible).
Justice Felix Frankfurter: Judge Lumbard and you're arguing, the Government argues that the vessel was -- was out of the -- out of the water that were --
Mr. Lawrence J. Mahoney: There's no question they have used.
Justice Felix Frankfurter: Now, what I want to know is whether the fact on which such a determination maybe made, assuming it's relevant, are in controversy.
Mr. Lawrence J. Mahoney: No dispute.
The vessel was in navigable waters without of operation.
Chief Justice Earl Warren: Thank you.
Mr. Baker, you may proceed.
Argument of Nathan Baker
Mr. Nathan Baker: Mr. Chief Justice -- please the Court.
A desire, if I may, at the outset, set forth some of the pertinent facts, not the detailed facts, but some of the pertinent facts which may be involved in the legal discussions which I expect to make shortly.
First, I'd like to bring to the Honors' attention that this vessel was in the waters, at a dock, in the State of New Jersey.
That aboard this vessel, when it's undisputed, at least, the facts supported, was the captain and four or five deck men, there was a full compliment of the engine crew and there, those men were doing maintenance work at the same time that this maintenance or overhauling work was being done by the shipyard men, during the entire time.
I'd like to bring also to, Your Honors' attention that the specification of repairs which is set forth on page 2 of my brief, sets forth that the crew, meaning the ship's crew, was to remove and replace the eight cylinder heads from -- for the port and start with generators.
That the very generators which were to be cleaned by this plaintiff, this Halecki, the very generator was removed and replaced by the ship's crew and then it provided in that specifications which spray clean with carbon tetrachloride.
In other words, the work to be done by this Halecki, the shore-side electrician, was to spray clean with carbon tetrachloride, so set forth in the specification repairs of this defendant, the vessel, and so ordered and directed by this defendant.
And it was known that it was a dangerous substance in confined spaces and it was for use in the engine room.
And not only was it known, but the chief engineer in consultation with the foreman of the deceased, agreed to have the work done on a day when the members of the crew won't be present.
And that was just suddenly when this occurrence occurred.
And they cleared the vessel of the members of the crew from doing all the work and they just had a watchman, a ship's watchman aboard, and they started to do this work.
Justice Felix Frankfurter: Mr. Baker is that --
Mr. Nathan Baker: Yes.
Justice Felix Frankfurter: Can anyone say one way or the other, whether the -- in any sense that has concrete unambiguous meaning, this vessel was laid up for overhauling?
Mr. Nathan Baker: I would call it laid up, Your Honor.
And not when the ship's crew -- in other words, if you've timed the word laid up, where the ship's crew was off, there are cases where the ship's crew is off, the vessel is out of commission; there's nothing being done except shipyard work, is not this case.
Justice Felix Frankfurter: But why is this -- this vessel not tied-up to the overhaul and repair and not next week or the week thereafter, to be in operation?
Mr. Nathan Baker: Well it was the overhauled, so in preparation, preferred operation.
Justice Felix Frankfurter: Now what I want to know is whether the law is clear.
But if there is law about which one can be definite, that if a vessel is laid up for overhauling and repair is taking out of service for overhauling and repair and tied up to a dock, is it that -- does adopting of seaworthiness can apply to a vessel in that situation?
Mr. Nathan Baker: Well, I -- I don't think --
Justice Felix Frankfurter: I just want to know what the law is.
Mr. Nathan Baker: I don't think the law is clear on that.
I don't think the law is clear.
It's still considered a vessel.
As long as it's considered a vessel --
Justice Felix Frankfurter: So, what's the vessel, I mean that, is it a vessel if it's taken out of operation for purposes of admiralty law?
Mr. Nathan Baker: Well, I would say that I understand that it's still considered a vessel while it's still in the -- in the -- under water.
Justice William J. Brennan: Well, Mr. Baker, you don't mean there aren't cases in this Court on this question?
What about Desper and Seneca and (Voice Overlap) --
Mr. Nathan Baker: Oh, well, those --
Justice William J. Brennan: -- and all the rest of them.
Mr. Nathan Baker: -- are cases dealing with the Jones Act cases.
Justice William J. Brennan: I know, but --
Mr. Nathan Baker: And (Voice Overlap) --
Justice William J. Brennan: -- quite a problem of whether in navigation or not I think.
Mr. Nathan Baker: Yes.
Well in the Jones Act --
Justice Felix Frankfurter: Were they taking out of navigation?
Mr. Nathan Baker: Those cases are desperate cases, Your Honors, it's where the vessel was taken out of navigation and was there held that it was not a vessel for the purpose of Jones Act cases.
Justice William J. Brennan: Well, aren't they relevant to this question?
Mr. Nathan Baker: Well, I -- I -- this is not a Jones Act case.
Justice William J. Brennan: It may not be, but the problem whether this was in navigation (Voice Overlap)
Mr. Nathan Baker: Well, I'm really -- I -- I don't -- we don't reach the problem in our case.
I -- I submit to Your Honor that this is not a case where the vessel was taken out and that it's similar to the (Voice Overlap) --
Justice William J. Brennan: You mean on the facts there.
Mr. Nathan Baker: On the facts.
Justice Felix Frankfurter: But the doctrine of seaworthiness applies --
Mr. Nathan Baker: Not on the facts.
We don't come within that.
Justice Felix Frankfurter: Correct me if I'm wrong that the doctrine of seaworthiness not apply only to a vessel in operation?
If a vessel is tied up and is not to be in operation to be overhauled, changed, repaired, a new solution and whatnot, is -- is the doctrine of seaworthiness apply to a vessel?
Mr. Nathan Baker: I would say yes.
And I would say -- I will explain why.
If a vessel was tied up and there's a member of the crew aboard that vessel, while it's tied up doing whatever they're doing even if they're just sleeping there, if that member of the crew was injured aboard the vessel, even though it's tied up for repairs, and extensive repairs even, and that member of the crew is injured, I submit to Your Honor that it's still amply covered in the maritime law.
Otherwise, what would you say that that member of the crew was not entitled to any recovery, I'm -- as to my tougher question.
This is not entitled to any recovery, what does he get, only compensation?
Justice Felix Frankfurter: If a vessel is --
Mr. Nathan Baker: And that's my (Voice Overlap) --
Justice Felix Frankfurter: -- if a vessel is tied up for six months, not to go -- a vessel has been in the Mediterranean voyage and tied up here for extensive repairs, but the crew was allowed to sleep on board.
You say that all the admiralty law affecting members of the crew apply?
Mr. Nathan Baker: I would say so, Your Honor.
I don't know of any such decision of this Court that says that, but that's what I say.
Justice Potter Stewart: I might say that some 15 years ago I was assigned to a ship without any engines at all and I do receive pay from the Government.
And I ought to give back.[Laughter]
Mr. Nathan Baker: Well, I hope -- I hope, Your Honor, would agree with me then that you would have a seaworthy vessel.
Justice Felix Frankfurter: Without any proof that Justice Stewart was seaworthy.[Laughter]
Mr. Nathan Baker: Now, I -- I'd like to also to bring to the attention of the Court that Thompson, the watchman, testified and when they asked him what his work was, he says it was general overhaul and minor repairs.
I just bring it to Your Honors' attention to the purpose of any of the factual question that maybe raised.
Now, I submit to Your Honor, that it is unnecessary for me, I think, to discuss the negligence aspect of this case, the question of the negligence of the vessel which was submitted to the jury.
The fact the trial judge submitted to the jury on the two points, one is negligence; one is unseaworthiness.
And I'd like to bring to Your Honors' attention, which has not been brought out yet, that there was two cause of action here.
The first cause of action was the survival action, namely, for the rights of the deceased up to the time of his death.
And then in that action the jury bought in $2500.
And the second cause of action is the death action.
The right of the representatives, the widow and children in this case or the death of the deceased and that action the jury board in $62,500 and that's the verdicts in those cases.
And I submit to Your Honor that the evidence which is submitted on the negligence and the -- was sustained by a jury and that it be unnecessary for me to go into the question on negligence.
In fact the dissenting opinion by Judge Lumbard, also agreed that the question of negligence was one probably submitted to the jury.
Now, I submit to Your Honor, that the first question to be determined and that I'd like to argue before Your Honors, is, was the deceased in his lifetime entitles to the warranty of seaworthiness on this vessel?
That's the first question -- in his lifetime.
And I submit to Your Honor, that this man was a shore-side electrician.
And that, no electrician is certainly considered as members of the ship's crew.
And that under the Sieracki case, mean even though the work was puzzled out to other people, that the puzzling out of this work for a shore-side electrician does not deprive him of the warranty of seaworthiness.
So that -- and two reasons, first this electrician which I don't think it needs any extensive argument to indicate electricians are members of the ship's crew.
And secondly, the work that he was doing was maintenance work -- cleaning -- so what he was doing was cleaning these generators in the engine room.
And certainly cleaning, the maintenance work is essentially ship's work, and I submit to Your Honor that it's work not only traditionally, but actually performed by seamen up to present time.
I have included in my briefs some extracts of coast guard proceedings which I think, Your Honor, may take judicial notice where it indicates that this type of work is described to be done by the seamen that talks about use of carbon tetrachloride, the dangers involved and so forth.
And I brought it to Your Honors' attention in my brief.
Justice William J. Brennan: Mr. Baker, doesn't the -- doesn't the exhibit in which you -- in which you referred us a few minutes ago and which is quoted on page 2 of your brief, isn't that rather inconsistent with your position that says the crew is to do is to remove and replace the eight cylinder heads and so on, but that the contractor is to do this work --
Mr. Nathan Baker: That's right.
Justice William J. Brennan: -- doesn't that create a very dichotomy anyway against what you're arguing?
Mr. Nathan Baker: No, Your Honor, the -- if I may say, the crew is the ship's crew.
There's no question about it.
Justice William J. Brennan: I understand that and that it is so much.
But then the contractor --
Mr. Nathan Baker: The contractor is the shipyard's contractor.
Justice William J. Brennan: Yes.
Mr. Nathan Baker: They would do this work and they --
Justice William J. Brennan: By whom Sieracki was employed?
Mr. Nathan Baker: Was he -- he was not employed by the --
Justice William J. Brennan: Well by a subcontractor.
Mr. Nathan Baker: -- with the subcontractor.
And that was his work to do, that's right.
And his work was to do the cleaning.
Now, the question is the cleaning and the maintenance work that he's done, had to do in this.
Would that -- and now it gets to seamen's duties, and I submit, Your Honor, that its general maintenance work which is now the seaman's duties and I think that he comes within the --
Justice Hugo L. Black: (Voice Overlap) general maintenance work.
Apparently, isn't it fair to say on this record that there wasn't anyone qualified in the ordinary ship's crew to do the kind of work that he had to do?
Mr. Nathan Baker: Well, the -- the record has found that for that.
I would say that.
Justice William J. Brennan: Well, I say it's not a fair inference that they employed this contract to do this kind of work, because there wasn't anyone qualified to do it just the way that he did it?
Mr. Nathan Baker: Well, I -- I would say, Your Honor, that the tariff and -- is it all of this in the traditional situation --
Justice William J. Brennan: I'm not suggesting it makes your argument any weaker, but that's the fact, is it?
Mr. Nathan Baker: Well, I would say not, Your Honor.
I would say this that in the past years, and even at the present time, even if you look at the Coast Guard procedures, they're still cleaning their own engines and their own generators with these various substances.
Now, if they use this carbon tetrachloride they're warned about the dangers of it.
Now, it happened in this case, they decided to delegate that work to a general contractor namely, the shipyards workers.
And the shipyard work is still sub-delegated again to the electrical company who had this Halecki do the work.
And I submit, to Your Honor, that meaning that he was doing the work traditionally done by seamen -- well, actually today is done by seamen, may I bring out as kind of an illustration a decision which my judge --
Justice William J. Brennan: Wasn't this subcontractor a specialist in doing this kind of cleaning with this --
Mr. Nathan Baker: Well, that's the argument made, but I say no.
I think that the Court may work --
Justice William J. Brennan: -- (Voice Overlap) fair entrance to be made from this record?
Mr. Nathan Baker: I would say no.
There is no real specialization of this type of work.
I would submit to Your Honor that this kind of work, the cleaning of -- of generators is done by all seamen.
Justice William J. Brennan: I gather this didn't go specific to the jury as a specially submitted fact.
Mr. Nathan Baker: No.
Justice Potter Stewart: All of their adversary said all of these just went under the general submission of the issuance of seaworthiness.
Mr. Nathan Baker: Of seaworthiness and negligence.
I submit to Your Honors an illustration, a case decision by Judge Wright in a case of a shore-based plumber-machinist, where he's repairing a small pipe in a laboratory.
And in that case, Judge Wright indicated on page 22 of my brief, I may just read a few lines, the top of page 23.
"If the warranty of seaworthiness applies to landsmen aboard a vessel, performing work historically performed by seamen, it should certainly be applied to landsmen aboard performing work currently performed by seamen and I submit to our case is analogous that he's a plumber -- plumber fixing a pipe and he was his electrician not repairing, just -- just cleaning a mechanism.
And Judge Learned Hand has indicated in his decision in the court below and I think he can say it in much better language than I can, that he sees no distinction between the work being done by Halecki and the work being done by Hawn, in the Hawn Pope & Talbot case.
And he thinks that the test is whether the work is of trying to traditionally the crew is in the (Inaudible) and as to that, it makes no difference that the means employed have changed with time.
And he therefore, felt that since the deceased would clean the ship, he was within the doctrine of Pope & Talbot and Hawn, and he entitled to seaworthy vessel.
Now, our case or my counsel has not gone into, although he didn't agree -- gone at this very hill and a few other cases.
Our case can be distinguished from those cases.
First, we're not the driver.
Second, we were not in major repairs and no structural change was being made with just minor repairs and overhauling.
And in that case, in those cases, the crew was discharged.
In our case, the crew was on board, performed the work and not discharged.
And I submit that none of these factors appear, if they're material in our case, which would justify any decision contrary to our argument here.
And I go into my, the next point, if I may, on the question of the right to recover by the representatives of the deceased for the wrongful death.
Namely, here we have a situation where under the Hawn case, Pope & Talbot against Hawn, if the person was alive and Halecki was alive, it's undisputed under that case, a decision by Justice Black, that he would have two rights of recovering, namely one, for negligence and two, for unseaworthiness, and I might add in there that contributory negligence would not be a bar, but the admiralty rule of comparative negligence would apply.
But here we have not a -- personally the case, but a death case.
And in order to recover under the maritime law, which is silent as to recovery for death, the wrongful death and the Court was required to adopt the Wrongful Death Act of the State of New Jersey, where this acts occurred.
And in adopting it, it then gave this cause of action.
And I submit to Your Honor that in looking at the New Jersey Act, which has been adopted under the maritime law so as to give it force and effect, we look at New Jersey Act, I submit to Your Honor that the Act has a referral clause in it.
In other words, it refers back to the rights which the deceased would have had if he had lived.
And that's on page 29 of my brief.
"When a death of a person is caused by a wrongful act, neglect or default, such as would if death had not ensued, have entitled the person to sue."
Now, referring to that such as clause as we termed them refers to the rights which the deceased would have had if he had lived.
We look at the Pope & Talbot-Hawn case, the deceased would have had the right of -- abhor the rights of negligence and the right of cause of action on seaworthiness.
And I submit that under that recall clause, the representative of the deceased, the widow and children, are entitled to the same two cause of action, which includes this action for unseaworthiness.
Now then, the question arises is the Death Act of New Jersey, which is silent in using the word, unseaworthiness.
Have we say that unseaworthiness comes under the term, wrongful act neglect or default.
And I submit to Your Honor without arguing in great detail, that certainly, it means more than neglect because neglect is the negative cause of action and that the wrongful act for the fault can be and must be to construe to include the term, unseaworthiness.
Justice Felix Frankfurter: Who determines -- who would finally can determine whether unseaworthiness does or doesn't come within New Jersey legislation.
Mr. Nathan Baker: Well --
Justice Felix Frankfurter: This Court.
Mr. Nathan Baker: It has not been determined by any --
Justice Felix Frankfurter: Did this Court -- did this Court has the last saying on that?
Mr. Nathan Baker: I would say that it does.
Justice Felix Frankfurter: Suppose the judge in the Supreme Court next week, holds that it's outside of New Jersey Death statute?
Mr. Nathan Baker: Well, I think, in the Court would take that consideration, but I have another argument which I'm going to contend --
Justice Felix Frankfurter: I just want to substitute -- stop a minute.
Mr. Nathan Baker: I will.
Justice Felix Frankfurter: Could New Jersey Supreme Court say, our statute doesn't include under the Government?
Mr. Nathan Baker: Sure, they could.
Justice Felix Frankfurter: And if a case then came up here, we have to follow New Jersey code?
Mr. Nathan Baker: I don't think so.
Justice Felix Frankfurter: You don't think so.
Mr. Nathan Baker: I'm going to come into that argument later, Your Honor.
I'll -- I'll come right into it.
Now, under the Jersey Act, we submit to Your Honor that it's a remedial statute.
And -- and there is a -- and there's a little construction impended of that statute and certainly it does not intend, we submit, to give to the deceased, the -- the representative, widow and children of the deceased, less right than the persons would've had, if he lived and the little construction of the statute which permits this recovery for unseaworthiness by the representative of the deceased.
Justice Potter Stewart: Mr. Baker, hasn't this Court held or am I mistaken that the liability for unseaworthiness is essentially liability without any reference to neglect or fault, is liability without fault.
Mr. Nathan Baker: That's right, Your Honor.
Justice Potter Stewart: Well isn't your New Jersey statute limited by the first -- very first clause that you read.
It -- it's limited death caused by a wrongful act, neglect or default, not by something that's not unconnected with fault.
Mr. Nathan Baker: Well, I would say, Your Honor, that a reading of the statute, it won't block the default, is a -- that unseaworthiness is a tort, a maritime tort.
And that -- and I was just about to come to the next point in discussing the Justin case in New Jersey which Justice Brennan at that time was judge of the Supreme Court.
In that case, he argued and submitted an opinion that the construction of the -- this Death Act, in deciding the point which is of issue, was a construction that it included not only negligence, but all torts including breach of warranty.
And under that construction and -- and I think unseaworthiness which can -- it to be considered as a --- as a breach of warranty and therefore, would come under the unseaworthy -- would come under that Act of New Jersey.
I might say further and I quoted two -- in my brief, two English decisions which we all know that the Lord Campbell's Act was an English act and our New Jersey Act, many other acts have fashioned after it, and in the Zinc's (ph) the Court might be -- it indicates that each warranty is included within the recovery under the Lord Campbell's Act, which uses the same language.
So I think that under that theory and including Judge Learned Hand's decision below, that unseaworthiness comes within the Death Act of New Jersey, even though not mentioned in that -- in that language.
Justice Felix Frankfurter: (Voice Overlap) seaworthy?
Is the cause of action for unseaworthiness, the cause of action for a breach of warranty?
Mr. Nathan Baker: It's -- it's considered the nature, I submit, of the breach of warranty.
In other words --
Justice Felix Frankfurter: (Voice Overlap) it could -- it could -- as because I have nothing to do with a warrant or doesn't warrant.
The law says you must supply a ship that's seaworthy.
Mr. Nathan Baker: It was.
Justice Felix Frankfurter: I don't care what you are.
Mr. Nathan Baker: As I understand it's a warranty of seaworthiness.
It warrants it that it's seaworthy and its warrant irrespective of fault.
As I (Voice Overlap) --
Justice Felix Frankfurter: But they warrant it or not, it must be seaworthy.
Is that right?
Mr. Nathan Baker: As I understand what we call warranty of seaworthiness and that's the reason we viewed that term.
Justice Potter Stewart: Very close to a breach of an implied warranty.
Mr. Nathan Baker: I think so.
I think it's almost identical.
Justice Potter Stewart: (Voice Overlap) --
Mr. Nathan Baker: I'm just --
Justice Felix Frankfurter: Telling the owner that ship (Inaudible) this is warrant and warranty stepped out of it.
Mr. Nathan Baker: Well, I do have to --
Justice Felix Frankfurter: Can the owner of the vessel say I don't want -- I don't warrant this ship to be seaworthy?
Mr. Nathan Baker: I don't think so.
Justice Felix Frankfurter: So that --
Mr. Nathan Baker: I think that's the legal obligation.
Justice Felix Frankfurter: (Voice Overlap) nothing to do with the vessel?
Mr. Nathan Baker: Well, it's -- you might say is implied warranty, does express it to the fact that owns a ship is warranted that it's seaworthy.
Justice Felix Frankfurter: Well, you might say anything, but the point is that the law says we don't care what -- you as owner warrant or don't warrant, if certain things happen --
Mr. Nathan Baker: I see.
Justice Felix Frankfurter: Remember that something is happened?
Justice John M. Harlan: Can I ask you a question?
Mr. Nathan Baker: Yes, Your Honor.
Justice John M. Harlan: Assuming in your view, we can have the last word and say New Jersey law is that we were to come to conclusion that the unseaworthiness is not embraced in the Lord Campbell's -- New Jersey Lord Campbell's Act.
Have you still got a cause of action for unseaworthiness?
Mr. Nathan Baker: I didn't quite get that, Your Honor.
Justice John M. Harlan: Supposing we concluded that the New Jersey statute, the New Jersey Wrongful Death statute did not -- did not embrace claims for unseaworthiness, where does that leave you on your cause of action for unseaworthiness?
Mr. Nathan Baker: I -- I slip to Your Honor that irrespective of the construction of the New Jersey Death Act under the arguments I'm about to make if I have the time, that maritime law covers.
In other words, inasmuch as this Acts -- and occurred a ship, that maritime law is the paramount law in governance.
And that the only reason that it accepts the New Jersey Death Act is because there's a void in the maritime law given him the right of recovery for that, either by negligence or unseaworthiness.
And it fills it.
It adopts into the maritime law the state laws, so as to give this cause of action.
And I submit to, Your Honor, that when it does so and adopts it even without this referral nature which is not necessary in our case, but we have the referral nature of our case and we say that refers back to the rights you would have had, if he had lived.
But even irrespective of such a referral statute that we have to go that far, we don't have in our case, I submit to, Your Honor, that as it absorbs or adopts the Death Act, it becomes a part of the maritime law and it's still maritime law, which governs the case.
Justice John M. Harlan: Supposing a New Jersey statute had said in terms, under our Wrongful Death statute, which gives all kinds of causes of actions towards -- but not unseaworthiness claims --
Mr. Nathan Baker: Well, I submit --
Justice John M. Harlan: -- supposing you said that specifically --
Mr. Nathan Baker: I submit --
Justice John M. Harlan: -- would you then say that you still had the cause of action?
Mr. Nathan Baker: I'd say yes for this reason -- for this reasons, I may say under the case of Just against Chambers, a decision by Chief Justice Hughes, he indicated that respect to maritime tort, we have held that the State may modify or supplement the maritime law by creating liability which a court of admiralty will recognize and enforce when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation.
Justice Felix Frankfurter: But Mr. Baker, maritime law excludes the recovery for damage.
Mr. Nathan Baker: But maritime law in all the cases of this Court --
Justice Felix Frankfurter: The characteristic of maritime law is not to give a recovery for damage.
Mr. Nathan Baker: But under the maritime law, in order to give the recovery and to take the place of this void in the law, they adopt to the State Death Act in order to give this recovery.
Justice Felix Frankfurter: But you can adopt something that the State doesn't give.
Mr. Nathan Baker: Well, you can adopt the part of this which gives the remedy and the right and where it's repugnant to maritime law, for instance, if there was such a clause or if there was a clause in the -- in the statute which says that -- that contribute their negligence apply, doesn't pay here.
I submit to Your Honor that being there it's -- with hostile, the characteristic feature of maritime law, it will adopt the part which becomes a part of maritime law and not adopt the part that's hostile to maritime law.
Justice William J. Brennan: Mr. Baker, let me say if this doesn't come down to --
Mr. Nathan Baker: Our case doesn't have to go that far.
Justice William J. Brennan: No, but in answer to Justice Harlan's question, are you in effect suggesting this all that you're looking to the state laws for is to determine whether it provides an action for wrongful death.
And if it does under wrongful death is a death actionable in any event to which the maritime -- general maritime law might apply.
The shape of the remedy depends upon federal law and not upon state law.
Mr. Nathan Baker: (Voice Overlap) --
Justice William J. Brennan: And so all you look to the state statute for is the naked fact does the State or does it not provide an action for wrongful death and ignore everything else.
Mr. Nathan Baker: That's my contention.
Justice Felix Frankfurter: Let me see, if I could help you out some more.
Mr. Nathan Baker: (Voice Overlap) --
Justice Felix Frankfurter: After you did the recovery for death (Inaudible) shall exclude death as admiralty -- admiralty situation.
You will wipe that out because the State can't discriminate against giving recovery for admiralty situation, is that right?
Mr. Nathan Baker: And I just as much don't like, I lost your question on the side.
Justice Felix Frankfurter: If a State gives a recovery for death into the common law, Lord Campbell's Act, but qualifies it and as this part of it qualifies, so as not to apply for death resulting from unseaworthiness, that's an unfair discrimination against the admiralty law and that would drop out in the rest of the Lord Campbell's Act instead.
That's your position?
Mr. Nathan Baker: I think so.
I think so.
It says solely in this case of Just versus Chambers, and it indicates that it's repugnant and half of the characteristic features of maritime law.
And I submit to Your Honor that that doesn't apply in our particular case Halecki because under (Inaudible) cause of action under (Inaudible) the -- of the -- under the state act, it gets the same cause of action as the deceased would've had if he had lived and the representatives, the widow and children, would have the same cause of action, namely, the right of action for negligence and the right of action on seaworthiness and that contributory negligence would not be a bar, but the comparative negligence rule would apply.
Now, I don't know how much time I have, but I'd like to talk a little bit if I have time on the comparative negligence feature.
I submit to Your Honor that the -- the --
Justice William J. Brennan: Well, now it's clear, isn't it, that in an ordinary united Jersey lawyers, I think, can agree upon this?
In the ordinary automobile death action, in the -- under New Jersey statute, there's no rule of comparative negligence.
Mr. Nathan Baker: Oh, no.
Justice William J. Brennan: That contributory negligence --
Mr. Nathan Baker: Under land cases --
Justice William J. Brennan: (Voice Overlap) barred all recovery --
Mr. Nathan Baker: And the land cases contribute to make an absolute bar.
And if the contention which is made here on the defense, namely, that there is two rules to be applied in the case of the party, if he's alive on the Hawn case and the party to represent the widow and children case of a death case that we have here, we would have the judge charging the jury in this case, where there's one cause of action for the -- the survivor cause of action where the jury would pay $250.
He have to say to the jury, “This cause of action is on to this Hawn case.”
And it's a personal injury cause of action the same as if he would have to be alive and I'll have to charge the jury in this case, the recovery can be held only for negligence.
And contributory negligence in that case is not a bar, but comparative negligence rule.
But on the second cause of action with the death case, where the innocent wife and children who were not guilty of any negligence as far as they're concerned, his charge of the jury would be that being that it's under the Death Act of New Jersey --
Justice William J. Brennan: Yes, but the charge which the Court of Appeals sustained in this case that it was comparative --
Mr. Nathan Baker: Comparative negligence.
Justice William J. Brennan: -- negligence and not negligence as a bar.
Mr. Nathan Baker: That's right.
Justice William J. Brennan: It's certainly contrary to New Jersey lawyers.
Mr. Nathan Baker: Further no question about it.
Justice Felix Frankfurter: Could you brought this action in a Jersey court, Jersey state court?
Mr. Nathan Baker: If you could get jurisdiction of these parties.
Justice Felix Frankfurter: Well, do you mean, if you could've serve them?
Mr. Nathan Baker: You couldn't serve them, Your Honor.
Justice Felix Frankfurter: You couldn't, but assuming you could have serve them, you could then have brought this --
Mr. Nathan Baker: Oh, yes.
Justice Felix Frankfurter: (Voice Overlap) New Jersey court.
And I take it from your answers of the Jersey court, couldn't apply its own law.
Mr. Nathan Baker: I think they would have to apply maritime law.
Justice Felix Frankfurter: They'd have the maritime law, although the statute says what Justice Harlan implied that you can't recover from unseaworthiness.
Mr. Nathan Baker: I would like to say that you might have to say anything more.
Chief Justice Earl Warren: You may finish your thought that you have there.
Mr. Nathan Baker: All right.
I might say that on the theory of uniformity that Justice Brennan has mentioned and which appeared from his decision in the McAllister against Magnolia Petroleum, I submit to Your Honor that on the theory of uniformity in order to get uniform law to have one law where the man is alive and another law where he is dead and the -- and the -- and where the representatives had sworn and to say that contributory negligence is a bar in one case and comparative negligence is another case, would certainly not lead to any uniformity.
And I submit to Your Honor that the Hawn case, written by Justice Black, which applies to personal injury case, should also apply to a death case, the same principles of law.
Chief Justice Earl Warren: Very well.