GOETT, v. UNION CARBIDE CORP.

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Argument of Harvey Goldstein

Chief Justice Earl Warren: Number 3 Ellen Goett, as Administratrix of the Estate of Marvin Paul Goett, Deceased, Petitioner, versus Union Carbide Corporation and Amherst Barge Company.

Mr. Gold -- or Mr. Goldstein you may proceed.

Mr. Harvey Goldstein: Mr. Chief Justice, if it please the Court.

In this matter, arising out of the maritime tort was brought for damages for wrongful death and for personal injuries.

The case was originally started on the civil side of the United States District Court in West Virginia, but was transferred on motion to the admiralty side over objection of the respondent, I might add, and it was tried before the judge as an admiralty suit.

The case involves Marvin Goett, who was a maritime worker employed by the respondent, Amherst Barge Company.

That Company had a marine repair yard just outside of Charleston, West Virginia.

The vessel that was involved in this case was an unpowered and unmanned tank barge, which was owned by the respondent, Union Carbide and which was turned over to Amherst Barge for painting, sandblasting and for minor repairs.

The words, “minor repairs” are actually set forth in the contract between Union Carbide and Amherst Barge and in addition to that, in answers to interrogatories presented by Union Carbide, they conceded that the repairs were indeed minor.

The lawsuit was predicated upon Carbide's negligence and Carbide's failure to provide a seaworthy vessel to Mr. Goett.

There was at no time any violation of coast guard regulations or statutes involved in the suit.

The barge itself was turned over by Carbide to Amherst on October 2nd of 1956.

On October 4th or October 3rd, one of Carbide's men came aboard the vessel to inspect the vessel and to discuss the work which had to be done and at that time, knew or must have known of the conditions which existed aboard the vessel and those conditions were as follows.

There was complete absence of any safety or lifesaving equipment aboard the vessel.

By that I mean there were no lines, no mooring lines, no life jackets, no life tools itself, no rowboats or anything of that nature which could have possibly saved the man if he did in fact go overboard.

Goett was one of six men who went aboard the ship.

And the first operation to set the ship up for the painting operation itself was to sandblast the deck of the vessel and that of course is equivalent to simply chipping the paint off the deck so that it can be painted on the metal itself.

Nobody knows exactly what happened.

There was no evidence at all as to why Goett did fall overboard, but the fact remains that one of the men suddenly realized that Goett was missing.

When he ran over to where he last saw his fellow worker, there was the man in the water and he subsequently did drown although three of the men at various times jumped into the water in an effort to save him.

Of course, because of the complete absence or lack of any safety equipment, there could be no effort made to save Goett other the men themselves jumping in and to try to do the job.

Justice John M. Harlan: Where is that statement made in the Court's opinion that when they jumped in, they -- they brought the mop?

Was -- was there any significance to that?

Mr. Harvey Goldstein: No, sir.

That was simply due to the panic of the man himself and the District Court Judge accepted it as such.

Justice John M. Harlan: Yes.

Mr. Harvey Goldstein: He could not swim.

The findings of the District Judge were as follows.

Number one that it was foreseeable to Carbide that men would go aboard the vessel to do the work.

In fact, it was obviously a necessity to do the work.

That there was the duty upon Carbide to provide a safe place to work, and that it was negligent for Carbide not to equip the vessel knowing that men who were going aboard had to do the work with some lifesaving equipment, that the barge itself, because of the lack of that equipment was not seaworthy at the time of Goett's death, that the proximate cause of his death was that lack of the equipment involved.

The Court then stated that the barge could not be considered to be unmanned at the time of Goett's death because there were men working aboard her, although when the barge was actually in transit, she is unmanned as well as being unpowered.

She is simply a floating steel tank.

The Court further stated that at the time of Goett's death, Amherst, the repair yard owner had the exclusive control over the vessel.

And as conclusions of law, the Court stated that the case involved negligence that there was liability because of the fault of Carbide in failing to set forth or place upon the vessel that safety equipment, that the case was not one of liability without fault.

And although I would say for a moment that that statement by the Court is open to interpretation, I have interpreted it to mean that the Court found that because of the negligence with fault, found where the liability with fault found against Carbide, the Court then felt it did not have to say there was also liability without fault because it did find that the fault did exist.

The Court further stated that there was no contributory negligence because of course being a death case the burden was upon Amherst and Carbide to determine why Goett fell off the vessel and of course there was no evidence ever brought forth as to the reason why he actually fell.

The Court further stated that there was no assumption of risk.

It stated that while Goett may have possibly assumed the risk of falling off the vessel itself the actual falling into the river which was based -- which was the -- the grounding of the case itself, the actual failure to rescue that Goett did not risk at all.

He assumed no risk of the failure to rescue itself.

Since the case was predicated upon the West Virginia Wrongful Death Statute which had a monetary limitation of $20,000, the Court said that it would find that that monetary limitation was applicable and determined that there was -- there would be an award of $20,000.

However, in order to avoid a possible second trial in the matter, we asked the Court and the Court did find an alternative damages under the damages rule of the general maritime law and that was in the sum of $50,000.

The Court then determined that there was -- should be no indemnification over from Carbide to Amherst because Carbide itself was the party who was actively negligent in failing to place the equipment aboard the vessel.

The Court of Appeals reversed the District Court decision on these grounds.

Number one, the Court said that there was both negligence and unseaworthiness claimed by the petitioner in the case.

The Court then said that as far as unseaworthiness was concerned, Goett was not a member of that class to whom the talking of unseaworthiness would apply.

The Court further stated that it did not agree with the District Court Judge and found that the barge was seaworthy at the time of Goett's death.

As for the negligence count, the Court stated that the only duty owed to Goett by Carbide, was to warn Goett of any latent defects not patent defects and that the lack of safety equipment aboard the vessel was obviously known to Goett as well as everyone else and therefore Carbide, had performed its complete duty to Goett and could not be negligent.

The question of whether or not this Court's decision in the Harrisburg in 1886 was left open since both the District Court and the circuit court felt that it certainly was a matter for this Court to take up.

The Harrisburg, as this Court well knows, is the decision and as a practical matter the only decision, which has stated that there is no cause of action for wrongful death under the general maritime law, absent a state statute.

All of the cases which have confirmed or affirmed the -- the doctrine that there is no cause of action for wrongful death have cited the Harrisburg as the prevailing reason for the ruling itself.

And so the only -- the only case that is really involved here is the question of whether Harrisburg was a correct enunciation of law by this Court some 60 or 70 years ago.

Justice Potter Stewart: Is that the only case involved in maritime, that's the only case you have to overcome?

Mr. Harvey Goldstein: Yes, I believe that if I do overcome the Harrisburg decision and that this Court now reverses its ruling in the Harrisburg that there would be I think as a matter of course the statement that there would be a cause of action under the general maritime law for wrongful death even absent a state statute on the subject because all of the cases cited both by this Court and various other courts have uniformly cited the Harrisburg as the controlling case on the subject.

Unknown Speaker: (Inaudible)

Mr. Harvey Goldstein: I'm sorry I didn't --

Unknown Speaker: What about Tungus?

Mr. Harvey Goldstein: Well I think Tungus also cited the Harrisburg or if it did not it cited cases which in turn cited Harrisburg as controlling on this subject.

So that we get down to the -- to the point of Harrisburg setting the ruling or setting the pace for the ruling in 1886 and then the -- the cases coming afterward simply citing Harrisburg as the controlling case.

Justice John M. Harlan: They'd all call with it if you prevail, wouldn't they?

Mr. Harvey Goldstein: I would assume so and I hope so.

In Harrisburg, which was an action in rem, there were three questions set up by the Supreme Court and that was number one, whether or not a cause of action under the maritime law would exist absent a state statute.

Number two, whether or not there was a remedy if there was a state statute which the general maritime law or the admiralty jurisdiction could then accept.

And number three, if the state statute of limitations would then be held applicable in a case arising out of a maritime tort.

The Court first freely conceded that under French or under Scottish law, there was a cause of action for wrongful death.

And they stated that under the English law, as we know there was a common law maxim and that there was no cause of action under British law for wrongful death.

They then held that they found no case in which any country or any civilized country had a different ruling for a maritime tort as it would have for a tort which occurred on land.

And therefore since we were a common law nation as was England and England did not have such a right of recovery, that we could then not have a right of recovery either.

The Court further stated and I find, of course, that this sentence is open to construction, but the Court stated that we must declare what the law is not what it should be or not what we think it should be.

And I think it's fairly clear that the Court felt that it was setting forth a very, very narrow doctrine on a legalistic or technical point which they felt bound to follow not which what they found would be acceptable to them as an equitable question.

I think that the question of the reason for the British rule must come under some scrutiny.

Certainly, I believe it is well known that under the civil law, under the French Law, under the Scottish Law, in fact under the law of most continental nations which was predicated upon the Roman law there was and always has been a cause of action for wrongful death arising out of a tort.

I think it's also conceded that maritime law, as we know today, came into England at a comparatively late date, somewhere around the 12th Century and that at time, the law came into an opposite end of the spectrum so to speak through the common law itself.

That is, the maritime law became one of the king's prerogatives and which the king used to attack parliament and the common law which were lined up on the same side.

Justice John M. Harlan: Could I inquire as to why you think you've got to ask us to overrule Harrisburg and the cases that have followed it in order to prevail in your case?

Mr. Harvey Goldstein: I think for these reasons sir.

If the Harrisburg decision is now overruled, and the Court finds that there is a cause of action from general -- under the general maritime law absent of any statute, I think that the Court would find in following that ruling that all of the duties, all of the responsibilities as between the parties would be determined by what we now consider the general maritime law principles, such as the lack of assumption of risk, such as the duty that would evolve upon Carbide in this case under the maritime law as against state law.

Justice John M. Harlan: Did the Court of Appeals deal with the question as to whether the West Virginia Wrongful Death Statute embraced the cause of action for unseaworthiness?

Mr. Harvey Goldstein: No, sir.

It felt that it did not have to decide that because it found that Goett was not of the class and also that the vessel was seaworthy.

Justice John M. Harlan: What did the District Court do on this count?

Mr. Harvey Goldstein: The District Court simply made that one -- I would say unclear statement that we find that there is no liability without fault applicable here.

This is a negligence case.

The question of whether or not the District Court meant that there was no cause of action for unseaworthiness or simply whether it did not have to find that there was a cause of action for liability without fault since it found liability with fault was open and I think it's open to interpretation.

I don't know the answer for sure.

Chief Justice Earl Warren: Do I understand in answer to Justice Harlan's question that -- that you must have that case overruled or do you -- you lose?

Mr. Harvey Goldstein: No sir, no sir.

That is not my point at all.

I would say this.

That the overruling of that case would then take away all of these various questions which exist in this case, in the Skovgaard case, in the Halecki case and there are all of the cases coming before those since the cases would then simply follow as a usual run of the mill if I might say cause of action under the general maritime law so that there would be absolutely no difference whether or not the case was one for personal injury or for wrongful death.

Now --

Chief Justice Earl Warren: Well in the event that we do not follow you on -- on that, has the court below determined what the state law is by which the case must be governed?

Mr. Harvey Goldstein: Yes, sir.

I think it has and I think it has determined it in my favor, but not in my decision.

That's the problem.

It determined it in a later case.

The various questions which the Court felt it did not have to answer in this case below, it then answered in a later case this past July, the case of Holley against S.S. Manfred which is 269 Fd. 2nd and it stated there and I might add that that was a case coming out of Virginia, and not West Virginia, it -- but having the same language in its wrongful death statute.

It stated there that the language if death had not ensued could only be interpreted as saying that there should be no difference at all between an action for a wrongful death and an action for personal injuries.

The Court cited with approval the Halecki case which stated just that same thing that it would -- well in fact Learned Hand, Justice Learned Hand stated that it would be to the last degree capricious and irrational to say that there should be a difference of duties as between the parties simply because there was a wrongful death case and not a case of personal injuries.

Chief Justice Earl Warren: So should we -- do you want us to find what the state law is here or -- or should we send it to the Court of Appeals to have them determine in this case what the state law is?

Mr. Harvey Goldstein: Well, I would think that based -- or predicated upon what the Court of Appeals has already stated in Holley, in the Holley case, I would think that this Court could now find that in this case the circuit court would find the same thing.

Justice Potter Stewart: Well the Holley case involved the different state statute, isn't it?

Mr. Harvey Goldstein: It involved Virginia as well as (Voice overlap) that in the West Virginia (Voice overlap)

Justice Potter Stewart: -- and the Virginia Statute as expressly referred to actions in admiralty didn't it?

Mr. Harvey Goldstein: Yes sir but that part of the statute --

Justice Potter Stewart: But it was not.

Mr. Harvey Goldstein: That part -- that is correct sir, but that part of the statute was not involved.

The only part of the statute and the basis for the Holley case decision was that part that stated, “If death had not ensued,” and of course that exact language is in the West Virginia Statute also.

And in addition to that there are many, many West Virginia statute -- cases in which the courts of West Virginia have stated that they will construe similar statutes as West Virginia -- as Virginia in like manner to which the statutes of Virginia have already been construed.

So that --

Justice Felix Frankfurter: But we would have to make a jump and say, “West Virginia -- Virginia equals West Virginia and therefore West equals Virginia?”

Mr. Harvey Goldstein: That's correct sir.

That is correct or an alternative would have to send the case back to the circuit court for a further finding as to whether or not the West Virginia statute would now say the same thing.

Going to Harrisburg for a moment, I think first that it's quite obvious that the reason for the lack of difference between sea and land decisions under the civil law is that the maritime law is part and parcel of the civil law today and has always been part and parcel of that law.

Second, the fact that there is no difference in the English Law between land and sea decisions is that very simply, the admiralty law has been made subservient to the common law in England and was, shall I say, part of the price paid by the king in England when he was restored after the -- after the defeat of Cromwell.

Now that defeat of Cromwell was engineered by parliament and the price that the king had to pay the parliament, and the common law was the taking away or the subservient position of the king's prerogatives among which was the admiralty jurisdiction.

So that the admiralty jurisdiction for the first time in 1664 or 1668 became subservient and followed the same rule as the common law to which the common law (Inaudible)

Justice Felix Frankfurter: Why don't you go to the American history?

Mr. Harvey Goldstein: I will sir in one second.

Justice Felix Frankfurter: But -- and taken into account something that gives me much more relevance in Government as to Cromwell, namely, that after Harrisburg, Congress dealt with this problem.

It would seem to find those difficulties that Congress dealt with this problem, but chose to deal with it in its own way, namely, in a very limited way.

Mr. Harvey Goldstein: But you're -- you're assuming I -- I assume you're mentioning the death on the High Seas Act.

Justice Felix Frankfurter: That's exactly what I --

Mr. Harvey Goldstein: And -- and the Jones Act itself.

Justice Felix Frankfurter: Yes.

Now what do you do with that?

And not only did they deal in the restricted way but it expressly dealt with by reference to the state survival statute, (Inaudible) to the States.

Mr. Harvey Goldstein: That is correct sir but it did not deal with the question of whether or not the common law death maxim was in fact do or should have been overruled.

Justice Felix Frankfurter: But it -- it dealt with the problem.

It dealt with this very problem and instead of doing what was one can have a great deal of difficulty with general outlay, but this is a survivor, and the old common law limitation upon the survivorship generally and (Inaudible) the admiralty law.

Congress faced that problem but chose to deal with it through the -- it was there in a -- within a very restricted caucus and explicitly so far as then Congress speaks explicitly in the statutory language it said this (Inaudible) retain all the states of (Inaudible)

Mr. Harvey Goldstein: That is correct but I don't --

Justice Felix Frankfurter: You're now asking us to say, “Despite that -- despite that for the Congress to hold because it's called there as in many ways initiating powers in regard to maritime matters, we should now overrule -- it has spoken in this regard for it to follow including its important legislative means, very important legislative history.

Mr. Harvey Goldstein: May I say this?

Number one I do not consider that Congress expressly shut out any further judicial decision on the point.

I think simply that Congress was legislating on a national basis on a maritime cause of action and they felt that this particular matter at this point was such that state statute should control in the matter, but that does not say that Congress shut the door to any further statement --

Justice Felix Frankfurter: Do you mean to say that the Supreme Court should not overrule itself?

Mr. Harvey Goldstein: That's correct.

Justice Felix Frankfurter: It did not say that.

Mr. Harvey Goldstein: It did not say that all.

Justice Felix Frankfurter: It did not.

Mr. Harvey Goldstein: I think that in addition to a legal reasoning for overruling Harrisburg and that is that there has been and never was any merger under American law with the English law concerning the Wrongful Death Statute or -- or the right of action under the general maritime law of (Voice Overlap)

Justice Felix Frankfurter: You have mentioned in your colloquy, I think we deal -- we've raised a very interesting question if Congress had said that and an enterprising lawyer like you would come to this Court and say, “Of course Congress can't bind your -- and you're under Article III.”

Mr. Harvey Goldstein: That of course is something.

Justice Felix Frankfurter: I think you'd make that argument, wouldn't you?

Mr. Harvey Goldstein: Yes, I think perhaps.

I think the Court -- this Court in Funk against United States has expressly shown that this Court now has the power to rule on the basis of social outlook rather than on strict legal technicality and by that I mean this.

In Funk, there was a question of whether or not the common law rule as to evidence of a wife not testifying against the husband was involved.

Mr. Justice Sutherland said, “There is no rhyme, no reason why the common law doctrine should stand that we consider that conditions have been so altered at this time that we should now make a rule in the light of present conditions and he then proceeded to overrule the common law maxim as to that point.

I think recent cases in various high state courts have shown that the courts do not feel that they are bound to withhold judgment because of any lack of legislation on the point.

I have for example the case of Woods against Lancet in which the Court of Appeals when New York stated that a cause of action for an unborn child would now be permitted whereas on the common law it was never permitted.

Justice John M. Harlan: Could I ask you a question?

Is the -- do you dispute the statement in the Court of Appeals' opinion that when this barge is in operations, she was unmanned?

Mr. Harvey Goldstein: No, sir.

When -- when you say operation you mean transit, actual transit?

Justice John M. Harlan: Well when she was in the dry dock being repaired, when she was being used for the purpose which she was intended she was an unmanned vessel?

Mr. Harvey Goldstein: That is correct sir.

Justice John M. Harlan: You agree with that?

Mr. Harvey Goldstein: Yes sir.

Yes.

She was unmanned.

Justice Hugo L. Black: Could I ask you if you're going to lead yourself at that time special case on the basis that maybe you will not get to have (Inaudible)

Mr. Harvey Goldstein: No.

I intend moving to the negligence part of the case right now sir.

As to the negligence part of the case itself, since Holley has now determined that the negligence or the duty of Carbide should be determined under maritime law, and not under the state law doctrine, that the decision of the circuit court stating that the sole duty of Carbide was to warn Goett of latent defects could not possibly be applicable to this case since under the general maritime law it's a well-established fact I believe that the duty of any vessel owner is still to provide a safe place to work.

Now the question of whether or not Goett assumed the risk, I think, can be clarified very briefly.

Assuming then, that under the Holley decision, the doctrine of assumption of risk must be determined by maritime law and not state law, it then becomes obvious that under maritime law the test being, whether or not, Goett had a freedom of choice of safe or unsafe conditions, or safe or unsafe equipment, that there was no freedom of choice in this case and that therefore, Goett could not have not assumed the risk.

One further point as to the question of the $20,000 limitation, under the West Virginia Statute I think that that limitation although the State -- that statute must be taken as a substantive hold is also qualified by the question of whether or not the admiralty forum as can any forum decide that such a limitation is against the public policy of the forum.

Now if that is so, and I believe it is, the admiralty forum then has the right and in fact has the duty to determine whether or not that monetary limitation by a foreign forum is then against the public policy of the forum in which the case is being tried.

Now that being so, I think the admiralty rule that there should no limitation of money recovery under any circumstances must follow to be applicable here in this case.

The Workmen case is the major case that I refer to.

In Workmen, there was a municipal statute in which the City of New York was bound to limit its own liability to $10,000.

The liability in that case exceeded that amount.

And the question before this Court at that time was whether or not the full indemnification should be paid or whether or not there was indeed the limitation of $10,000.

And this Court stated that it would be in derogation of general maritime rights and duties to say that any State could limit its liability in a case arising within the maritime jurisdiction.

And I think that case as much as any, simply states for the proposition that there can be no limitation of any recovery in a maritime tort.

Thank you.

Chief Justice Earl Warren: Mr. Love you proceed.

Argument of Charles M. Love

Mr. Charles M. Love: If Your Honors please, before proceeding with what oral argument I have, I would like to answer Your Honor, Mr. Chief Justice's question as to whether or not the state courts have decided this question of what law would apply.

The state court -- the answer given to you by the counsel for the petitioner was that the Circuit Court of Appeals had decided it.

Now the state courts have not decided it, and the Circuit Court of Appeals has not decided it as to West Virginia yet did in the Holley versus Manfred case decided by the same Court which decided the instant case which is presently before Your Honors.

With regard to the Virginia statute decided that it would apply admiralty rules but as pointed out by Mr. Justice Stewart that is a different statute and specifically recognizes the rights in rem and against ships which the West Virginia statute does not.

I might further point out historically that the Virginia statute was amended after a decision which probably indicated that it should have been amended but it certainly has no effect on West Virginia anymore than -- than a higher statute or a California statute.

Now I would like to say to Your Honors that the facts of this case are extremely simple.

On a beautiful day in West Virginia, and this is shown by the record that it was 80 degrees and clear in October in 1955 a sandblaster by the name of Marvin Goett, who'd been employed for many months by the Amherst Barge Company which was a company which not only operated barges but for the purposes of this case, it repaired barges, and it had a contract which is in the record, to repair this barge, CC204 owned by Union Carbide.

Marvin Goett, as a sandblaster, was and -- at which occupation he worked for many months was on the deck of this dumb barge as they're sometimes referred to as the plaintiff's counsel referred to it as a floating tank.

It has a flat deck.

It's crowned six inches in the center.

It has no other superstructure except the pipeline down the middle, and it's simply a -- a floating tank with a flat top subject to that six-inch crown.

It's a 195 feet long and I believe 50 feet wide.

Now Mr. Goett was sandblasting on that barge in the afternoon of the second day he'd been working on it and suddenly they noticed he was gone.

Nobody knows whether he fell into the river, whether he jumped into the river, whether he was pushed into the river or how it happened.

The evidence is simply silent as the plaintiff's counsel requests to this Court and says in his bait, nobody knows how the man got in the river.

He was found in the river.

Now, whether or not that proved negligence against anybody under any circumstances, I don't know but those are the facts in this case, supplemented to be fair to some extent by the fact that he was seen from one to five minutes before that time using this sandblasting machine which is quite a machine by the way and has two hoses.

It has to be constantly replaced with sand and has power to propel that sand with such force against the object to be cleaned that it will strike off the impurities and defects.

He was wearing not only a hood to protect himself from the sand which came down all over his shoulders and was -- there's some kind of an icing glass or other transparent front on it but also a respirator to keep from breathing the sand.

He had all of those at the same time.

And it is interesting to note that the plaintiff expert in this case, Captain Evagate said that he never saw anybody sandblasting on a tank without wearing a life jacket which Mr. Goett did not have on.

Anyway, he fell into the river and the evidence was that he was in the river from 10 to 15 to 20 minutes before he went down.

The evidence further was that there was a life ring on the digger boat attached to which the barge was attached.

Now --

Justice William J. Brennan: What's a digger?

Mr. Charles M. Love: The digger boat in this evidence, if Your Honor please, and I thank you for asking me, the name digger as I understand it, has no particular significance except that in this case it is a permanently moored boat to which this barge and other barges which this contractor works on is permanently attached down river.

In other words it takes place of the tow boat if it were in transits, but --

Justice Felix Frankfurter: Is that a West Virginia word?

Is it?

Mr. Charles M. Love: The judges -- no sir.

And it's not in the record.

I think I know how it got its name but anyway if for this case it simply takes the place of the barge.

Well with respect to the barge itself, now I'm -- I'm sorry.

Justice Charles E. Whittaker: How can you (Inaudible)

Mr. Charles M. Love: From 10 to 15, maybe to 20 minutes I can cite Your Honor to the place in the record that that is -- now record page 81 and 82 and I'd say that he fell off the rescuers, nobody knows why.

There was the assumption on the part of the plaintiff's counsel that he -- it was because of panic and it may well have been, I don't know.

Chief Justice Earl Warren: Did the trial court find that on subject?

Did the trial court find that on subject?

Mr. Charles M. Love: I don't believe so.

I don't believe so.

Justice Potter Stewart: Were there any employees or agents of Union Carbide Corporation in the area at the time of this man's death?

Mr. Charles M. Love: No Your Honor, there were no Union Carbide employees or agents there from the time -- from before the time this happened until the 7th that was two days later and for that time, the barge had taken up on the marine way out of the river.

The -- this trial court found then the Court of Appeals also that -- the Court of Appeals didn't simply affirmed it.

The trial court found that the barge was in the exclusive custody and control of the contracting company, the Amherst Barge Company.

I started to say something about the barge.

I -- I described it somewhat and I -- I only want to say further that it was turned over to Amherst in exactly the same condition that it was used and had been used since its purchase in 1948.

And there was nothing taken off of the barge and nothing put on it.

It was simply delivered as the contract required to the dock and marine ways of the Amherst Barge Company for these repairs.

Whether these repairs were major or minor, I don't know.

I do know that it -- they cost about 10% of the original cost of the barge therefore I think it would be safe to say that original cost to something over $48,000 and the cost of these of repairs was $4700 and something.

I don't know that that is material, but anyway, it was delivered to Amherst in exactly the same condition that it was operated.

On that particular point, Your Honors will remember that it is the contention of the petitioners that not only that we should deliver the barge as it is but that we should do something special to the barge as to the barge when actually it is being taken out of navigation and being delivered to a contractor for work extensive enough to require dry docking.

Now the history of this litigation pretty well told Your Honors by the plaintiff's, the petitioner's attorney.

This was action was brought on the law side of -- on the civil side, I should say, in the federal court in the Southern District of West Virginia and after it was brought against Union Carbide only, Union Carbide filed a third party complaint as it could under the federal rules bringing in the contractor, the barge company and then answering.

The case pend -- was pending for -- I don't something over a year but it was transferred into admiralty on the day of trial.

Now it is true that some two weeks prior to that time, the Court had announced it would sustain a motion then made to transfer the case into admiralty.

I repeat that not because I think it is of much importance, but because I think it points up to some extent what we are discussing in this case.

I listen as I'm sure Your Honors did to the attack upon the Harrisburg and not only upon the Harrisburg I might say but upon the dozens of cases cited in footnote number one of our brief following the rule laid down by the Harrisburg and insinuating that this is a great social or moral problem which is being presented to the Court at this time and that here is a wrong which cries out for righting and in injustice concerning which something should be done as extreme as to overrule many cases of this Court or even one case of this Court and to ignore at least two acts of Congress which have touched upon the matter, significantly.

Now --

Chief Justice Earl Warren: We'll recess now.

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Argument of Charles M. Love

Chief Justice Earl Warren: Mr. Love, you may continue your argument.

Mr. Charles M. Love: Thank you.

May the Court please, at the time of recess, I was attempting to point out to the Court that there is no great social or moral injustice to be righted involved in this case and I would like to say to Your Honors why I make that statement.

This is not a question of a wrong without a remedy.

This plaintiff already has remedies, at least four in number.

In the first place, this is an action grounded and based upon the West Virginia Wrongful Death Act statute which is cognizable by the courts of West Virginia.

The same action is cognizable under proper considerations such as diversity of citizenship in the federal courts.

In addition to that, this petitioner has her rights under the West Virginia Workmen's Compensation Act and/or under the Longshoremen and Harbor Workers' Act, and I might say that the benefits under either of those acts, it is in the record in this case that there would be slightly in excess of $20,000 under the Longshoremen and Harbor Workers' Act and it is also on the record in this case that Amherst stated to the Court through its counsel, on record page 176 that they stand ready to pay that at any time and also in the record at page 78 that petitioner's counsel stated that he had advised the petitioner not to file for it at this time, but she can file for it at anytime she wants to.

Now what is involved here is whether or not there shall be another, an additional remedy in addition to these four which this petitioner or any like petitioner already has.

Now this Court decided in the Harrisburg and subsequent to or -- I'm not sure of the day of the passage the Great Lakes Act, but anyway, Congress considered the matter in the Great Lakes Act and very carefully not only in the legislative history of the Act as it was pointed out by one of the opinions of this Court, rendered it so that it would not impinge upon the State Wrongful Death Acts.

Now in addition to that in the Jones Act, the same matter was considered and in the Jones Act, which provides for a seaman to sue his employer, the same right was also carefully limited.

So what we're really arguing about here is whether in addition to the remedies already available to the petitioner, the petitioner and others like him or like her shall have another remedy.

Now, in considering this question, it seems to me that it is necessary and as indicated by one of the questions of the Chief Justice to consider what -- what procedural questions are involved because that's -- that's all it is assuming that the Tungus is correct in deciding that the -- a right grounded upon a State Act must be taken with its burdens and with its limitations.

Now, what are the limitations in the State Act to which I refer?

Well, one of them is and the principal one is that it shall arise from the wrongful act, neglect, or default of another.

Now we've argued these legal questions at length in our brief and I don't care to take too much of the Court's time about this but in addition to that, there are other limitations in the State Act, which it seems to me are important and which preserve to litigants certain rights.

Now the first of those is the matter of negligence or the proximate cause and that includes the question of the duty which an owner holds to an employee of an independent contractor making affairs.

It includes what defenses shall be allowed to the defendant.

It includes the question of the limitation of the amount of damages which a defendant may recover.

And in addition, it includes specifically the manner in which those damages maybe assessed.

Now the West Virginia Act says that the plaintiff may have to get the exact language, every such action shall be brought by and in the name of the person or representative in the amount distributed as provided by law, and in every such action the jury -- the jury may give such damages as they shall deem fair and just and then later, it says again the jury may give such damages, as shall equal such financial or pecuniary laws.

I know of no reason and none has been cited in either of the courts why that explicit provision and method for assessing damages should be ignored by any court.

The citation of the Workmen and Siebel cases in oral argument and also in the plaintiff's brief, it seems to me is inadvertent because those cases like many other cases cited, relate to matters which do not arise under state grounded -- state based rights such as are involved here.

They involve limitations which a state tries to put upon collision damages and things which are -- like that which are clearly within the purview of admiralty and of course cannot and should not be limited by state law, but those cases have no application to a case in which the right is grounded, if there is a right at all.

It's grounded upon the State Wrongful Death Acts.

Now there is one further question which I don't know whether it will be reached by this Court or not, and that is a question of indemnification.

It seems to me that Carbide having delivered a barge to an independent contractor in the condition in which it was operated and in the condition in which it was certificated, with all of the equipment which it was supposed to carry to an independent contractor for repairs cannot be said to have been in any way negligent even under the doctrine of seaworthiness or otherwise in this case.

And we so submit to Your Honors that if there was negligence, it was not the negligence of Carbide but the negligence of those who created the condition and I'm not admitting that the condition was negligent, but it certainly if it was negligence, it was the responsibility of the company which created it, that is to say the Amherst Barge Company.

Now they knew that men were going to be working there, that their men were going to be working there, that they were going to be working there with respirators and hoods and it was up to Amherst Barge Company to determine when the barge should be taken out of the river and on the marine ways which were just almost immediately adjacent, they were adjacent.

In point of fact, when the next time Carbide had a man there which was on the 7th, it's two days after the drowning, the barge was upon the ways and at that time, extension had been erected.

Of course, the barge was up in the air then on the marine ways, but at that time, extension was in a rope had been placed around the outside of the barge over dry land.

Now how those conditions could be charged to the owner of a dumb barge, a vessel which never had a crew, which either before or after this unfortunate event would not have any crew to do anything on the barge, I don't know.

With the -- and with respect to that question, we have argued at some length for which I apologize to Your Honors, as to this matter of indemnification.

It was not reached by the Circuit Court of Appeals and since that time, the Fischer case has been decided by this Court, which I believe answers most of the questions with respect thereto and I will not further argue.

In conclusion, we would like to submit to Your Honors, that no negligence has been shown against Carbide in this case either on the theory of negligence generally or upon the doctrine of seaworthiness, and if it has been shown that this decedent was entitled to the warranty of seaworthiness, which we deny, then we submit to Your Honors that this barge was as seaworthy as it ever was when it was even -- when it was in actual operation.

And here, it of course had been withdrawn from navigation and was in the exclusive custody and control of this contractor.

There was nobody on it.

Of course, that was not unusual because there was never anybody on this barge.

Now what the plaintiff would have Your Honors find is that the condition of the barge when withdrawn from navigation never having a crew, never being required to have any lifelines or any rings which it would be almost impossible to maintain because these things are left around unattended, they're simply moved around like floating rafts or barges, that at the time we withdrew from navigation and -- then we should then change the conditions and furnish ropes and scaffoldings and ladders and whatever else might facilitate or make the work of the contractor safer.

We know of no case so holding and we submit that the Court of Appeals for the Fourth Circuit was right and should be affirmed.