WALDRON v. MOORE-MCCORMACK LINES, INC.

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Argument of Theodore H. Friedman

Chief Justice Earl Warren: James J.Waldron, Petitioner, versus Moore McCormack Lines.

Mr. Friedman.

Mr. Theodore H. Friedman: May it please the Mr. Chief Justice and the Court.

This maritime action arises in grant a certiorari from the Second Circuit following a trial in the Southern District of New York.

During the course of which or at the close of which, after all the evidence was in, the trial court determined to dismiss a portion of the seaman's claim and to refuse to permit the jury to pass upon it.

And that specific claim is what is before the Court now, and that is whether the fact as was demonstrated by fact testimony and expert testimony that there were an insufficient number of men provided for a particular test aboard the ship at the particular time and place the job function was to be carried out was within the reach and doctrine scope of the concept of unseaworthiness.

The Second Circuit divided two to one on the matter.

Indeed, the trial court had himself change his mind during the course of the case, having first decided it in favor of the seaman and this Court of course has granted certiorari.

Now the issue as presented might be deemed noble in the sense that this Court has not specifically passed upon it in the sense of manpower insufficiency creating unseaworthiness or at least a jury question for resolution.

But this Court has of course on numerous occasions stated quite clearly that any insufficiency of equipment, the pertinences or appliances for a particular task at the time and place the task is performed aboard the ship gives rise to a condition of unseaworthiness, at the very least, creates a question for jury resolution.

And of course, this Court's historic and landmark position in Mitchell v. Trawler Racer enunciated more clearly than ever before that the doctrines and concepts and concerns of negligence law were to be completely eliminated from any determination of unseaworthiness liability.

Of course, that was again reiterated in the Gutierrez opinion and in the Reed opinion of some three terms ago.

Justice Potter Stewart: Mr. Friedman, I don't quite understand you when you say this presents the question for jury determination.

In admiralty, you're not entitled to a jury trial, are you?

Mr. Theodore H. Friedman: Your Honor, this was tried before a jury, it was tried --

Justice Potter Stewart: Because it was --

Mr. Theodore H. Friedman: -- on the civil side.

Justice Potter Stewart: Because it was -- it was joined with a claim of negligence?

Mr. Theodore H. Friedman: Your Honor, that takes --

Justice Potter Stewart: On the Jones Act, isn't that correct?

Mr. Theodore H. Friedman: Yes, and no Your Honor.

I say no because in the Fitzgerald case, when the maintenance and cure was joined with the unseaworthiness and the Jones Act claim, it was held by this Court, opinion by Mr. Justice Black, I had the pleasure of arguing the case, that the matter was to be submitted to the jury.

Justice Potter Stewart: Yes.

Mr. Theodore H. Friedman: All maritime matters arising out of the same accident where the proceeding on the theory of negligence under the Jones Act unseaworthiness on the general maritime law or even if maintenance and cure with its different concepts of damages were all to be submitted to the jury.

Justice Potter Stewart: Well, I understand that and that's accepted but that's because basically that the Jones Act was joined, isn't it, the Jones Act cause of action?

Mr. Theodore H. Friedman: Yes I would say that, yes and no in this instance --

Justice Potter Stewart: You wouldn't quarrel, would you or would you that -- so that I can be clear.

If this is an action purely for maintenance and cure, it's not trialed by a jury, is that correct?

Exclusively for maintenance and cure --

Mr. Theodore H. Friedman: Right, assuming no diversity of citizenship, it would be purely an admiralty if brought in the federal court because it could be brought under the common law in the state court where you would get a jury and --

Justice Potter Stewart: For maintenance and cure?

Mr. Theodore H. Friedman: -- it regularly occurs.

Justice Potter Stewart: I didn't know there was any common law right as to maintenance and cure.

I thought that was purely an admiralty action?

Mr. Theodore H. Friedman: We had --

Justice Potter Stewart: Is that it?

Mr. Theodore H. Friedman: That was discussed if I may say in the Fitzgerald briefs, but I think the law is to that effect.

I recall distinctly in the Court.

But regardless --

Justice Potter Stewart: Here I understand you've got a jury trial because you adjoined with your sea -- unseaworthiness claim and Jones Act cause of action.

Mr. Theodore H. Friedman: The question --

Justice Potter Stewart: But now, the jury has determined that Jones Act cause of action against it, hasn't it?

Mr. Theodore H. Friedman: That's correct.

Well, it has determined the negligence claim against it.

Justice Potter Stewart: Now that's --

Mr. Theodore H. Friedman: And if I -- I don't mean to be splitting heads Your Honor but I do want to point out that this problem has given very careful -- has given rise, it's a very careful thought.

Let me say this.

In the Bartholomew, the Universe Tankships case decided by the Second Circuit, it was a concurring and lengthy and scholarly opinion by Chief Judge Lumbard, the Second Circuit in which he point -- raised the question as to whether an unseaworthiness claim is not within the Jones Act that the reach and intention of the Jones Act was not nearly negligence but to also incorporate a claim based solely on unseaworthiness and therefore even a purely unseaworthiness claim would give rise to the jury rights established by the Jones Act.

Now that was the concurring opinion that scholarly -- in a scholarly fashion raised questions, it has never been resolved.

To a certain extent, it was before this Court in Romero.

To a certain extent, I urge that it has no alternative grounds of deciding the Fitzgerald case, the Court didn't feel necessary.

Justice Potter Stewart: Or the Jones Act is simply basically incorporates by reference the FELA and certainly there is no right for unseaworthiness against a railroad, is there?

Mr. Theodore H. Friedman: That is correct, but it -- in that --

Justice Potter Stewart: It's a negligence action?

Mr. Theodore H. Friedman: Right.

Justice Potter Stewart: It's a negligence cause.

Mr. Theodore H. Friedman: Which Chief Judge Lumbard raised the question Your Honor was whether the Jones Act doesn't in fact incorporate the common law rights of those men who worked in the manner that they worked.

And since of course railroad workers do not work at sea, they didn't have those --

Justice Potter Stewart: It's --

Mr. Theodore H. Friedman: -- common law rights --

Justice Potter Stewart: It's not a common law right, it's an admiralty right, is it not?

Well, in any event, I think if --

Mr. Theodore H. Friedman: It's --

Justice Potter Stewart: -- you and I see what the issues are.

Mr. Theodore H. Friedman: Yes.

That -- that's a separate problem, of course if I may answer this specifically Mr. Justice Stewart, if the question that is involved is whether assuming that we're entitled to our trial, do we go back to a trial by jury or a trial without a jury.

Then, I answer this way if I may and perhaps prematurely, but nevertheless, that the trial must be by jury, a separate question on what must be decided by this Court at this time I would submit, because the law is clear that where there are related and intertwined actions based -- which due give rise to a jury rights such as the pending jurisdiction cases.

And the case upon which jurisdiction and jury right originally was based, falls by the wayside, not even by trial but even earlier, by motion.

The line of cases which we did not brief because we did not realized that question will be presented -- decided, state that the trial by jury and the federal court jurisdiction on the civil side continues.

It is only if the action which gave basis to the civil court federal jurisdiction has been found to be without color and merely presented for the purposes of obtaining the jurisdiction that the pending case lose its all -- loses all its status to be decided as it would be if the other actions didn't fall.

That I submit is my understanding of that area.

In any case, if I may turn to the specific question of unseaworthiness, whether it gives rise to a question for jury resolution or I might argue and certainly willing to argue that it gives rise to an issue of law that unquestionably, the facts were found as we submit them, unseaworthiness did exist.

Now I can see that here there was a dispute.

An expert testimony -- tried, others testified and said -- we said that there was unseaworthiness that there was a regular custom and practice and need for three to four men to perform this job.

That fact issue was disputed by the defendants who said, every right to do.

But we submit that that fact issue had to be submitted to the jury and had the jury found that three or four men were required to the performance of this particular task, then the jury should have been struck -- instructed and on those grounds they could return a verdict to the indigent seaman.

Now the defendant's position was that we prove that the shipowner that there were a sufficient number of men overall aboard the ship.

We prove that the Coast Guard had issued a certificate of inspection that required a certain number of able bodied seamen and ordinary seamen to be aboard the ship, some 12 or 15 as the -- that portion of the deck crew, and that we had now those number of men aboard the ship.

Therefore, regardless of the proof and fact that at a particular time and place, at 1:30 in the afternoon on May 8, 1960 as the ship was docking at this Brooklyn pier, only two men were assigned for a particular task, and regardless of the facts that there was adequate proof that two men were not sufficient.

When I say adequate, I mean adequate at least to go to jury.

Then, the matter must be dismissed as a matter of law because we had these other 13 to 15 men aboard the ship.

And I submit that that is totally contrary to the clear position that this Court stated in the Mahnich decision, Mahnich v. Southern Steamship Companies, from 1944, where it said explicitly, that the fact that there were sufficient equipment aboard the vessel, sufficient and proper, does not mean that the ship cannot be found unseaworthy if at the particular time and place that the job function is carried out there is a defect or inadequacy.

In the Mahnich case, there was some rope lying in the bin, the officer just as here, there was a mate, the mate reached into the bin and pulled out some rope and its -- was set up for staging to hold a certain weight, certain staging.It turned out that that rope had a latent defect.

The mate was is no way negligent in selecting that rope.

He could not know that it had a latent defect hidden within it.

The staging collapsed and the seaman was injured.

It was clearly stated by this case -- by this Court that although there was no negligence on the part of the mate and although there need be found no negligence on the part of the mate, and although the defect was completely latent and hidden, the fact that there was this insufficiency of the rope gave rise to condition of unseaworthiness.

And further, this Court stated that although the -- there was proven to be a sufficient amount of safe and proper and non-defective rope aboard this very ship and so that the shipowner had indeed equipped the ship with sufficient proper rope, had sent it out on the seas with sufficient and proper rope, in no way but the claim of unseaworthiness because at the particular time and place the job function was carried out, improper, insufficient, inadequate rope was in fact used giving rise to the injury.

Now the only question as I --

Chief Justice Earl Warren: Well, isn't that somewhat different from this case in that that was faulty equipment.

And in this case, there was no faulty equipment.

It was merely the faulty manner in which the work was called upon to be done.

Mr. Theodore H. Friedman: Your Honor, the distinction is this, that in this case in our Waldron case, the work to be performed involved manpower, what was holding up the load, what was pulling the weight and withstanding the forces of gravity and its inertia, were not here a rope as in Mahnich, but was men's backs.

So manpower in a primitive way because no machinery could here do that job were being used where men were used in Mahnich and that was the -- that that's the difference, but other than that that, there is no difference.

Now, there are enumerable occasions aboard ship and not on board ship when men must simply do the work.

Automation has not yet completely taken place aboard ship or elsewhere.

And the question is whether when men are used instead of machines or equipment.

Does the protection of the doctrine of unseaworthiness end?

Does Mahnich not reached where men's back instead of manufactured equipment are being used?

And I submit that there is no basis in law or logic or sense of justice for any such line to be drawn and there is no indicated case by this Court that suggests any such arbitrary cutoff of the beneficial doctrine.

This Court has frequently pointed out that the reason for this doctrine is that men go out on the seas and are exposed to certain kinds of routine hazards that do occur aboard ship.

I'm not talking about the hurricane and the perils and the unusual storm of the sea that Mr. Justice Stewart -- I would think had in mind when he's pointed out in Mitchell for this Court that the ship need not whether every peril and every storm to be deemed seaworthy.

There maybe occasions.

But this is not such an unusual or particularly a strange circumstance, the fact that men will have to hold ropes or lines or weights aboard a ship is one of the most common occurrences aboard the ship.

The ship is that -- I'm sure this Court is familiar, has many narrow areas, many stairways, many places and times when men's backs must do the physical labor and be exposed to certain hazards that can occur.

Justice John M. Harlan: What would be -- supposing the mate ordered too many men on this rope, too many so that the equipment will be handled efficiently, would that make a difference if any?

Mr. Theodore H. Friedman: Well, taking that in mind, the awkward situation where eight men are told to grab a small item and they're sort of nudging each other in going down the stairway and that gives rise to an accident.

I would not hesitate to say Your Honor that that too would create a type of dangerous condition that would involve an unseaworthy and unsafe condition.

I don't know if the resolution of that question hinges upon this question because here, there's an unquestioned insufficiency.

Again, when I say unquestioned, I mean that the plaintiff's prima facie evidence established that, entitling him to have that dispute resolved by the jury or by the trier of fact, whoever that will ultimately be.

But there was evidence that there was an insufficiency.

Captain Darigan (ph), the expert with some 50 years of experience stated flatly that this job needed three to four men and there were only two and that's an unquestioned -- undisputed gap in -- I mean, difference in the testimony.

Justice Potter Stewart: What was this line?

They were on the stern of the vessel?

Mr. Theodore H. Friedman: They were on the stern of the vessel and what occurred here Your Honor --

Justice Potter Stewart: It was the forward spring line?

Mr. Theodore H. Friedman: I don't know if -- what -- yes, forward of the stern area.

What happened was that they were coming into a new pier in Brooklyn that had not been much used.

And suddenly there came an order to the third mate relayed in the intra-communication --

Justice Potter Stewart: Right.

Mr. Theodore H. Friedman: -- system to get a line out at this forward chuck.

When I say forward, it's sort of halfway towards mid-ships and the stern area.

Justice Potter Stewart: The spring line?

Mr. Theodore H. Friedman: It was a spring line.

Justice Potter Stewart: Right.

Mr. Theodore H. Friedman: And suddenly he said, “Will you two fellows go up and put out that line”.

And that was unusual, that was different in the usual routine.

And so the third mate said, “I wasn't negligent in responding to the situation, in responding to the order”.

And he certainly had a strong in the jury's sympathetic imposition to maintain that why should he personally with what the -- in the eyes of the jury was involved, why should he personally be charged of being negligent in sending these men up to do it.

But the point was that the result was that two men were lugging and dealing on a steel misty deck of weight that involved according to the testimony or should have involved three to four men.

Justice Potter Stewart: How -- what kind of line was this?

Mr. Theodore H. Friedman: It was a --

Justice Potter Stewart: 8-inch line?

Mr. Theodore H. Friedman: It was an 8-inch manila line.

There was some 56 feet from the place where it was coiled to the forward chuck where it was to be laid out and they were of course working as diligently and urgently as possible on -- which -- was what -- was required to be done.

And it was a -- there was some mist on the air and they were moving as fast as they could and one of the men hauling it --

Justice Abe Fortas: He just tripped on the deck, was he?

Mr. Theodore H. Friedman: Well, he slipped, as he was falling backwards.

The testimony was, using this -- with this weight on him, he went out from under and he hurt his back.

The medical group wasn't as highly --

Justice Potter Stewart: But wasn't the weight of the line -- it didn't --

Mr. Theodore H. Friedman: Well, it was --

Justice Potter Stewart: He slipped in the deck, didn't he?

Mr. Theodore H. Friedman: No, I mean --

Justice Potter Stewart: I'm just asking for information.

I don't --

Mr. Theodore H. Friedman: The -- he slipped on the deck but not because the deck was in itself slippery.

There was a contention that the deck was --

Justice Potter Stewart: The resistance of the line though, not that weight of the line, am I right?

Mr. Theodore H. Friedman: The weight of the line gave rise to a certain resistance, he was (Voice Overlap) --

Justice Potter Stewart: But a one-inch line would have the same resistance to 175-pound man, wouldn't it?

I mean --

Mr. Theodore H. Friedman: A four-inch line --

Justice Potter Stewart: -- he couldn't the break line.

Mr. Theodore H. Friedman: I don't think so, Your Honor because there wasn't any tension in the sense the line wasn't being held back by any kind of spring.

It was coiled on a 56-feet -- they lifted sections of it.

They lifted up the line and went up the deck with it on their backs.

And so I would think that it would have made a difference whether it was eight-inch or four-inch line, but regardless, all of those facts presented to Captain Darigan (ph) and the expert was sufficient for him to -- or to his opinion, that the line required this particular functions, particular job functions required three to four men for its safe performance and there was a dispute --

Justice Byron R. White: And you want us to review this case on that basis, that the -- this is -- was indeed an unsafe situation in the sense that four men instead of two should've been carrying the line, that's the basis on which you say we must review this case?

Mr. Theodore H. Friedman: Yes, Your Honor, I -- Mr. Justice White, I --

Justice Byron R. White: Well, that were true and the jury believed that if you -- if -- I would've -- I would assume that if -- would've found negligence in giving the order.

Mr. Theodore H. Friedman: Well, one might have thought so in the sense that it would make an appealing jury argument.

But on the counter argument was the third mate, Mr. Tarantino who came by way of deposition but in any case the evidence was, he said I wasn't negligent.

I was responding to the immediate situation.

I had only five men back at the stern area with me.

The other three men were diligently putting lines out to the stern area itself.

When I gave two men in response to this that was the most I could do in the circumstances, why should I be penalized by the owners who are being denominated as negligent in the situation --

Justice Byron R. White: Yes, but the --

Mr. Theodore H. Friedman: -- and that argument, one-jury appealed.

Justice Byron R. White: This seems to me that -- what you're saying is that the -- you can give a non-negligent order even though it's an order which puts two men in a -- unsafe condition?

Mr. Theodore H. Friedman: Yes, Your Honor, I am saying that.

Justice Byron R. White: And the -- that if -- are you saying that that's a sensible that -- it's just sensible to believe, to think the jury -- have thought that is -- that they thought the other.

It seems to me it's more sensible for the jury to have believed that it was a safe condition.

There was testimony to the contrary that it is unsafe that the jury didn't need to make that safe -- not to make that assumption of it.

Mr. Theodore H. Friedman: Mr. Justice White, I would not have begun to file a notice of appeal had the jury rendered a defendant's verdict on all of the claims that should've been submitted to the jury.

It was an issue for the jury to decide.

But the jury didn't get the opportunity to decide it.

I submit that it was a proper argument to make to the jury that in the circumstances, mate Tarantino was not negligent.

He was performing his work as carefully and as reasonably as a man could do under the circumstances but nevertheless an unsafe condition did arise and these men were exposed to danger and should be compensated on the very point of difference that the Mitchell case, the Reed case --

Justice Byron R. White: Jury couldn't find negligence, did they?

Mr. Theodore H. Friedman: No.

And that is what this case is, I respectfully submit, all about.

Is there an area of liability where there is not negligence within the concept in reach of the doctrine of unseaworthiness.

And I --

Justice Potter Stewart: Yes, but the general question that's been decided.

Yes, there is.

The Mitchell case decides that I should suppose and other cases.

But this is not quite that broad question, isn't it?

Mr. Theodore H. Friedman: Well, what this case does is focus on the question as to whether that broad doctrine enunciated in Mitchell and as I submit, enunciated in Mahnich which as this -- as Your Honor pointed out was a leading landmark case to be continued -- to be followed, is focused on the insufficiency of manpower, is there to be a division, a change because what is insufficiently provided is manpower as distinct from equipment.

If I may say Mr. Justice White, the same argument, the same problem could arise if what was not provided to the seaman doing the job was a piece of machinery or equipment --

Justice Potter Stewart: I understand --

Mr. Theodore H. Friedman: -- to help him.

Justice Byron R. White: I understand.

I'm just suggesting -- I'm just asking -- want to know why -- even if you were right on the point that you won in this case, you would still lose if there was no unseaworthiness?

Mr. Theodore H. Friedman: If there were no unseaworthiness, I would lose.

There is no negligence and there is no unseaworthiness and there has to be --

Justice Byron R. White: You would lose.

Mr. Theodore H. Friedman: -- a defendant's verdict.

Justice Byron R. White: You would lose and that the only was you could win is on the assumption that there's unseaworthiness, that there was an unsafe condition.

I'm just suggesting that maybe the jury didn't think so.

Mr. Theodore H. Friedman: Well, but -- the jury didn't think there was negligence.

The jury was not presented, given opportunity to decide the question.

What I want this Court respectfully to do is to let me go back and submit that question to a jury or if a further research that indicates with admiralty judge, and have them pass upon the question of whether there was unseaworthiness.

This was a premature judicial dismissal of a claim that should've been submitted to a jury under a host of cases that had been decided by this Court particularly dealing with seamen's claims injured during their employment.

Now, I want to refer very respectfully and very briefly to the Coast Guard Manning Regulations that are referred to by my adversary's brief.

There was -- I think I referred to it before Coast Guard certificate, I think I've already indicated that these Coast Guard certificates do not pretend to lay down the number of men that have to be employed on a particular job.

There are -- one certificate that are posted somewhere a mid-ship to say the ship shall have 12 able-bodied seamen and eight ordinary seamen, period.

How many men should be on the rear gang and how many men should be mid-ship and how many men shall deal with a particular rope, the Coast Guard doesn't begin to attempt to deal with and obviously, if the mere fact that the Coast Guard certificate has been met, you could split all the men on vacation, have one man do all the jobs and say that there could be no unseaworthiness for insufficient manning.

The insufficient manning per se is unquestionably been recognized as the grounds for unseaworthiness.

We have only to this -- to reach the question in this Court I respectfully submit, as to whether the insufficient manning where the ship to leave the port without sufficient number of men is also to be found as imposing liability when the condition arises temporarily during the course of the work while the ship was on the high seas.

And again, I submit, this Court held in Mitchell and is held time and time again that the fact that the condition is a temporary one and arises only during the course of the trip rather than at the inception when the ship leaves the port certainly does not excuse or exonerate the shipowner from liability.

Indeed I may say because, Mr. Justice Medina's -- excuse Judge Medina's opinion in the Second Circuit gave some passing reference to Mr. Justice Harlan's decision in the Dickson against United States written on the Second Circuit, in which as I recall it, the opinion raises the question as to whether the fact that the ship's unseaworthiness condition arises while the ship is on the high seas as distinct when the ship leaves the port might therefore not give rise to unseaworthiness liability.

And I think that the opinion below attempts to give continued application to that distinction when I think this Court in Mitchell very explicitly stated that the facts and the conditions is temporary and the fact that the condition arises when the ship is on the high seas as distinct from before it leaves the port does not exonerate and excuse the shipowner.

And so I think that what happened below was that an application of the doctrine that has already in Mitchell been laid to rest by this Court was sought to be imposed on one fragmentary area, where the insufficiency of manpower as distinct from equipment.

And I think I've already spoke into that point as to the facts that there is an absolute equivalence.

This Court has pointed out there's an absolute equivalence in the Boudoin and other cases between insufficiency of personnel and insufficiency equipment obviously in the regular course of work aboard the ship, men are sometimes called upon to do that which machinery cannot do and there should be no sharp or strange or unsupported division between the liabilities that should be imposed.

And I would respectfully with the Court's permission like to reserve the remainder of my time for rebuttal.

Chief Justice Earl Warren: You may.

Mr. Theodore H. Friedman: Thank you very much Your Honors.

Chief Justice Earl Warren: Mr. Kimball.

Argument of William M. Kimball

Mr. William M. Kimball: Mr. Chief Justice, may it please the Court.

I believe the question presented is whether with respect to the number of crewmen, a vessel is reasonably fit for her intended service if she has aboard more than the number fixed by the Coast Guard for her safe navigation pursuant to statute.

Soon after this Court granted certiorari in this case, Mr. Bamberger of the New York Times wrote sources on admiralty law expressed the view last week that the Supreme Court would establish a precedent of far reaching importance to shipowners if it upheld Mr. Waldron.

Such a decision may said, might upset current manning scales if damage awards were such as to make it advisable for a shipowner to assign a larger crew than is now normal to ship port tasks.

Chief Justice Earl Warren: Do you cite that as authority?

Mr. William M. Kimball: It's an interesting observation Your Honor and I'd like to make reference to a little bit later.

I think Mr. Bamberger's wrong for reasons which I believe Mr. Justice Harlan put his finger on a moment ago.

Now this vessel had more than the number of sailors required by the Coast Guard officer-in-charge of marine inspection.

There is no claim that any of those personnel were incompetent.

We had a “very good” 11-minute docking operation.

During the course of which, there was a last minute decision by pier master to put out another spring line.

The third mate ordered the plaintiff and another able seaman to put that line out.

There was no misuse or nonuse of available personnel.

The mate used all of the personnel that he had and he had the normal number at aft docking station.

Everyone was urgently engaged in performing other tasks connected with getting out other lines.

These two men, the plaintiff and another were more or less available and were assigned to put out this additional line.

The jury found that the mates order was not negligent.

Now --

Chief Justice Earl Warren: Well, there if -- I wonder if all of the members of the crew were diligently engaged in other pursuits at the moment and there were not enough available men to do this in a proper manner.

Would it necessary follow that this crew is adequate?

This was not an emergency, not a turbulent sea, not anything out of the ordinary.

Mr. William M. Kimball: But it was slightly out of the ordinary Your Honor.

Chief Justice Earl Warren: To what extent?

Mr. William M. Kimball: Only in that there was testimony by plaintiff's witnesses who were experienced ship personnel that never before in the docking of this vessel had there been any order which required the use of this particular chuck which was some 56 feet away from the place where the aft mooring lines were coiled.

It was slightly unusual.

But to attempt to face up to Your Honor's question, I think the answer must or should be that if a vessel has aboard the number required by the Coast Guard for her safe navigation.

And some incident, some not unusual incident occurs aboard vessel which requires assignment of some of those personnel then, the only way, the only theory upon which the plaintiff could recover would be that the mate or whoever it was who issued the order was negligent in not assigning more or conceivably less of the available ship's complement to perform a particular task.

Now, under the regulations pursuant to statute, the officer in charge of marine inspection is required to take into consideration many factors in determining the number of personnel required to safely navigate a ship.

The regulations attempt to list some of those many factors and then they run out of gas and use and et cetera to indicate the extensiveness of the factors which are and must be considered in determining the number of personnel required to safely man a vessel.

During the course of the trial, there was evidence and an admission by plaintiff's expert that there are at least 25 common factors which must be taken into consideration, weighed, balanced and harmonized in determining how many men should be assigned to do any particular tasks during the course of a normal docking operation.

But notwithstanding all of these factors and considerations, plaintiff's expert testified in vacuo that “safe and prudent seamanship” required that three or four men be assigned.

Be assigned to do what?

Be assigned to carry or drag 56-feet of brand new 8-inch manila line.

But the record is perfectly clear, if Your Honors please, that even if that expert testimony were valid and sufficient to raise some jury question, plaintiff wasn't doing anything of that nature either before or at the time he was hurt.

Plaintiff wasn't dragging or lifting 56-feet of line.

What plaintiff was doing according to his own testimony which appears at page 10 of the record was, he was standing 10 feet away from a coil of line and he was attempting to flake out of that coil some additional line.

And so at most, the plaintiff was attempting to partially support 10 feet and not 56 feet of new 8-inch manila line.

There isn't any testimony or evidence in this case of any unsafe operation which is a phrase frequently employed in the briefs by the petitioner.

There wasn't any testimony of any custom to use any additional personnel as is implied by the brief.

Indeed, the testimony is that the plaintiff with one other had put out two other mooring lines before he was ordered to put out this additional line.

Chief Justice Earl Warren: Suppose he had sent one man, would that have been -- would you have a different case here?

Mr. William M. Kimball: You would have most probably Your Honor --

Chief Justice Earl Warren: What negligence for unseaworthiness would you have a different case?

Mr. William M. Kimball: I'm sorry Your Honor, I cannot see any distinction there.

I would say if you present one man to do a job of this nature, you probably would have a pretty good claim of negligent order.

Chief Justice Earl Warren: Yes.

Mr. William M. Kimball: But I do not believe that you would -- that that would convert this fully, confidently, properly manned vessel into an unseaworthy vessel because the mate neglected to assign additional available personnel to perform the job.

Chief Justice Earl Warren: Suppose the -- let's carry it just one step further to -- might be too absurdly, but suppose that a mate said, “Do it yourself”, and sent no one.

Mr. William M. Kimball: I cannot grasp Your Honor's questions because if he sends no one the --

Chief Justice Earl Warren: Well, but then he --

Mr. William M. Kimball: -- the job would not be done I suppose.

Chief Justice Earl Warren: When he wanted to -- well, suppose he tried, suppose it wouldn't be done but suppose he tried and in trying that he got hurt?

Mr. William M. Kimball: The mate himself, Your Honor?

Chief Justice Earl Warren: No, no, suppose this man was -- supposed to -- it was misery for some members of the crew to do this task that was involved here.

And the petitioner in this case asked the mate for assistance in doing it, but he said, “Oh, do it yourself, you can do it”, and he then did it himself and got hurt.

Mr. William M. Kimball: I see no distinction under those facts with Your Honor's former question.

It would amount --

Chief Justice Earl Warren: Yes.

Mr. William M. Kimball: -- merely to a claim failure by the mate to assign adequate number of personnel to do the job.

Chief Justice Earl Warren: I see.

Mr. William M. Kimball: Indeed, if Your Honor pleases, almost always in these suits where a claim is made that additional personnel should have been assigned, the plaintiff almost always testifies that he protested to the boatswain or the mate and asked for additional assistance but the mate or the boatswain told him to do it by himself.

Now there of course is no evidence or reasonable inference in this case that this new 8-inch manila mooring line was unseaworthy or more particularly that it was unseaworthy unless three or four men used it, carried or dragged it.

That I believe was what Redfern -- APL, American President Lines v. Redfern was all about.

There was involved a stuck valve which could only be “broken” by two men or by one man using a particular sort of a wrench, spanner wrench.

One man without wrench was sent down to break the stuck valve and in attempting to do so, he was injured.

In other words, as I read Redfern and as Judge Medina obviously read it, that involved the case of equipment which was unseaworthy unless the additive of extra manpower or special equipment was furnished to sure, rectify, break the unseaworthy condition and thereby make this valve reasonably fit for its intended purpose.

Now, were agreed that if the question presented is the one that I first stated, it has never been directly dealt with by this Court.

In addition to the decisions below, there are three other lower court cases which have dealt with the question.

They're cited on page 7 of my brief and all of them were decided in favor of the shipowner.

Judge Medina said and I believe quite correctly so, after obviously and exhaustive review of the applicable case law, that there are quote -- there is “no authority to the contrary” of the decision below.

Now to get back to Mr. Bamberger's observations, I believe he's wrong in suggesting that the decision in this case might impose upon shipowners an obligation to engage two or three times as many men to perform routine chores aboard ship as are now engaged pursuant to Coast Guard requirements, because that wouldn't do any good if Your Honors please.

If they had a 150 men on a vessel which is now normally manned by 20, and for some reason, while 149 of them were standing around admiring the scenery, it became necessary to pick up a bucket or a tool and the mate assigned one of 150 potentially available crew members to do the job, that wouldn't permit the shipowner to escape liability if there were reversal in this case because some expert could always come along and would come along and testified that two or three or five men were needed.

So the mere addition by the shipowner of vast hordes of unneeded crewmembers aboard vessel wouldn't escape the consequences of reversal in this decision or conversely, if he had a 150 crewmembers aboard a 20-crew ship and out of extreme concern for the results of a -- this decision, the mate assigned 15 men to picked up the wrench, then of course that decision would run head on into what I believe Mr. Justice Harlan suggested with the expert testifying that this was a job which only one of the 150 men should have been assigned to do, and the vessel became unseaworthy because five men were assigned to do a one-man job.

In other words, I suggest Your Honors that reversal in this case would make it incumbent upon the shipowner to attempt, which would be impossible, to see that in every instance the dozens or perhaps hundreds of orders which are issued aboard ship each day, in every case, the person giving the order would have to steer the perfect line between assigning too few and too many, and if he didn't, then the vessel regardless of how many people were aboard or available or how competent they might be, the shipowner would subjected to possible liability for unseaworthiness based upon high insight testimony of an expert in quotes who I suggest Your Honors, there isn't any deficiency or shortage of these people would always be found to testify that either more or less men should have been assigned to do every job.

Justice Byron R. White: What would you say if the jury here has found negligence at the end, and would you say there was no evidence to support it?

Mr. William M. Kimball: I made a motion for directive verdict on that ground Your Honor but I'm not sure that I could have sustained on appeal a grant of that.

Justice Byron R. White: And it would've been -- and it's based on the facts, they shouldn't have ordered two men to do this job?

Mr. William M. Kimball: That's correct sir.

Well, there really wasn't --

Justice Byron R. White: (Inaudible)

Mr. William M. Kimball: There was more to it than that if Your Honor pleases.

Justice Byron R. White: There maybe but don't you then face the hazard of steering -- of steering this line in any case anyway of assigning too few or too many, if I were to be found to be negligent.

Mr. William M. Kimball: That's true, if Your Honor pleases.

Justice Byron R. White: Well, then whatever, extra hazard, this is on unseaworthiness?

Mr. William M. Kimball: Because if Your Honor pleases, I think juries are much more capable of dealing with a charge which is based upon a claim of fault in failing to conduct oneself in a reasonably proper manner.

Then they are in dealing with a charge that regardless of any concept of fault and regardless of how much diligence the defendant may have exercised in an effort to overcome the condition, the ship is still absolutely liable if the jury finds that under these particular circumstances, the vessel was not reasonably fit for intended purpose.

Justice Byron R. White: Well, let's assume the mate orders two seamen to carry this -- with this rope on a dolly and the example that you have put in this brief.

Mr. William M. Kimball: If the dolly breaks down?

Justice Byron R. White: The dolly breaks down and hurts one of them -- hurts one of the men that it's just -- and it was found that the dolly wasn't strong enough to carry the rope.

Now, I suppose there's unseaworthiness there.

Mr. William M. Kimball: That would be unseaworthy, Yes, Your Honor.

Justice Byron R. White: But if -- instead of telling the two fellows to take the dolly and the dolly's breaking, he just sends the two men and one of the men breaks, that's not unseaworthy?

Mr. William M. Kimball: That is not unseaworthiness, Your Honor, that's correct.

With a little additive if I may Your Honor, if the Coast Guard perhaps had specified that the dolly is of certain type of spring and so forth and in certain number should be provided to move a piece of rope and the Coast Guard -- and the shipowner had complied with those regulations more than 100% then we might perhaps have a different result to the questions which Your Honor has (Voice Overlap) --

Justice Potter Stewart: Those aren't regulations in addition to specifying numbers of men, also specifies their minimum proficiency required, doesn't it?

Mr. William M. Kimball: To a large extent, yes, Your Honor.

And there is no claim in this case that any of these men was incompetent.

Justice Potter Stewart: These were what, able-bodied?

Mr. William M. Kimball: Well, they ran the gamut Your Honor from -- we had ordinaries, we had deck utility men, we had able seaman, we had boatswain, we had a carpenter, and we had a run of mates that constituted our deck department.

Justice Potter Stewart: This -- at the stern, this group was a mate and what, a mate and a boatswain and three others?

Mr. William M. Kimball: No, sir.

There was a mate, and I believe four able seamen and one ordinary.

Justice Potter Stewart: One ordinary.

Mr. William M. Kimball: Normally, there were would have been in the aft a mate and three able and two ordinary.

But one of the ordinaries was in the ship's hospital, so to replace him, they assigned --

Justice Potter Stewart: (Inaudible)

Mr. William M. Kimball: -- not only a superior ranking but it turned out they assigned a man who modestly testified that he was the strongest and biggest and most proficient seaman on the ship.

Justice Potter Stewart: Sort of a sea-going Cassius Clay?

Mr. William M. Kimball: Exactly.

Chief Justice Earl Warren: Mr. Kimball, in your argument just before Mr. Justice White's question, you mentioned Mr. Bamberger, the New York Times (Inaudible) --

Mr. William M. Kimball: Yes sir.

Chief Justice Earl Warren: Were you answering him?

Mr. William M. Kimball: I intend to --

Chief Justice Earl Warren: Or were you answering the counsel on the -- so far as the ramifications of this case are concerned?

Mr. William M. Kimball: I attempted to answer, to suggest to the Court, and to some extent deal with the suggestion that's been made in the briefs that there would be some economic repercussions from a reversal in this case which the shipowner might avoid by hiring more people.

And I wanted to suggest to the Court that even that further action by the shipowner could not overcome the adverse consequences of the reversal in this decision because no matter how many people he adds, there still comes the time when somebody must assign a certain number of those persons to do a particular job, and if a vessel is unseaworthy, because of a non-negligent order assigning either too few or as Mr. Justice Harlan suggested perhaps too many men to do a particular job, then we have a situation where potentially with every order issued aboard vessel, there can be a claim later made that the vessel was unseaworthy because the exact correct number of persons were not assigned to do the job.

Justice Hugo L. Black: May I ask you -- is it your argument that a shipowner can be liable for negligence from the failure to have adequate number of persons to do a job?

Mr. William M. Kimball: Unquestionably so, sir.

Justice Hugo L. Black: But that it cannot be found guilty of unseaworthiness for an adequate number of people to do the job?

Mr. William M. Kimball: That is true sir.

That is my argument.

Justice Hugo L. Black: That is really the argument they -- that they're never be allowed for unseaworthiness for having an inadequate number of people to do the job?

Mr. William M. Kimball: Provided if Your Honor pleases, the shipowner has the minimum number required by the Coast Guard for safe navigation.

Justice Hugo L. Black: But what your argument is, is that if the Coast Guard rules are complied with then ship can never be unseaworthy?

Mr. William M. Kimball: Insofar as the adequacy of the number of her personnel.

But I wouldn't want to --

Justice Hugo L. Black: Why is that?

Mr. William M. Kimball: Well -- may I answer the question in just a moment Your Honor.

There is a little bit more to just -- than that we've just complied with the minimum requirements because the evidence in the case was that in addition to -- the evidence wasn't -- to an addition to what the Coast Guard certificate of inspection required insofar as numbers of personnel were concerned, and that we had I believe three or four more than the minimum number in the deck department.

Then there was testimony that of a custom in the industry to assign so many of that number to the aft docking station and there was testimony amounting to a concession that the number normally assigned to do -- to the aft docking station were present during the performance of this docking operations.

So we have a little bit more in this case than mere compliance with Coast Guard regulations.

We have compliance with Coast Guard regulations and custom of the industry.

But to try to answer Your Honor's question of why, I believe it's because of the great number of quite technical factors which must be taken into consideration in determining how many men should and have to be as a matter of law assigned to navigate a particular vessel.

In other words, their concepts of their construction concepts, their propulsion concepts, their concepts of the trade in which the vessel is in, their concepts of her age, her deadweight, the type of cargoes that she carries and as I say a great many other factors which result in the use of an etcetera in the regulations which the officer-in-charge, marine inspection must assemble, consider, weigh, before he decides how many should be required aboard various classes of vessels engaged in various trades and carrying various types of cargoes.

And I believe that the shipowner ought to be entitled, to rely upon that expert determination on the question of whether his ship is adequately manned so as to meet the requirements that she need only be reasonably fit for safe navigation.

In other words, I would submit to the Court that as a matter of law it ought to be that a vessel that has the Coast Guard compliment is reasonably fit for safe navigation insofar only as the number of bodies aboard ship are concerned.

Justice William J. Brennan: Well, Mr. Kimball, if you were one short in this instance, otherwise, the facts are exactly as we have within the record, are you suggesting that you would concede that as to this operation unseaworthiness have been established?

Mr. William M. Kimball: I certainly wouldn't concede Your Honor, but I think I would have to concede that there was an issue for jury determination as to whether this assumed shorthanded docking gang, one shorthanded docking gang was --

Justice William J. Brennan: Why -- I'm just taking one short and overall?

Mr. William M. Kimball: Overall.

Justice William J. Brennan: Overall, one short overall of the Coast Guard minimum.

Mr. William M. Kimball: No, I think we could get over that even in this case because we'll assume, if I may that the one short was a (Inaudible), nothing to do with the docking operation, we'll assume.

But certainly, if the one short affected the number of compliment of the aft docking station, then there would I believe be a question for jury determination as to whether this assumed inadequately manned vessel in terms of numbers needed to perform this docking operation was reasonably fit for her intended purpose.

Justice Abe Fortas: But isn't that contradictory what you said a few moments ago or do I misunderstand you?

I thought you said a few moments ago that it would be unseaworthiness if they fail to have the minimum Coast Guard prescribed compliment of men?

Mr. William M. Kimball: No.

I think there'd still be a question of fact there if Your Honor pleases, as to take the cook situation.

Justice Abe Fortas: Yes, I won't forget about that.

Let's stray it on the seaman, various categories of able bodied seamen and ordinary and so on.

I thought -- I'm just trying to find out what your position is because I thought you said a few moments ago that a failure to have the minimum Coast Guard prescribed compliment in that respect would constitute unseaworthiness and I suppose that if it constitute unseaworthiness then the petitioner here or situation like this it would follow that this petitioner would be able to recover?

Mr. William M. Kimball: Your Honor, this question has clarified my thinking.

I agree.

Justice Abe Fortas: And now you just clarified my thinking in your view.

Mr. William M. Kimball: My -- I think was dealing with Mr. Justice Brennan's question in terms of approximate cost and that there would be a jury issue of whether the shortage of the cook was a proximate cause of the accident.

But on the question of whether the vessel unseaworthy, I would believe that as a matter of law --

Justice Abe Fortas: I see.

Mr. William M. Kimball: -- a ship which did not have the minimum number aboard required by the Coast Guard would be unseaworthy.

Justice Abe Fortas: You'd say that it, that if unseaworthiness would exist that recovery might not follow because it -- you might be able to show that there was no cause or relation --

Mr. William M. Kimball: Yes sir.

Justice Abe Fortas: -- just between the unseaworthy condition and the injury complained of.

Mr. William M. Kimball: Yes sir.

Thank you Your Honors.

Chief Justice Earl Warren: Very well.

Mr. Friedman.

Rebuttal of Theodore H. Friedman

Mr. Theodore H. Friedman: With the Courts permission, I would like to speak directly to the question of the Coast Guard regulations that have been so heavily relied upon.

In the first place, I would like to point out that the record contains testimony on page 8, by the petitioner seaman himself that the job as a matter of regular custom, this particular job involved a minimum of three men.

And one man had to be at the chuck.

Now, Your Honor, the spring line, the line is going out, there's a tremendous amount of tension and pressure on it.

It is a heavy line.

One man would be at the chuck letting the line out in controlling it otherwise it can become literally a snake aboard the vessel and cause all kinds of injury.

And two men must slog it and that is right on page 8.

Now, I advert to that particularly because there is this reference that it was -- and this without regard, it will happen to be an unusual chuck to use anywhere that such a spring line is being led out, be it a chuck a little farther forward or a little farther back, it involves those number of men, so testified by the petitioner.

Now, there is adversion to the fact that they were -- it was conceded that five men was the usual aft gang docking crew and five men were there provided.

That's true.

But it was also testified if you want to split it down, that usually three men at least will provide it before we even got to the expert testimony for this particular kind of operation and that was not met according to the petitioner's testimony in this case.

My learned friend says, all of this is irrelevant provided there were 15 ABs and 12 OSs aboard the ship if that what the Coast Guard certificate posted in mid ships required.

And I respectfully submit that he has not been able to and I've not been able to find a single iota of authority that suggest that that type of compliance with the overall Coast Guard regulations will suffice to deal with a job as it is performed at the particular time and place.

Justice Abe Fortas: Mr. Friedman, may I ask you this.

What in -- suppose you had a jury, what instruction to the jury would you consider called for now on your theory of the case?

Mr. Theodore H. Friedman: The instruction would be that in the event the jury believed that the safe performance of this work required the use of three to four men because of the load and the tension and the manner in which this rope and line had to be handled, and in fact they find that less than three men were used.

And they find that such failure to provide three men and the use of only two men contributed to causing the injuries complained of that they may find that the vessel, the shipowner is responsible in damages to the seaman injured during the course of his employment.

And that Your Honor is precisely as I see it what seaworthiness liability is all about.

The risks and the hazards of the maritime employment ought to be protected and accepted and compensated by the shipowner because of the standard concepts of risk sharing and risk distribution that have been enunciated and described by this Court in Seas Shipping Co. v. Sieracki and again by Mr. Justice Black recently in the Reed v. Yaka case and down through the agents.

And that is the social outlook that this Court has enunciated and there has been no reason presented as I can see it for why this case should be lifted out where the seaman is injured doing the ordinary --

Justice John M. Harlan: Well it --

Mr. Theodore H. Friedman: -- course of his employment.

Justice John M. Harlan: It does an end result was it not make the shipowner an underwriter, a perfect judgment on behalf of these -- on the part of his crew?

Mr. Theodore H. Friedman: If a seaman is in fact injured and we have to start with that.

He's injured --

Justice John M. Harlan: And --

Mr. Theodore H. Friedman: -- during the course of his employment, he's an injured man.

If in fact the reason that he is injured is that he was injected into an unsafe condition because of the performance of his work and if that unsafe condition arose out of the fact that a shipowner did not provide him with sufficient support, be it physical, equipment, or manpower, then indeed Your Honor, I read that (Voice Overlap) --

Justice John M. Harlan: Well, you put it (Voice Overlap) -- you put it in a more attractive ways from your stand point.

That's what --

Mr. Theodore H. Friedman: I'm sorry Your Honor.

Justice John M. Harlan: You put it in a more attractive way from your standpoint, but it ultimately comes down, is it not we assume no negligence, adequate new staff crew both overall and for the particular part of the ship that's involved and your proposition does ultimately come down to say that the shipowner is an underwriter of the kind of the decision in the jury even though finding negligence would say, shouldn't have been made -- not finding no negligence should've been made in those circumstances.

Mr. Theodore H. Friedman: Mr. Justice Harlan, if I may answer, I focused on that part of your question which said, assuming a crew adequate for the particular --

Justice John M. Harlan: Yes.

Mr. Theodore H. Friedman: -- part of the ship, because I do not find and I submit the petitioner's testimony was that the crew provided was not adequate for the particular job being performed.

There were five men back in the rear of the ship but there weren't enough men doing this particular job and as I said in the outset and I will close with it, managed to my mind, so completely disposes of that concept that if at the particular performance of the job function, sufficient assistance is not provided and a seaman is injured in the manner which I've stated, then he is to be cared for by the shipping company which can distribute the rest more ably than the individuals.

Justice Byron R. White: And what's that Mr. Friedman, what's left is outside the concept of unseaworthiness?

Mr. Theodore H. Friedman: What is now left outside the concepts of seaworthiness?

Justice Byron R. White: Unseaworthiness.

Mr. Theodore H. Friedman: Your Honor, that concept --

Justice Byron R. White: Let me just ask you a specific question to that effect --

Mr. Theodore H. Friedman: Alright.

Justice Byron R. White: -- that it was too broad.

How about this ordinary negligence, ordinary negligence of the ship's officer or a seaman?

Mr. Theodore H. Friedman: Well, if a seaman is injured as a result of a ship officer's negligence, the --

Justice Byron R. White: There's is not (Voice Overlap) --

Mr. Theodore H. Friedman: -- right to recover is not within dispute.

Your Honor I believe is asking me when -- what kind of accident can occur aboard the ship that he is not entitled --

Justice Byron R. White: (Inaudible) of an accident is unseaworthiness?

I don't see why see this -- the ordinary negligence of a ship's officers isn't unseaworthiness too.

I mean, may not make any difference but I just wonder.

Mr. Theodore H. Friedman: Well, I'm suggesting that what happened is that sometimes the instrument of injury does not involve any negligent act on the part of the ship's officers and yet the man is injured and an unsafe condition is created as indeed the facts that's that I've described within Mahnich with the rope, the latent defect rope was unwittingly taken out of the bin or in the circumstances here involved and yet the seaman is injured and should be compensated because of an insufficiency aboard the ship.

Chief Justice Earl Warren: May I ask this question Mr. Friedman, suppose the mate had sent four men who had good qualifications for this kind of work throughout their service in the sea, and on this particular occasion, one of the four workmen who was with this man happened to do some negligent act, would the ship be unseaworthy?

Mr. Theodore H. Friedman: To extend on that, I would say yes in this sense, Your Honor.

Let's assume just that happens and a sufficient number of men are sent forth.

Chief Justice Earl Warren: Yes.

Mr. Theodore H. Friedman: Let's assume that suddenly one men has some kind of convulsion or stroke and he collapses on the job, he's been sent by the mate and he collapses on the job, in fact to extend it if I may, let's assume that he only sent three, so the one man who collapses now leaves the condition that originally occurred here of two, and the two men continuing with the job, being insufficient, the accident occurs.

I respectfully submit that while that's not this case, that fact is that the other two men are remained exposed to the insufficiency of support of the accident and that is the distinction between negligence liability and unseaworthiness liability.

Assume if Your Honor made -- if I may say, that what they gave was three ropes to support a staging, or four ropes, and one rope collapses because it's a latent defect and the man is injured, certainly no one would suggest, “Well, you had two other good ropes or we did originally provide you with three.”

If one breaks down either during the job because its defective or ab initio, only two instead of three are provided, I respectfully submit the situation is substantially similar, the two men left remaining are exposed to the risk of injury because of the insufficiency of what they are continuing to work with.

Justice Hugo L. Black: May I ask you one question.

Suppose advancing technology had provided four different devices to do this work, it had to be done by these three or four men, three of those devices were out of order, would that be unseaworthiness?

Mr. Theodore H. Friedman: And the fourth is available and is used?

Do I --

Justice Hugo L. Black: Right.

Mr. Theodore H. Friedman: And -- well -- and now functions in someway or is insufficient and ab initio --

Justice Hugo L. Black: The devices, three of the devices do not work, they are out of order?

Mr. Theodore H. Friedman: And -- but the fourth with which is being used as if in --

Justice Hugo L. Black: The fourth was a man.

Mr. Theodore H. Friedman: Oh, and the fourth is the one man instead of the --

Justice Hugo L. Black: That's right.

Mr. Theodore H. Friedman: -- three machines?

Justice Hugo L. Black: The fourth is a man.

Mr. Theodore H. Friedman: Well, clearly if what is provided to do the job is insufficient for the task either because three machines are out of order, which is almost the standard in simplest terms -- cases --

Justice Hugo L. Black: Suppose one of them was a device was a rope and it was rotten?

Mr. Theodore H. Friedman: And it was not used or it broke during the accident, I would assume without question Your Honor that if the -- the additive to the one man is insufficient and defective, out of order, that unseaworthiness liability is plain.

And if the additive if I may --

Justice Hugo L. Black: What you're saying --

Mr. Theodore H. Friedman: If I may --

Justice Hugo L. Black: What you're saying is that instead of being mechanical devices to do this particular part of the work, a certain number of men needed to do it and so you would place them on the same place?

Mr. Theodore H. Friedman: Absolutely.

Thank you very much.

Thank you for the extended time.

Chief Justice Earl Warren: Very well.