SCINDIA STEAM NAVIGATION CO., v. DE LOS SANTOS

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ORAL ARGUMENT OF GRAYDON S. STARING, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Scindia Steam Navigation v. Lauro de los Santos.

Mr. Staring.

Mr. Staring: Mr. Chief Justice, and may it please the Court:

This case presents to the Court one of the four principal purposes for which the 1972 amendments to the Longshoremen's Act were made, according to the Senate committee report, and that purpose, as the report stated it, was to provide a special cause of action for damages against third parties.

The court below, and the respondent here--

Unidentified Justice: Well, another purpose was to get rid of a Sieracki-type cause of action, wasn't it?

Mr. Staring: --Yes, Your Honor, it was.

I was simply quoting from the four stated purposes, stated principal purposes in the Senate report, and I think that probably that purpose of getting rid of Sieracki was subsumed in that statement in this purpose, to provide a new or specified cause of action.

I quite agree that that was the intent.

Very much a part of it.

The court below, and the respondent here in defining that specified cause of action would, we submit, impose upon the vessel a responsibility for longshoremen's injury which is without counterpart in any significant body of law, and let me explain it.

First, I'd like to remind the Court of the relations involved.

The longshoreman here, as in most such cases, was not an employee of the shipowner, and thus the shipowner was not by virtue of that relationship under those special duties of care which employers traditionally have toward their direct employees.

The longshoreman was, instead, as usual, an employee of an expert independent stevedoring company.

This Court in Italia, some years ago, noted that such companies are usually in the best position to enforce safety for their employees.

This is because the stevedore contractor is in practical control of the area that's been turned over to him, is in control of the operations he's conducting there, and of the men who are doing it.

But more than that, the stevedore contractor here as in other cases has imposed upon him by positive law under Section 41 of the Longshoremen's Act and the numerous regulations which are issued by the Department of Labor, a primary and very positive duty of care for the safety of his employees in the work.

And before we get farther into this case, let me point to the specific regulation which bears most sharply on this case.

There is, or was at the time of this case, as there still is, a regulation issued by the Department of Labor under the Longshoremen's Act, that any defect or malfunction of a winch be reported immediately to the officer in charge of the vessel.

But what is much more, the regulation goes on and says that in the case of an electrical winch, when the electromagnetic or other service brake is unable to hold the load, as is alleged in this case, the winch shall not be used.

And thus the stevedore contractor was confronted with positive law commanding him to report immediately and not to use the winch if that defect manifested itself.

Against that background, then, we ask what was the duty of the vessel owner?

The respondent here in his brief says that the essential question is not one of duty but whether his

"interests are entitled to be protected against the defendant's conduct. "

and to that we ask rhetorically, what conduct?

Because there is a great deal of difference in this field between conduct and--

Unidentified Justice: Isn't even simple negligence traditionally outlined in terms of duty and breach of duty owed to a particular person or group of persons?

Mr. Staring: --I think that is... yes, I do think that is very common, and I think that in any ordinary negligence case one must first find the duty based upon some status or relationship which imposes upon the defendant an obligation to look out for another.

Now, in some instances, the status or relationship is simply proximity, such as my proximity to another man which puts me in a position to hurt him.

Unidentified Justice: Driving an automobile.

Mr. Staring: Yes.

Unidentified Justice: That's not maritime law, though.

Mr. Staring: I beg pardon?

Unidentified Justice: That's not exactly maritime law.

Mr. Staring: That has not been the traditional maritime law, no, sir.

Unidentified Justice: Well, it is true that a duty could exist to every single member of the public.

That's just another way of saying it.

That's true of maritime law or land-based tort law.

Mr. Staring: Well, I think I must agree that such a duty can exist; yes.

Unidentified Justice: Regardless of any special relationship, just there's a duty to every member of the public to not injure that person negligently.

Mr. Staring: Yes.

But negligence, again--

Unidentified Justice: Or with fault, to use the admiralty wording.

Mr. Staring: --A duty not to conduct ourselves in a way which carelessly or recklessly endangers those about us; yes.

I quite agree with that.

Unidentified Justice: For example, if you stumble on a piece of grease on the stairway going up to your office, you don't recover the same way as you do if you stumble on a piece of grease on the Queen Mary.

Is that right.

Mr. Staring: I believe that's right, Your Honor.

Unidentified Justice: Mr. Staring, what in your view, what was the duty of the vessel owner with regard to the condition of the winch?

Did he have any duty to the longshoreman and if so, what was it?

Mr. Staring: If the condition of the winch... in the circumstances of this case, I do not think that the vessel owner had any duty to the longshoreman with respect to the condition of the winch.

I would--

Unidentified Justice: No duty whatsoever, even if the winch were defective, he knew it was defective, he knew it was dangerous, he knew that people would be working with it.

Mr. Staring: --Ah, now--

Unidentified Justice: And I'm saying, what the duty is, not what the facts show.

Mr. Staring: --All right.

The vessel owner has no duty, I submit, with respect to the condition of the winch unless he was in a position of superior knowledge or superior means of preventing harm.

Unidentified Justice: Not merely knowledge but superior knowledge?

Mr. Staring: Superior knowledge.

If, therefore, he was as--

Unidentified Justice: Superior to whom?

Mr. Staring: --Superior to the stevedore company.

Unidentified Justice: Supposing they have equal knowledge.

If they both know it's defective?

Is there any duty to do anything about it?

Mr. Staring: I think he has none.

I think that in that situation I would pose the question whether the shipowner cannot reasonably hire a stevedore who is subject to the legal mandate that I've described and look to the stevedore to see that his longshoremen are not subjected to the danger.

Unidentified Justice: Well, what is the purpose of the Secretary of Labor's requirement that defects in the winch be reported to the vessel owner?

Why do they have that requirement, then?

Mr. Staring: In order that the vessel owner can then make repairs if repairs should be made.

Unidentified Justice: Then he has the duty to repair, right?

Mr. Staring: Well, he doesn't have a duty as such, he has an opportunity.

He has an opportunity to repair.

Unidentified Justice: No duty?

Mr. Staring: Since the stevedore, if he has obeyed the regulation, has stopped work, it's a question whether the shipowner's duties--

Unidentified Justice: Maybe the stevedore hasn't.

Maybe the stevedore says, the winch seems to be acting up a little bit.

I don't know much about this particular winch, but it looks fishy to me.

And what does the vessel owner have to do then?

Mr. Staring: --The vessel owner then has, I would say, an opportunity to repair it and certainly--

Unidentified Justice: No, but I want to ask about duty.

Does he have any duty?

Mr. Staring: --I beg... Your Honor.

I agree.

He has a duty.

In certain circumstances--

Unidentified Justice: Well, but if you say he has a duty, then you've got Sieracki right back.

Mr. Staring: --No, I don't believe so.

I believe that he has a duty, then, to look into the condition of the winch and exercise due care with respect to whether it is operating properly before the stevedore goes forward and works with it further.

But he does not have an absolute duty as under Sieracki to see if that winch is free of defect.

Unidentified Justice: What if the shipowner and the employee had equal knowledge?

Do you say that... do you concede that the stevedore can recover from the shipowner?

Mr. Staring: No.

Your Honor, is Your Honor using the term stevedore here to mean the longshoreman?

Unidentified Justice: The longshoreman.

Mr. Staring: If the knowledge is equal, then we do not concede that a recovery can be had from the vessel.

Let me--

Unidentified Justice: Let's suppose, when the job starts, they hire the stevedore and the shipowner says, by the way, this winch is acting up a little, but I think if you're really careful with it, it'll be all right.

And the stevedore says, well, I'll watch it.

And it does what it did in this case.

Now, all the shipowner's done is to point out a piece of defective machinery and the stevedore says, well, we'll go ahead anyway, in effect.

He goes ahead and somebody gets hurt.

Mr. Staring: --What has happened, Your Honor, in that case, is that the vessel owner has pointed out a report of, let us say, a winch that operates less than perfectly.

I don't know whether that's a defect or not, but it doesn't... maybe not be operating perfectly.

And the stevedore, who is an expert in this field and in the matter of safety for his employees in this field, is then asked to consider whether it is or is not a safe operating winch.

And he may be looked to, we submit, to make that determination.

And if he thinks--

Unidentified Justice: So you... the short answer is that the extent of his duty is to make known any unsafe things that are known to him, the shipowner, that is?

Mr. Staring: --Yes, Your Honor.

Unidentified Justice: And that he has no affirmative duty to repair the winch?

Mr. Staring: He has no affirmative duty in that circumstance to repair the winch for the benefit of the stevedore and the longshoreman.

Unidentified Justice: Or for the benefit of the longshoreman?

Mr. Staring: That's right.

Unidentified Justice: Now, Mr. Staring, where is it in the statute you said supports this interpretation?

Mr. Staring: The statute that I point to is not in the amendments, Your Honor, but is Section 41 of the Longshoremen's Act, which has been there somewhat more years than the 1972 amendments.

Unidentified Justice: This being the duties you read us.

I thought you said those were regulations of the Secretary of Labor?

Mr. Staring: Your Honor, the statute is the general direction and the authority for the regulations, and then regulations have been issued under that statute, Your Honor.

Unidentified Justice: And we don't find this in the '72 amendments, we find it in these regulations issued under the older statute?

Mr. Staring: That's right, Your Honor.

The respondent, here, of course, says no to the question whether the vessel owner may look to the stevedore in the circumstances which we have just been discussing; and we say, seeks to impose on the vessel a novel responsibility, one which if accepted would be peculiar to the maritime law.

And so it would be contrary to the legislative history that counsels us that under Section 5 of the Act, as amended, landbased law is to be applied, and we are to reject... and I quote here,

"reject any theory of liability, and specifically to reject any nondelegable duty of a shipowner. "

I'd like to address for just a moment the meaning of this term, "nondelegable duty" and what might be meant by its absence, once it's rejected.

We don't ordinarily delegate duties.

We delegate powers and we delegate functions, and what in context this term means is a duty which someone is required to retain after he has delegated by contract the function which is related to it.

And I submit that in the context of the maritime industry, and the Longshoremen's Act, what Congress meant here when they rejected the nondelegable duty was to insure that a shipowner hereafter would have the capacity to contract work out free of a retained duty to oversee that work, to protect workmen involved from the consequences of the work.

Now, provided, of course, that the shipowner has truly delegated the work, turned over the control of it, which of course means that he must have disclosed what he had superior knowledge of or made available the superior means which he might have had.

Because if he has not done that, he has not fully delegated.

But surely Congress intended, if nondelegable duty means anything, that the shipowner was in the future to be in the position of contracting work out with those consequences--

Unidentified Justice: So in my example to you you would say, is that the stevedore, if he didn't like it, he didn't want to work with it, if his judgment was that the winch was unsafe or that he didn't want to take the risk, that he would just not work.

He'd say, either fix it or get another stevedore.

Mr. Staring: --Oh, he would say, fix it, and he would go on standby and collect his charges for doing nothing until you have.

And... or until you've got another stevedore.

Unidentified Justice: Do you think that's what the restatement standard means?

The Court of Appeals apparently rejected the landbased restatement standard, duty of the landowner.

And didn't you urge that that should govern or not?

Mr. Staring: I do urge--

Unidentified Justice: Did you in the Court of Appeals urge that?

Mr. Staring: --I did not handle the case in the Court of Appeals.

Unidentified Justice: But was it urged?

Mr. Staring: At this... it was urged in the Court of Appeals.

Unidentified Justice: And do you agree that it's--

Mr. Staring: I agree that that would be a good standard to apply.

But may I say, Your Honor, that--

Unidentified Justice: --Well, I'm wondering, because the last part of that standard says, with regard to the landowner,

"He should realize that it involves an unreasonable risk of harm and fails to exercise reasonable care to protect the invitees against the danger. "

Now, you say all he has to do to protect the invitees against the danger is to tell them about it.

Mr. Staring: --Your Honor, if he should, in many instances that's what--

Unidentified Justice: Well, in this case, for example, all he would have to do is tell them about the--

Mr. Staring: --If he had known about it in advance.

But in this case, Your Honor--

Unidentified Justice: --A fortiori, in this case, if he didn't know about it in advance but suppose the stevedore told him that, gee, you've got a defective crane here, and he just shrugged his shoulders.

It's the same thing.

Mr. Staring: --In this case, Your Honor, the stevedore knows it and is asserted to have known it throughout the record and did not stop work, as he was commanded by law to do, and it would do no good to tell him.

We have no record, and the judge below had no record to indicate that the vessel knew this in advance of the stevedore, and it didn't matter, because the stevedore knew it well in advance of the accident.

Unidentified Justice: Mr. Staring, incidentally, on the issue of superior knowledge, does the shipowner before he turns ships' equipment over to a stevedoring company, have any duty of inspection of the equipment, to find out if there is anything wrong with it?

Mr. Staring: None has been established by law, none is shown in the record of this case.

There is no general legal duty of inspecting the premises, inspecting the equipments other than what is imposed by Coast Guard and other applicable regulations.

But they do not enter the record here.

Unidentified Justice: Unless he happens to stumble on knowledge of the defect, he has nothing in the way of a duty to say a word to the stevedore about it?

Does he?

Mr. Staring: That is generally correct.

He has no way to do this, but he engages the stevedore as was cited in the Hugev case as an expert in the field who knows that he meets vessels that come in in all kinds of conditions and for all sorts... because of all sorts of stresses, and may encounter many of these things as familiar conditions.

I'd like to dilate a little bit more on this distinction between latent and obvious or known defects which you are focusing on.

This is very much at the heart of the contention here that the doctrine of assumption of risk is somehow involved.

The key to the question is the validity of the distinction between latency and knowledge or obviousness.

This Court, years after it had disposed of the question of assumption of risk in the maritime law, has continued to recognize in its jurisprudence the distinction between latency and knowledge and the significance of those facts.

In Weyerhaeuser v. Nacirema in 1958, the Court noted the significance of latency as giving rise to a need to warn, and by implication in contrast, to a known, obvious condition.

The following year, 1959, in West v. United States, this Court observed the same distinction again.

In 1969, this Court decided Federal Marine Terminals v. Burnside, and in that case quoted in full the portions from the Hugev case in the 9th Circuit and the Mickle case, which we have relied on and quoted in our briefs... quoted them, I venture to say, with at least a modicum of approval.

And those sections of those quotations were explicit on the distinction between latency and knowledge obviousness.

This case quoted them in close conjunction with citation and quotation, and indeed application of its Kermarec case, which has also been urged here by the respondent, and incorrectly, we think, as a reason why our formulation cannot be applied.

Let me come back for a moment to a question that Mr. Justice White focused on which concerned the 343 and 343(a).

We do not embrace 343 and 343(a), precisely because they have been embraced somewhere and rejected somewhere.

When the state court cases which form the body of law from which these rules must be drawn are examined, we find, of course, that some of them deal with real property, some of them deal with other matters.

The restatement synthesizes them and formulates their rules, and if we choose to use the restatement, as a number of courts below have done, we still have choices within the restatement.

But the result doesn't make much difference, or any at all.

Whether you choose from the restatement those sections which have to do with real property and analogize the vessel to real property, or choose sections which relate to chattels, since the vessel is in law and in fact a chattel, the result comes out the same way, because the principle is the same, and it's expressed in both sections, that the vessel is only liable in those case.

The occupier, the furnisher of the chattel, the vessel is only liable on the basis of superior knowledge, means, and control.

Unidentified Justice: May I ask, when you say "superior knowledge", superior to whom, to the stevedore or the longshoreman?

Mr. Staring: Superior to the stevedore.

Unidentified Justice: Because the restatement talks about the invitee who's injured.

Mr. Staring: The difficulty about the restatement formulation is this:

Unidentified Justice: I know you're not relying on the restatement, but it seems to me there's quite a difference, whether you look at it from the point of view of the boss or the employee.

Superior to the plaintiff, is that what you mean?

Mr. Staring: --I don't just mean superior to the plaintiff.

I do mean superior to the stevedore and his crew.

Let me say this about--

Unidentified Justice: Crew other than the plaintiff, the man running the winch in this case?

Mr. Staring: --All of them, including the plaintiff.

Unidentified Justice: What if the plaintiff himself doesn't have any knowledge whatsoever?

Is he somehow... the knowledge of his employer imputed to him?

Mr. Staring: The employer... the question of... Mr. Justice Stevens, it seems to us that if you are going to abolish nondelegable duty, it has to be possible to delegate to a contractor as one can under the great body of state land law the responsibility for protecting your employees from dangers of this sort by inspecting, examining, supervising, and stopping them from doing unsafe things.

Unidentified Justice: I'm sure it's possible if they'd enter into an agreement that the stevedore would assume all risk of liability, he could do that.

Mr. Staring: But if the shipowner is going to continue then to have a direct duty of care for all these longshore employees exactly as though they were his employees and his seamen, his duty having by this Act been restricted only as it pertains to that person or that corporation called the stevedore, then this change in the law was a very, very hollow change indeed.

Unidentified Justice: There's a difference between proving negligence and proving under... what was the doctrine before?

unseaworthiness, there's difference between negligence and unseaworthiness, isn't there?

Mr. Staring: There is, Your Honor.

I say that the shipowner does not have a duty to oversee to prevent the consequences of known and obvious conditions which are known to or obvious to the employee.

But what I'd like to point out is that the restatement speaks only bilaterally.

And that's one of the shortcomings of its sections.

Even 343, 343(a) are inadequate, as Judge Friendly has pointed out somewhere; they set too liberal a standard, because they don't take into account the existence of an intermediary who is an expert stevedore contractor specially charged with the function of safety by law and by contract.

They don't take that into account.

And they deal with the individual invitee, the individual person, always, coming on board without anybody else to protect his interests except the furnisher of the chattel, except the furnisher of the premises.

And in the case we deal with, we deal with something that the restatement doesn't contemplate at all, which is the special circumstance of the existence of this expert contractor charged by law with a program of safety.

I should like to say--

Unidentified Justice: Could I ask you just... I should know this.

In an ordinary negligence action, if there is such a thing, by a longshoreman against a shipowner claiming negligence, is the defense of assumption of risk available to the shipowner?

Mr. Staring: --The defense of assumption of risk is not generally available in maritime law to a shipowner or to anyone else.

Unidentified Justice: Or to anyone else?

And the same with respect to contributory negligence.

Except to say they divide... it's comparative fault?

Mr. Staring: Yes, sir.

Unidentified Justice: And the statute in '72 said that it wanted to go to landbased principles of negligence rather than maritime law?

Mr. Staring: Yes, sir.

Unidentified Justice: Except for that?

Mr. Staring: Except that it wants to preserve the elimination of the bar of assumption of risk, and the bar of contributory negligence.

Unidentified Justice: And part of the argument here is that the ALI standard really recognizes assumption of risk.

Mr. Staring: That's not my argument.

Unidentified Justice: I'm sure it isn't.

Mr. Staring: But the argument is made and we think it is fallacious because... for reasons which we have discussed in my brief.

I want to reserve a couple of moments, if I may, and before doing so, may I just draw one brief parallel--

Chief Justice Burger: Mr. Staring, you have only about two left.

Mr. Staring: --All right.

I had better start reserving now, then.

Thank you.

Chief Justice Burger: Mr. Grutz.

ORAL ARGUMENT OF JAMES A. GRUTZ, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. Grutz: Mr. Chief Justice, and may it please the Court:

My name is James Grutz.

I represent the respondent, Lauro De Los Santos, individual longshoreman, who was injured in the way that is described in the statement of facts in the brief.

I would like to start with what I believe the amendments, 1972 amendments, did in this case, or as they apply to this case.

First of all, the amendments said that if there was negligence and that negligence of a shipowner injured a longshoreman, that he had a suit for negligence against the shipowner.

Secondly, it did away with any indemnity actions by the shipowner against the stevedoring company for the breach of the warranty of workmanlike service.

That's the Ryan case.

And thirdly, it did away with the doctrine of unseaworthiness.

There is no mention in the statute about standards involving landbased duties.

There is no mention in the statute about invitees.

There is no mention in the statute about independent contractors, and so forth.

There is simply the statement that negligence actions are permitted by longshoremen who are injured against shipowners.

Unidentified Justice: Well, Mr. Grutz, if we apply landbased principles of negligence in this area as set out in the restatement or in some other treatise or some other line of cases, do you lose this case?

Mr. Grutz: Landbased, Your Honor, is not a term of art.

It can mean probably 150 different things.

For instance, within the law of invitees, the premises liability areas of landbased law probably... there are 50 different tests within the United States.

There are probably three or four different subtests within each of those tests within the United States.

So, I don't know what landbased means, Your Honor.

Unidentified Justice: So you say, Congress has in effect given us no guidance and we've simply got to choose from among the various courts of appeals, or--

Mr. Grutz: No, I think Congress has given us some guides, Your Honor.

I think the Congress intended and I think the statute is clear, and unambiguous.

The statute does away with unseaworthiness, with the warranty of seaworthiness.

It preserves the maritime negligence action which existed prior to the amendments.

Unidentified Justice: --But it doesn't say what the extent of the duty of the shipowner is, though.

Mr. Grutz: It doesn't say what it is but I think that it's--

Unidentified Justice: That's the argument.

Mr. Grutz: --That's correct.

It doesn't say what it is, Your Honor, but I think that we can assume that Congress was aware of the negligence cases which existed prior to the amendments, and that they are said then to have adopted what the courts had said about what those duties were.

Unidentified Justice: Is there anything at all in the legislative history which--

Mr. Grutz: Yes, Your Honor, there is.

Now, I would take the position that the statute is clear and the legislative history is not necessary.

But all the courts that have examined the question have found it helpful to go to the legislative history.

The legislative history, I maintain, is perfectly consistent with my position.

That is, the legislative history discusses several items.

Number one, they wanted a uniform national federal standard, and I would submit that prior to the amendments there was a national, uniform federal standard, and it was the general maritime law--

Unidentified Justice: --With respect to the duty of the shipowner?

Was there a uniform national federal standard?

Mr. Grutz: --Yes.

Unidentified Justice: What was that?

Mr. Grutz: I think it was the general maritime law as it applied to negligence actions.

Unidentified Justice: Well, specifically as to duty?

Mr. Grutz: As to duty, it came out of the various cases that were, that wended their way up the court system in those decisions.

Unidentified Justice: Well, it must have been before--

Mr. Grutz: Pardon?

Unidentified Justice: --Weren't most cases on the seaworthiness basis?

Mr. Grutz: I think most cases were on the seaworthiness basis.

Unidentified Justice: Well, where do you get much law about negligence before '72?

Mr. Grutz: Well, you get it--

Unidentified Justice: It was between the shipowner and the longshoremen.

Mr. Grutz: --Most of the time it's connected.

Most of the time they overlap.

But there are some cases, Your Honor, and--

Unidentified Justice: From this Court?

Mr. Grutz: --Well, I think that Pope & Talbot v. Hawn recognizes a duty that--

Unidentified Justice: That was just a refusal to overrule Sieracki, wasn't it?

Mr. Grutz: --But it also recognized the fact that Sieracki did not do away with the negligence action.

Unidentified Justice: No, except most of the cases are seaworthiness cases, because from the plaintiff's point of view, seaworthiness, unseaworthiness is much easier to prove than negligence.

Mr. Grutz: Much easier to prove?

That's correct.

Unidentified Justice: So you could always go with unseaworthiness, if you were a plaintiff's lawyer.

Mr. Grutz: That's correct.

And so, most of the cases that come up are in that vein; that is correct.

But I think that--

Unidentified Justice: Well, what I was asking, Mr. Grutz, is there anything in the legislative history that addresses itself specifically to the duty of the shipowner to the longshoreman?

Mr. Grutz: --Absolutely, Your Honor.

Unidentified Justice: Well, what does it say?

Mr. Grutz: It says that the shipowner owes a duty of due care under the circumstances to maintain a safe place to work and to correct dangerous conditions aboard the vessel.

Unidentified Justice: Where does one find this in the... is it in that committee report, or?

Mr. Grutz: Yes, sir.

It's page I-10 of the appendix to my brief.

I put the whole committee report as--

Unidentified Justice: Is it a Joint House-Senate report?

Mr. Grutz: --Yes, yes.

The language is exactly the same in both.

Unidentified Justice: But it's not in the statute?

Mr. Grutz: It is not in the statute.

The language in the Senate report... and it's identical in the House report... is that nothing...

"Thus, nothing in this bill is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition. "

Unidentified Justice: Well, what's the previous sentence mean, Mr. Grutz?

Mr. Grutz: And the one before that--

Unidentified Justice: "Will still be required to exercise the same care as landbased person in providing a safe place to work. "

Mr. Grutz: --All right.

I think it means that the shipowner has an obligation to exercise reasonable care to make sure that the working place is safe.

The landbased language is used... it's in several instances in the legislative history.

And I would submit, Your Honor, that the landbased language is not used as a term of art, it is used as a descriptive term which differentiates it from the Sieracki unseaworthiness cases which are being done away with by the amendments to the Act.

Unidentified Justice: Well, what would be the difference if the shipowner has an obligation to provide a safe place to work and Sieracki is done away with?

Mr. Grutz: Well, the difference is, Your Honor, notice.

The difference between a seaworthiness case and a negligence case is basically notice.

And I think that a full reading of the committee report points out the difference, and I think this Court in cases has recognized the difference.

In Gutierrez there's a discussion of the difference between negligence and unseaworthiness.

In one case the actor to be negligent must be put on notice or have an opportunity to know, either actual or constructive notice, of the the danger.

Otherwise, he cannot be said to have the duty.

Unidentified Justice: And to whom must the notice run?

To the--

Mr. Grutz: To the shipowner.

Unidentified Justice: --Well, on the other side, to the stevedore employer or to the actual longshoreman?

Mr. Grutz: Oh, the notice as regards contributory negligence or comparative negligence?

Unidentified Justice: Well, the notice of the unsafe condition.

Mr. Grutz: It is my position that the notice would have to run to the individual longshoreman, because he's the one... for instance, in this case... that the district court said, knew and appreciated this particular risk, and subjected himself to it.

So that he barred the district court on a motion for summary judgment barred the plaintiff from any recovery or from ever going to the jury on the basis, simply, of was there an open and obvious danger?

Unidentified Justice: Well, if the plaintiff knew there was an open and obvious danger, why shouldn't he have been barred?

Mr. Grutz: As a matter of law, Your Honor, he cannot be barred because the open and obvious danger becomes assumption of the risk.

Unidentified Justice: Well, it could just as well be a fellow servant or a failure to submit sufficient proof to the district court.

Mr. Grutz: Your Honor, it seems to me that if there is evidence put on that there was negligence, that there was a failure to remedy the winch, which was an integral part of the ship, and the shipowner reserved the right by regulation and by practice to repair that winch, that to simply say that if a longshoreman recognized some danger, an individual longshoreman recognized some danger, that he as a matter of law cannot recover, is simply to say that he then knows and appreciates a risk, accepts the risk, and then we're into the assumption of risk argument, which Congress in the legislative reports has proscribed.

Unidentified Justice: Well, I must say, Mr. Grutz, that at page I-10:

"Nothing in this bill is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition. "

seems to be contrary to the argument of your colleague, that all they have to do is, if he knows about something, tell the stevedore about it?

Mr. Grutz: Absolutely.

And the oil spill example--

Unidentified Justice: That language that my brother Brennan has read says nothing of liability to anybody else.

It's just his responsibility to do it.

Mr. Grutz: --But the responsibility to someone else--

Unidentified Justice: No, the next paragraph illustrates what it--

Mr. Grutz: --It illustrates it perfectly.

Unidentified Justice: --It talks about a longshoreman who slips on an oil spill on a vessel's deck.

Mr. Grutz: And it talks about the notice.

Unidentified Justice: That's the difference between unseaworthiness and negligence; yes.

Mr. Grutz: So the illustration--

Unidentified Justice: Why didn't Congress put this in the statute rather than leaving it all to a joint congressional committee report if it was this critical?

Mr. Grutz: --I think Congress did not put it in the statute because they assumed that negligence had a meaning, that the significant meaning of negligence... that there had been a negligence action preserved in the Longshoremen and Harbor Workers' Act ever since its inception... and that it had a meaning which they were willing to accept.

Unidentified Justice: Well, I don't know why you don't rely on what they said on I-11: "Under this standard"... that is, the negligence standard...

"as adopted by the committee, there will of course be disputes as to whether the vessel was negligent in a particular case. "

"Such issues can only be resolved through the application of accepted principles of tort law and of the ordinary process of litigation, just as they are in cases involving alleged negligence by landbased third parties. "

Mr. Grutz: I think that they're saying that to resolve these questions, there are going to be trials, there are going to be cases submitted to factfinders to decide whether there was the failure to operate with ordinary care.

Unidentified Justice: Well, it sounds like the Committee at least thought that under ordinary landbased law, the injured longshoreman would recover on this oil spill matter.

Mr. Grutz: Absolutely.

Unidentified Justice: They may have been wrong about what they thought landbased law was.

Mr. Grutz: That's right.

I think--

Unidentified Justice: Or thought it was.

Mr. Grutz: --That's correct.

There's no doubt that they are indicating their belief that Sieracki... they take two oil spill examples and juxtapose them, the first one, they say there is no notice but under Sieracki the longshoreman could recover.

The second one, they describe, as Mr. Justice Brennan has read here, and what is retained, then, is the negligence action.

And so they believe... yes... that he can recover.

And earlier in the discussions they advocate that this is good, this is something that they want to preserve, because it encourages safety considerations.

So that Mr. Staring's approach would be that if the danger is open and obvious enough, that a longshoreman walking up the gangplank could or should have seen grease on the deck or you-name-it, the winch is rusty, there is a hole in the deck, and so on and so forth, or there's a sign saying, here are all the deficiencies of this vessel, that at that point they're immunized.

Now, that is not consistent with what the legislative history says over and over again, that nothing in this bill is to derogate from their duty to exercise reasonable care to furnish a safe place for this person to work.

Unidentified Justice: Is this a new form of legislative technique, to draft a skeleton statute and then give us a legal opinion as to what it means?

Mr. Grutz: I'm not sure, Your Honor.

It may very well be.

Unidentified Justice: You've got two or three pages that reads like a legal opinion or a judicial opinion--

Mr. Grutz: That's correct.

Unidentified Justice: --Telling us what... now, who's telling us that?

Congress telling us that?

Mr. Grutz: I think it's an advisor to Congress, a law clerk, perhaps, or a... I don't know.

Unidentified Justice: You mean a legislative clerk?

Mr. Grutz: Legislative clerk of some sort who is... The problem, though, is that they have misunderstood, I think, the impact of landbased.

Landbased in and of itself doesn't convey anything.

There can be so many meanings for the term that all it does is confuse, and it's only--

Unidentified Justice: Mr. Grutz, can I ask you about the meaning as applied to this particular case?

Mr. Grutz: --Yes, sir?

Unidentified Justice: Do you agree that there has to be evidence beyond evidence that the winch was defective?

In other words, doesn't there have to be some evidence of notice to the shipowner?

Mr. Grutz: I think there has to be evidence of either actual or constructive notice of some sort; yes, Your Honor.

Unidentified Justice: So that you would not contend that you are entitled to go to the jury merely by proving a defect in the the winch?

Mr. Grutz: Absolutely not.

I have to come within the guidelines of the second oil spill example where--

Unidentified Justice: Reasonable notice.

Mr. Grutz: --reasonable notice.

Unidentified Justice: And what in this record is there to indicate that the vessel owner had any notice of the defective winch?

Mr. Grutz: Well, there's this, that the winch had been malfunctioning for about 2-1/2 days prior to this accident.

Unidentified Justice: Yes, but the stevedore was running it for more than 2-1/2 days.

Mr. Grutz: The stevedore was running it... by the evidence, Your Honor, this was the third report.

Unidentified Justice: Is this true, the stevedore had been on the job more than 2-1/2 days?

Mr. Grutz: I don't think that's in the record as such.

I think that my understanding of the record is that the stevedore's use of the winch was contemporaneous with testimony about the malfunctioning of the winch.

Does that answer your question?

Unidentified Justice: No, I'm still puzzled.

Do you have to prove knowledge on the part of the shipowner before the stevedore went on the job?

Mr. Grutz: No.

And the reason I say that--

Unidentified Justice: Well, then, how does the 2-1/2 day testimony tend to prove that the vessel owner knew anything?

Mr. Grutz: --It's... it was there that the--

Unidentified Justice: Well, the test is whether he had reason to know, isn't it?

Mr. Grutz: --Whether he should have known.

Unidentified Justice: If the condition existed for 2-1/2 days wouldn't that create a jury question?

Whether or not he has reason to know?

Mr. Grutz: Whether he should have known under the circumstances that the--

Unidentified Justice: It's the ordinary negligence standard, isn't it?

Mr. Grutz: --That's the lettuce leaf on the floor in the grocery store.

Unidentified Justice: If you slip on something in the department store, that's all you have to prove, that it was there long enough that he should have known about it.

Mr. Grutz: Absolutely.

It was there long enough... so that in terms of reasonable care, the owner of the establishment could have discovered the situation.

Unidentified Justice: Well, then that's certainly a rejection of the landowner-invitee landbased test.

Mr. Grutz: There's no question in my mind, Your Honor, that the landowner-invitee test is absolutely inconsistent and incompatible with the amendments to the statute.

There's absolutely no question about it.

Unidentified Justice: But several circuits have adopted it.

Mr. Grutz: That's correct, and I think they're wrong.

And I think they've recognized their errors.

If you read Gay and Napoli, the thrust of those opinions talks about adopting 343 and 343(a) but there is a lot of cautioning going on within the course of their discussions, so that they know they're treading on very thin ice, and the problem is, is that you get into situations in which you take from the jury, that the questions by simply focusing on, was it open and apparent?

And so that, if the inquiry begins and ends with, was it open and apparent, you foreclose the longshoreman from ever looking at the negligence of the shipowner.

Unidentified Justice: Well, that's just the way the cookie crumbles under the statute, maybe.

Mr. Grutz: The statute does not talk about invitees, landbased law, independent contractor, et cetera.

It talks about maintaining the negligence action.

The legislative history talks about retaining the negligence action.

And the retention of the negligence standard, I would submit, means that if the shipowner has failed to exercise reasonable care to fix something... in other words, there is a duty to do something about it, it isn't simply to warn, it isn't simply to say, you should have seen it, therefore it's your problem.

Unidentified Justice: You seem to think that that would be enough under landbased law to warn him.

Mr. Grutz: Well, under the 343--

Unidentified Justice: You say, the regular landbased rule is inconsistent with your submission.

Mr. Grutz: --343 and 343(a) is; no question about that, Your Honor.

I don't know about other landbased law, but the ones that have been suggested here are definitely inconsistent--

Unidentified Justice: With your submission and with--

Mr. Grutz: --And with the statute.

Unidentified Justice: --Even though this committee report keeps referring to landbased standards.

Mr. Grutz: It's been suggested in some of these cases that the use of that term is not a term of art.

It is simply a descriptive term which differentiates the former seaworthiness warranty versus negligence.

And I think that's... if you read the two oil spill examples, it becomes clear, that what we're talking about--

Unidentified Justice: They might have been oil spill examples in department stores.

Mr. Grutz: --They could have been, absolutely.

Unidentified Justice: And, in that sense, the landbased rule and this rule would be the same.

Mr. Grutz: I am reluctant to say, yes, because I don't know what the landbased rule means, Your Honor.

I think that--

Unidentified Justice: Well, as a state court judge for a lot of years, I had a number of them.

Mr. Grutz: --I think that the state courts are all tending toward the duty of a person, of a landowner, to exercise reasonable care under the circumstances, which is exactly the standard of care which the 9th Circuit adopted in this case.

So that the tendency is that direction, Your Honor, even though there are remnants of the old, of the feudal idea that the landowner is king on his premises and nobody shall tread there, and he's in a special status.

Unidentified Justice: Well, if there is any landbased element or component to this new standard laid down in 1972 or preserved in 1972, as you say, would you say it changes as state law changes, or is it fixed as of 1972?

Mr. Grutz: I think if the Court adopts 343 and 343(a), it's dependent on state law, the law of--

Unidentified Justice: What if it doesn't?

Mr. Grutz: --Pardon?

Unidentified Justice: What if the Court--

Mr. Grutz: If it doesn't, I think the 9th Circuit test and the Kermarec test are statements of a test which are uniform and federal, and would--

Unidentified Justice: --Don't all the courts of appeals agree that the statute intended a uniform test?

Mr. Grutz: --Absolutely.

They want a uniform test.

The problem is that you... if you incorporate, generally speaking, the 343 and 343(a) test, we don't know the various ways in which it's been interpreted by all the different jurisdictions.

Unidentified Justice: But that's true of any number of possible negligence tests.

They may differ now or they may change in the future.

Mr. Grutz: That may be true, Your Honor, but I think what we've got with the 9th Circuit opinion is a negligence test that everyone can understand.

It's easy of application, it's simple, it's practical, and it's correct in the sense that there preserves the negligence action.

It does not bring into the picture the Sieracki doctrine again.

It has to be notice, either constructive or actual, in order for a longshoreman to recover.

And so that, I would submit, that the decision and the test which is stated by the 9th Circuit Court of Appeals is the correct one.

Unidentified Justice: Well, I suppose, in federal employer liability cases, in Jones Act cases, we have a single federal standard of negligence, don't we?

Mr. Grutz: Yes, sir.

Unidentified Justice: And that hasn't been affected by any state law changes in the negligence standards, if there have been any.

Mr. Grutz: That's correct, but I would assume it's because--

Unidentified Justice: Well, I gather your argument would be, if we can have it under those two statutes, surely we can have a uniform federal standard here.

Mr. Grutz: --Absolutely.

There's no question about it, but one way of doing it is not to incorporate by reference feudalism.

Unidentified Justice: Did you yourself advance the theory that the 9th Circuit adopted.

Mr. Grutz: Absolutely.

At the 9th Circuit it was asked, well what about all of these opinions?

Because most of the opinions were the other direction at that time, and I stated that I believed that they were in left field and that they simply were wrong.

You cannot reconcile 343 and 343(a) in its use of assumption of risk and contributory negligence with what Congress was saying here.

Congress said very clearly in the reports that assumption of the risk has no place in these cases and that contributory negligence has no place in these cases, and yet the district court in this case as a matter of law said that once Mr. Santos saw some danger, he was forever foreclosed from going any further.

Unidentified Justice: Under this standard is summary judgment really ever possible?

Mr. Grutz: Under the standard of the 9th Circuit?

Oh, yes, certainly there is, if there is... in other words, if a motion for summary judgment is brought as a respondent I would have the obligation of putting on some evidence that there was some notice to the shipowner of a defect.

Unidentified Justice: Mr. Grutz, it's agreed in this case, as I understand it, that the stevedore had control of the workplace.

Is that correct?

Mr. Grutz: No.

It isn't, Your Honor.

The Joint Appendix in, I think it's paragraph 7, page 11, the pretrial states that the... I think it says control of the workplace.

Unidentified Justice: It says,

"and particularly the foreman, hatchtender and winchdriver. "

--oh, the stevedore

"through its employees, and particularly. "

those employees,

"was in control of the loading at the No. 3 hatch on the evening of plaintiff's accident. "

Mr. Grutz: Right.

That's correct.

They were in control of the loading, but they were not in control of the winch.

They were in control, but they were allowed... pardon?

Unidentified Justice: Is it clear that they were not in control of the winch?

Mr. Grutz: Yes.

I think the regulation that I have cited in my brief indicates that in the case of a malfunctioning electrical winch, the stevedore company has absolutely no right to touch or try to repair that winch.

So the only person or entity that has the power to remedy what we advocate is going wrong on the ship at the time of this injury is the shipowner.

Unidentified Justice: As to whatever the stevedore had control, the analogy of a storeowner would be incomplete, would it not?

Mr. Grutz: The analogy of what, Your Honor?

I'm sorry.

Unidentified Justice: You discussed at one point a little earlier in the argument the possible analogy of a landbased store owner for, say, a grease spot on the floor, but in this case, to the extent that the stevedore company controlled the workplace, that would be different from a store, where the storeowner himself controlled the workplace.

Mr. Grutz: That's correct.

That's correct.

But, again, I think what you get down to is, what does the workplace mean?

What is the... I'm sorry... what does control mean?

Control over the workplace is different than control over the winch.

In other words, the ability to repair the difficulty was within... the shipowner.

Unidentified Justice: The finding here was that the stevedore had control of the loading at the No. 3 hatch on the evening of plaintiff's injury.

Mr. Grutz: Control of the loading, yes, sir.

But not control of the winch, not control of the ability to remedy the problem with the winch.

Unidentified Justice: Why shouldn't he have quit work?

Mr. Grutz: Why shouldn't he?

He probably should have, Your Honor.

Unidentified Justice: And he gets part time while he's waiting, doesn't he, while he's waiting for the winch to be repaired, isn't he paid part time or something?

Standby, isn't it the rule?

Mr. Grutz: That's not in the record, Your Honor.

I don't know the answer to that, to be honest with you.

Unidentified Justice: Well, but you just gave me the answer that he should have quit work.

Mr. Grutz: I said, perhaps he should have quit work.

Unidentified Justice: And if he'd have quit work, the longshoreman wouldn't have been working.

If the stevedore had said, we've got a bad winch here, I've got to tell the shipowner and wait till he fixes it, because I have no right to fix it.

Mr. Grutz: That's correct.

Unidentified Justice: So, what's... shouldn't it also be open to question as to whether the stevedore has the duty, as soon as reasonably possible, to notify a shipowner about a defective winch?

Why should it be left to, "should have known"?

Couldn't the stevedore have told him, as soon as he knew the winch was defective?

He knew it for 2-1/2 days.

Mr. Grutz: I think there is inference from the evidence that he did tell him, but it's an inference, I suppose.

Unidentified Justice: Why visit that responsibility on the injured longshoreman?

Mr. Grutz: Absolutely.

I don't think the injured longshoreman... in fact, there's evidence in this case the injured longshoreman didn't even know or appreciate what it was that the specific--

Unidentified Justice: Well, the longshoreman wants the money.

Mr. Grutz: --He was trying to do his job, he was working.

He was... he had a sense of duty to clean up a mess and that's what he was doing.

Unidentified Justice: Well, what if there was something that... what if this had gone on for a week?

You'll just say, well, there's all the more reason for the shipowner knowing it?

Mr. Grutz: I think there's... yes, sir.

I think there's all the more reason for the--

Unidentified Justice: You don't think there's ever... it never should make a difference if the stevedore didn't give notice to the shipowner about the defect?

Mr. Grutz: --Not in terms of the tort action, the negligence tort action between the shipowner and the stevedore individual.

Unidentified Justice: You mean the longshoreman?

Mr. Grutz: Injured longshoreman.

Unidentified Justice: Even though the longshoreman is covered by the Work-Pay Compensation Act?

Mr. Grutz: That's correct.

And I think that the statute, the discussion in the legislative reports, support that, Your Honor.

Unidentified Justice: I'm still puzzled.

I hate to reveal my ignorance about this question of notice to the vessel owner.

And, as Justice Powell pointed out, it's not like a store where you're in a public area.

Does the record tell us... and, again, maybe I should know this... whether personnel, rather, employees of the vessel owner were regularly aboard the ship during the loading operation?

Mr. Grutz: Yes.

There is some evidence in the record--

Unidentified Justice: And the various people who testified, as I understand it, are all longshoremen?

Mr. Grutz: --That's correct.

The only persons who testified are longshoremen.

And they testified that the representatives of the shipowner were back and forth in the area.

Unidentified Justice: I see, were back and forth, on and off?

Mr. Grutz: In the area.

Unidentified Justice: In places where they would have seen the winch, is that the theory that?

Mr. Grutz: Yes.

Unidentified Justice: It isn't as though it was a fully manned vessel with a lot of people representing the vessel, is it?

Mr. Grutz: The evidence, again, is... this was summary judgment, Your Honor, so there isn't very much evidence.

But the evidence is that the representatives of the shipowner were back and forth in the area where this was going on.

Unidentified Justice: But... I see.

Mr. Grutz: And there's also evidence that on the first day the winch driver reported to his supervisor that the winch was jumpy, it was not holding, the brakes were not holding, and at that time he was told that the day shift was having trouble with it too, but that they could not do anything with it.

And I think there's an inference that the "they" that they're talking about was the shipowner.

Because "they" were the only ones who had the ability.

Thank you.

Chief Justice Burger: Very well, Mr. Staring.

ORAL ARGUMENT OF GRAYDON S. STARING, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Staring: May it please the Court:

There was discussion here as to whether the passage of time should be taken as charging the vessel, passage of time alone should be taken as charging the vessel with notice of a defect.

That was exactly the problem in the Albanese case which we cited in our brief, where the trial court charged the jury that if it determined the condition had existed long enough, to charge the shipowner with notice of it; they could hold the shipowner.

The Court of Appeals for the 2nd Circuit said, that was erroneous.

This Court said, we believe the judgment of the Court of Appeals was erroneous, and therefore set it aside, citing as the single case of Gutierrez v. Waterman Steamship, which was aptly cited for the purpose.

This was one of the cases which was cited as in the legislative history as one which... it was not supposed to happen again, in principle at least.

Now, the Gutierrez case, which had been cited here as authority for the Albanese case, was a case which itself explicitly rested upon nondelegable duty.

Well, this Court said, as a basis for its decision, the shipowner had an absolute and nondelegable duty of care toward petitioner and not to create this risk for him.

And you were dealing with negligence at that time.

There are, however, other negligence cases, not so many for the reason that Mr. Justice Stewart and others pointed out, but there are other negligence cases before 1972, which we have cited in the brief and which we submit are harmonious with the formulation of duty which the restatement would lay down and which we have adopted here.

Unidentified Justice: May I just interrupt you right there?

As I understood your opening argument, you did not buy 100 percent the restatement's formulation of the standard of duty.

Mr. Staring: No.

I said, we don't have to buy it.

Unidentified Justice: You don't have to?

Well, is there anything in the written materials that tells us precisely what your position is?

Mr. Staring: Yes, indeed, Your Honor.

We have stated--

Unidentified Justice: Because I sort of had the view you were adopting the restatement position.

Mr. Staring: --No.

We have stated it separately, and not in restatement terms, and we feel it can be reconciled or can be supported by the restatement, by any of a number of other sources.

The oil spill was discussed and I'd like to point out that as we read the oil spill illustration, it illustrates the difference between unseaworthiness before and negligence after.

And where it refers to notice, what it means is that in negligence notice is necessary, but it doesn't mean that notice is always sufficient.

There are instances, of course, in which the vessel owner would be held for the oil spill, and instances in which he wouldn't.

It depends on whether the spill is obvious or not, whether it's in an area that's under the control of the stevedore, whether it was created by the vessel's personnel, when it was created, and so on.

If it's an oil spill in an area over which the vessel has retained essential control but which longshoremen have to pass through, that presents an entirely different situation and one which arises in the course of work.

So, there's no pat result so far as oil spills are concerned.

Finally, it was suggested... it's been suggested that there was a big difference here, whether... as to what rule you might apply to the stevedore and to the longshoreman himself.

And I'd like to suggest that, as was explicitly said by this Court in Federal Marine Terminals v. Burnside, if Kermarec does mean anything in these circumstances in abolishing the distinction between licensees and invitees and other irrational distinctions, it means as was pointed out in Federal Marine Terminals v. Burnside that the same rule of duty, the same duty of care applies to the stevedore contractor and to his employees and that that distinction should not be made.

That was quite explicit there.

The fortuity, finally, of presence of someone on the vessel should not determine the duty.

There is no duty to be there and inspect, as this Court recognized in West, and therefore no special duty because one happens to be there.

Thank you, Your Honors.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.