Gebhard v. S.S. Hawaiian Legislator , 425 F.2d 1303 ( 1970 )

EUGENE A. WRIGHT, Circuit Judge

(dissenting from Part III):

I disagree with the Court’s treatment of unseaworthiness jurisdiction.

Two things, I suppose, are common ground here. First, that unseaworthiness is a creature of maritime law, and that no cause of action for unseaworthiness will lie when a basis for admiralty jurisdiction is lacking. I do not understand the majority to question this proposition. Second, that under the traditional rules first enunciated in DeLovio v. Boit, 7 Fed.Cas. pp. 418, 444, No. 3,776 (C.C.D.Mass.1815), there is in this case no basis for admiralty jurisdiction. For under those rules, the jurisdiction of the admiral in tort is limited to injuries occurring on navigable waters. Here the injury took place on a pier, traditionally considered an extension of the land. Rodrigue v. Aetna Casualty and Surety Co., 395 U.S. 352, 360, 366, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969); Swanson v. Marra Bros., Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946); T. Smith & Son v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520 (1928). Nor does plaintiff seek to recover on the basis of any contract, maritime or otherwise. Cf. Sanderlin v. Old Dominion Stevedoring Corp., 385 F.2d 79 (4th Cir. 1967).

Plaintiff’s counsel apparently recognized the futility of attempting to bring himself within the traditional bounds of admiralty jurisdiction. He has based his claim of jurisdiction here solely on the Extension of Admiralty Jurisdiction Act of 1948, 46 U.S.C. § 740. By that act, Congress sought to mitigate some of the rigors which the strict locality rule had imposed, and conferred jurisdiction on federal courts to hear cases where the injury is “caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.”

In the court below, and at argument here, plaintiff’s counsel relied on some of the rather broad language in Gutierrez v. Waterman S.S.Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1962), as conferring jurisdiction under the Extension Act. But in the interim between argument and decision, the Supreme Court decided Nacirema Operating Co. v. Johnson, 396 U.S. 212, 90 S.Ct. 347, 24 L.Ed.2d 371 (1969), and once again construed the Extension Act.

The issue was whether the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, 33 U.S.C. §§ 901-950, should be extended to cover longshoremen injured on a pier. The argument was that the Longshoremen’s Act had been intended to reach to the limits of admiralty jurisdiction, and that the Extension Act as interpreted in Gutierrez v. Waterman S.S. Corp., supra, had made longshoremen injured on a pier subject to admiralty. The Supreme Court rejected the contention:

“There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship. But even construing the Extension Act to amend the Longshoremen’s Act would not effect this result, since longshoremen injured on a pier by pier-based equipment would still remain outside the Act. And construing the Longshoremen’s Act to coincide with the limits of admiralty jurisdiction — whatever they may be and however they may change — simply replaces one line with another whose uncertain contours can only perpetuate on the landward side of the Jensen line, the same confusion which previously existed on the seaward side.” Justice White’s observation could not

have been casual or unintended. For the court below, whose judgment the Supreme Court reversed, had as an alternate ground of decision relied on the Extension Act to expand coverage under the Longshoremen’s Act. Marine Stevedoring Corp. v. Oosting, 398 F.2d 900, 906 (4th Cir. 1968). Judge Sobeloff suggested that the alternative to so construing the Longshoremen’s Act was the toleration of a series of “harsh and incongruous” differences in treatment of similarly-situated harbor workers. Id. at 907. The point of Justice White’s remark, then, was that even were the Longshoremen’s Act construed as incorporating the Extension Act, the incongruities feared by the Fourth Circuit would not be lessened. Uniform treatment of longshoremen’s injuries could not be achieved, since even under the Extension Act injuries on a pier resulting from pier-based equipment are not cognizable in admiralty — even though they occur in connection with the loading or unloading of a ship. Justice White’s construction of the Extension Act was thus central to his rejection of the reasoning below.

I should have thought the Supreme Court’s construction of the Extension Act sufficient to dispose of plaintiff’s unseaworthiness claim. For it is conceded that the injury here occurred “on a pier.” And the only equipment alleged to be not reasonably fit for its intended use is “pier-based” — namely, the straddle carriers.¹

Indeed, the majority implicitly concedes the inapplicability of the Extension Act — the only basis for jurisdiction asserted in this court or in the court below —by declining to rely on it. Instead, the majority enunciates the novel doctrine that a maritime “status” alone is a sufficient basis for admiralty jurisdiction — independent both of the traditional rules and of the Extension Act. I think it can be shown that none of the cases relied on provide reasoned support for the majority’s theory

The majority first claims, as an instance of “status” jurisdiction in admiralty, the seaman’s ancient right to maintenance and cure. But ever since it was introduced into our law by Justice Story in Harden v. Gordon, 11 Fed. Cas. p. 480, No. 6,047 (C.C.D.Me.1823), the right to maintenance and cure has been thought to arise ex contractu. 11 Fed.Cas. at p. 481. The shipowner’s liability for maintenance and cure for injuries ashore thus represents no exception — “status” or otherwise — to the traditional rules, but merely an application of the doctrine that admiralty jurisdiction over contracts exists, without regard to locality, whenever the contract is maritime in nature. DeLovio v. Boit, supra; Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1, 20 L.Ed. 90 (1871).

True, liability for maintenance and cure rests on the policy of the law, rather than on any consent of the shipowner. Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932). But the obligation is thereby no less contractual in origin, any more than the obligation not to enforce a penalty for breach of contract ceases to be contractual because it rests on social principle rather than the whim of the parties.

The Supreme Court has consistently recognized the contractual basis of maintenance and cure. Three years before Sieracki, Mr. Justice Rutledge himself stated that the obligation was “an implied provision in contracts of marine employment” and was “[c]reated * * with the contract of employment.” Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 63 S.Ct. 930, 934, 87 L.Ed. 1107 (1943). Ten years later, in Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953), Mr. Justice Black reiterated the point, discussing the case of a stevedore injured on shipboard:

“ * * * Hawn was not a crew member. He was not employed by the ship. The ship’s crew were not his fellow servants. Having no contract of employment with the shipowner, he was not entitled to maintenance and cure.”

346 U.S. at 413, 74 S.Ct. at 207 (emphasis added). Accord, Lauritzen v. Larsen, 345 U.S. 571, 588, 73 S.Ct. 921, 97 L.Ed. 1254 (1953). And the teaching of the Supreme Court has been consistently followed by lower federal courts, including this one. Clinton v. Joshua Hendy Corp., 264 F.2d 329, 334 (9th Cir. 1959); Medina v. Erickson, 226 F.2d 475, 484 (9th Cir. 1955); Mc-Corpen v. Central Gulf S.S. Corp., 396 F.2d 547 (5th Cir. 1968); Turner v. Wilson Line, 242 F.2d 414, 417 (1st Cir. 1957).

Second, since maintenance and cure rests on contract, it is clear that Chief Justice Stone’s opinion in O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596 (1943), which relied exclusively on the analogy to maintenance and cure in justifying recovery under the Jones Act for seamen’s injuries ashore, should be taken to hold that Congress in passing the Jones Act relied on its constitutional power over maritime contracts of employment. “Since a workmen’s compensation act combines elements of both tort and contract, Congress need not [test] coverage by locality alone.” Nacirema Operating Co. v. Johnson, 396 U.S. 212, 215 n. 7, 90 S.Ct. 347, 24 L.Ed. 2d 371 (1969). Hence the jurisdictional basis of the Jones Act is contractual, although the form of liability imposed ■ might be said to be tortious in the sense that recovery is predicated on the shipowner’s negligence.

The contractual basis of Jones Act jurisdiction appears not only from the face of the Act, which covers only injuries received by a seaman “in the course of [his] employment.” It appears also in the well-settled rule that recovery may be had only against the seaman’s employer. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 787 n. 6, 69 S.Ct. 1317, 93 L.Ed. 1692 (1949); Paduano v. Yamashita Kisen Kabushiki Kaisha, 221 F.2d 615 (2d Cir. 1955); Southern Shell Fish Co. v. Plaisance, 196 F.2d 312 (5th Cir. 1952); Gilmore & Black, Admiralty § 6-21 (1957). And there is nothing to the contrary in International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926) or Uravic v. F. Jarka Co., 282 U.S. 234, 51 S.Ct. 111, 75 L.Ed. 312 (1931), cited by the majority. True, in those cases there was “no contract between the shipowner and the longshoreman.” But recovery was not had from the shipowner; it was had from the stevedoring company whose employee the injured longshoreman was. Hence there was ample contractual basis to support a J ones Act recovery.²

Third, even if the Jones Act is said to rest, not on congressional power over maritime contracts, but on the general congressional power to modify maritime law, Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932); Panama R.R. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748 (1924), the Act provides no support for a judicial abrogation of traditional admiralty rules. That was the fallacy of Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (2d Cir. 1950), the case principally relied upon by the majority and the only appellate holding prior to this one to enunciate the majority’s theory.

Judge Hand, speaking for himself and Judge Frank, began by assuming that unseaworthiness was a tort. Since the plaintiff in Strika had been injured ashore, Judge Hand conceded that there would have been no admiralty jurisdiction under the traditional rules. “We should have found this a serious obstacle [to jurisdiction],” he continues,

“were it not for O’Donnell v. Great Lakes Dredge & Dock Co., supra, and the ratio decidendi of Swanson v. Marra Brothers, Inc., supra; but those decisions appear to us to settle it that such a tort, arising as it does out of a maritime ‘status’ or ‘relation’, is cognizable by the maritime law whether it arises on sea or on land. For it seems to us to follow, if Congress has power to impose liabilities in favor of seamen for lapses of care on shore, that Congress at least would have power to impose a similar liability when the lapse is in furnishing a seaworthy ship. It is true that Congress has not intervened as to seaworthiness; yet there is no more reason to circumscribe more narrowly the duty, which The Osceola, supra, established as part of the maritime law, than the Constitution circumscribes the power of Congress, for both in the end are based upon the same provision.” 185 F.2d at 558.

The opinion in Strika is entitled to more than usual weight, as having behind it the authority of a great judge. But even Homer nods, and the quoted passage, on which the opinion rests, is no less a non sequitur because it seemed convincing to Judge Hand.

It may be true, as Judge Hand suggests, that O’Donnell held the Article III grant of admiralty and maritime jurisdiction to be somewhat broader than the traditional judge-made rules. No doubt in the interval between traditional limits and the constitutional boundary, Congress can act to extend admiralty jurisdiction. Perhaps the Jones Act is an instance. The Extension Act certainly is. But from this congressional power to extend admiralty jurisdiction it does not follow that a court — especially an inferior court — can or should depart from well-settled rules and expand its jurisdiction to the very brink of the constitutional limits.

The error of the opinion in Strika, an error now perpetuated by this court, was to overlook the well-established and fundamental distinction between constitutional grants of jurisdiction and traditional limits on its exercise, whether judge-made or statutory. Romero v. International Terminal Operating Co., 358 U.S. 354, 379-380, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); National Mut. Ins. Co. of District of Columbia v. Tidewater Transfer Co., 337 U.S. 582, 613, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949) (concurring opinion); 1 J. Moore, Federal Practice ¶ 0.60 [2]. Federal jurisdiction has historically, and wisely, been restricted to a range much narrower than the Constitution permits. No one suggests that the rules in Strawbridge v. Curtiss, 7 U.S. (3 Crunch) 267, 2 L.Ed. 435 (1806) (complete diversity), or in Oakley v. Goodnow, 118 U.S. 43, 6 S.Ct. 944, 30 L.Ed. 61 (1886) (no removal though assignment is merely colorable), or in Joy v. City of St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776 (1906) (no federal question merely because land is under a federal patent), or in Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908) (federal question must be in complaint, not answer), or in City of Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941) (realignment of parties), are required by the Constitution, or that Congress could not alter in an instant these judge-made doctrines. But by the same token no one would suggest that a Court of Appeals could or should depart from settled law merely because Congress could do so if it chose. No more may settled rules of admiralty jurisdiction now be altered by a court.

Besides Strika, the majority cites only three District Court cases. Di Paola v. International Terminal Operating Co., 294 F.Supp. 736 (S.D.N.Y.1968), is from the Second Circuit, and hence can add no weight to the Court of Appeals’ holding in Strika. In any event, the decision is hardly persuasive since jurisdiction was held to be lacking.

Hagans v. Ellerman & Bucknall S.S. Co., 196 F.Supp. 593 (E.D.Pa.1961), and Litwinowicz v. Weyerhaeuser S.S. Co., 179 F.Supp. 812 (E.D.Pa.1959), did rely on Strika, but in both those cases, as in Strika itself, there was jurisdiction under the Extension Act, apart from any theories as to “status.” In Hagans, the defective equipment was a cargo container, clearly vessel-based rather than pier-based; in Strika and Litwinowicz, the accident resulted from misattachment of the ship’s winches. The instant case, it should be emphasized, is the first to apply the “status” doctrine to a situation outside the purview of the Extension Act.³

Finally, I can see no compelling reason of social policy to justify the majority’s departure from settled jurisdictional rules. Plaintiff here is entitled to compensation under the California Workmen’s Compensation Act, Cal.Labor Code § 3201 et seq. We are not entitled to assume that such compensation is niggardly or unjust.

Nor can the result be explained by modern theories of risk distribution. Whatever may have been the validity of the assumption in Sieracki that the shipowner’s absolute liability for loading-related injuries was justified because of his ability to pass on to others the necessary costs of the shipping business, that assumption has now been eroded by Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1953) and Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964). For under the latter decisions the shipowner as a practical matter pays none of the costs of the longshoreman’s injury, but passes it on to the stevedoring company. The effect is to subvert entirely the principle that ultimate liability for industrial injury should rest with the dominant entity in the enterprise. It is the equivalent, in products liability terms, of absolving General Motors from responsibility for automobile defects, and putting the full burden on the local car dealer. Where this result is compelled by precedent we are of course bound to achieve it. But under the circumstances, I think both precedent and sound policy militate against the unlimited expansion of jurisdiction over unseaworthiness.

1 . There is, of course, no obstacle in Nacirema to jurisdiction over the plaintiff’s claim for negligence. Cf. Part I, supra. For in legal contemplation an injury that is the product of negligence does not result from the physical object which inflicts it but from the negligent act or omission which was its proximate cause. Hence insofar as plaintiff’s claim of negligence is concerned, he cannot be said to have been injured by pier-based equipment ; his cause of action rests rather on the shipowner’s allegedly negligent failure to alter the conditions of the loading operation.

The same cannot be said of the claim for unseaworthiness. For such a cause of action rests not on any act or omission of the shipowner, but simply on the fact that a particular piece of equipment was not reasonably fit for its intended use. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). Hence when that piece of equipment is “pier-based,” Nacirema stands as a bar to jurisdiction.

2 . The cases would provide no support for the majority’s theory even had they permitted recovery by a longshoreman directly against the shipowner. For Congress might constitutionally exercise its authority over maritime contracts to define the rights of two parties not directly linked by contract, provided that each of the parties involved was linked by contract to a third, and that both of the latter contracts were maritime. Thus an exercise of congressional jurisdiction over the shipowner-stevedore contract and the stevedore-longshoreman contract — both maritime in nature — could justify a direct recovery by the longshoreman against the shipowner.

3 . Other eases which have permitted recovery for unseaworthiness without reference to jurisdiction based on “status” provide slight support for the majority’s conclusion. For, with the exception of Spann v. Lauritzen, 344 F.2d 204 (3d Cir. 1965), and Byrd v. American Export Isbrandtsen Lines, 300 F.Supp. 1207 (E.D.Pa.1969), which followed Spann, none of them involved any violation of the limits imposed by the traditional jurisdictional rules and the Extension Act. Thus in Huff v. Matson Navigation Co., 338 F.2d 205 (9th Cir. 1964) and Deffes v. Federal Barge Lines, 361 F.2d 422 (5th Cir. 1966) there was no need to consider jurisdiction at all, the injuries having occurred on board a vessel. In Gutierrez v. Waterman S.S. Co., supra; Thompson v. Calmar S.S. Corp., 331 F.2d 657 (3d Cir. 1964); American Export Lines v. Revel, 266 F.2d 82 (4th Cir. 1959); Hagans v. Farrell Lines, 237 F.2d 477 (3d Cir. 1956); and Robillard v. A. L. Burbank & Co., 186 F. Supp. 193 (S.D.N.Y.1960), all of which relied on the Extension Act, the injury was on a pier, but the injury-causing equipment could not reasonably have been said to be pier-based: in Gutierrez, Revel, and Robillard, it was cargo or cargo containers ; in Thompson and Hagans, a ship’s winch. Jurisdiction was not discussed in Partenweederei, MS Belgrano v. Weigel, 299 F.2d 897 (9th Cir. 1962), but was crystal-clear under the Extension Act, plaintiff having been struck by the ship’s boom.