Caldarola v. Eckert/Dissent Douglas
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice MURPHY concur, dissenting.
For the reasons stated in my separate opinion in Hust v. Moore-McCormack Lines, 328 U.S. 707, 734, 66 S.Ct. 1218, 1231, 90 L.Ed. 1534, I think that respondents were owners pro hac vice of the vessel since the business of managing and operating it was their business. They were, therefore, principals and liable to petitioner, a longshoreman who was injured while working on the deck of the vessel by reason of the breaking of a cargo boom, part of the ship's gear.
The Circuit Court of Appeals for the Second Circuit has reached the same result in a case decided since Hust v. Moore-McCormack Lines. In Militano v. United States, 2 Cir., 156 F.2d 599, that court held that the agent under the same form of operating agreement as we have here was owner pro hac vice. Swan, J., speaking for the court, said in reference to the Hust case, 156 F.2d at page 602, 'If the agent remains the employer sufficiently to be liable to members of the crew under the Jones Act, we think it cannot escape the duties of an owner pro hac vice in other respects. Thus it has the duty to furnish stevedores with a safe place to work, a duty which is analogous to that owed by a landowner to a business visitor.' The Court does not essay to answer that argument; nor does it address itself to the facts which I reviewed in the Hust case and which establish that the business of managing and operating the vessel was the business of the agent. It avoids analysis of the actual arrangement by viewing with alarm the consequences to the Government of such a holding as applied in other situations. But we are here concerned with private rights which press for recognition. It is no answer to the legal argument on which those private rights rest that the Government might be inconvenienced if they were recognized. It is plain under this operating agreement that the United States is merely the underwriter of the financial risks of the venture while the private operator performs the managerial functions in the usual way. To call that government operation is to ignore the realities of the relationship. Whatever the consequences in other situations, it is shocking to find private operators getting immunity in this manner from their traditional liability for tort claims.
Mr. Justice RUTLEDGE, dissenting.
I agree with respondents' counsel and the Court that Hust v. Moore-McCormack Lines, 328 U.S. 707, 66 S.Ct. 1218, 90 L.Ed. 1534, does not rule this case. Nevertheless I cannot agree with the Court's view that either New York law of the so-called 'agency contract,' identical with that involved in the Hust case, immunizes respondents from the consequences of their negligence causing petitioner's injury.
The Hust case involved the rights of seamen, not of longshoremen.  Also it arose under the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688, whereas here liability is grounded upon maritime tort. And the Hust decision rested in part upon the effects of the so-called Clarification Act of 1943, 50 U.S.C.App. § 1291, 50 U.S.C.A.Appendix, § 1291, which has no bearing in this case, since seamen are not involved.
The Hust decision flatly rejected the view that the events there in question  had been effective to strip the seaman of his various preexisting remedies, replacing them with the single remedy of suit provided by the Suits in Admiralty Act.  46 U.S.C. § 742, 46 U.S.C.A. § 742. The necessary result was to preserve not merely the seaman's rights under the Jones Act but also his other preexisting ones.  For if the conjunction of events put forward in the Hust case as having made the Suits in Admiralty Act remedy the only one available to the seaman was thus effective, the Jones Act remedy as well as others was thereby excluded. And if it was not excluded, neither were those others long possessed by seamen.  The Hust decision was therefore not merely a construction of the Jones Act. That Act was simply a specific fulcrum for turning the broader issue presented.
But seamen's rights are not longshoremen's rights and the events combining to present the question concerning seamen's rights in the Hust case were not conclusive upon longshoremen's rights. This is true although in some instances longshoremen, through legislation or by virtue of their succession to seamen occasioned by the industry's evolution in some phases of ship and shore duty, have been held entitled to similar protections. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208, 51 L.R.A.,N.S., 1157. The question in this case therefore is not one necessarily governed by the same considerations as applied in the cases of seamen covered by the Hust decision.
But, as the Court recognizes, it is one of maritime tort, although longshoremen rather than seamen are involved; and is moreover 'suable in the State courts by virtue of § 9 of the Judiciary Act of 1789 which saves 'to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." Notwithstanding the characterization as maritime tort, the Court skirts the question whether the source of the right is New York law or, on the contrary, is federal law for which New York, pursuant to § 9, merely supplies a means for enforcement. For in either event, it says, '(New York's) determination is decisive that there is no remedy in its courts for such a business invitee against one who has no control and possession of (the) premises.' From this conclusion I disagree. For, if the liability here is founded in federal law, as creating the maritime tort, then New York law has nothing to do with creating or nullifying the substantive right. Its sole function is to supply the remedy commanded by § 9 of the Judiciary Act. Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810. And in my judgment the liability here, since it arises from a maritime tort, is a creature of federal law in its entirety, not of state law.  I therefore do not agree that any substantive issues in the case 'exclusively concern New York law' or that in any respect that state's Court of Appeals 'had the final say in holding that one in the relation of the respondents to the petitioner is not liable for the tort of which the latter complains.' I do not understand how the Court can leave open the question whether New York law has a hand in creating the right sued on or one only in supplying a forum and remedy, and at the same time can rely on New York law as having any part in creating the right or nullifying it, as it seems to do. The result does not simply entangle state law with federal law in the substantive phase of the case. It entangles hypothetically applicable state law in one phase with federal law in another.
Regarding the case, as I do, as being controlled in its substantive aspect altogether by federal law, I do not think that law requires or should permit the result the Court reaches. Regardless of whether the so-called 'agency' contract makes the operating company an 'agent,' an 'owner pro hac vice,' or technically something else in relation to the United States, the federal maritime law in my opinion well might hold responsible to an injured longshoreman one who has knowledge that such persons will come aboard and who undertakes to keep the vessel and its equipment in safe condition for their use.  More especially should such a rule apply when the person so undertaking is the only one constantly on board to observe the creation of hazardous risks in the vessel's daily routines and, in addition, has such a degree of control over their creation as the 'agent' did here.
But, in any event, the same result should be reached on the basis of construction of the contract. Whether this is put upon the ground stated in the opinion of Mr. Justice DOUGLAS, that the 'agent' became owner pro hac vice, or in the view of the contract taken in the Hust case, with reference to application of the Jones Act, is largely immaterial, perhaps only a matter of words. 
That view, incorporating the rule of the Hearst case,  we have only recently extended to apply in cases of coverae of the § ocial Security Act, 42 U.S.C.A. § 301 et seq., and the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. United States v. Silk (Harrison v. Greyvan Lines), 331 U.S. 704, 67 S.Ct. 1463; Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473. While the liability here is not legislative in origin, nevertheless as in the Hust case, application of the common-law 'control' test to defeat the longshoreman's remedy under the state procedure, as provided by § 9 of the Judiciary Act of 1789, cannot 'be justified in this temporary situation unless by inversion of that wisdom which teaches that 'the letter killeth, but the spirit giveth life." 328 U.S. at page 725, 66 S.Ct. at page 1227, 90 L.Ed. 1534.
Finally, in my opinion, the terms of the agreement in its provisions for indemnity confirm the conclusion that liability of the 'agent' in such a case as this was contemplated. Not only is there broad indemnity 'for all expenditures of every kind made by it in performing, procuring or supplying the services, facilities, stores, supplies or equipment as required hereunder,' with specified exceptions not covering such liabilities as are now in question. The indemnity also expressly provided: 'To the extent not recovered from insurance, the United States shall also reimburse the General Agent for all crew expenditures (accruing during the term hereof) in connection with the vessels hereunder, including, without limitation, all disbursements for or on account of wages, extra compensation, overtime, bonuses, penalties, subsistence, repatriation, travel expense, loss or personal effects, maintenance, cure, vacation allowances, damages or compensation for death or personal injury or illness, and insurance premiums, required to be paid by law, custom, or by the terms of the ship's articles or labor agreements * * *.' (Emphasis added.)
as well as for payments made to pension funds and for social security taxes. This clause specifically contemplated that the 'agent' should be responsible for paying claims not only for maintenance and cure but also for 'damages or compensation for death or personal injury or illness,' and should be indemnified for such payment. A narrow construction, of course, would limit the provisions for payment and indemnity to payments made without resort to suit. On the other hand, even a literal interpretation would cover payments made by the 'agent' upon judgments recovered against it on claims of the character specified. I know of no good reason why the narrow view should be accepted or why the Government by its contract should desire to uproot seamen and others, including longshoremen insofar as they have acquired seamen's rights aboard ship, from their normally applicable remedies, in the absence of either explicit statutory command or express contractual provision to that effect. Moreover, in view of the scope of the indemnity provided, I see no possible harm that could be inflicted on the 'agent' from interpreting the contract so as to allow the normally applicable remedies to apply.
Accordingly, I would reverse the judgment of the Court of Appeals.
^1 Congress and the President, in the legislative and executive action taken in connection with the Merchant Marine and pertinent in the Hust case, were concerned with the rights of seamen, not primarily or perhaps even incidentally with those of longshoremen.
^2 In the Hust case, after noting the disruptive consequences for seamen's longsettled rights flowing from the view that they had been reduced for assertion to the single remedy provided by the Suits in Admiralty Act, we said: 'We may assume that Congress could authorize so vast a disturbance to settled rights by clear and unequivocal command. It is not permissible to find one by implication. Brady v. Roosevelt S.S.C.o., supra, 317 U.S. (575), at page 580, 63 S.Ct. (425), at page 428, 87 L.Ed. 471. Here the disruption, if it has occurred, has done so only as an implied result of the conjunction of the Suits in Admiralty Act's provisions with the Government's emergency action in taking over the shipping industry for war purposes.' 328 U.S. at page 722, 66 S.Ct. at page 1225, 90 L.Ed. 1534. No such intent, we said, could be found in any action of Congress, or of that body and the President, in exercising their powers to bring the industry under governmenta control; or in the Suits in Admiralty Act or the Jones Act as applied to the relation created by the 'agency' contract.
^3 See note 2.
^4 Confirmation of the conclusions summarized in note 2, supra, was found in the legislative history of the Clarification Act of 1943, 50 U.S.C.App. § 1291, 50 U.S.C.A.Appendix, § 1291, and particularly in the provision for election of remedies given by § 1, as to injuries accruing on or after October 1, 1941, and before March 24, 1943, the Act's effective date. Opinion was expressly reserved as to the effect of that Act concerning injuries occurring after its effective date. 328 U.S. at page 727, 66 S.Ct. at page 1228, 90 L.Ed. 1534.
^5 In the Hust case we said of the argument that the Suits in Admiralty Act remedy had become exclusively available for asserting seamen's rights that, with specified exceptions, 'the various rights of seamen, enforceable by various proceedings in admiralty and at law, in state and federal courts, are swept into one hopper, the suit against the Government * * *.' 328 U.S. at page 720, 66 S.Ct. at page 1224, 90 L.Ed. 1534.
^6 28 U.S.C. § 371, 28 U.S.C.A. § 371, derived from § 9 of the Judiciary Act of 1789, is a recognitio by Congre §§ that the states may exercise whatever jurisdiction the common law had concurrently with admiralty. See Waring v. Clarke, 5 How. 441, 460, 461, 12 L.Ed. 226. However, since 'It is not a remedy in the common-law courts which is saved, but a common-law remedy,' The Moses Taylor, 4 Wall. 411, 431, 18 L.Ed. 397, it has been held that where suit is brought under the saving clause the right to be enforced is that 'recognized by the law of the sea.' Chelentis v. Luckenbach S.S.C.o., 247 U.S. 372, 384, 38 S.Ct. 501, 504, 62 L.Ed. 1171. 'The general rules of the maritime law apply whether the proceeding be instituted in an admiralty or common-law court.' Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259, 42 S.Ct. 475, 477, 66 L.Ed. 927. The commentators recognize this to be the rule now, 1 Benedict on Admiralty (6th ed.) 53-55; Stumberg, Maritime Cases in Common-law Courts (1925) 3 Tex.L.Rev. 246; Mole and Wilson, A Study of Comparative Negligence (1932) 27 Corn.L.Q. 333, 353-355, though the matter seems not to have been decided prior to the Chelentis case. Cf. The Hamilton, 207 U.S. 398, 404, 28 S.Ct. 133, 134, 52 L.Ed. 264.
^7 'One who does an act or carries on an activity upon land on behalf of the possessor thereof, is subject to the same liability, and enjoys the same immunity from liability, for bodily harm caused thereby to others within and outside the land as though he were the possessor of the land.' Restatement, Torts, § 383.
'An agent who has the custody of land or chattels and who should realize that there is an undue risk that their condition will cause harm to the person, land, or chattels of others is subject to liability for such harm caused, during the continuance of his custody, by his failure to use care to take such reasonable precautions as he is authorized to take.' Restatement, Agency, § 355.
^8 In that case, assuming that the agreement made Hust, the injured seaman, an employee of the United States for purposes of ultimate control, in spite of the meticulous character of the differences between it and the Maritime Commission's standard contract, we said: 'But it does not follow from the fact that Hust was technically the Government's employee that he lost all remedies against the operating 'agent' for such injuries as he incurred. This case, like National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170, involves something more than mere application to the facts of the common-law test for ascertaining the vicarious responsibilities of a private employer for tortious conduct of an employee.' 328 U.S. at page 724, 66 S.Ct. at page 1226, 90 L.Ed. 1534.