Skovgaard v. The Vessel M/V Tungus

STALEY, Circuit Judge. This admiralty appeal urges upon us the contention that the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1, is broad enough to encompass an action for death based upon a breach of the warranty of seaworthiness. Carl E. Skovgaard met his death by suffocation and shock when he slipped and fell into a tank of heated coconut oil aboard the M/V Tungus. On December 5, 1952, the Tungus, with a cargo of [16] coconut oil, was docked at a pier in navigable waters at Bayonne, New Jersey.The respondent-impleaded El Dorado Oil Works agreed with the owners of the oil cargo in the port deep tank to discharge the oil from the vessel and to store it. Employees of El Dorado began to discharge the oil from the tank around 8:00 p. m. of December 5, 1952. Two officers and two crew members of the Tungus remained aboard on duty; the latter two were specifically assigned to assist El Dorado in the discharge operations. The pump owned by El Dorado and used in the operation was apparently in good working order until around 12:15 a. m., December 6. It was then that an air injection nipple burst, causing tons of hot coconut oil to be pumped directly onto the shelter deck of the Tungus. It was the crew of the vessel that first discovered the leak and took temporary steps to stop it. The deceased Skovgaard was a maintenance foreman of El Dorado. He was called from his home shortly after the leak developed to assist in repairing the pump. He arrived on board around 1:25 a. m. As-Skovgaard walked aft of the port tank, he stepped on the hatch beams and then attempted to step onto the top of the tank. He slipped on the spill and fell to his death in the hot oil. The suit was brought by Olga Skovgaard, administratrix of the estate of the deceased. Her libel pleads principally two causes of action, one predicated on unseaworthiness, the other on negligence. Both of these causes of action were based upon the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1. After trial was held, the district court dismissed the libel, deciding that an action for death by unseaworthiness did not lie in the general maritime law, and as to the negligence question, that the vessel owed no duty to the deceased to clean up the oil spill. D.C.N.J.1956, 141 F.Supp. 653. The impleading petition against El Dorado was dismissed; respondent took a precautionary appeal from this action. It is an established principle of maritime law that-in the absence of statute there is no remedy for wrongful death. The Harrisburg, 1886, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Levinson v. Deupree, 1953, 345 U.S. 648, 650, 73 S.Ct. 914, 97 L.Ed. 1319. “Death is a composer of strife by the general law of the sea as it was for many centuries by the common law of the land.” Justice Cardozo in Cortes v. Baltimore Insular Line, Inc., 1932, 287 U.S. 367, 371, 53 S.Ct. 173, 174, 77 L.Ed. 368. In an effort to obviate a plain inequity, Congress in 1920 enacted the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq., which provided a remedy in admiralty for death occurring more than a marine league from shore. This statute, of course, does not apply to death occurring on territorial waters. Nonetheless, when death occurs on navigable waters within a state whose statutes have created a cause of action for death by wrongful act, admiralty courts will entertain such an action by permitting the state statute to supplement the general maritime law. Western Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Just v. Chambers, 1941, 312 U.S. 383, 388, 668, 61 S.Ct. 687, 85 L.Ed. 903. It follows that whatever right appellant has in seeking redress for the death of Skovgaard must be based upon the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1, which reads as follows: “When the death of a person is caused by a wrongful act, neglect or . default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.” Appellant urges that unseaworthiness is a “wrongful act, neglect or default” within the meaning of the New Jersey Act. [17] We are of the opinion that the district court misconceived the nature of the first cause of action as a death action under general maritime law. It was in fact brought specifically under the New Jersey death act. In the determination of whether unseaworthiness is such a “wrongful act, neglect or default” as will admit of recovery, we must look to the construction given to the Act by the New Jersey courts. They have held that the Act is in the highest sense remedial, and is entitled to a liberal construction, for its aim was to abolish a harsh and technical rule of the common law. Haggerty v. Central Railroad Co., 1865, 31 N.J.L. 349; Cibulla v. Pennsylvania-Reading Seashore Lines, 1946, 25 N.J.Misc. 98, 50 A.2d 461. The nature of the conduct which will create liability under the New Jersey statute is of crucial importance. The legislature describes it as “wrongful act, neglect or default.” It is presumed that the legislature did not employ useless verbiage and that each word has independent meaning. Ford Motor Co. v. New Jersey Department of Labor and Industry, 1950, 5 N.J. 494, 76 A.2d 256, 260; 82 C.J.S. Statutes § 316 -at pages 551-552 (1953). The conduct required to impose liability, therefore, is not limited to that conduct embraced in the historical concept of negligence. The words encompass something more. See, e.g., The H. S., Inc., No. 72, 3 Cir., 1942, 130 F.2d 341; Judson v. Peoples Bank & Trust Co. of Westfield, 1954, 17 N.J. 67, 110 A.2d 24, 35-36. It is urged that since unseaworthiness is spoken of as a species of liability without fault, it cannot be a “wrongful act, neglect or default” within the meaning of the statute. However, the characterization of unseaworthiness as liability without fault is dangerously deceptive. For urgent and sound reasons of public policy, the law has imposed the absolute duty upon the shipowner to provide a seaworthy vessel, and liability results only as a consequence of the breach of that duty. If “fault” means negligence alone, of course no fault is required, and to that extent only, the phrase “liability without fault” is accurate. But to say that one who breaches a duty is without fault is a logical as well as a legal incongruity. The seaman possesses the legal right of a seaworthy ship. Whenever this legal right is infringed and harm results by reason of the ship being unseaworthy, a “wrong” occurs, whether it be of omission or commission. The Supreme Court of New Jersey has defined “wrongful act” as “any act which in the ordinary course will infringe upon the rights of another to his damage, except it be done in the exercise of an equal or superior right.” Louis Schlesinger Co. v. Rice, 1950, 4 N.J. 169, 72 A.2d 197, 203. Culpability is not necessary to constitute a wrong. It is the liability-creating quality of an act which makes it wrongful. If it be said that the New Jersey act provides redress for tortious conduct alone, we answer that providing an un-seaworthy ship is a tort. As was said in Strika v. Netherlands Ministry of Traffic, 2 Cir., 1950, 185 F.2d 555, 558: “It would follow from that analysis that the breach of the ‘obligation’ to furnish a seaworthy ship is a tort; and that is a result consonant with the historical attitude towards breaches of warranty, which until 1778 had to be sued in tort, and which may still be so treated if the distinction is important.” The New York Court of Appeals has decided in a food poisoning case that the breach of the warranty of fitness for human consumption, imposed by law upon considerations similar to the imposition of the warranty of unseaworthiness, is a “wrongful act, neglect, or default” within the New York wrongful death statute. Greco v. S. S. Kresge Co., 1938, 277 N.Y. 26, 12 N.E.2d 557, 560, 115 A.L.R. 1020. The New Jersey statute further refers to the “wrongful act, neglect, or default” as one “such as would, if death had not [18] ensued, have entitled the person injured to maintain an action for damages resulting from the injury.” This language may admit of alternative interpretation. It may be construed as defining the nature of the “wrongful act, neglect or default”— i. e., if the conduct would have been actionable by the decedent had he lived, by virtue of that very fact his named beneficiaries would have an action in the event of his death. Or the clause may be construed as a limitation or an additional requirement — i. e., the conduct upon which the suit is based must be such that decedent could have sued had he lived, in addition to being a “wrongful act, neglect or default.” In either interpretation, the statutory requirements are met by plaintiff here, for if Skovgaard had merely been injured he could have maintained an action against the vessel on the theory of unseaworthiness, since he was one “within the range of its humanitarian policy.” Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 95, 66 S.Ct. 872, 877, 90 L.Ed. 1099. We hold that the failure to provide a seaworthy vessel in the case before us is such “wrongful act, neglect or default” as will allow recovery under the New Jersey wrongful death statute.1 The same conclusion was reached by Judge Learned Hand in his dissenting opinion 2 in Gill v. United States, 2 Cir., 1950, 184 F.2d 49, 57: “ * * * Is a vessel owner liable for a seaman’s — or a longshoreman’s —death within the territorial waters of a state, when it is caused by the unseaworthiness of the vessel? / have no doubt that. the death was owing to the respondent’s ‘wrongful act, neglect or default,’ as the New ' Jersey Act uses those words * [Emphasis supplied.] The right thus created by the New Jersey statute may be enforced in a court of admiralty, for it is certainly “not hostile to the characteristic features of the maritime law or inconsistent with federal legislation.” Just v. Chambers, 312 U.S. at page 388, 61 S.Ct. at page 691, 85 L.Ed. 903. In Lee v. Pure Oil Co., 6 Cir., 1955, 218 F.2d 711, it was held that an action for unseaworthiness would not lie pursuant to the Tennessee wrongful death act. It must be noted, however, that the Sixth Circuit commented that the Tennessee Act allowed recovery only for negligence. To the extent that Graham v. A. Lusi, Limited, 5 Cir., 1953, 206 F.2d 223, and Mortenson v. Pacific Far East Line, Inc., D.C.N.D.Cal.1956, 148 F.Supp. 71 express views on similar statutes of other states contrary to those expressed in this opinion, we are in disagreement with them. As to the negligence question, the holding of the district court that no duty devolved upon the vessel Tungus to clean up the oil spill was predicated upon a finding of fact that the operation of repairing the pump was conducted by El Dorado, and that no evidence indicated that Tungus personnel either supervised or controlled the discharge of the oil. While it may be true that El Dorado supervised the pump repair operation, this would hardly lessen the duty of the vessel to provide a reasonably safe place to work, especially since El Dorado’s supervision was not so complete as to exclude crew members from the area. In fact, it was the crew which first discovered the oil leakage and adopted temporary [19] measures to stop it. The Chief officer of the Tungus testified that it was the custom to offer the assistance of ship personnel to independent contractors unloading the vessel. The personnel of the Tungus were well aware of the existence of the oil spill and the danger created by it. The assimilation by Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, of longshoremen to the position of seamen so far as unseaworthiness is concerned did not take away from the longshoreman his accustomed right to recovery on the theory of negligence. Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 413-414, 74 S.Ct. 202, 98 L.Ed. 143. Engaged in the work of unloading the ship, Skovgaard was a business invitee. See concurring opinion of Justice Frankfurter in Pope & Talbot, Inc. v. Hawn, supra, 346 U.S. at page 416, 74 S.Ct. at page 208; see also Santamaria v. Lamport & Holt Line, Err. & App.1938, 119 N.J.L. 467, 196 A. 706. It is relevant to note at this point that Skovgaard was called for the purpose of repairing the pump, not to clean up the oil spill. It is alleged that his death was caused by the condition of the deck and tank and not by the instrumentality he intended to repair. Cf. Broecker v. Armstrong Cork Co., Err. & App. 1942, 128 N.J.L. 3, 24 A.2d 194. The duty of providing Skovgaard with a reasonably safe place to work, Hawn v. Pope & Talbot, Inc., 3 Cir., 1952, 198 F.2d 800, 803, affirmed 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, would not be lessened even if there were a concurrent duty on the part of Skovgaard’s employer. Feinman v. A. H. Bull Steamship Co., 3 Cir., 1954, 216 F.2d 393. While the New Jersey wrongful death statute adopts the maritime standard of care, it is silent as to available defenses. It is not for us in the first instance, however, but rather for the trier of fact, to determine whether the vessel’s duty was breached and to decide factually what defenses, if any, might be available to the respondent. The question of the unseaworthiness of the vessel is likewise one which should be determined initially by the district court. The judgment of the district court dismissing the libel will be reversed, and the cause will be remanded for further proceedings in conformity with this opinion. The judgment of the district court also dismissed the impleading petition as a consequence of the dismissal of the libel. This will also be reversed inasmuch as the liability of the impleaded defendant cannot be determined until there has been a full and adequate development of the facts. Footnotes [1] It is interesting to note that this court has several times held in the determination of the question of laches in an action for personal injuries based upon unseaworthiness that the analogous statute of limitations to be applied is the Pennsylvania two-year statute which uses language substantially similar to the New Jersey Wrongful Death Act. The time limitation is imposed in actions for injury “wrongfully done to the person.” Act of June 24, 1895, P.D. 236, § 2, 12 Purdon’s Pa.Stat.Ann. § 34. See Kane v. Union of Soviet Socialist Republics, 3 Cir., 1951, 189 F.2d 303, certiorari denied 1952, 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676; and Taylor v. Crain, 3 Cir., 1952, 195 F.2d 163. [2] The disposition by the majority rendered a decision on this issue unnecessary.