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WARREN v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Argued January 2, 1951.
Decided February 26, 1951.
Petitioner, a messman on a ship owned by the United States, went ashore on leave while the vessel was at Naples. He and two other members of the crew did some sightseeing, drank a bottle of wine together, and then spent an hour and a half at a dance hall. A room adjoining the dance hall and overlooking the sea had French doors opening onto an unprotected ledge. Petitioner stepped onto the ledge, grasped an iron rod which seemed to be attached to the building, and leaned forward to take a look. The iron rod broke off and petitioner lost his balance, fell, and broke his leg. Held: Petitioner was entitled to recover from the United States for maintenance and cure. Pp. 525-530.
In a suit by petitioner for maintenance and cure, the District Court awarded maintenance. 75 F. Supp. 210, 76 F. Supp. 735. The Court of Appeals disallowed it. 179 F.2d 919. This Court granted certiorari. 340 U.S. 806 . Reversed, p. 530. [340 U.S. 523, 524]
Saul Sperling and Charles A. Ellis argued the cause and filed a brief for petitioner.
Leavenworth Colby argued the cause for the United States. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Clapp, James L. Morrisson and Samuel D. Slade.
Walter X. Connor and Vernon Sims Jones filed a brief for the United States Lines Company, as amicus curiae, urging affirmance.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner seeks in this suit maintenance and cure from the United States, as owner of S. S. Anna Howard Shaw. Petitioner was a messman who went ashore on leave while the vessel was at Naples in 1944. He and two other members of the crew first did some sightseeing. Then the three of them drank one bottle of wine and went to a dance hall, where they stayed an hour and a half, dancing. There was a room adjoining the dance hall that overlooked the ocean. French doors opened onto an unprotected ledge which extended out from the building a few feet. Petitioner stepped to within 6 inches of the edge and leaned over to take a look. As he did so, he took hold of an iron rod which seemed to be attached to the building. The rod came off and petitioner lost his balance and fell, breaking a leg.
The District Court awarded maintenance. 1 75 F. Supp. 210, 76 F. Supp. 735. The Court of Appeals disallowed it. 179 F.2d 919. The case is here on certiorari. [340 U.S. 523, 525]
The Shipowners' Liability Convention, proclaimed by the President Sept. 29, 1939, 54 Stat. 1693, provides in Art. 2:
There is support for petitioner's first point in the concurring opinion of Chief Justice Stone in Waterman Steamship Corp. v. Jones, 318 U.S. 724, 738 . 2 But we think the preferred view is opposed. Our conclusion is that the exceptions permitted by paragraph 2 are operative by virtue of the general maritime law and that no Act of Congress is necessary to give them force.
The language of paragraph 2, in its ordinary range of meaning, easily permits that construction. It is "national laws or regulations" which may make exceptions. The term law in our jurisprudence usually includes the rules of court decisions as well as legislative acts. That was held in Erie R. Co. v. Tompkins, 304 U.S. 64 , to be true of the phrase "the laws of the several states" as used in the first Judiciary Act. 1 Stat. 73, 34. No reason is apparent [340 U.S. 523, 527] why a more restricted meaning should be given "national laws or regulations." The purpose of the Convention would not be served by the narrow meaning. This Convention was a product of the International Labor Organization. 3 Its purpose was to provide an international system of regulation of the shipowner's liability. That international system was aimed at providing a reasonable average which could be applied in any country. 4 We find no suggestion that it was designed to adopt a more strict standard of liability than that which our maritime law provides. The aim indeed was not to change materially American standards but to equalize operating costs by raising the standards of member nations to the American level. 5 If the Convention was designed to make absolute the liability of the shipping industry until and unless each member nation by legislative act reduced it, we can hardly believe some plain indication of the purpose would not have been made. Much of this body of maritime law had developed through the centuries in judicial decisions. To reject that body of law and start anew with a complete code would be a novel and drastic step. Under our construction the Convention provides a reasonable average for international application. The definition of the exceptions [340 U.S. 523, 528] itself helps provide the average, leaving the creation of the exceptions to any source of law which the member nations recognize. That view serves the purpose of the Convention and conforms to the normal meaning of the words used. Our conclusion is that both paragraph 1 and paragraph 2 of Art. 2 state the standard of liability which legislative and decisional law define in particularity.
The District Court held that petitioner's degree of fault did not bar a recovery for maintenance and cure. The Court of Appeals thought otherwise. The question is whether the injury was "due to the wilful act, default or misbehaviour" of petitioner within the meaning of Art. 2, paragraph 2 (b) of the Convention. The standard prescribed is not negligence but wilful misbehavior. In the maritime law it has long been held that while fault of the seaman will forfeit the right to maintenance and cure, it must be "some positively vicious conduct - such as gross negligence or willful disobedience of orders." The Chandos, 6 Sawy. 544, 549-550; The City of Carlisle, 39 F. 807, 813; The Ben Flint, 1 Biss. 562, 566. And see Reed v. Canfield, 1 Sumn. 195, 206. In Aguilar v. Standard Oil Co., 318 U.S. 724, 731 , we stated the rule as follows: "Conceptions of contributory negligence, the fellow-servant doctrine, and assumption of risk have no place in the liability or defense against it. Only some wilful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection."
The exception which some cases have made for injuries resulting from intoxication (see Aguilar v. Standard Oil Co., supra, p. 731, notes 11 and 12) has no place in this case. As the District Judge ruled, the amount of wine consumed hardly permits a finding of intoxication. Petitioner was plainly negligent. Yet we would have to strain to find the element of wilfulness or its equivalent. He sought to use some care when he looked down from the [340 U.S. 523, 529] small balcony, as evidenced by his seizure of the iron bar for a handhold. His conduct did not measure up to a standard of due care under the circumstances. But we agree with the District Court that it was not wilful misbehavior within the meaning of the Convention.
Finally it is suggested that the injury did not occur "in the service of the ship," as that term is used in paragraph 2 (a) of Art. 2 of the Convention. We held in Aguilar v. Standard Oil Co., supra, that maintenance and cure extends to injuries occurring while the seaman is departing on or returning from shore leave though he has at the time no duty to perform for the ship. It is contended that the doctrine of that case should not be extended to injuries received during the diversions of the seaman after he has reached the shore. Mr. Justice Rutledge, speaking for the Court in the Aguilar case, stated the reasons for extending maintenance and cure to shore leave cases as follows (pp. 733-734):
[ Footnote 2 ] Chief Justice Stone relied on the report of the Secretary of State to the President on the need for legislation implementing the Convention. The Secretary said in part: "Many of the provisions of the convention are considered to be self-executing, and there would appear to be no need to repeat verbatim the language of the convention in a statute to make it effective. Some of the articles of the convention, however, after stating the general rule, provide that national laws may make specified exceptions thereto. If this Government is to be excepted from certain obligations of the convention or alterations in our present practice, it is necessary to do so affirmatively by statute." H. R. Rep. No. 1328, 76th Cong., 1st Sess. 6.
The Secretary had the following to say about Article 2: "Section 4 follows the exceptions in article 2 of the convention which sets forth the risks covered in the entire convention. . . . Paragraph 1 of article 2 of the convention was not incorporated in the bill because of the belief (1) that it is self-executing in that it establishes liability, although no definite amount is provided; and (2) that it will not be held by the courts to conflict with present law in this country." Id., p. 6.
The implementing legislation was passed by the House, 84 Cong. Rec. 10540, but not by the Senate. See Hearings, Subcommittee of the Committee on Commerce, U.S. Senate, on H. R. 6881, 76th Cong., 3d Sess.; S. Doc. 113, 77th Cong., 1st Sess.; 87 Cong. Rec. 7434.
[ Footnote 3 ] See Fried, Relations Between the United Nations and the International Labor Organization, 41 Am. Pol. Sci. Rev. 963; Dillon, International Labor Conventions (1942); Shotwell, The Origins of the International Labor Organization (1934).
The United States became a member of the International Labor Organization on August 20, 1934. See U.S. Treaties, Treaty Series, No. 874.
[ Footnote 4 ] See International Labor Conference, Proceedings, Thirteenth Sess. (1929), 131.
[ Footnote 5 ] The report of the Secretary of State recommending ratification of the Convention emphasized that the treaty (1) would not materially change American legal standards and (2) would raise standards of member nations to the American level and thus equalize operating costs. S. Exec. Rep. 8, 75th Cong., 3d Sess. 3.
MR. JUSTICE JACKSON and MR. JUSTICE CLARK dissent on the ground that the injuries were not sustained in the service of the ship.
Aguilar v. Standard Oil Co., 318 U.S. 724 , held a seaman to be in the ship's service while going to or from the ship over premises at which the ship docked, even if the purpose of being ashore was leave from duty. The route of access was not the choice of the seaman, and access to the ship was held essential to the ship's service. [340 U.S. 523, 531] But the choice of places of refreshment and varieties of entertainment are the sailor's own. Unless his employment is a policy of accident insurance while on leave, recovery cannot be sustained in this case. That might be a wise rule of law but we think it one that should depend on legislation.
MR. JUSTICE FRANKFURTER, dissenting.
We brought this case here because it involved construction of the Shipowners' Liability Convention, 54 Stat. 1693. As to that, I agree with the Court that the Convention does not afford any basis for libellant's claim. Assuming that Article 2 of the Convention is self-executing, a matter which I do not now have to decide, the exceptions permitted by paragraph 2 of that Article are operative by virtue of the general maritime law. But I am unable to agree that we should reverse the Court of Appeals on its application of the proper standard to the facts.
The District Judge gave this description of what happened: