Waterman, Moore and Kaufman, Circuit Judges. Moore, Circuit Judge (concurring).
Petition for rehearing denied. Judge MOORE concurs in the denial of the petition for the reasons set forth in his memorandum.
MOORE, Circuit Judge (concurring):
The defendant-appellant Moore-McCormack Lines, Inc., seeks by petition a rehearing and reconsideration of the opinion and decision of this court (August 1, 1967) in Candiano v. Moore-McCormack Lines, Inc., 382 F.2d 961, which resulted in an affirmance of a judgment entered on March 16, 1966, in favor of the plaintiff against appellant, for personal injuries sustained aboard a ship owned by appellant. The appeal was argued on December 13, 1966. The principal ground for rehearing is the claim that this court misinterpreted the Supreme Court's decision in Mascuilli v. United States, 387 U.S. 237, 87 S. Ct. 1705, 18 L. Ed. 2d 743 (May 22, 1967) in relying upon that decision as a basis for affirmance herein. In my opinion, petitioner claims quite properly that Mascuilli being undecided at the time of the filing of its brief and of the oral argument, it had no opportunity to present its views as to the effect, if any, of Mascuilli upon this case.
On the same day (August 1, 1967) as this Court decided the Candiano case, it handed down its decision in Alexander v. Bethlehem Steel Corporation, 382 F.2d 963. The issues presented are substantially similar. In the petition for a rehearing en banc in Alexander, counsel claim that "this Court has been misled by the incorrect presentation of the supposed issue before the Supreme Court in Mascuilli as printed in 35 U.S.L.W. 3052." Reference is made to the three specific questions contained in the petition for certiorari in Mascuilli and the argument is made that the Supreme Court's granting of the writ and reversing the judgment does not justify an assumption that that Court has rejected "the doctrine of 'operational negligence' * * * as a factor in the determination of liability."
Before considering whether a rehearing would or should alter the decision, a brief review of the factual situations upon which liability is asserted must be made.
In Alexander the concatenation of events was the lowering of the steel by the crane operator and the striking by the steel of the protruding dunnage. If the dunnage had not been protruding, the possibly too-rapid lowering would not have been of consequence. If a superabundance of caution had been exercised in the lowering operation, probably the dunnage would not have been propelled through the air so as to strike the plaintiff. The jury's findings of no negligence by the shipowner and of unseaworthiness establish the basis of that judgment.
In Candiano the beam fell because the hooks securing it to the lowering mechanism had been improperly attached by fellow employees.
At the time of the arguments of Alexander and Candiano, there was a plethora of cases involving negligence and unseaworthiness and a paucity of consistency. No legal principle which might serve as a guide for the future could be gleaned from these decisions. In this circuit, the panels were hopelessly divided,*fn1 other circuits achieved no greater consistency.*fn2 Analyses of these conflicts have been made in various decisions with care and discernment. Judges railed against the necessity of stultifying their judicial minds by being required "to make distasteful hair-splitting distinctions unrelated to any intelligible concepts of right and wrong" (Friendly, C.J. in dissent in Skibinski v. Waterman S.S. Corp., 360 F.2d 539 (2 Cir. 1964), cert. denied 387 U.S. 921, 87 S. Ct. 207, 18 L. Ed. 2d 975 (1967)) and to make "trivial, meaningless and confusing distinctions" (Kaufman, C.J. in dissent in Radovich v. Cunard S.S. Co., 364 F.2d 149 (2 Cir. 1966)).
This Court in 1962 attempted to cope with the problem by sitting en banc in Puddu v. Royal Netherlands S.S. Co., 303 F.2d 752. In Puddu by a six to two vote, the Court sought to perpetuate Judge Learned Hand's previous (1956) approach in Grillea v. United States, 232 F.2d 919 by the "incident in a continuous course of operation" theory (p. 922). Subsequent cases (and quite to be expected) had to struggle with: what is "continuous"? and what is the "operation"? In Puddu the Court said both that "Time is obviously irrelevant" (303 F.2d p. 757) and that it should consider whether the "incident" was in a continuous course of operation and a "momentary step or phase in the progress of work on board" (Grillea, 232 F.2d p. 922). The Supreme Court denied certiorari, 371 U.S. 840, 83 S. Ct. 67, 9 L. Ed. 2d 75 (1962). In the ensuing years, 1962-1967, the cases continued to be decided virtually without rhyme or reason. Judge Feinberg (the trial judge in Candiano, and now on this Court) has suggested with good reason considering "whether the distinction [between operational negligence and unseaworthiness] should not be dispensed with altogether." Radovich v. Cunard Steamship Co., 364 F.2d 149, 153 (2d Cir., 1966). Judge Hastie in his dissent in Thompson v. Calmar, 331 F.2d 657 (3d Cir., 1964) thought it to be "ridiculous to apply the concept of unseaworthiness to such cases as these" (p. 663).
Now in 1967 confusion still reigns in a field wherein there is a vast amount of litigation in the federal courts -- particularly in the seacoast circuits. There should be some uniformity of rule -- not only in the interest of justice but also of fairly reasonable consistency. If the courts wish to create (actually by judicial legislation) a principle that any seaman injured on board a ship is entitled to recover and the only fact question which may be submitted to the jury is his contributory negligence, if any, the trial courts, shipowners, longshoremen and insurance companies at least will know the problems then facing them in and out of court.
But what has happened since Alexander and Candiano were argued (October 28, 1966 and December 13, 1966, respectively)?
On May 15, 1967 the Supreme Court denied certiorari in Foster v. Lykes Bros., 387 U.S. 908, 87 S. Ct. 1685, 18 L. Ed. 2d 627, wherein the Fifth Circuit had affirmed the District Court's denial of a recovery to a seaman on the ground that negligence of a ...