WARREN, C. J., dissenting. 362 U.S. Moreover, it should be noted that even under § 1328 the testimony of the spouse is made only "admissible and competent," not compellable.' In my judgment, the Court in this case strays from the course of appropriate judicial reserve marked by Hawkins. I am unwilling to join in a decision based upon an assumption of fact which is without support in the record and which involves a delicate, and essentially legislative, determination. I therefore dissent. compelled to testify. But see Shores v. United States, 174 F. 2d 838, 841, where the Court of Appeals for the Eighth Circuit stated in dicta that the wife may be compelled to testify in any exception casea view much broader than that here adopted by this Court. This seems to be the plain meaning of the statutory language, though similar language in state statutes has received both broad and narrow constructions. Compare McCormick v. State, 135 Tenn. 218, 186 S. W. 95, with Richardson v. State, 103 Md. 112, 117, 63 A. 317, 319-320. For the view of an English court, see Leach v. Rex, [1912] A. C. 305, 311 (not compellable) ("The principle that a wife is not to be compelled to give evidence against her husband is deep seated in the common law of this country, and I think if it is to be overturned it must be overturned by a clear, definite, and positive enactment, not by an ambiguous one . . . Lord Atkinson). See also 8 Wigmore, Evidence, § 2245 (a); Note, 38 Va. L. Rev. 359, 362-363. Opinion of the Court. MITCHELL v. TRAWLER RACER, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 176. Argued January 21, 1960.-Decided May 16, 1960. In an action by a seaman who was a member of the crew of a fishing trawler to recover damages for personal injuries sustained as a result of unseaworthiness due to the temporary presence on the ship's rail of slime and fish gurry remaining there from recent unloading operations, the shipowner's actual or constructive knowledge of the temporary unseaworthy condition is not an essential element of the seaman's case. Pp. 539-550. (a) A shipowner's duty to furnish a seaworthy ship is absolute and it is not limited by concepts of common-law negligence. Pp. 542-549. (b) Liability of the shipowner for a temporary unseaworthy condition is not different from the liability which attaches when the unseaworthy condition is permanent. Pp. 549-550. 265 F. 2d 426, reversed. Morris D. Katz argued the cause and filed a brief for petitioner. James A. Whipple argued the cause for respondent. With him on the brief was Paul J. Kirby. Briefs of amici curiae urging reversal were filed by Samuel A. Neuburger, by Arthur J. Mandell, and by Philip F. DiCostanzo. Walter E. Maloney, Thomas E. Byrne, Jr., M. L. Cook, J. Ward O'Neill, Louis J. Gusmano and James M. Estabrook filed a brief for the American Merchant Marine Institute, Inc., as amicus curiae, urging affirmance. MR. JUSTICE STEWART delivered the opinion of the Court. The petitioner was a member of the crew of the Boston fishing trawler Racer, owned and operated by the 362 U.S. Opinion of the Court. respondent. On April 1, 1957, the vessel returned to her home port from a 10-day voyage to the North Atlantic fishing grounds, loaded with a catch of fish and fish spawn. After working that morning with his fellow crew members in unloading the spawn,' the petitioner changed his clothes and came on deck to go ashore. He made his way to the side of the vessel which abutted the dock, and in accord with recognized custom stepped onto the ship's rail in order to reach a ladder attached to the pier. He was injured when his foot slipped off the rail as he grasped the ladder. To recover for his injuries he filed this action for damages in a complaint containing three counts: the first under the Jones Act, alleging negligence; the second alleging unseaworthiness; and the third for maintenance and cure. At the trial there was evidence to show that the ship's rail where the petitioner had lost his footing was covered for a distance of 10 or 12 feet with slime and fish gurry, apparently remaining there from the earlier unloading operations. The district judge instructed the jury that in order to allow recovery upon either the negligence or unseaworthiness count, they must find that the slime and gurry had been on the ship's rail for a period of time long enough for the respondent to have learned about it and to have removed it. Counsel for the petitioner requested that 1 In accordance with tradition, the employment agreement provided that the proceeds from the sale of the fish spawn should be divided among the members of the crew, no part thereof going to the officers or to the owner of the vessel. 2 The instructions on this aspect of the case were as follows: "In a case like this we have the argument presented here, which you do not have to believe, that the ship was unseaworthy because at the time of the injury there was on the rail of the ship some kind of slime. Well, if that really was there and had been there any period of time, and it caused the accident, then you would find as 539 Opinion of the Court. the trial judge distinguish between negligence and unseaworthiness in this respect, and specifically requested him to instruct the jury that notice was not a necessary element in proving liability based upon unseaworthiness of the vessel. This request was denied.3 The jury awarded the petitioner maintenance and cure, but found for the respondent shipowner on both the negligence and unseaworthiness counts. a matter of your conclusion of fact, that unseaworthiness caused the accident. "I haven't told you what unseaworthiness is. You will recognize it is somewhat overlapping and alternative to, indeed quite similar to, negligence because it is one of the obligations of the owner of a ship to see to it through appropriate captains, mates, members of the crew, or someone, that there isn't left upon the rail of a ship, especially a rail which is going to be utilized for leaving the ship, to climb the ladder, any sort of substance such as slime. "It doesn't make any difference who puts it there. As far as the owner-operator of the vessel goes, it is his job to see it does not stay there too long, if he knows it is the kind of place, as he could have known here, which is used by members of the crew in getting off the ship. "So I think it would be fair to tell you the real nub of this case which I hope has not been clouded for you, the real nub of this case is, Was there on the rail some slime; was it there for an unreasonably long period of time; was there a failure on the part of the owneroperator through appropriate agents to remove it; and was that slime the cause of the injury which the plaintiff suffered. "Was there something there and was it there for a reasonably long period of time so that a shipowner ought to have seen that it was removed? That is the question." 3 "Mr. Katz: May I make a further request? In your charge you specifically said 'and was it there for a reasonably long period of time so that the shipowner could have had it removed.' "I submit that would apply to the negligence count only but with respect to unseaworthiness, if there is an unseaworthy condition, there is an absolute situation, there is no time required. It is the only "The Court: Denied. Refer to the case in the Second Circuit." Opinion of the Court. 362 U.S. An appeal was taken upon the sole ground that the district judge had been in error in instructing the jury that constructive notice was necessary to support liability for unseaworthiness. The Court of Appeals affirmed, holding that at least with respect to "an unseaworthy condition which arises only during the progress of the voyage," the shipowner's obligation "is merely to see that reasonable care is used under the circumstances . . . . incident to the correction of the newly arisen defect." 265 F. 2d 426, 432. Certiorari was granted, 361 U. S. 808, to consider a question of maritime law upon which the Courts of Appeals have expressed differing views. Compare Cookingham v. United States, 184 F. 2d 213 (C. A. 3d Cir.), with Johnson Line v. Maloney, 243 F. 2d 293 (C. A. 9th Cir.), and Poignant v. United States, 225 F. 2d 595 (C. A. 2d Cir.). In its present posture this case thus presents the single issue whether with respect to so-called "transitory" unseaworthiness the shipowner's liability is limited by concepts of common-law negligence. There are here no problems, such as have recently engaged the Court's attention, with respect to the petitioner's status as a "seaman." Cf. Seas Shipping Co. v. Sieracki, 328 U. S. 85; Pope & Talbot, Inc., v. Hawn, 346 U. S. 406; United Pilots Assn. v. Halecki, 358 U. S. 613, or as to the status of the vessel itself. Cf. West v. United States, 361 U. S. 118. The Racer was in active maritime operation, and the petitioner was a member of her crew.1 4 The trial judge instructed the jury as follows: "In this case, on the basis of rulings I made earlier, I have instructed you on the undisputed fact, Mr. Mitchell is to be regarded as being an employee of the defendant and therefore entitled to those rights if any which flow from the maritime law and flows [sic] from the act of Congress." In a memorandum filed almost a month after the trial, the district judge, apparently relying upon the fact that the shipowner had no direct financial interest in the spawn which had been unloaded |