author: Mr. Justice White Mr. Justice Douglas,

text:
    VICTORY CARRIERS, INC., et al. v. LAW
    No. 70-54.
    Argued October 18-19, 1971
    Decided December 13, 1971

      W. Boyd Reeves argued the cause for petitioners. With him on the briefs were George F. Wood and T. K. Jackson, Jr.

      Ross Diamond, Jr., argued the cause for respondent. With him on the brief was J. Cecil Gardner.

      E. D. Vickery, Dennis Lindsay, Francis A. Scanlan, and J. Stewart Harrison filed a brief for the National Maritime Compensation Committee as amicus curiae urging reversal.

      David B. Kaplan filed a brief for the American Trial Lawyers Association as amicus curiae urging affirmance.
   Mr. Justice White

delivered the opinion of the Court.

The question presented here is whether state law or federal maritime law governs the suit of a longshoreman injured on a pier while driving a forklift truck which was moving cargo that would ultimately be loaded aboard ship.

The facts are undisputed. When the accident happened, respondent Bill Law, a longshoreman employed by Gulf Stevedore Corp. in Mobile, Alabama, was on the pier driving a forklift loaded with cargo destined for the S. S. Sagamore Hill, a vessel owned by petitioner Victory Carriers, Inc., which was tied up at the pier. Law had picked up the load on the dock and was transferring it to a point alongside the vessel where it was to be subsequently hoisted aboard by the ship’s own gear. The forklift was owned and under the direction of his stevedore employer. As Law returned toward the pickup point, the overhead protection rack of the forklift came loose and fell on him. He subsequently brought an action in a federal District Court against the ship and Victory Carriers, Inc., claiming that the unseaworthiness of the vessel and the negligence of Victory had caused his injuries. His claim invoked both the diversity jurisdiction of the District Court under 28 U. S. C. § 1332 and its admiralty and maritime jurisdiction under 28 U. S. C. § 1333. Victory filed a third-party complaint against Gulf for indemnity in the event Victory was held liable to Law. The unseaworthiness claim became the critical issue. On cross motions for summary judgment, the District Court gave judgment for petitioners on the ground that Law was not engaged in loading thé vessel and that the doctrine of unseaworthiness did not extend to him. The Court of Appeals reversed. Relying on Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946), and Gutierrez v. Waterman S. S. Corp., 373 U. S. 206 (1963), it held that the fundamental question was whether Law at the time was engaged in loading the Sagamore Hill and that since he was so engaged, he should be entitled to prove his allegations of unseaworthiness at a trial. We granted certiorari and now reverse the judgment of the Court of Appeals.

Article III, § 2, cl. 1, of the Constitution of the United States extends the federal judicial power “to all Cases of admiralty and maritime Jurisdiction.” Congress has implemented that provision by 28 U. S. C. § 1333 which now provides that the district courts shall “have original jurisdiction, exclusive of the courts of the States, of ... [a] ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” Under the saving-to-suitors clause of § 1333, the plaintiff was entitled to assert his claims under the diversity jurisdiction of the District Court, as well as under § 1333 itself, cf. Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 410-411 (1953), but under either section the claim that a ship or its gear was unseaworthy would be rooted in federal maritime law, not the law of the State of Alabama. Id., at 409. Whether federal maritime law governed this accident in turn depends on whether this is a case within the admiralty and maritime jurisdiction conferred on the district courts by the Constitution and the jurisdictional statutes. More precisely, the threshold issue is whether maritime law governs accidents suffered by a longshoreman who is injured on the dock by allegedly defective equipment owned and operated by his stevedore employer. We hold that under the controlling precedents, federal maritime law does not govern this accident. Nor, in the absence of congressional guidance, are we now inclined to depart from prior law and extend the reach of the federal law to pier-side accidents caused by a stevedore’s pier-based equipment.

The historic view of this Court has been that the maritime tort jurisdiction of the federal courts is determined by the locality of the accident and that maritime law governs only those torts occurring on the navigable waters of the United States. Maritime contracts are differently viewed, but as Mr. Justice Story remarked long ago:

“In regard to torts I have always understood, that the jurisdiction of the admiralty is exclusively dependent upon the locality of the act. The admiralty has not, and never (I believe) deliberately claimed to have any jurisdiction over torts, except such as are maritime torts, that is, such as are committed on the high seas, or on waters within the ebb and flow of the tide.” Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13,902) (CC Me. 1813).

The view has been constantly reiterated.

“The general doctrine that in contract matters admiralty jurisdiction depends upon the nature of the transaction and in tort matters upon the locality, has been so frequently asserted by this court that it must now be treated as settled.” Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 476 (1922).

The maritime law was thought to reach "[e]very species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters . . . ." Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 60 (1914). But, accidents on land were not within the maritime jurisdiction as historically construed by this Court. Piers and docks were consistently deemed extensions of land; injuries inflicted to or on them were held not compensable under the maritime law. The Plymouth, 3 Wall. 20, 36 (1866); Ex parte Phenix Insurance Co., 118 U. S. 610, 618-619 (1886); Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388, 397 (1886); Cleveland Terminal & Valley R. Co. v. Cleveland S. S. Co., 208 U. S. 316, 320 (1908). The gangplank has served as a rough dividing line between the state and maritime regimes.

In defense of this boundary and the exclusive jurisdiction of the maritime law, the Court twice rejected congressional efforts to apply state workmen’s compensation statutes to shipboard injuries suffered by maritime workers and longshoremen. Accepting these decisions, Congress passed the Longshoremen’s and Harbor Workers’ Compensation Act in 1927, providing a system of compensation for longshoremen injured on navigable waters but anticipating that dockside accidents would remain under the umbrella of state law and state workmen’s compensation systems. Nacirema Operating Co. v. Johnson, 396 U. S. 212, 217-219 (1969); South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251, 256-257 (1940). The relative roles of state and federal law nevertheless remained somewhat confused on the seaward side of the pier. But shoreward, absent legislation, the line held fast. The Court refused to permit recovery in admiralty even where a ship or its gear, through collision or otherwise, caused damage to persons ashore or to bridges, docks, or other shore-based property. The Plymouth, supra; Cleveland Terminal & Valley R. Co. v. Cleveland S. S. Co., supra; The Troy, 208 U. S. 321 (1908); Martin v. West, 222 U. S. 191 (1911).

Congress was dissatisfied with these decisions and passed the Admiralty Extension Act of 1948 specifically to overrule or circumvent this line of cases. The law as enacted provided that “[t]he admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” 62 Stat. 496, 46 U. S. C. § 740. The statute survived constitutional attack in the lower federal courts and was applied without question by this Court in Gutierrez, supra, to provide compensation for a longshoreman injured on a dock by defective cargo containers being unloaded from a ship located on navigable waters. No case in this Court has sustained the application of maritime law to the kind of accident that occurred in this case. State Industrial Comm’n v. Nordenholt Corp., 259 U. S. 263 (1922), has not been overruled. There, the Court held that compensation for a longshoreman injured when he slipped on a dock while stacking bags of cement that had been unloaded from a ship was governed by local law, not federal maritime law.

It is argued, however, that if a longshoreman may recover for unseaworthiness if injured on a ship in the course of the unloading process, Seas Shipping Co. v. Sieracki, supra, and if he has an unseaworthiness claim for injuries sustained on the pier and caused by the ship’s unloading gear, Gutierrez, supra, he is also entitled to sue in admiralty when he is injured on the dock by his own employer’s equipment at the time he is engaged in the service of a ship located on navigable waters. Sieracki, supra, however, did not call into question the extent of federal admiralty and maritime jurisdiction since the accident there occurred on navigable waters. And in Gutierrez, supra, federal admiralty jurisdiction was clearly present since the Admiralty Extension Act on its face reached the injury there involved. The decision in Gutierrez turned, not on the “function” the stevedore was performing at the time of his injury, but, rather, upon the fact that his injury was caused by an appurtenance of a ship, the defective cargo containers, which the Court held to be an “injury, to person . . . caused by a vessel on navigable water” which was consummated ashore under 46 U. S. C. § 740. The Court has never approved an unseaworthiness recovery for an injury sustained on land merely because the injured longshoreman was engaged in the process of “loading” or “unloading.” Nacirema Operating Co. v. Johnson, 396 U. S., at 223, a case decided several years after Gutierrez, makes this quite clear:

“There is much to be said for uniform treatment of longshoremen injured while loading or unloading a ship. But even construing the Extension Act to amend the Longshoremen’s Act would not effect this result, since longshoremen injured on a pier by pier-based equipment would still remain outside the Act.”

See also Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352, 360 (1969).

We are not inclined at this juncture to disturb the existing precedents and to extend shoreward the reach of the maritime law further than Congress has approved. We are dealing here with the intersection of federal and state law. As the law now stands, state law has traditionally governed accidents like this one. To afford respondent a maritime cause of action would thus intrude on an area that has heretofore been reserved for state law, would raise difficult questions concerning the extent to which state law would be displaced or pre-empted, and would furnish opportunity for circumventing state workmen’s compensation statutes. In these circumstances, we should proceed with caution in construing constitutional and statutory provisions dealing with the jurisdiction of the federal courts. As the Court declared in Healy v. Ratta, 292 U. S. 263, 270 (1934), “The power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution. . . . Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which [a federal] statute has defined.” See also Romero v. Int’l Terminal Operating Co., 358 U. S. 354, 379-380, and 408 (Brennan, J., dissenting and concurring) (1959).

That longshoremen injured on the pier in the course of loading or unloading a vessel are legally distinguished from longshoremen performing similar services on the ship is neither a recent development nor particularly paradoxical. The maritime law is honeycombed with differing treatment for seamen and longshoremen, on and off the ship, and affirmance of the Court of Appeals would not equalize the remedies that both this Court and Congress have recognized are available to longshoremen injured on navigable waters and those injured ashore, whether in service of a ship or not. In part, this differential treatment stems from the geographical and historical accident that personal injuries on land are covered, for the most part, by state substantive law while such injuries on navigable water are generally governed by federal maritime law. These two bodies of law do overlap and interpenetrate in some situations, and the amphibious nature of the longshoreman’s occupation creates frequent taxonomic problems. In the present case, however, the typical elements of a maritime cause of action are particularly attenuated: respondent Law was not injured by equipment that was part of the ship’s usual gear or that was stored on board, the equipment that injured him was in no way attached to the ship, the forklift was not under the control of the ship or its crew, and the accident did not occur aboard ship or on the gangplank. Affirmance of the decision below would raise a host of new problems as to the standards for and limitations on the applicability of maritime law to accidents on land. At least in the absence of explicit congressional authorization, we shall not extend the historic boundaries of the maritime law.

Without necessarily disagreeing with the proposition that the hazards of the longshoreman’s occupation make him especially deserving of a remedy dispensing with proof of fault, we are constrained to note that the longshoreman already has a remedy under state workmen’s compensation laws that does not depend upon proving derelictions on the part of his employer. Recovery without proving negligence is not the issue here; nor is it the equities of the injured longshoreman’s position as against those of the shipowner who has had and exercises no control whatsoever over the use of the stevedore’s equipment on the dock. What is at issue is the amount of the recovery, not against a shipowner, but against the stevedore employer. As this case illustrates, the shipowner’s liability for unseaworthiness would merely be shifted, with attendant transaction costs, to the stevedore by way of a third-party action for indemnity. Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124 (1956). The State’s own arrangements for compensating industrial accidents would be effectively circumvented.

Perhaps such laws provide inadequate benefits, but we are poorly positioned to conclude that they do or for that reason to give special remedies to longshoremen when other employees operating forklifts for other employers in perhaps equally hazardous circumstances are left to the mercies of state law. Claims like these are best presented in the legislative forum, not here.

This is particularly true since extending the constitutional boundaries of the maritime law would not require Congress to make an equivalent extension of the jurisdiction of the federal courts sitting in admiralty. Congress might well prefer not to extend the jurisdiction of the federal courts. On the other hand, if denying federal remedies to longshoremen injured on land is intolerable, Congress has ample power under Arts. I and III of the Constitution to enact a suitable solution.

Reversed.

Mr. Justice Douglas,

with whom Mr. Justice Brennan concurs,

dissenting.

Gutierrez v. Waterman S. S. Corp., 373 U. S. 206, involved an injury to a longshoreman while he was on the dock unloading the ship. The injury was not inflicted by a defective appliance of the ship. He merely slipped on loose beans spilled on the dock from defective cargo containers belonging to the ship. Here the longshoreman was engaged in a phase of a loading operation; he was on the dock stacking cargo for loading and the appliance causing the injury belonged to the stevedore company.

The Court of Appeals properly concluded that that work was part of the loading process and that therefore the longshoreman was in the service of the ship. That gives pragmatic, realistic meaning to the concept of loading and avoids the narrow, grudging, hypertechnical definition.

Loading is activity that involves work on the ship and on the dock. Longshoremen are both shipside workers and shoreside workers and move back and forth from deck to dock. At times an individual worker may be using the ship’s appliances and a moment later the stevedore’s appliances. But the work does not change in character. For example, although prior to his injury Law had normally been involved in loading or unloading, his specific assignments varied. On some days he was assigned to drive a forklift on board ship. On others, such as the day of the injury, he shuttled cargo between various points on the dock during the loading process. Respondent was subject to all the risks and hazards of loading the ship; and the humanitarian policy of the admiralty law has been to allow those who so service the ship to receive the protections usually afforded that class.

Equipment need not belong to the ship to be an appurtenance of the ship; and it may be such even though it belongs to the stevedore. We so held in Alaska S. S. Co. v. Petterson, 347 U. S. 396, over the strenuous dissent of Mr. Justice Burton, joined by Mr. Justice Frankfurter and Mr. Justice Jackson. The critical question is whether the injury occurred during loading or unloading. We there allowed recovery for injury to a longshoreman which occurred while he was loading the ship on the deck and which was caused by a defective block used by the stevedore company. And we followed that decision in Rogers v. United States Lines, 347 U. S. 984, the same three Justices dissenting.

I would adhere to our decisions in the Petterson and Rogers cases and affirm the judgment of the Court of Appeals.

APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING

This Court's decisions have rather consistently reflected the principle that because loading and unloading of vessels are abnormally dangerous such risks ought to be placed initially upon the shipowners and ultimately passed on through higher prices to the customers of the shipping industry. See International Stevedoring Co. v. Haverty, 272 U. S. 50 (1926); Atlantic Transport Co. v. Imbrovek, 234 U. S. 52 (1914). The most well-known explication of this principle was advanced in Seas Shipping Co. v. Sieracki, 328 U. S. 85, 93-96 (1946), which held that longshoremen, as well as seamen, were entitled to recover under the doctrine of unseaworthiness for injuries sustained aboard ship:

“That the liability may not be either so founded or so limited would seem indicated by the stress the cases uniformly place upon its relation, both in character and in scope, to the hazards of marine service which unseaworthiness places on the men who perform it. These, together with their helplessness to ward off such perils and the harshness of forcing them to shoulder alone the resulting personal disability and loss, have been thought to justify and to require putting their burden, in so far as it is measurable in money, upon the owner regardless of his fault. Those risks are avoidable by the owner to the extent that they may result from negligence. And beyond this he is in position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its cost.
“All the considerations which gave birth to the liability and have shaped its absolute character dictate that the owner should not be free to nullify it by parcelling out his operations to intermediary employers whose sole business is to take over portions of the ship's work or by other devices which would strip the men performing its service of their historic protection. The risks themselves arise from and are incident in fact to the service, not merely to the contract pursuant to which it is done. The brunt of loss cast upon the worker and his dependents is the same, and is as inevitable, whether his pay comes directly from the shipowner or only indirectly through another with whom he arranges to have it done. The latter ordinarily has neither right nor opportunity to discover or remove the cause of the peril and it is doubtful, therefore, that he owes to his employees, with respect to these hazards, the employer's ordinary duty to furnish a safe place to work, unless perhaps in cases where the perils are obvious or his own action creates them. If not, no such obligation exists unless it rests upon the owner of the ship. Moreover, his ability to distribute the loss over the industry is not lessened by the fact that the men who do the work are employed and furnished by another. Historically the work of loading and unloading is the work of the ship's service, performed until recent times by members of the crew. Florez v. The Scotia, 35 F. 916; The Gilbert Knapp, 37 F. 209, 210; The Seguranca, 58 F. 908, 909. That the owner seeks to have it done with the advantages of more modern divisions of labor does not minimize the worker's hazard and should not nullify his protection.”

Although subsequent holdings sustaining the applicability of the doctrine of unseaworthiness might alternatively have been grounded in more mechanical rules, the language of the cases has instead been the broader principle explicated in Sieracki. For example, in Reed v. The Yaka, 373 U. S. 410, 414-415 (1963), holding that a longshoreman was not deprived by the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U. S. C. § 901 et seq., of his unseaworthiness remedy merely because the shipowner happened also to be his stevedore-employer, the Court relied upon the policy expressed in Sieracki:

“[W]e pointed out several times in the Sieracki case, which has been consistently followed since, that a shipowner’s obligation of seaworthiness cannot be shifted about, limited, or escaped by contracts or by the absence of contracts and that the shipowner’s obligation is rooted, not in contracts, but in the hazards of the work.” (Emphasis added.)

Similarly, the “humanitarian policy” rather than the more mechanical, albeit historical, maritime tests was the starting point in Waldron v. Moore-McCormack Lines, 386 U. S. 724, 728 (1967):

“When this Court extended the shipowner's liability for unseaworthiness to longshoremen performing seamen's work, Seas Shipping Co. v. Sieracki, 328 U. S. 85—either on board or on the pier, Gutierrez v. Waterman S. S. Corp., 373 U. S. 206, either with the ship's gear or the stevedore's gear, Alaska S. S. Co. v. Petterson, 347 U. S. 396, either as employees of an independent stevedore or as employees of a shipowner pro hac vice, Reed v. The Yaka, 373 U. S. 410—we noted that `the hazards of marine service, the helplessness of the men to ward off the perils of unseaworthiness, the harshness of forcing them to shoulder their losses alone, and the broad range of the humanitarian policy of the doctrine of seaworthiness,' id., at 413, should prevent the shipowner from delegating, shifting, or escaping his duty by using the men or gear of others to perform the ship's work.”

A straightforward application of the Sieracki principle to the instant circumstances would clearly warrant recovery by Law, if his allegations are proved at trial, under the doctrine of unseaworthiness. He was driving a forklift laden with cargo which was to be hoisted aboard the S. S. Sagamore Hill. As he drove along the dock, a defective overhead rack became disengaged and crashed upon his head. The Court of Appeals correctly concluded that his activity had been part of the loading process and was protected by the Sieracki principle. And at least two other circuits have made similar conclusions under analogous conditions. See Huff v. Mat son Navigation Co., 338 F. 2d 205 (CA9 1964); Spann v. Lauritzen, 344 F. 2d 204 (CA3 1965); see also Chagois v. Lykes Bros. S. S. Co., 432 F. 2d 388 (CA5 1970).

By ignoring completely the underlying reasoning of these cases and by focusing instead on the narrow facts involved in each of them, the majority gives short shrift to the policy of distributing loading and unloading risks of personal injury to the users of the shipping industry. The Court places special emphasis on the alignment in this case of three factual elements: (a) an injury to a longshoreman (rather than a seaman), (b) upon a dock (rather than upon a deck), (c) caused by defective equipment supplied by the stevedoring contractor (rather than by the shipowner). Thus the majority finds Gutierrez v. Waterman S. S. Corp., 373 U. S. 206 (1963), inapposite even though it involved both the first and second conditions, and presumably would view Alaska S. S. Co. v. Petterson, 347 U. S. 396 (1954), inapposite even though it concerned both the first and last conditions. But the mere fact that this Court has never decided a controversy composed of these precise elements is not an adequate reason for excepting such a circumstance from the scope of the Sieracki principle.

The majority offers three reasons for the exception. First, the Court seems to argue that the Sieracki principle has already been limited by Nacirema Operating Co. v. Johnson, 396 U. S. 212 (1969), holding that Congress did not intend that the Longshoremen's and Harbor Workers' Compensation Act would apply to any injury occurring off a ship. In Johnson, however, the Court clearly acknowledged that Congress' constitutional maritime power does not cease at the shoreline. Id., at 223-224. And, obviously, the reach of 28 U. S. C. § 1333, conferring upon district courts original admiralty and maritime jurisdiction, as extended by the Admiralty Extension Act of 1948, 62 Stat. 496, 46 U. S. C. § 740, is not governed by the reach of the Harbor Workers' Act. In fact, the Court, while denying a compensation remedy under the Harbor Workers' Act, noted that an action for unseaworthiness would lie against the ship. 396 U. S., at 223 n. 19.

The primary reason offered to support the majority’s exception to the Siemcki principle is that it is for Congress rather than the judiciary to determine the adequacy of state workmen’s compensation laws, which, under the Court’s holding, will now be the only remedy available to a longshoreman injured ashore during loading or unloading by pier-based equipment of the stevedoring contractor. See Nacirema Operating Co. v. Johnson, supra. While Congress, of course, is better equipped for precision analysis than a judicial forum, the courts have not been unaware that state workmen’s compensation statutes provide puny awards compared to jury evaluations of personal injuries. See W. Prosser, The Law of Torts 555 (3d ed. 1964). Limited recovery was thought to have been necessary by most state legislatures in order to offset the imposition against an employer’s liability regardless of fault. In keeping with admiralty courts’ traditional solicitude for those injured in the maritime trade, the Court did not defer to Congress in other instances approving longshoremen’s recoveries even though it might also have been argued in those cases that the Harbor Workers’ Act or state schemes might have been adequate. No reason is suggested why deference is needed in these circumstances. In any event, referring a litigant to Congress is normally appropriate where the Court is reluctant to accept his invitation to upset an established rule. Inasmuch as the Sieracki-Petterson-Gutierrez principle would appear to be the controlling precedent, the appropriate referral to the legislative process ought to be Victory Carriers, not Law.

Finally the majority says that: "Affirmance of the decision below would raise a host of new problems as to the standards for and limitations on the applicability of maritime law to accidents on land." Such problems were quickly brushed aside in Gutierrez, supra, at 210, in which "[v]arious far-fetched hypotheticals [were] raised, such as a suit in admiralty for an ordinary automobile accident involving a ship's officer on ship business in port, or for someone's slipping on beans that continue to leak from [defective cargo] bags in . . . Denver." Said the Court: "We think it sufficient for the needs of this occasion to hold that the case is within the maritime jurisdiction under 46 U. S. C. § 740 when . . . it is alleged that the shipowner commits a tort while or before the ship is being unloaded, and the impact of which is felt ashore at a time and place not remote from the wrongful act." As in Gutierrez, the accident here occurred on the dock, and the specter of troubling hypotheticals elsewhere ought not to deter landward extension to loading or unloading injuries on the dock. Moreover, if a brightline test is desirable, then the Sieracki policy would be less offended by a bright line drawn around both the ship and the dock than by a line cast only about the vessel. Statistical evidence suggests that the great bulk of high-risk maritime activity occurs on the ship and the adjoining pier. National Academy of Sciences— National Research Council, Maritime Cargo Transportation Conference, Longshore Safety Survey 75 (1956). See Comment, Risk Distribution and Seaworthiness, 75 Yale L. J. 1174, 1190 (1966).

       The District Court and the Court of Appeals dealt only with the unseaworthiness claim; the District Court did not pass on the question of whether or not the forklift was in fact defective. 432 F. 2d 376, 378 n. 2 (CA5 1970).

        Waring v. Clarke, 5 How. 441, 463-464 (1847); New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 394 (1848); The Propeller Commerce, 1 Black 574, 579 (1862); The Plymouth, 3 Wall. 20, 33 (1866); The Rock Island Bridge, 6 Wall. 213, 215 (1867); The Belfast, 7 Wall. 624, 637 (1869); Ex parte Easton, 95 U. S. 68, 72 (1877); Leathers v. Blessing, 105 U. S. 626, 630 (1882); Ex parte Phenix Insurance Co., 118 U. S. 610, 618 (1886); Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388, 397 (1886); Panama R. Co. v. Napier Shipping Co., 166 U. S. 280, 285 (1897); The Blackheath, 195 U. S. 361, 367 (1904); Cleveland Terminal & Valley R. Co. v. Cleveland S. S. Co., 208 U. S. 316, 319 (1908); Martin v. West, 222 U. S. 191, 197 (1911); Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 59-60 (1914); Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 476 (1922); T. Smith & Son v. Taylor, 276 U. S. 179, 181 (1928); O'Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36, 41 (1943); Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 409 (1953); Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625, 628 (1959); Hess v. United States, 361 U. S. 314, 318 n. 7 (1960); Rodrigue v. Aetna Casualty & Surety Co., 395 U. S. 352, 360-361 (1969);
        Nacirema Operating Co. v. Johnson, 396 U. S. 212, 214-215 (1969); Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13,902) (CC Me. 1813) (Story, J.); De Lovio v. Boit, 7 F. Cas. 418, 420 (No. 3,776) (CC Mass. 1815) (Story, J.); Lake Shore & M. S. R. Co. v. The Neil Cochran, 14 F. Cas. 949, 950 (No. 7,996) (ND Ohio 1872); The Ottawa, 18 F. Cas. 906, 907 (No. 10,616) (ED Mich. 1872); Holmes v. O. & C. R. Co., 5 F. 75, 77 (Ore. 1880); The Arkansas, 17 F. 383, 384 (SD Iowa 1883); The F. & P. M. No. 2, 33 F. 511, 513 (ED Wis. 1888); The H. S. Pickands, 42 F. 239, 240 (ED Mich. 1890); Hermann v. Port Blakely Mill Co., 69 F. 646, 647 (ND Cal. 1895); The Strabo, 90 F. 110, 113 (EDNY 1898); Chapman v. City of Grosse Pointe Farms, 385 F. 2d 962, 963 (CA6 1967); Scott v. Eastern Air Lines, Inc., 399 F. 2d 14, 31 (CA3 1967) (concurring opinion); Fireman's Fund American Insurance Co. v. Boston Harbor Marina, Inc., 406 F. 2d 917, 919 (CA1 1969); Penn Tanker Co. v. United States, 409 F. 2d 514, 518 (CA5 1969). "The jurisdiction of courts of admiralty, in matters of contract, depends upon the nature and character of the contract; but in torts, it depends entirely on locality." Philadelphia, Wilmington, & Baltimore R. Co. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. 209, 215 (1860). "In [maritime] torts . . . jurisdiction [of federal admiralty courts] depends solely upon the place where the tort was committed, which must have been upon the high seas or other navigable waters." State Industrial Comm'n v. Nordenholt Corp., 259 U. S. 263, 271 (1922).

        The Plymouth, supra; The Troy, 208 U. S. 321 (1908); Phoenix Construction Co. v. The Steamer Poughkeepsie, 212 U. S. 558 (1908); T. Smith & Son v. Taylor, supra; Rodrigue v. Aetna Casualty & Surety Co., supra, at 360; Hastings v. Mann, 340 F. 2d 910 (CA4), cert. denied, 380 U. S. 963 (1965). "When an employee, working on board a vessel in navigable waters, sustains personal injuries there, and seeks damages from the employer, the applicable legal principles are very different from those which would control if he had been injured on land while unloading the vessel. In the former situation the liability of employer [sic] must be determined under the maritime law; in the latter, no general maritime rule prescribes the liability, and the local law has always been applied." State Industrial Comm'n v. Nordenholt Corp., supra, at 272-273.

         Nacirema Operating Co. v. Johnson, supra, at 214-215; Swanson v. Marra Bros., Inc., 328 U. S. 1, 6 (1946); Minnie v. Port Huron Terminal Co., 295 U. S. 647, 648 (1935); T. Smith & Son v. Taylor, supra, at 182; State Industrial Comm'n v. Nordenholt Corp., supra, at 275; 1 E. Benedict, The Law of American Admiralty §§ 28, 29 (6th ed. 1940); G. Gilmore & C. Black, The Law of Admiralty §§ 6-46, 7-17 (1957); G. Robinson, Handbook of Admiralty Law in the United States § 11 (1939).

         Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 (1920); Washington v. W. C. Dawson & Co., 264 U. S. 219 (1924). These congressional attempts were sparked by an earlier Supreme Court decision, Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917), which had held unconstitutional a New York workmen’s compensation law as applied to a stevedore injured on the gangplank of a ship.

       44 Stat. 1424, 33 U. S. C. §§ 901-950. The Act’s coverage is limited to those injuries and deaths “occurring upon the navigable waters of the United States (including any dry dock).” 33 U. S. C. §903 (a).

       This confusion may be traced to the Court's modifying the doctrine of Southern Pacific Co. v. Jensen, supra, by preserving certain state remedies for accidents and deaths occurring on navigable waters. See Western Fuel Co. v. Garcia, 257 U. S. 233 (1921); Grant Smith-Porter Ship Co. v. Rohde, supra; Parker v. Motor Boat Sales, Inc., 314 U. S. 244 (1941); Davis v. Dept. of Labor and Industries, 317 U. S. 249 (1942); Calbeck v. Travelers Insurance Co., 370 U. S. 114 (1962). All of these cases of overlapping state-federal jurisdiction have occurred on the seaward side of the Jensen line, however. The Court early upheld the power of States to provide workmen's compensation to longshoremen injured by accidents occurring on the dock, under the theory that since the pier is part of the land, application of state law here would not conflict with the uniform federal maritime law applied on navigable waters. State Industrial Comm'n v. Nordenholt Corp., supra. In Nacirema Operating Co. v. Johnson, supra, the Court held that by limiting coverage under § 3 (a) of the Act, 33 U. S. C. § 903 (a), to accidents occurring "upon . . . navigable waters," Congress had not intended to cover accidents that occurred on piers permanently affixed to the shore: "Calbeck made it clear that Congress intended to exercise its full jurisdiction seaward of the Jensen line and to cover all injuries on navigable waters, whether or not state compensation was also available in particular situations. . . . But removing uncertainties as to the Act's coverage of injuries occurring on navigable waters is a far cry from construing the Act to reach injuries on land traditionally within the ambit of state compensation acts." 396 U. S., at 220-221.

       62 Stat. 496, 46 U. S. C. § 740. The House Report on the Admiralty Extension Act stated that the Act was being passed to remedy the “inequities” of cases such as Cleveland Terminal & Valley R. Co., supra; The Troy, supra; and Martin v. West, supra, which had held there was no admiralty jurisdiction to provide a remedy for damage done by ships on navigable water to land structures. H. R. Rep. No. 1523, 80th Cong., 2d Sess., 2 (1948). Congress had also passed the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, providing a statutory remedy for members of a ship’s crew injured in the course of their employment. The Act covered crewmen injured ashore as well as aboard and was considered by this Court an extension of the ancient remedy of maintenance and cure which itself was a traditional and important exception to the usual rule that maritime law does not provide remedies for injuries on land. O’Donnell v. Great Lakes Dredge & Dock Co., supra. Longshoremen, of course, are not covered by the Jones Act.

        United States v. Matson Nav. Co., 201 F. 2d 610, 614-616 (CA9 1953); American Bridge Co. v. The Gloria O, 98 F. Supp. 71, 73-74 (EDNY 1951); Fematt v. City of Los Angeles, 196 F. Supp. 89, 93 (SD Cal. 1961).

       In Sieracki, the Court concluded:
      “[F]or injuries incurred while working on board the ship in navigable waters the stevedore is entitled to the seaman’s traditional and statutory protections, regardless of the fact that he is employed immediately by another than the owner. For these purposes he is, in short, a seaman because he is doing a seaman’s work and incurring a seaman’s hazards.” 328 U. S., at 99 (footnote omitted).

       In Gutierrez, the Court concluded that "things about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or the cargo containers, must be reasonably fit for the purpose for which they are to be used." 373 U. S., at 213 (emphasis added). In Alaska S. S. Co. v. Petterson, 347 U. S. 396 (1954), aff’g 205 F. 2d 478 (CA9 1953), and Rogers v. United States Lines, 347 U. S. 984 (1954), rev’g 205 F. 2d 57 (CA3 1954), the Court decided without opinion that an unseaworthiness recovery would be possible to a longshoreman injured by equipment brought aboard ship by the stevedore company. In both these cases, the accident occurred on navigable water: both longshoremen were injured while in the hold of a ship by defective apparatus attached to the ship's gear.

       The Longshoremen's and Harbor Workers' Compensation Act does not cover seamen (who are defined there as "master[s] or member[s] of a crew of any vessel," 33 U. S. C. § 903 (a) (1)), and the compensation remedy provided by the Longshoremen's Act is a stevedore's exclusive remedy against his employer for shipboard injuries. 33 U. S. C. § 905. Representatives of maritime employees successfully opposed the efforts of Congress to include seamen under the Longshoremen's Act, see Nogueira v. New York, New Haven & Hartford R. Co., 281 U. S. 128, 136 (1930); Warner v. Goltra, 293 U. S. 155, 159-160 (1934), since seamen preferred to remain free to proceed against their employer under the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, and under suits for unseaworthiness and/or maintenance and cure. The latter remedy has traditionally been available to seamen but not to longshoremen, Weiss v. Central R. Co., 235 F. 2d 309, 311 (CA2 1956), and the Court has stated that the remedies of an employee covered by the Longshoremen's Act and those of a seaman covered under the maritime doctrine of maintenance and cure are mutually exclusive. Norton v. Warner Co., 321 U. S. 565, 570 (1944). The Jones Act gives seamen, at their election, the benefit of the provisions of the Federal Employers' Liability Act, 35 Stat. 65, 45 U. S. C. § 51 et seq. Longshoremen now have no such election. Swanson v. Marra Bros., Inc., 328 U. S., at 7. Although longshoremen may not obtain maintenance and cure, there are certain circumstances under which they may recover for injuries caused by unseaworthiness whether the accident occurred on board ship, Seas Shipping Co. v. Sieracki, supra, or on the dock, Gutierrez v. Waterman S. S. Corp., supra.

       See, e. g., Nacirema Operating Co. v. Johnson, 396 U. S., at 217-220.

       The Fifth Circuit's expansive definition of loading (432 F. 2d, at 384) would be difficult to delimit. Already, summary judgment has been denied the shipowner where a warehouseman sued on an unseaworthiness theory after he had been injured by a power shovel he was using to transfer grain from a railroad car to a warehouse where it would be subsequently taken on board a ship. Olvera v. Michalos, 307 F. Supp. 9 (SD Tex. 1968). Summary judgment has also been denied when a longshoreman brought an unseaworthiness suit after he had been injured inside a pier shed; the "squeeze lift" truck he was driving struck an unidentified object on the shed floor causing the steering wheel to spin around and shatter plaintiff's wrist. McNeil v. A/S Havtor, 326 F. Supp. 226 (ED Pa. 1971). The attempt to define the process of "loading" for purposes of determining whether a longshoreman injured on shore can recover on an unseaworthiness claim has produced substantial confusion in the lower courts; the cases are impossible to rationalize. Denying compensation: Forkin v. Furness Withy & Co., 323 F. 2d 638 (CA2 1963), McKnight v. N. M. Paterson & Sons, 286 F. 2d 250 (CA6 1960), cert. denied, 368 U. S. 913 (1961); Henry v. S. S. Mount Evans, 227 F. Supp. 408 (Md. 1964); Sydnor v. Villain & Fassio e Compania, 323 F. Supp. 850 (Md. 1971). Awarding compensation or denying summary judgment for defendant: Spann v. Lauritzen, 344 F. 2d 204 (CA3), cert. denied, 382 U. S. 938 (1965); Chagois v. Lykes Bros. S. S. Co., 432 F. 2d 388 (CA5 1970); Olvera v. Michalos, supra; McNeil v. A/S Havtor, supra. Reliance upon the gangplank line as the presumptive boundary of admiralty jurisdiction, except for cases in which a ship's appurtenance causes damage ashore, recognizes the traditional limitations of admiralty jurisdiction, see nn. 2 and 3, supra, and decreases the arbitrariness and uncertainties surrounding amorphous definitions of "loading." Such uncertainties may prejudice both the longshoreman and the employer.

       A 1956 survey, based on 1954 data, concluded that the stevedoring occupation had a higher injury frequency rate than any other high-hazard industry studied. National Academy of Sciences-National Research Council, Maritime Cargo Transportation Conference, Longshore Safety Survey Report, Longshore Safety Survey: A Survey of Occupational Hazards in the Stevedore Industry 23 (1956). See also U. S. Dept. of Labor, Bureau of Labor Statistics, Handbook of Labor Statistics 1971, p. 345, for a comparison of the work-injury rate (both by severity and frequency) in the marine cargo handling industry with that in other industries. Cf. Note, Risk Distribution and Seaworthiness. 75 Yale L. J. 1174 (1966).

       Cf., e. g., The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 457-458 (1852); Richardson v. Harmon, 222 U. S. 96, 97 (1911); Panama R. Co. v. Johnson, 264 U. S. 375, 385-388 (1924); Detroit Trust Co. v. The Thomas Barlum, 293 U. S. 21, 52 (1934); Swanson v. Marra Bros., Inc., supra, at 5; O'Donnell v. Great Lakes Dredge & Dock Co., supra, at 40-41.

       Accord: Spann v. Lauritzen, 344 F. 2d 204; Chagois v. Lykes Bros. S. S. Co., 432 F. 2d 388; Huff v. Matson Navigation Co., 338 F. 2d 205; Thorson v. Inland Navigation Co., 270 F. 2d 432; Ace Tractor & Equipment Co. v. Olympic S. S. Co., 227 F. 2d 274.

       See the Appendix to this opinion.

       Stevedoring is one of the most accident-prone professions in American industry. According to the National Academy of Sciences-National Research Council, Maritime Cargo Transportation Conference, Longshore Safety Survey 22-23 (1956), hazardous industries have the following accident frequency rates:
      Stevedoring ...................... 92.3 per million man hours worked
      Logging .......................... 74.3
      Structural Steel Erection ........ 47.5
      Saw and Planing Mills ............ 42.0
      General Building ................. 37.0
      See also New York Shipping Assn., Safety Bureau, Annual Accidents (1965).

       Accord: Rogers v. United States Lines, 347 U. S. 984 (1954); Spann v. Lauritzen, 344 F. 2d 204 (CA3 1965); Huff v. Matson Navigation Co., 338 F. 2d 205 (CA9 1964); Chagois v. Lykes Bros. S. S. Co., 432 F. 2d 388 (CA5 1970).

       Accord: Strika v. Netherlands Ministry of Traffic, 185 F. 2d 555 (CA2 1950).

       See Dixon v. The Cyrus, 7 F. Cas. 755 (No. 3,930) (Pa. 1789) See also Peterson v. The Chandos, 4 F. 645, 650 (Ore 1880).

        Gutierrez v. Waterman S. S. Corp., 373 U. S. 206 (1963); Reed v. The Yaka, 373 U. S. 410 (1963); Alaska S. S. Co. v. Petterson, 347 U. S. 396 (1954); Pope & Talbot, Inc. v. Hawn, 346 U. S. 406 (1953); Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946); International Stevedoring Co. v. Haverty, 272 U. S. 50 (1926); Atlantic Transport Co. v. Imbrovek, 234 U. S. 52 (1914).


source: Caselaw Access Project

author: Mr. Justice Marshall Mr. Justice Douglas,

license: Public Domain

text:
    BRITT v. NORTH CAROLINA
    No. 70-5041.
    Argued October 14, 1971
    Decided December 13, 1971

      Robert G. Bowers argued the cause and filed a brief for petitioner.

      Christine Y. Denson, Assistant Attorney General of North Carolina, argued the cause for respondent. With her on the brief was Robert Morgan, Attorney General.
   Mr. Justice Marshall

delivered the opinion of the Court.

Petitioner’s three-day murder trial ended in a mistrial when the jury reported a hopeless deadlock. A retrial was scheduled for the following month. In the interim, petitioner filed a motion alleging that he was indigent, and asking for a free transcript of the first trial. The trial court denied his motion, and the North Carolina Court of Appeals affirmed, stating that the record of the case did not reveal a sufficient need for the transcript. 8 N. C. App. 262, 174 S. E. 2d 69 (1970). The North Carolina Supreme Court denied certiorari. We granted certiorari to determine whether the rule of Griffin v. Illinois, 351 U. S. 12 (1956), applies in this context. 401 U. S. 973 (1971). We conclude that it does, but that in the narrow circumstances of this case, no violation of that rule has been shown, and therefore we affirm.

Griffin v. Illinois and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. The question here is whether the state court properly determined that the transcript requested in this case was not needed for an effective defense.

In prior cases involving an indigent defendant’s claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript. Mr. Justice Douglas suggests that the North Carolina courts refused to order a transcript in this case both because petitioner failed to make a particularized showing of need, and because there were adequate alternative devices available to him.

We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner’s failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case. As Mr. Justice Douglas makes clear, even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.

But the court below did not use the language of “particularized need.” It rested thé decision instead on the second factor in the determination of need, that is, the availability of adequate alternatives to a transcript. The second trial was before the same judge, with the same counsel and the same court reporter, and the two trials were only a month apart. In these circumstances, the court suggested that petitioner’s memory and that of his counsel should have furnished an adequate substitute for a transcript. In addition, the court pointed to the fact that petitioner could have called the court reporter to read to the jury the testimony given at the mistrial, in the event that inconsistent testimony was offered at the second trial.

We have repeatedly rejected the suggestion that in order to render effective assistance, counsel must have a perfect memory or keep exhaustive notes of the testimony given at trial. Moreover, we doubt that it would suffice to provide the defendant with limited access to the court reporter during the course of the second trial. That approach was aptly rejected as “too little and too late” in United States ex rel. Wilson v. McMann, 408 F. 2d 896, 897 (CA2 1969). At oral argument in this case, however, it emerged that petitioner could have obtained from the court reporter far more assistance than that available to the ordinary defendant, or to the defendant in Wilson. The trials of this case took place in a small town where, according to petitioner’s counsel, the court reporter was a good friend of all the local lawyers and was reporting the second trial. It appears that the reporter would at any time have read back to counsel his notes of the mistrial, well in advance of the second trial, if counsel had simply made an informal request.

A defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight. In this case, however, petitioner has conceded that he had available an informal alternative which appears to be substantially equivalent to a transcript. Accordingly, we cannot conclude that the court below was in error in rejecting his claim.

For these reasons the judgment is Affirmed.

Mr. Justice Blackmun concurs in the result, but he would dismiss the petition for certiorari as having been improvidently granted.

Mr. Justice Douglas,

with whom Mr. Justice Brennan concurs,

dissenting.

After the State's first murder prosecution of the petitioner ended in a hung jury in November 1969, Britt was retried, convicted, and sentenced to 30 years’ imprisonment. During the interim between the two trials, the petitioner made a showing of indigency and asked that the State provide him with a free transcript of the mistrial. The trial court denied his motion despite Britt’s contention that because a more affluent defendant could purchase such a transcript as a matter of right a denial of his request would offend the principle of Griffin v. Illinois, 351 U. S. 12 (1956). On appeal, the North Carolina Court of Appeals was likewise unconvinced by Britt’s equal protection claim and affirmed the trial court’s refusal to order a free transcript, stating that (a) the petitioner had not made a particularized showing of need, (b) he had been represented by the same lawyer at both trials, and therefore (c) any suspected inconsistencies in prosecution evidence could have been developed by counsel’s putting on the court reporter to read earlier testimony of the first trial. Because I am persuaded by Britt’s argument I would reverse the decision of the North Carolina Court of Appeals.

I

Griffin v. Illinois, supra, at 19, established the now familiar principle that “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” While Griffin involved only the provision of a free transcript to an indigent on direct appeal, its underlying principle has achieved broader usage. We have witnessed a steady growth of its applications to other transcript cases, to docketing fees, and to right to counsel.

Of these applications, Roberts v. LaVallee, 389 U. S. 40 (1967), is most analogous to the instant circumstances. In Roberts, an indigent defendant before trial asked a state court to provide him with a free transcript of a preliminary hearing at which a key state witness had testified. In Roberts, as here, no special showing of need was made, the defendant was represented by the same counsel at all times, and the court reporter could have been called to read back previous testimony. Id., at 43. Nonetheless, over the dissent of Mr. Justice Harlan that no prejudice had been shown, id., at 44, we held that withholding the requested transcript was an invalid interposition of a financial consideration between an indigent prisoner and his right to sue for his liberty. Id., at 42.

Here the request was for a mistrial transcript, whereas in Roberts a motion had been made for a preliminary hearing transcript. In the ways in which either might be used I can perceive no differences. In both sets of circumstances it would seem that defendants would be interested in better trial preparation and in better positions from which to challenge discrepancies in government witnesses’ stories. For both of these purposes a mistrial transcript would be more valuable than a preliminary hearing recording because the former is a virtual dry run of the entire prosecution’s case, information which normally is clothed in top secrecy under the prevailing and restrictive rules against a criminal defendant’s discovery.

Perhaps for these considerations the Second Circuit has squarely held that indigent state defendants have an absolute right to free transcripts of previous prosecutions ending in hung juries. United States ex rel. Wilson v. McMann, 408 F. 2d 896 (CA2 1969). As both here and in Roberts, Wilson had made no showing of particular need, had been represented by the same lawyer at all times, and could have called the court reporter to read back previous testimony. And, as here, the defendant had requested a mistrial transcript during the interim between the two prosecutions. The Second Circuit considered Griffin and Roberts controlling.

The North Carolina Court of Appeals, however, has rejected the Griffin-Roberts-Wilson cases and sought refuge in the pre-Roberts authority of Nickens v. United States, 116 U. S. App. D. C. 338, 323 F. 2d 808 (1963), which had emphasized, as did the court below, the defendant’s failure to articulate a particular need for a transcript, the continuity of defense counsel, and the availability of the court reporter. I thought that these arguments had been found irrelevant for constitutional purposes under Griffin-Roberts-Wilson.

II

The primary rationale offered to support the holding below is that the petitioner failed to make a showing of a particularized need for a mistrial transcript. Presumably this rationale flows from the legitimate state interest in avoiding needless fiscal outlays. In related contexts we have rejected the notion that an impoverished accused in the federal courts may be refused a transcript simply because his lawyer is unable to articulate the very subtleties which might be buried in the document he seeks. For example, in Hardy v. United States, 375 U. S. 277 (1964), we required courts of appeals to order for indigent criminal appellants complete trial transcripts even for the preliminary purpose of determining whether their appeals might present nonfrivolous questions for review and therefore entitle them to in forma pauperis relief pursuant to 28 U. S. C. § 1915. We rejected the then-prevailing view that a full transcript for such purposes could only be provided for those appellants able to demonstrate a particular need for all parts thereof: The concurring opinion of four Justices concerning the value of a transcript in appellate advocacy is applicable to the analogous use of a mistrial transcript in formulating retrial strategy:

“As any effective appellate advocate will attest, the most basic and fundamental tool of his profession is the complete trial transcript, through which his trained fingers may leaf and his trained eyes may roam in search of an error, a lead to an error, or even a basis upon which to urge a change in an established and hitherto accepted principle of law. . . .
“. . . No responsible retained lawyer who represents a defendant at trial will rely exclusively on his memory (even as supplemented by trial notes) in composing a list of possible trial errors which delimit his appeal.” Hardy v. United States, supra, at 288 (Goldberg, J., concurring).

Similarly, while counsel is studying mistrial minutes, the precise words used by a witness might trigger mental processes resulting in legitimate defense strategies which otherwise might be overlooked. Such spontaneity can hardly be forecast and articulated in advance in terms of special or particularized need.

It is unnecessary, however, to speculate as to how often helpful subtleties in mistrial transcripts might actually be found because, as a more general matter, at least two compelling interests would be routinely served by providing paupers with free transcripts, even in cases where counsel were unable to specify the precise nature of the benefits of such discovery. As mentioned earlier, one such interest is that of effective trial preparation by counsel (who may realize that his counterpart, the prosecutor, will employ a similar document supplied at the State’s expense during his own trial preparation). The other interest is that of anticipating possible discrepancies in prosecution witnesses’ statements and in being prepared immediately to challenge such contradictions. See Wilson, supra, at 897. Because wealthier defendants tend to purchase transcripts as a matter of course simply on the strength of these recurring interests, it would appear that these benefits are ordinarily worth the fiscal burden of providing the documents regardless of how the cost of reproducing minutes may be distributed.

When viewed in the broader context of a defendant’s complete lack of criminal discovery procedures, the importance of a mistrial transcript becomes even clearer. Many commentators have criticized the persistent common-law prohibition against discovery by criminal defendants, characterizing present systems as “sporting theories of justice” and complaining of the vast advantage enjoyed by the prosecution in the marshaling of evidence. While some States and the federal system have moved to liberalize defendants' discovery privileges, the common-law prohibition with limited exceptions still applies in North Carolina. No criminal analogue has been enacted to complement the State’s more modern and comprehensive rules of civil discovery. Instead, its judiciary has continued to apply the common law’s flat ban and as recently as 1964 has reaffirmed that policy. In State v. Goldberg, 261 N. C. 181, 134 S. E. 2d 334 (1964), the North Carolina Supreme Court affirmed a trial court’s refusal to order the State Bureau of Investigation to permit a defendant to inspect certain documents in its files. In explaining the ancient rule the court approved the language of Chief Justice Vanderbilt’s well-known view of criminal discovery in the leading case of State v. Tune, 13 N. J. 203, 98 A. 2d 881 (1953):

“ 'In criminal proceedings long experience has taught the courts that often discovery will lead not to honest fact-finding, but on the contrary to perjury and the suppression of evidence. Thus the criminal who is aware of the whole case against him will often procure perjured testimony in order to set up a false defense. . . . Another result of full discovery would be that the criminal defendant who is informed of the names of all the State’s witnesses may take steps to bribe or frighten them into giving perjured testimony or into absenting themselves so that they are unavailable to testify. Moreover, many witnesses, if they know that the defendant will have knowledge of their names prior to trial, will be reluctant to come forward with information during the investigation of the crime. ... All these dangers are more inherent in criminal proceedings where the defendant has much more at stake, often his own life, than in civil proceedings. The presence of perjury in criminal proceedings today is extensive despite the efforts of the courts to eradicate it and constitutes a very serious threat to the administration of criminal justice and thus to the welfare of the country as a whole. ... To permit unqualified disclosure of all statements and information in the hands of the State would go far beyond what is required in civil cases; it would defeat the very ends of justice,’ ” State v. Goldberg, supra, at 192, 134 S. E. 2d, at 341.

North Carolina’s presentation of an anti-discovery policy is evidenced not only in its reluctance to enact a modern code to permit such procedures but also in its occasional one-sided legislation concerning related matters. For example, while a local prosecutor has an absolute right to inspect the files of the State Bureau of Investigation which pertain to one of his local inquiries, an accused may inspect such evidence only upon court order procured for good cause. See N. C. Gen. Stat. § 114-15 (1966). Even a common-law request for a bill of particulars to clarify an indictment normally does not require a prosecutor to divulge names of his witnesses or the nature of his physical or documentary evidence. N. C. Gen. Stat. § 15-143 (1965); State v. Spence, 271 N. C. 23, 32, 155 S. E. 2d 802, 809 (1967).

Thus, it is not surprising that Britt’s investigative and preparatory resources were puny in contrast to those employed by his accusers. The local police were able to enlist the talent of the State Bureau of Investigation to trace and analyze fingerprint evidence. Investigators were able to study the situs of the murder. At their convenience officers were able to interrogate the incarcerated defendant, eventually eliciting from him an incriminating statement. After the mistrial the prosecutor, unlike Britt’s lawyer, had access to a transcript to readjust his trial strategy.

This Court has been sensitive to the persuasive arguments for more liberal rules of criminal discovery. To the extent that a State permits criminal discovery by its accused, it is our duty to forbid distribution of its fruits according to formulas based on wealth, which, like race, is a suspect classification. Griffin v. Illinois, supra; Harper v. Virginia Board of Elections, 383 U. S. 663 (1966); Shapiro v. Thompson, 394 U. S. 618 (1969).

The provision in North Carolina permitting defendants to purchase mistrial minutes is obviously an important exception to the common-law prohibition. A mistrial transcript contains not only prosecution witnesses’ names and addresses but their stories under oath and it contains the entire theory of the government’s case. Such a document is a complete dossier of the opposing case for which even the most liberalized rules of civil discovery have no equivalent. While this exception endures, the State may not condition its availability upon financial considerations which effectively deprive the poor of this valuable tool.

III

The lower court’s opinion suggests that whatever legitimate uses generally might be made of mistrial minutes could alternatively be accomplished by counsel’s calling as a witness the court reporter of the previous prosecution. See also Nickens v. United States, 116 U. S. App. D. C., at 341, 323 F. 2d, at 811. However satisfactorily that suggestion might facilitate impeachment of government witnesses, it should be clear that the procedure would provide no assistance in preparing counsel for trial.

Moreover, the procedure of calling a court reporter to verify hostile witnesses’ contradictions has been discredited by trial commentators, including Professor Robert Keeton:

“If you have caught the witness in a contradiction, it is the more clearly shown if the exact words previously used by the witness are brought to the jury’s attention. The effect may extend beyond the bearing of the contradiction on its own subject matter, for the witness may be ‘broken down’ so that he makes other admissions or the jury disbelieves other parts of his testimony. Calling upon the reporter to read such prior testimony during the examination, however, is rarely a practicable method of confronting the witness with such contradiction. Many trial judges will decline to permit the practice because of the great delay usually involved, while the reporter is seaching through his notes in an effort to find the part of the testimony to which you refer. Even if the judge will permit the practice, the wisdom of its use is questionable. The jury and court may grow impatient, and the witness will have been afforded a considerable period of time to think about the matter and be prepared with an explanation or excuse.” R. Keeton, Trial Tactics and Methods 103 (1954). (Emphasis added.)

Indeed these hazards were painfully present in United States ex rel. Wilson v. McMann, supra, in which Wilson’s attorney erroneously believed he remembered an inconsistent statement of a prosecution witness who had testified at the prior mistrial. At the second trial the lawyer quizzed the witness concerning this prior remark but the witness denied having ever made it. The judge decided to delay the trial until the reporter of the mistrial could read back the precise words used by the witness. After “considerable delay and perhaps some inconvenience to the jurors” counsel learned that he had been mistaken and that no contradiction, at least on the suspected issue, had existed. Id., at 898.

I am not satisfied that the procedure afforded paupers by the Nickens majority is a reasonable substitute for full access to a mistrial transcript. Accordingly, I would hold under the Griffin-Roberts-Wilson line of authority that Britt has been denied equal protection of the laws.

I would reverse the judgment below.

        Williams v. Oklahoma City, 395 U. S. 458 (1969); Gardner v. California, 393 U. S. 367 (1969); Roberts v. LaVallee, 389 U. S. 40 (1967); Long v. District Court of Iowa, 385 U. S. 192 (1966); Draper v. Washington, 372 U. S. 487 (1963); Eskridge v. Washington Prison Board, 357 U. S. 214 (1958); Griffin v. Illinois, 351 U. S. 12 (1956).

       See Draper v. Washington, supra, at 495-496, and other cases cited n. 1, supra.

       In Griffin, the Court was able to rely on a concession of need by the State, 351 U. S., at 13-14, 16. In subsequent cases the Court has taken judicial notice of the importance of a transcript in a variety of circumstances, see Eskridge, supra, at 215; Gardner, supra, at 369-370. Most recently in Long and Roberts the Court simply found it unnecessary to discuss the question, notwithstanding the fact that in Roberts Mr. Justice Harlan argued in dissent that petitioner had suggested no use to which the transcript could have been put, 389 U. S., at 43.

       While trial notes might well provide an adequate substitute for a transcript, the failure to make such notes does not bar an indigent prisoner from claiming the right to a free transcript, Eskridge, supra, at 215. As for requiring a prisoner to rely on his memory, this Court rejected that as an alternative to a transcript in Gardner, supra, at 369-370, and Williams, supra, at 459. Indeed, in Long we refused to consider any alternatives suggested by the State, on the ground that in that case a transcript was in fact available and could easily have been furnished. 385 U. S., at 194 — 195. Whether a transcript is similarly available in this case does not appear from the record.

       Tr. of Oral Arg. 12. Cf. Avery v. Alabama, 308 U. S. 444, 450-452 (1940) (Black, J.).

       Cf. Wade v. Wilson, 396 U. S. 282 (1970), in which no such concession was made. In that case it simply appeared from the record that petitioner might have been able to borrow a transcript from the prosecutor, in light of the fact that he had done so in an earlier proceeding. We remanded the case to permit exploration of that possibility.

        Wade v. Wilson, 396 U. S. 282 (1970); Gardner v. California, 393 U. S. 367 (1969); Roberts v. LaVallee, 389 U. S. 40 (1967); Long v. District Court of Iowa, 385 U. S. 192 (1966); Draper v. Washington, 372 U. S. 487 (1963); Eskridge v. Washington Prison Board, 357 U. S. 214 (1958); Ross v. Schneckloth, 357 U. S. 575 (1958); People v. Montgomery, 18 N. Y. 2d 993, 224 N. E. 2d 730 (1966). An indigent’s right to a transcript of grand jury testimony in the federal courts is now protected by the Criminal Justice Act of 1964, at least to the extent that any defendant—whether rich or poor—has access thereto. 18 U. S. C. § 3006A (e) (1). In the Second and Seventh Circuits federal defendants have absolute rights to all grand jury minutes. United States v. Youngblood, 379 F. 2d 365 (CA2 1967); United States v. Amabile, 395 F. 2d 47, 53 (CA7 1968). And in all other circuits the grand jury testimony of an individual prosecution witness is discoverable under the recent amendments to the Jencks Act. 18 U. S. C. § 3500 (e) (3).

         Boddie v. Connecticut, 401 U. S. 371 (1971); Smith v. Bennett, 365 U. S. 708 (1961); Burns v. Ohio, 360 U. S. 252 (1959).

        Anders v. California, 386 U. S. 738 (1967); Swenson v. Bosler, 386 U. S. 258 (1967); Douglas v. California, 372 U. S. 353 (1963); see also Gideon v. Wainwright, 372 U. S. 335 (1963).

       These two reasons were offered by the Second Circuit to explain why a mistrial transcript might be useful. United States ex rel. Wilson v. McMann, 408 F. 2d 896 (CA2 1969). Our discussion in Roberts did not suggest any ways in which the transcript of the pretrial hearing might have been useful, although our per curiam intimated that perhaps counsel desired to have a check against the testimony of a key witness, Roberts v. LaVallee, supra, at 41; nor did the Second Circuit’s discussion of the issue, United States ex rel. Roberts v. LaVallee, 373 F. 2d 49 (CA2 1967).

        Nickens v. United States, 116 U. S. App. D. C. 338, 323 F. 2d 808 (1963), was decided before the full development of our transcript cases. The majority opinion in Nickens gave the other issues in the case more plenary consideration. Judge Wright concurred in the majority’s view that no transcript had been required but only because he believed a motion to obtain a transcript had not been properly raised. Id., at 345, 323 F. 2d, at 815. Also cited in the North Carolina opinion was Forsberg v. United States, 351 F. 2d 242 (CA9 1965), also a pre-Roberts opinion, which relied solely on Nickens in denying a mistrial transcript to an indigent. Id., at 248.

       Professor Robert Keeton notes that in civil cases involving large amounts of money it is standard practice for lawyers to place “a standing order with the reporter for ‘daily copy’ of the trial proceedings.” R. Keeton, Trial Tactics and Methods 104 (1954). Presumably when wealthy clients are haled before criminal courts rather than before civil ones, their attorneys likewise place such standing orders.

       The excessive disparity between the State and the accused in their respective investigative resources, and the common law’s prohibition against discovery have been summarized as follows by one commentator:
      “[T]he law enforcement agency is often at the scene of the crime shortly after its commission. While at the scene, the police have better access to witnesses with fresher recollections. They are authorized to confiscate removable evidence. In addition, the financial and investigatory resources of law enforcement agencies permit an extensive analysis of all relevant evidence.
      “The defendant has the option of hiring a private investigator. However, the investigator will probably get to the scene long after the occurrence of the crime and after the police have made their investigation and removed all relevant physical evidence. The defendant’s investigator may have difficulty viewing the scene if it is on private property. Witnesses may be less accessible; their recollections will probably be less precise. Indeed they may choose not to cooperate at all with the defendant’s investigator. However, it may all be irrelevant if, as is often the case, the defendant is unable to afford an investigator or is incarcerated pending trial.
      “The defendant is helpless to cope with the uncooperative witness while the prosecutor has numerous means to compel testimony. First, there is the possibility of [a] coroner’s inquest or a preliminary hearing. And if the prosecution prefers not to have the defense present, some jurisdictions allow the prosecution to take testimony while the defendant and his attorney are excluded. The uncooperative witness can be subpoenaed to appear before the grand jury and required to testify, again without the presence of the defense. The defense cannot, usually, discover the grand jury minutes.
      “Many states require that the defendant give notice of intended alibi or insanity defenses. The prosecution’s burden, in bringing a charge, in contrast, has been substantially lessened. Mere recitation of the statute may be a sufficient pleading of the charge. Amendments to the indictment or information are liberally allowed; duplicity and variances are no longer serious defects. Liberal pleading rules deprive the defendant of effective notice of the circumstances of the offense.” Norton, Discovery in the Criminal Process, 61 J. Crim. L. C. & P. S. 11, 13-14 (1970).
      See generally Handzel, Criminal Law: Pre-Trial Discovery — The Right of an Indigent’s Counsel to Inspect Police Reports, 14 St. Louis IT. L. J. 310 (1969); Moore, Criminal Discovery, 19 Hastings L. J. 865 (1968); A State Statute to Liberalize Criminal Discovery, 4 Harv. J. Legis. 105 (1967). Comment, Disclosure and Discovery in Criminal Cases: Where Are We Headed?, 6 Duquesne U. L. Rev. 41 (1967); Golden & Palik, Bibliography: Criminal Discovery, 5 Tulsa L. J. 207 (1968); Symposium: Discovery in Federal Criminal Cases, 33 F. R. D. 47 (1963); Brennan, Criminal Prosecution: Sporting Event or Quest For Truth?, 1963 Wash. U. L. Q. 279.

       See Fed. Rules Crim. Proc. 15-17. See also Note, Discovery Procedures Under New York’s New Criminal Procedure Law, 38 Brooklyn L. Rev. 164 (1971); Right of Accused in State Courts to Inspection or Disclosure of Evidence in Possession of Prosecution, 7 A. L. R. 3d 8 (1966).

         Statutory exceptions to the common-law ban in North Carolina may be found at N. C. Gen. Stat. § 8-74 (1969) (depositions of witnesses unable to attend trial); and at § 15-155.4 (Supp. 1969). The latter provision was enacted in 1967 and permits limited discovery of prosecution evidence where (a) good cause is shown for discovery, (b) the prosecution intends to use the evidence at trial. The latter condition would effectively prevent defendants’ discovery of evidence which might be favorable. The only reported decisions considering this addition are those in State v. Macon, 276 N. C. 466, 173 S. E. 2d 286 (1970), affirming 6 N. C. App. 245, 170 S. E. 2d 144 (1969), upholding the refusal of a trial court to permit an accused’s inspection of notes which had been made by a specified police officer during the accused’s interrogation.

       N. C. Gen. Stat. c. 1A (1969).

       The celebrated opinions in State v. Tune, 13 N. J. 203, 98 A. 2d 881 (1953), contain a vigorous dissent by Justice (now Mr. Justice) BrenNAN who expressed regret over the majority’s disregard of the successful implementation of liberal discovery in civil matters.

       In another North Carolina retrial situation considered in State v. Overman, 269 N. C. 453, 153 S. E. 2d 44 (1967), an accused rapist’s pretrial request for details concerning the evidence to be presented against him was denied on the ground that he could simply study a transcript of his prior acquittal of a kidnaping charge arising out of the same transaction.

       The most comprehensive and recent statement of criminal discovery in North Carolina is A Look At North Carolina’s Criminal Discovery System Prepared for North Carolina Governor’s Committee on Law and Order, Task Force on Arrest and Apprehension, A. Pye, Chmn. (1970): “Very little use is being made of the new (1967) criminal discovery statute (G. S. 15-155) which is resulting in a paucity of cases dealing with the extent to which it allows discovery. It is unclear whether the attorneys are not aware of the statute or whether they feel that there is little use in filing a motion under it. . . . Indications are that both these reasons have vitality,” id., at 14-15. It continues:
      “There is a strong possibility that solicitors (consciously or unconsciously) withhold evidence favorable to the defendant. . . .” Id., at 16.
      In addition to the discussion of such procedures in State v. Goldberg , 261 N. C. 181, 134 S. E. 2d 334 (1964), see State v. Hamilton, 264 N. C. 277, 141 S. E. 2d 506 (1965) (access to police reports and notes denied); State v. Overman, supra, at 468, 153 S. E. 2d, at 57; see also Goldman v. United States, 316 U. S. 129 (1942), cited with approval in Goldberg, supra, at 191, 134 S. E. 2d, at 341, holding that a defendant has no right to inspect memoranda used by prosecution witnesses to refresh their memories. See generally the restatement of the common-law rules of discovery, cited by the Goldberg court, supra, at 191, 134 S. E. 2d, at 340, in 23 C. J. S., Criminal Law §§955 (1) and (2).

       See Pyle v. Kansas, 317 U. S. 213 (1942); Jencks v. United States, 353 U. S. 657, 668 (1957); Brady v. Maryland, 373 U. S. 83 (1963). In Dennis v. United States, 384 U. S. 855, 873 (1966), we required a trial court to allow inspection by a defendant of grand jury minutes, reasoning that: “In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact.”

       The majority does not disagree that under ordinary circumstances Britt would have been denied equal protection of the laws. The majority, however, distinguishes Britt’s case from the routine case because he was tried in a small town where defense counsel was well acquainted with the court reporter. Counsel, reasons the Court, ought to have prevailed upon the reporter between trials to assist in his making notes of the first trial. I believe that these kinds of fortuities ought not to be determinative of constitutional guarantees, especially where it may be difficult afterwards to establish the nature of such alleged relationships.


author: Per Curiam.

text:
    NORTH CAROLINA v. RICE
    No. 70-77.
    Argued October 12, 1971
    Decided December 14, 1971

      Jacob L. Safron, Assistant Attorney General of North Carolina, argued the cause for petitioner. With him on the brief was Robert Morgan, Attorney General. Joining in and adopting the brief were the Attorneys General for their respective States as follows: Gary K. Nelson of Arizona, Ray Thornton of Arkansas, Robert L. Shevin of Florida, Theodore L. Sendak of Indiana, Vern Miller of Kansas, John B. Breckinridge of Kentucky, James S. Erwin of Maine, Francis B. Burch of Maryland, A. F. Summer of Mississippi, Robert L. Woodahl of Montana, Clarence A. H. Meyer of Nebraska, Helgi Johanneson of North Dakota, Crawford C. Martin of Texas, Vernon B. Romney of Utah, and Andrew P. Miller of Virginia.

      William W. Van Alstyne argued the cause and filed a brief for respondent.
    Briefs of amici curiae urging reversal were filed by John W. Benoit, Jr., Deputy Attorney General, for the State of Maine, and by Vernon B. Romney, Attorney General, of Utah, pro se.

   Per Curiam.

On July 2, 1968, respondent Rice was arrested for driving while intoxicated on a North Carolina state highway. He was tried in the General County Court of Buncombe County, convicted, and sentenced to imprisonment for nine months with sentence suspended upon payment of $100 fine and costs. On appeal he was tried de novo in the Superior Court, found guilty, and sentenced to two years’ imprisonment. State post-conviction procedures were unavailing. On appeal from denial of federal habeas corpus, the Court of Appeals for the Fourth Circuit held that under North Carolina v. Pearce, 395 U. S. 711 (1969), “the more drastic sentence on the second trial [was] a denial of Federal due process, in that by discouragement it impinges upon the State-given appeal.” 434 F. 2d 297, 300 (1970). Although “[h]e was completely discharged by North Carolina on January 24, 1970 . . . this did not moot the case on habeas corpus” because injurious consequences from the conviction might still obtain. Ibid. The judgment was that Rice' was entitled to have the record of his conviction expunged. The State’s petition for writ of certiorari was granted. 401 U. S. 1008 (1971).

The State claims that Pearce does not apply to a situation where the more severe sentence is imposed after a trial de novo in its Superior Court. We do not reach that question, however, since the threshold issue of mootness was improperly disposed of by the Court of Appeals. Although neither party has urged that this case is moot, resolution of the question is essential if federal courts are to function within their constitutional sphere of authority. Early in its history, this Court held that it had no power to issue advisory opinions, Hayburn’s Case, 2 Dall. 409 (1792), as interpreted in Muskrat v. United States, 219 U. S. 346, 351-353 (1911), and it has frequently repeated that federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them. Oil Workers Unions v. Missouri, 361 U. S. 363, 367 (1960). To be cognizable in a federal court, a suit “must be definite and concrete, touching the legal relations of parties having adverse legal interests. ... It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be .upon a hypothetical state of facts.” Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240-241 (1937). However, “[m]oot questions require no answer.” Missouri, Kansas & Texas R. Co. v. Ferris, 179 U. S. 602, 606 (1900). Mootness is a jurisdictional question because the Court “is not empowered to decide moot questions or abstract propositions,” United States v. Alaska S. S. Co., 253 U. S. 113, 116 (1920), quoting California v. San Pablo & Tulare R. Co., 149 U. S. 308, 314 (1893); our impotence “to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.” Liner v. Jafco, Inc., 375 U. S. 301, 306 n. 3 (1964). See also Powell v. McCormack, 395 U. S. 486, 496 n. 7 (1969). Even in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction. Henry v. Mississippi, 379 U. S. 443, 447 (1965). Liner v. Jafco, Inc., supra, at 304.

The Court of Appeals held that the case was not moot because it assumed that Pearce mandated expunction of Rice’s conviction and because the conviction, unex-punged, would have collateral consequences entitling Rice to challenge it. A number of disabilities may attach to a convicted defendant even after he has left prison, and the Court has recognized the standing of such persons to challenge the legality of their convictions even when their sentences have been served. It could not be clearer, however, that Pearce does not invalidate the conviction that resulted from Rice’s second trial; Pearce went no further than to affirm the judgment of a federal court ordering Pearce’s release “[u]pon the failure of the state court to resentence Pearce within 60 days . . . .” 395 U. S., at 714. (Emphasis added.) Pearce, in short, requires only resentencing; the conviction is not ipso facto set aside and a new trial required. Even if the higher sentence imposed after Rice’s trial de novo was vulnerable under Pearce, Rice was entitled neither to have his conviction erased nor to avoid the collateral consequences flowing from that conviction and a proper sentence.

Respondent’s sole claim under Pearce thus related to the sentence he had completely served when he came before the Court of Appeals. A different question of mootness is therefore presented than the Court of Appeals considered. Nullification of a conviction may have important benefits for a defendant, as outlined above, but urging in a habeas corpus proceeding the correction of a sentence already served is another matter. Respondent was first sentenced to nine months, suspended upon payment of a $100 fine; after trial de novo he was sentenced to two years. In some jurisdictions, if a defendant is adjudicated guilty, either by conviction or plea, and then is placed on probation, not sentenced, or given a suspended sentence, statutes imposing disabilities for criminal convictions have no application. Elsewhere, however, the sentencing that follows adjudication of guilt is irrelevant for purposes of disability statutes. Since the present record deals with the mootness question only from the standpoint of conviction vel non and is otherwise unilluminating as to whether there may be benefits to respondent under North Carolina law in having his sentence reduced after he has served that sentence, it would be inappropriate for us to deal with this issue as it has now emerged. Accordingly, we vacate the judgment of the Court of Appeals and remand the case to that court for reconsideration of the question of mootness.

7 So ordered.

Mr. Justice Douglas would affirm the judgment below on the opinion of the Court of Appeals in 434 F. 2d 297.

         A convicted criminal may be disenfranchised, cf., e. g., Mont. Const., Art. IX, § 2; Mont. Rev. Codes Ann. § 23-302 (1967); Okla. Const., Art. III, § 1; Okla. Stat. Ann., Tit. 26, § 93.1 (Supp. 1971-1972); lose the right to hold federal or state office, cf., e. g., Del. Const., Art. 2, §21; 18 U. S. C. §204; be barred from entering certain professions, 7 U. S. C. § 12a (2) (B); D. C. Code Ann. §§ 47-2301 to 47-2350 (1967); be subject to impeachment when testifying as a witness, Ark. Stat. Ann. § 28-605 (1962); Ore. Rev. Stat. §44.020 (1963); be disqualified from serving as a juror, Idaho Const., Art. 6, § 3, Idaho Code § 2-202 (1948); Nev. Const., Art. 4, §27, Nev. Rev. Stat. §6.010 (1967); and may be subject to divorce, W. Va. Code Ann. §48-2-4 (Supp. 1971). See generally Comment, Civil Disabilities of Felons, 53 Va. L. Rev. 403 (1967) ; Note, The Effect of Expungement on a Criminal Conviction, 40 S. Cal. L. Rev. 127 (1967).

        Pollard v. United States, 352 U. S. 354, 358 (1957); United States v. Morgan, 346 U. S. 502, 512-513 (1954); Fiswick v. United States, 329 U. S. 211, 222 (1946); Carafas v. LaVallee, 391 U. S. 234, 237-240 (1968).

       See Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929, 954 n. 97 (1970).

        Ibid.


author: Per Curiam. Mr. Chief Justice Burger,

text:
    WILWORDING et al. v. SWENSON, WARDEN
    No. 70-5308.
    Decided December 14, 1971
   Per Curiam.

On the ground that they challenged only their living conditions and disciplinary measures while confined in maximum security at Missouri State Penitentiary, and did not seek their release, petitioners’ state habeas corpus petitions were dismissed. The Missouri Supreme Court aifirmed. Petitioners then sought federal habeas corpus in the District Court for the Western District of Missouri. The District Court dismissed the petitions and the Court of Appeals for the Eighth Circuit affirmed, 439 F. 2d 1331. Although petitioners had exhausted state habeas relief the Court of Appeals agreed with the District Court that the requirements of 28 U. S. C. § 2254 had not been satisfied because petitioners had not invoked any of a number of possible alternatives to state habeas including “a suit for injunction, a writ of prohibition, or mandamus or a declaratory judgment in the state courts,” or perhaps other relief under the State Administrative Procedure Act. Id., at 1336.

I

Section 2254 does not erect insuperable or successive barriers to the invocation of federal habeas corpus. The exhaustion requirement is merely an accommodation of our federal system designed to give the State an initial “opportunity to pass upon and correct” alleged violations of its prisoners’ federal rights. Fay v. Noia, 372 U. S. 391, 438 (1963). Petitioners are not required to file “repetitious applications” in the state courts. Brown v. Allen, 344 U. S. 443, 449 n. 3 (1953). Nor does the mere possibility of success in additional proceedings bar federal relief. Roberts v. LaVallee, 389 U. S. 40, 42-43 (1967); Coleman v. Maxwell, 351 F. 2d 285, 286 (CA6 1965). Whether the State would have heard petitioners’ claims in any of the suggested alternative proceedings is a matter of conjecture; certainly no available procedure was indicated by the State Supreme Court in earlier cases. See McMichaels v. Hancock, 428 F. 2d 1222, 1223 (CA1 1970). Furthermore, we are not referred to a single instance, regardless of the remedy invoked, in which the Missouri courts have granted a hearing to state prisoners on the conditions of their confinement. In these circumstances § 2254 did not require petitioners to pursue the suggested alternatives as a prerequisite to taking their claims to federal court. As Mr. Justice Rutledge stated in his concurrence in Marino v. Ragen, 332 U. S. 561, 568 (1947):

“The exhaustion-of-state-remedies rule should not be stretched to the absurdity of requiring the exhaustion of . . . separate remedies when at the outset a petitioner cannot intelligently select the proper way, and in conclusion he may find only that none of the [alternatives] is appropriate or effective.”

II

Moreover, although cognizable in federal habeas corpus, see Johnson v. Avery, 393 U. S. 483 (1969), petitioners’ pleading may also be read to plead causes of action under the Civil Rights Acts, 42 U. S. C. § 1983, and 28 U. S. C. §§ 1343 (3) and 1343 (4), for deprivation of constitutional rights by prison officials. As to like actions, in an exhaustive opinion in Jackson v. Bishop, 404 F. 2d 571 (CA8 1968), Mr. Justice (then Judge) Blackmun stated:

“These actions were instituted in 1966 by handwritten petitions employing varying titles [including ‘habeas corpus’]. Each plaintiff asked for the appointment of counsel and permission to proceed in forma pauperis. Those requests were granted. Appointed counsel then filed amended complaints which have been treated by all concerned as petitions for injunctive relief under the civil rights statutes, 42 U. S. C. § 1983 and 28 U. S. C. § 1343 (3) and (4). We are satisfied as to jurisdiction. We are also satisfied, as were the district judges, that the cases are appropriately to be regarded as class actions within the scope and reach of Rule 23, Fed. R. Civ. P.” Id., at 572-573.

Petitioners were therefore entitled to have their actions treated as claims for relief under the Civil Rights Acts, not subject, on the basis of their allegations, to exhaustion requirements. The remedy provided by these Acts “is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” Monroe v. Pape, 365 U. S. 167, 183 (1961); McNeese v. Board of Education, 373 U. S. 668 (1963); Damico v. California, 389 U. S. 416 (1967). State prisoners are not held to any stricter standard of exhaustion than other civil rights plaintiffs. Houghton v. Shafer, 392 U. S. 639 (1968). There an inmate’s challenge to the confiscation of his legal materials without first seeking administrative redress was sustained. Although the probable futility of such administrative appeals was noted, we held that in “any event, resort to these remedies is unnecessary.” Id., at 640. Accordingly, the motions to proceed in forma pauperis and the petition for certiorari are granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Blackmun concurs in the judgment of the Court and in Part II of the Court’s per curiam opinion.

Mr. Chief Justice Burger,

dissenting.

This case is singularly inappropriate for summary reversal without an adequate record, and without briefs or argument. The Court assumes without citation of authority that further resort to state remedies would be futile; the District Judge, far more familiar than we with the local situation, thought otherwise. The Court does not rest its reversal on this ground, however, for it blandly treats petitioners’ habeas corpus petitions as complaints under 42 U. S. C. § 1983, an approach that petitioners’ experienced counsel has studiously and appropriately avoided. Petitioners had previously filed complaints expressly under § 1983, which were denied after full hearing. It is conceded in the petition for certiorari that almost all of the claims involved in those actions underlie the instant habeas corpus proceeding; but petitioners’ counsel argues that the doctrine of res judicata has no application in habeas corpus. The Court does not explain why this argument is not lost if the habeas corpus petitions are treated as complaints under § 1983.

I had previously thought that summary reversal was limited to cases where the error was manifest. Here, however, the Court has challenged the conclusion of the Court of Appeals largely on the basis of surmise and has gone on to reverse on a theory that thé Court of Appeals was not asked to consider and presumably could not have considered.

      It appears that petitioners did seek relief under the civil rights statutes before filing their petitions below, and that these claims were denied after a hearing. The dissent asserts that the petition for certiorari concedes “that almost all of the claims involved in those actions underlie the instant habeas corpus proceeding.” (Emphasis supplied.) We are unable to find that concession in the petition. At page 11 of the petition the following does appear: “Almost all of the complaints presented by [the earlier actions] had been raised in the habeas corpus petitions originally filed in the State courts underlying this Petition.” (Emphasis supplied.) Indeed, petitioners’ counsel in his reply brief disclaims knowledge of what claims were presented in the cases, stating: “As this writer did not participate as counsel in the Civil Rights Act cases and in view of the generalized nature of the claims for relief in the petitions herein, it is not known whether all of the issues intended to be presented by those petitions were presented in the Civil Rights Act eases.” Reply Brief 7. Accordingly, we must conclude that it is not clear from the record whether the issues raised in the earlier eases are the same as those presented here. The effect, if any, of those actions upon the instant eases must therefore be determined on remand.