author: Mr. Justice Harlan Mr. Justice Douglas,

text:
    BROTHERHOOD OF RAILROAD TRAINMEN et al. v. JACKSONVILLE TERMINAL CO.
    No. 69.
    Argued December 11, 1968.
    Decided March 25, 1969.

      Neal P. Rutledge argued the cause for petitioners. With him on the brief was Lester P. Schoene.

      Dennis G. Lyons argued the cause for respondent. With him on the brief were Paul A. Porter and Daniel A. Rezneck.

      J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.

      Francis M. Shea, Richard T. Conway, Ralph J. Moore, Jr., and James A. Wilcox filed a brief for the National Railway Labor Conference as amicus curiae urging affirmance.
   Mr. Justice Harlan

delivered the opinion of the Court.

This case arises out of the Nation’s longest railroad labor dispute, much of the history of which is recorded in the pages of the United States and federal reports. The events most pertinent to the present litigation began on April 24, 1966, when the Florida East Coast Railway Company (FEC), having exhausted all procedures required by the Railway Labor Act for the resolution of a “major dispute,” unilaterally changed its operating employees’ rates of pay, rules, and working conditions. Petitioners, who represent FEC’s operating employees, responded by calling a strike and thereafter by picketing the various locations at which FEC carried on its operations, including the premises of the respondent, Jacksonville Terminal Company.

On the complaint of respondent and two railroads other than FEC, a United States District Court issued a temporary restraining order several hours after the picketing began, and later enjoined petitioners from picketing respondent’s premises except at a “reserved gate” set aside for FEC employees. The Court of Appeals for the Fifth Circuit reversed, holding that the Norris-LaGuardia Act, 47 Stat. 70, 29 U. S. C. § 101 et seq., prevented issuance of a federal injunction. Railroad Trainmen v. Atlantic C. L. R. Co., 362 F. 2d 649 (1966). We affirmed by an equally divided Court. 385 U. S. 20 (1966).

While that litigation was pending in the federal courts, respondent instituted the present action for injunctive relief in the Florida Circuit Court. Petitioners removed the action to the United States District Court, which promptly remanded to the state court. The Florida court issued a temporary injunction, substantially identical to the earlier federal order, which it made final after a full hearing. On appeal, the Florida District Court of Appeal affirmed per curiam. The Supreme Court of Florida denied certiorari and dismissed the appeal. We granted certiorari, 392 U. S. 904 (1968), to determine the extent of state power to regulate the economic combat of parties subject to the Railway Labor Act.

I.

Respondent, a Florida corporation, operates a passenger and freight rail terminal facility in Jacksonville, Florida, through which rail traffic passes to and from the Florida peninsula. The corporation is jointly owned and controlled by four railroad carriers, including FEC, which enjoy the common use of the terminal’s facilities and services, and share equally in its operation.

FEC carries on substantial daily operations at the terminal, interchanging freight cars with the other railroads; it accounts for approximately 30% of all interchanges on the premises. Respondent provides various services necessary to FEC’s operations, including switching, signalling, track maintenance, and repairs on FEC cars and engines. Without the work and cooperation of employees of respondent (and the other railroads) FEC could not carry on its normal activities at the terminal. In short, "despite the legal separateness of the Terminal Company’s entity and operation, it cannot be disputed that the facilities and services provided by the Terminal Company in fact constitute an integral part of the day-to-day operations of the FEC . . . .” Railroad Trainmen v. Atlantic C. L. R. Co., 362 F. 2d 649, 651 (1966).

Respondent maintains a “reserved gate” for the exclusive use of all FEC employees entering the terminal premises on foot to begin their workday. Notices to this effect are posted, but compliance is not policed: FEC employees use other entrances as well, and other employees use the FEC reserved entrance. The terminal has a number of other foot, road, and rail entrances, through which pass employees of respondent and the railroads using the premises. No entrances are set aside to separate those employees of respondent and the other railroads who provide services for FEC from those who do not; nor, with one or two possible exceptions, do trains making interchanges with FEC pass through different gateways from those which do not. The joint and common use of the premises and facilities would, presumably, render such separations impracticable.

On May 4, 1966, petitioners began to picket almost every entrance to the terminal. The signs stated clearly that the dispute was with FEC alone, and urged “fellow railroad men” not to “cross” and not to “assist FEC.” The picketing was entirely peaceful. It lasted only a few hours, until it was curtailed by a federal temporary restraining order, and thereafter by a series of federal and state injunctions.

The Florida Circuit Court found that resumption of general picketing “would result in a virtual cessation of activities ... of the Terminal Company,” and would cause serious economic damage to the entire State. Joint App. 183. The court held that the picketing constituted a secondary boycott illegal under state law; that it unjustifiably interfered with respondent’s business relations; that it violated the State’s restraint of trade laws, Fla. Stat. § 542.01 et seq. (1965); and that it sought to force respondent to violate its duties as a carrier under the Florida Transportation Act. On this basis, the court enjoined petitioners from picketing the terminal except at the FEC reserved gate, and from causing or inducing respondent’s employees to cease performing their duties of employment in connection with the FEC dispute.

II.

We consider initially petitioners’ argument that the jurisdiction of the Florida court was ousted by the primary and exclusive jurisdiction of the National Labor Relations Board. Cf. San Diego Unions v. Garmon, 359 U. S. 236 (1959).

It is not disputed that petitioners, the respondent and its employees, and the railroads (including FEC) that use the terminal as well as their employees, are subject to the Railway Labor Act. See §§ 1 First, Fourth, 44 Stat. 577, as amended, 45 U. S. C. §§ 151 First, Fourth; Interstate Commerce Act, as amended, § 1 (3), 24 Stat. 379, 49 U. S. C. § 1 (3). The petitioner organizations “are composed predominantly and overwhelmingly of employees . . . subject to the Railway Labor Act,” Joint App. 93; all pickets were members of local lodges composed solely of such employees, and were employees of the FEC. Id., at 94. However, the organizations’ national membership includes a small percentage of employees who are not subject to the Railway Labor Act, and who may be subject to the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U. S. C. § 151 et seq. Petitioners contend that this is sufficient to bring the present dispute arguably within the NLRA, and they assert that until the National Labor Relations Board decides otherwise, no court may assume jurisdiction over the controversy. Cf. Marine Engineers v. Interlake Steamship Co., 370 U. S. 173 (1962).

This argument proves too much. For on petitioners’ theory, it is hard to conceive of any railway labor dispute that is not “arguably” subject to the NLRB’s primary jurisdiction. A serious question would be presented whether the parties to such a dispute were ever obligated to pursue the Railway Labor Act’s procedures, and whether the Mediation and Adjustment Boards could ever concern themselves with a dispute- — until the matter had first been submitted to the NLRB and that agency had determined that it lacked jurisdiction.

This was not meant to be. The NLRA came into being against the background of pre-existing comprehensive federal legislation regulating railway labor disputes. Sections 2 (2) and (3) of the NLRA, 29 U. S. C. §§ 152 (2), (3), expressly exempt from the Act’s coverage employees and employers subject to the Railway Labor Act. And when the traditional railway labor organizations act on behalf of employees subject to the Railway Labor Act in a dispute with carriers subject to the Railway Labor Act, the organizations must be deemed, pro tanto, exempt from the National Labor Relations Act. See NLRA § 2 (5), 29 U. S. C. § 152 (5). Marine Engineers, supra, is inapposite. For assuming, arguendo, that this is a “doubtful case,” 370 U. S., at 182, we were not there concerned with a conflict between two independent and mutually exclusive federal labor schemes.

Whatever might be said where railway organizations act as agents for, or as joint venturers with, unions subject to the NLRA, see Electrical Workers v. NLRB, 122 U. S. App. D. C. 8, 350 F. 2d 791 (1965); or where railway unions are engaged in a dispute on behalf of their nonrail employees; or where a rail carrier seeks a remedy against the conduct of nonrailway employees, see Steelworkers v. NLRB, 376 U. S. 492, 501 (1964); Teamsters Union v. New York, N. H. & H. R. Co., 350 U. S. 155 (1956), none of these is this case. This is a railway labor dispute, pure and simple. And although we shall make use of analogies drawn from the NLRA to determine the rights of employees subject to the Railway Labor Act, see infra, Parts V-VII, the NLRA has no direct application to the present case.

III.

The heart of the Railway Labor Act is the duty, imposed by § 2 First upon management and labor, “to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes ... in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.”

The Act provides a detailed framework to facilitate the voluntary settlement of major disputes. A party desiring to effect a change of rates of pay, rules, or working conditions must give advance written notice. § 6. The parties must confer, § 2 Second, and if conference fails to resolve the dispute, either or both may invoke the services of the National Mediation Board, which may also proffer its services sua sponte if it finds a labor emergency to exist. § 5 First. If mediation fails, the Board must endeavor to induce the parties to submit the controversy to binding arbitration, which can take place, however, only if both consent. §§ 5 First, 7. If arbitration is rejected and the dispute threatens “substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President,” who may create an emergency board to investigate and report on the dispute. § 10. While the dispute is working its way through these stages, neither party may unilaterally alter the status quo. §§ 2 Seventh, 5 First, 6, 10.

Nowhere does the text of the Railway Labor Act specify what is to take place once these procedures have been exhausted without yielding resolution of the dispute. Implicit in the statutory scheme, however, is the ultimate right of the disputants to resort to self-help— “the inevitable alternative in a statutory scheme which deliberately denies the final power to compel arbitration.” Florida E. C. R. Co. v. Railroad Trainmen, 336 F. 2d 172, 181 (1964). We have consistently so held in a long line of decisions. Railway Clerks v. Florida E. C. R. Co., 384 U. S. 238, 244 (1966); Locomotive Engineers v. Baltimore & O. R. Co., 372 U. S. 284 (1963); Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U. S. 330 (1960); Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 725 (1945).

Both before and after enactment of the Railway Labor Act, as well as during congressional debates on the bill itself, proposals were advanced for replacing this final resort to economic warfare with compulsory arbitration and antistrike laws. But although Congress and the Executive have taken emergency ad hoc measures to compel the resolution of particular controversies, no such general provisions have ever been enacted. And for the settlement of major disputes,

“the statutory scheme retains throughout the traditional voluntary processes of negotiation, mediation, voluntary arbitration, and conciliation. Every facility for bringing about agreement is provided and pressures for mobilizing public opinion are applied. The parties are required to submit to the successive procedures designed to induce agreement. § 5 First (b). But compulsions go only to insure that those procedures are exhausted before resort can be had to self-help. No authority is empowered to decide the dispute and no such power is intended, unless the parties themselves agree to arbitration.” Elgin, J. & E. R. Co. v. Burley, supra, at 725.

IV.

We have not previously had occasion to consider whether the Railway Labor Act circumscribes state power to regulate economic warfare between disputants subject to the Act. Read narrowly, the decisions cited above, at 379, do no more than negate the “implication” of an independent federal remedy against self-help, and do not foreclose a State from bringing its own sanctions to bear on such conduct. On this theory, once the Act’s required processes have been exhausted, a State would be free to impose whatever restrictions it wished on the parties’ use of self-help.

The Act is silent on this question, as is its legislative history. We think it clear, however, that the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act’s processes. The disputants’ positions in the course of negotiation and mediation, and their willingness to submit to binding arbitration or abide by the recommendations of a presidential commission, would be seriously affected by the knowledge that after these procedures were exhausted a State would, say, prohibit the employees from striking or prevent the railroad from taking measures necessary to continue operating in the face of a strike. Such interference would be compounded if the disputants were — as they frequently would be — subjected to various and divergent state laws. Railway (and airline) labor disputes typically present problems of national magnitude. A strike in one State often paralyzes transportation in an entire section of the United States, and transportation labor disputes frequently result in simultaneous work stoppages in many States.

The Railway Labor Act’s entire scheme for the resolution of major disputes would become meaningless if the States could prohibit the parties from engaging in any self-help. And the potentials for conflict, see San Diego Unions v. Garmon, 359 U. S. 236, 249, 250 (1959) (concurring opinion), and for the imposition of inconsistent state obligations, cf. Clearfield Trust Co. v. United States, 318 U. S. 363 (1943), are simply too great to allow each State which happens to gain personal jurisdiction over a party to a railroad labor dispute to decide for itself what economic self-help that party may or may not pursue. The determination of the permissible range of self-help “cannot be left to the laws of the many States, for it would be fatal to the goals of the Act” if conduct were prohibited by state laws “even though in furtherance of the federal scheme. The needs of the subject matter manifestly call for uniformity.” Machinists v. Central Airlines, Inc., 372 U. S. 682, 691-692 (1963).

It follows that even though the Florida courts may have jurisdiction over this litigation, the application of state law is limited by paramount federal policies of nationwide import.

V.

We are presented, then, with the problem of delineating the area of labor combat protected against infringement by the States. The text and legislative history of the Railway Labor Act, and the decisional law thereunder, provide little guidance. To refer to the “general” labor law, as it existed around the time the Act came into being, would be ahistorical. Like forays into economic due process, see Ferguson v. Skrupa, 372 U. S. 726 (1963); Williamson v. Lee Optical Co., 348 U. S. 483, 488 (1955), this judge-made law of the late 19th and early 20th centuries was based on self-mesmerized views of economic and social theory, see F. Frankfurter & N. Green, The Labor Injunction 1-46, 199-205 (1930); A. Cox & D. Bok, Cases on Labor Law 101-105 (5th ed. 1962), and on statutory misconstruction, see United States v. Hutcheson, 312 U. S. 219 (1941). We need not hold that the Norris-LaGuardia Act applies directly to this case to find in its enactment a clear disapproval of these free-wheeling judicial exercises. See Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 697, 700-709, 718 (1965) (separate opinion of Mr. Justice Goldberg).

To the extent that there exists today any relevant corpus of “national labor policy,” it is in the law developed during the more than 30 years of administering our most comprehensive national labor scheme, the National Labor Relations Act. This Act represents the only existing congressional expression as to the permissible bounds of economic combat. It has, moreover, presented problems of federal-state relations analogous to those at bar. The Court has in the past referred to the NLRA for assistance in construing the Railway Labor Act, see, e. g., Steele v. Louisville & N. R. Co., 323 U. S. 192, 200-201 (1944); Railroad Trainmen v. Toledo, P. & W. R. Co., 321 U. S. 50, 61, n. 18 (1944), and we do so again here. Indeed, even if we were to revive the “common law” of labor relations, the common law has always been dynamic and adaptable to changing times, and we would today look to these legislatively based principles for guidance. Cf. Textile Workers v. Lincoln Mills, 353 U. S. 448, 456-457 (1957).

It should be emphasized from the outset, however, that the National Labor Relations Act cannot be imported wholesale into the railway labor arena. Even rough analogies must be drawn circumspectly, with due regard for the many differences between the statutory schemes. Cf. Railroad Trainmen v. Chicago River & I. R. Co., 353 U. S. 30, 31, n. 2 (1957). We refer to the NLRA’s policies not in order to “apply” them to petitioners’ conduct — for we conclude that this would be neither justified nor practicable — but only to determine whether it is within the general penumbra of conduct held protected under the Act or whether it is beyond the pale of any activity thought permissible.

In order to gain better perspective for viewing the central issue in this case — petitioners’ alleged “secondary” activities — we examine first what we find to be polar examples of protected and unprotected conduct — primary strikes and picketing on the one hand, violence and intimidation on the other.

VI.

The Court has indicated, without reference to the National Labor Relations Act, that employees subject to the Railway Labor Act enjoy the right to engage in primary strikes over major disputes. In Railway Clerks v. Florida E. C. R. Co., 384 U. S. 238, 244 (1966), we held that:

“The unions, having made their demands and having exhausted all the procedures provided by Congress, were therefore warranted in striking. For the strike has been the ultimate sanction of the union, compulsory arbitration not being provided.”

Similarly, in Florida E. C. R. Co. v. Railroad Trainmen, 336 F. 2d 172, 181 (1964), the Court of Appeals for the Fifth Circuit concluded that “when the machinery of industrial peace fails, the policy in all national labor legislation is to let loose the full economic power of each [party]. On the side of labor, it is the cherished right to strike.” Whether the source of this right be found in a particular provision of the Railway Labor Act or in the scheme as a whole, it is integral to the Act. State courts may not enjoin a peaceful strike by covered railway employees, no matter how economically harmful the consequences may be. Cf. Bus Employees v. Wisconsin Employment Relations Board, 340 U. S. 383 (1951); Automobile Workers v. O’Brien, 339 U. S. 454 (1950).

The Court has consistently held peaceful primary picketing incident to a lawful strike to be protected conduct under the National Labor Relations Act. “Picketing has traditionally been a major weapon to implement the goals of a strike,” Steelworkers v. NLRB, 376 U. S. 492, 499 (1964), and “it is implicit in the Act that the public interest is served by freedom of labor to use the weapon of picketing.” Garner v. Teamsters, 346 U. S. 485, 500 (1953). We see no possible grounds for distinguishing picketing under the Railway Labor Act. Peaceful primary strikes and picketing incident thereto lie within the core of protected self-help under the Railway Labor Act.

On the other hand, the National Labor Relations Act gives no colorable protection to violent and coercive conduct incident to a labor dispute. Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740, 750 (1942). The state interest in preventing “conduct marked by violence and imminent threats to public order” is compelling, San Diego Unions v. Garmon, 359 U. S. 236, 247 (1959), and such conduct may be enjoined by state courts. Youngdahl v. Rainfair, 355 U. S. 131 (1957); Automobile Workers v. Wisconsin Employment Relations Board, 351 U. S. 266 (1956). Cf. Automobile Workers v. Russell, 356 U. S. 634 (1958); Construction Workers v. Laburnum Construction Corp., 347 U. S. 656 (1954). The federal concern for protecting such conduct when engaged in by railway employees is no less tenuous. The States’ interest in preventing it is no less compelling.

VII.

Petitioners committed no acts of violence. But their picketing, albeit peaceful, could not be characterized as purely “primary.” Respondent asserts, in essence, that, because the picketing had secondary aspects, it was necessarily unprotected and therefore subject to proscription by the state court. The matter, however, is not so simply resolved.

No cosmic principles announce the existence of secondary conduct, condemn it as an evil, or delimit its boundaries. These tasks were first undertaken by judges, intermixing metaphysics with their notions of social and economic policy. And the common law of labor relations has created no concept more elusive than that of “secondary” conduct; it has drawn no lines more arbitrary, tenuous, and shifting than those separating “primary” from “secondary” activities. See F. Frankfurter & N. Green, The Labor Injunction 43-46, 170 (1930); 1 L. Teller, Labor Disputes and Collective Bargaining § 145 (1940); E. Oakes, Organized Labor and Industrial Conflicts, § 407 et seq. (1927); Barnard & Graham, Labor and the Secondary Boycott, 15 Wash. L. Rev. 137 (1940); Hellerstein, Secondary Boycotts in Labor Disputes, 47 Yale L. J. 341 (1938). Cf. Aaron, Labor Injunctions in the State Courts — Pt. I: A Survey, 50 Va. L. Rev. 950, 971-977 (1964). For these reasons, as well as those stated above, at 382-383, this body of common law offers no guidance for the problem at hand.

It was widely assumed that, prior to 1947, the Norris-LaGuardia Act prevented federal courts from enjoining any “secondary boycotts.” See 93 Cong. Rec. 4198 (remarks of Senator Taft); Bakery Drivers v. Wagshal, 333 U. S. 437, 442 (1948). Indeed, in an opinion written by Judge Learned Hand, the Court of Appeals for the Second Circuit held that secondary conduct was fully protected by the Wagner Act. NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F. 2d 503 (1942). The 1947 Taft-Hartley amendments, 61 Stat. 140, and the 1959 Landrum-Griffln amendments, 73 Stat. 545, explicitly narrowed the scope of protected employee conduct under the National Labor Relations Act; §§ 8 (b) (4) and 8 (e) of the Act proscribed a variety of secondary activities. But Congress enacted “no . . . sweeping prohibition” of secondary conduct. Carpenters v. NLRB, 367 U. S. 93, 98 (1958). And despite their relative precision of language, the experience under these amendments amply demonstrates that — -as at common law — bright lines cannot be drawn between “legitimate ‘primary activity’ and banned ‘secondary activity’. . . .” Electrical Workers v. NLRB, 366 U. S. 667, 673 (1961).

The fuzziness of this distinction stems from the overlapping characteristics of the two opposing concepts, and from the vagueness of the concepts themselves. The protected primary strike “is aimed at applying economic pressure by halting the day-to-day operations of the struck employer,” Steelworkers v. NLRB, 376 U. S. 492, 499 (1964); and protected primary picketing “has characteristically been aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt,” ibid., including other employers and their employees. “The gravamen of a secondary boycott,” on the other hand, “is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees’ demands.” Electrical Workers v. NLRB, 181 F. 2d 34, 37 (1950); see also Woodwork Manufacturers v. NLRB, 386 U. S. 612, 623 (1967). These principles often come into conflict, and attempts to harmonize them in the context of § 8 (b) (4) of the National Labor Relations Act have created ramified sets of rules.

The problem of delineating the scope of permissible picketing at a “common situs” — a place, such as respondent’s terminal, where both the struck employer and “secondary” or “neutral” employers are carrying on business activities — has been among the most mooted and complex under the Act. See generally Electrical Workers v. NLRB, 366 U. S. 667, 674-679 (1961); Moore Dry Dock Co., 92 N. L. R. B. 547 (1950); Lesnick, The Gravamen of the Secondary Boycott, 62 Col. L. Rev. 1363 (1962); Koretz, Federal Regulation of Secondary Strikes and Boycotts — Another Chapter, 59 Col. L. Rev. 125 (1959). It is difficult to formulate many generalizations governing common situs picketing, but it is clear that secondary employers are not necessarily protected against picketing aimed directly at their employees. In Electrical Workers v. NLRB, supra, for example, we noted that striking employees could picket at a gate on the struck employer’s premises which was reserved exclusively for employees of the secondary employer, to induce those employees to refuse to perform work for their employer which was connected with the struck employer’s normal business operations. The Court affirmed this principle in Steelworkers v. NLRB, supra, where it held that striking employees could picket to induce a neutral railroad’s employees to refuse to pick up and deliver cars for the struck employer — even though the picketed gate was owned by the railroad, and the railroad’s employees would have to pass by the place of picketing to pick up and deliver cars for other plants that were not struck.

If the common situs rules were applied to the facts of this case — considering, for example, FEC’s substantial regular business activities on the terminal premises, FEC’s relationships with respondent and the other railroads using the premises, the mixed use in fact of the purportedly separate entrances, and the terminal’s characteristics which made it impossible for the pickets to single out and address only those secondary employees engaged in work connected with FEC’s ordinary operations on the premises — the state injunction might well be found to forbid petitioners from engaging in conduct protected by the National Labor Relations Act. The fact that respondent, the other roads, or other industries in the State suffered serious economic injury as a consequence of petitioners’ activities would not, of course, in itself render the picketing unlawful. Woodwork Manufacturers v. NLRB, 386 U. S. 612, 627 (1967); see NLRB v. Fruit & Vegetable Packers, 377 U. S. 58 (1964); cf. Bus Employees v. Wisconsin Employment Relations Board, 340 U. S. 383 (1951).

In short, to condemn all of the petitioners’ picketing which carries any “secondary” implications would be to paint with much too broad a brush.

VIII.

We have thus far concluded that although the Florida courts are not pre-empted of jurisdiction over this cause, Part II, supra, the issues therein are governed by federal law, Parts III, IV, supra; that the Railway Labor Act permits railway employees to engage in some forms of self-help, free from state interference, ibid.; and, drawing upon labor policies evinced by the National Labor Relations Act, Part V, supra, that such protected self-help includes peaceful “primary” strikes and nonviolent picketing in support thereof, Part VI, supra, and that it cannot categorically be said that all picketing carrying “secondary" implications is prohibited, Part VII, supra. Given these conclusions, it remains to be considered whether, under the present framework of congressional legislation, this Court should undertake precisely to mark out which of the petitioners’ picketing activities at respondent’s premises are federally protected, and therefore immune from state interference, and which of them are subject to prohibition by the State. We believe that such a course would be a wholly inappropriate one for us to take in the absence of a much clearer manifestation of congressional policy than is to be found in existing laws.

Certainly we could not proceed to such a task under the common law of labor relations. For even on the unjustified hypothesis that all secondary conduct is necessarily wrongful, we would lack meaningful standards for separating primary from secondary activities. Nor do the terms of the Railway Labor Act offer assistance. As we have indicated, the Act is wholly inexplicit as to the scope of allowable self-help.

Nor can we properly dispose of this case simply by undertaking to determine to what precise extent petitioners’ picketing activities would be protected or proscribed under the terms of the National Labor Relations Act. For although, in the absence of any other viable guidelines, we have resorted to the NLRA for assistance in mapping out very general boundaries of self-help under the Railway Labor Act, there is absolutely no warrant for incorporating into that Act the panoply of detailed law developed by the National Labor Relations Board and courts under 18(b)(4). The NLRA, as we have noted, exempts employees who are subject to the Railway Labor Act, supra, at 376-377; and the inapplicability of § 8 (b) to railroad employees was specifically pointed out during the congressional debates on the NLRA, supra, at 376-377, n. 10.

Even if the task of adapting the NLRA’s principles to railway disputes could be managed and implemented by an agency with administrative expertise, but cf. NLRB v. Insurance Agents, 361 U. S. 477, 497-498 (1960), Congress has invested no agency with even colorable authority to perform this function. The very complexity of the distinctions examined in Part VII, supra, if nothing else, plainly demonstrates that we lack the expertise and competence to undertake this task ourselves.

Moreover, “[f]rom the point of view of industrial relations our railroads are largely a thing apart. . . . ‘The railroad world is like a state within a state.’ ” Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 751 (1945) (Frankfurter, J., dissenting). Thus, if Congress should now find that abuses in the nature of secondary activities have arisen in the railroad industry, see supra, at 376-377, n. 10, it might well decide — as it did when it considered the garment and construction industries, see NLRA § 8 (e) — that this field requires extraordinary treatment of some sort. Cf., e. g., Railroad Trainmen v. Atlantic C. L. R. Co., 362 F. 2d 649, 654-655 (1966). Certainly, it is for the Congress, and not the courts, to strike the balance “between the uncontrolled power of management and labor to further their respective interests.” Carpenters v. NLRB, 357 U. S. 93, 100 (1958); see Woodwork Manufacturers v. NLRB, 386 U. S. 612 (1967); id., at 648-650 (separate memorandum). The Congress has not yet done so.

In short, we have been furnished by Congress neither usable standards nor access to administrative expertise in a situation where both are required. In these circumstances there is no really satisfactory judicial solution to the problem at hand. However, we conclude that the least unsatisfactory one is to allow parties who have unsuccessfully exhausted the Railway Labor Act’s procedures for resolution of a major dispute to employ the full range of whatever peaceful economic power they can muster, so long as its use conflicts with no other obligation imposed by federal law. Hence, until Congress acts, picketing — whether characterized as primary or secondary — must be deemed conduct protected against state proscription. Cf. Electrical Workers v. NLRB, 122 U. S. App. D. C. 8, 9-10, 350 F. 2d 791, 792-793 (1965) (dissenting opinion); NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F. 2d 503 (1942). Any other solution — apart from the rejected one of holding that no conduct is protected — would involve the courts once again in a venture for which they are institutionally unsuited.

The judgment of the Florida District Court of Appeal is accordingly

Reversed.

Me. Justice Fortas and Mr. Justice Marshall took no part in the consideration or decision of this case.

Mr. Justice Douglas,

with whom Mr. Justice Black and Mr. Justice Stewart concur,

dissenting.

Respondent provides terminal facilities for four railroads at Jacksonville, Florida. Petitioners have a longstanding labor dispute with one of those carriers, Florida East Coast. They have established a picket line, manned by employees of FEC but established at all entrances and exits to the Terminal and not restricted to the single entrance designated for use by FEC employees. The conceded purpose of the picketing was to cause respondent and the other three carriers not to interchange traffic with FEC.

Petitioner Brotherhood of Railroad Trainmen, however, has no labor dispute with any carrier using the Terminal except FEC. The Florida court found that the pattern of picketing being used “would result in a virtual cessation of activities not only of the Terminal Company but also of numerous industries in Duval County and . . . Florida.”

The order entered barred all picketing by FEC employees except at the designated single entrance. The trial court relied, inter alia, on the ground that “[t]he past and threatened picketing seeks to coerce plaintiff [respondent] into embargoing the FEC in violation of the Restraint of Trade Laws of this State.” The laws referred to are Fla. Stat. § 542.01 et seq. which set up a broad regulatory scheme banning “a combination of capital, skill or acts by two or more persons” to “create or carry out restrictions in trade or commerce.” The District Court of Appeal, in affirming the trial court in the present case, said that it “exercised a proper authority in enjoining a violation of a valid state statute.” 201 So. 2d 253, 254.

The question therefore is whether Florida may ban picketing in support of a secondary boycott.

Congress could pre-empt this field of picketing any rail carrier for purposes of a secondary boycott as our rail carriers and their labor problems are conspicuously within reach of the Commerce Clause. Congress in the Labor Management Relations Act of 1947, 29 U. S. C. § 141 et seq. did legislate on secondary boycotts. 29 U. S. C. § 158 (b) (4) (i) (B). But it expressly excluded from that regulatory scheme “any person subject to the Railway Labor Act,” § 152 (2), and any individual employed by such person, § 152 (3).

We are therefore in an area where Congress has not legislated and, as I see it, the case is controlled by Giboney v. Empire Storage & Ice Co., 336 U. S. 490.

In Giboney, Missouri applied its anti-trade-restraint law to enjoin a union from picketing employers to enforce a secondary boycott. We stated that the basic issue was “whether Missouri or a labor union has paramount constitutional power to regulate and govern the manner in which certain trade practices shall be carried on” in Missouri. Id., at 504. A State’s power over secondary boycotts was held to be paramount; and that is what we should hold today, since Congress has not pre-empted the subject.

It is suggested that there is an hiatus which this Court should fill. To do so, we would have to fill in large gaps between the Railway Labor Act, 45 U. S. C. § 151 et seq., and many other specialized Acts of Congress that touch on pieces of the problems of labor in the railroad field. Once the remedies provided in the Railway Labor Act are exhausted, federal administrative remedies are at an end. No authority is empowered to settle the dispute; no compulsory arbitration is provided. The conditions of work may be as bad as the employees suffer them to be and made as good as they can agree upon through bargaining. When the various procedures established by the Act are exhausted, “both parties . . . are relegated to self-help in adjusting” the dispute. Locomotive Engineers v. Baltimore & O. R. Co., 372 U. S. 284, 291.

Legislating interstitially is one thing; judicial insertion into our federal railway labor law of rules governing secondary boycotts is formulation of national policy in the raw. Whether it should be done and, if so, how, are matters for the Senate and the House.

The effort of the Court to find support for this secondary boycott in federal law is a masterful endeavor. The opinion is indeed a brilliant brief for a federal law to support the struggle of petitioners to end the ugly conflict. The difficulty is that no matter how carefully federal law is examined no express sanction for what petitioners can do can be found. Federal authority for what they do rests on the thinnest of inferences and yet that inference is brought under the Supremacy Clause.

Article VI of the Constitution states that: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . . .” But one looks in vain for any federal “law” that collides with state law or that can be said to pre-empt state law. Federal law says that when the parties exhaust their remedies under the Railway Labor Act they may resort to “self-help” — not a congressional phrase but a judicial gloss put on the Act. Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 725. But it is strong medicine to say that their right to “self-help” overrides state law. Certainly it does not when violence is used to injure people and destroy property. Allen- Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740. For then the States have an arsenal of authority to deal with the situation. Why is that power greater than the power to protect the economy of the area? We have a finding that, if the conduct which the Court authorizes continues, there will be serious injury to “numerous industries in Duval County” — industries that have no responsibility for the labor dispute.

The question, says the Court, is whether “the States could prohibit the parties from engaging in any self-help.” If that is true, then the Act’s scheme would be impaired. But that is not the issue. It is whether the State can prevent a secondary boycott which threatens to paralyze a whole community. If a State cannot fill that hiatus in a federal scheme, then much law will have to be unlearned.

States’ rights are often used as a cloak to cover unconstitutional encroachments such as the maintenance of second-class citizenship for Negroes or Americans of Mexican ancestry. But a state policy to confine an industrial dispute to the parties and, if possible, not to let it paralyze the entire community cannot be put in that category.

Congress in adopting a federal regulation can make it exclusive of all state regulation, in which event one may not be required “by a State to do more or additional things or conform to added regulations, even though they in no way conflicted with what was demanded of him under the Federal Act.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 236. And see Campbell v. Hussey, 368 U. S. 297, 300-301. But that principle, though uniformly recognized, has provoked much dissent in its application, as the dissents in the Rice and Campbell cases illustrate.

As Mr. Justice Brandeis said in Napier v. Atlantic Coast Line, 272 U. S. 605, 611, “The intention of Congress to exclude States from exerting their police power must be clearly manifested.” And the Court, mindful of the force of the Tenth Amendment and the place of the States in our constitutional system, has resolved close cases in favor of a continuing power on the part of the States to legislate in their customary fields and thus has permitted state regulations to mesh with federal controls. See Federal Compress Co. v. McLean, 291 U. S. 17; Townsend v. Yeomans, 301 U. S. 441, 454; Penn Dairies v. Milk Control Commission, 318 U. S. 261.

Even here, there have been dissents when it came to particular applications of the principle to the facts of a case. But I venture that in no case prior to today’s decision has a State been barred from legislating in a field which is not specifically touched by the federal regulation and which remains after the federal remedies have spent themselves and proved to be of no avail.

The States should be allowed a free hand in labor controversies except and unless Congress has adopted a contrary policy. We search in vain for any such federal law in this context.

I would affirm the judgment.

       See Railway Clerks v. Florida E. C. R. Co., 384 U. S. 238 (1966); Railroad Trainmen v. Atlantic C. L. R. Co., 362 F. 2d 649, aff’d, 385 U. S. 20 (1966); Florida E. C. R. Co. v. Railroad Trainmen, 336 F. 2d 172 (1964). Cf. Locomotive Engineers v. Baltimore & O. R. Co., 372 U. S. 284 (1963).

       44 Stat. 577, as amended, 45 U. S. C. § 151 et seq.

         See Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 722-725 (1945); Florida E. C. R. Co. v. Railroad Trainmen, supra, at 178-179; Part III, infra.

       Petitioners are the Brotherhood of Railroad Trainmen, the Order of Railway Conductors and Brakemen, the Brotherhood of Locomotive Firemen and Enginemen, and several union officers. Petitioners contend that only the BRT and its officers were responsible for the picketing, and that the injunction was improper as to the others. Because of our disposition of the case we do not reach this question, and we treat petitioners jointly, as did the state courts.

       The three other roads are the Atlantic Coast Line Railroad Co., the Seaboard Air Line Railroad Co., and the Southern Railway System. Effective July 1, 1967, Coast Line and Seaboard merged. See Florida E. C. R. Co. v. United States, 259 F. Supp. 993 (1966), aff’d, 386 U. S. 544 (1967).
      For a discussion of one aspect of this unusual joint venture agreement, see Jacksonville Terminal Co. v. Florida E. C. R. Co., 363 F. 2d 216 (1966).

       The signs read:
      “Fellow Railroad Men
      Do Not Cross or Assist F. E. C.

      B. of R. T.
      On Lawful
      Strike
      Against F. E. C.
      Please Make Common Cause With Us In Major Dispute Against F. E. C.”
      A union official directing the picketing testified at the state hearing that picket lines at the rail entrances would have been taken down to allow movements unconnected with FEC to pass.

       Fla. Stat. §§351.12, 351.14-351.17, 351.19 (1965). These are duties, in essence, to transport and transfer freight and freight cars.

       Seven percent of the BRT, 7% of the BLF&E, and 2% of the ORC&B are “employees of employers who are not subject to the Railway Labor Act.” Joint App. 93-94.

       In Marine Engineers, a state court enjoined picketing by the Marine Engineers Beneficial Association, having found that the union represented only “supervisors,” who are not “employees” subject to the NLRA. NLRA § 2 (3). We noted that decisions of the NLRB and lower courts had held the MEBA subject to the Act under some circumstances, and we reversed, holding that in any “doubtful case,” 370 U. S., at 182, where there existed an “arguable possibility of Labor Board jurisdiction,” id., at 184, the matter must first be submitted to the NLRB.

       In the debates preceding enactment of the Taft-Hartley amendments, 61 Stat. 141, 29 U. S. C. § 158 (b), Senator Taft responded as follows to the criticism that it was inequitable to allow railroad employees to engage in conduct forbidden others by § 8 (b) (4) of the NLRA:
      “I want to point out that railway labor has never been covered by the Wagner Act; it has always been covered by the Railway Labor Act, which provides a somewhat different procedure. We saw no reason to change that situation, because there were no abuses which had arisen in connection with the operation of the Railway Labor Act.” 93 Cong. Rec. 6498, 2 Legislative History of the Labor Management Relations Act, 1947, p. 1571.
      In 1959, § 8 (b) (4) was amended to expand the class of persons protected against secondary pressures. 73 Stat. 542; see Steelworkers v. NLRB, 376 U. S. 492, 500-501 (1964). However, the amendment did not expand the scope of “employees” or “labor organizations” whom the Act forbade to engage in such conduct.

       See generally L. Lecht, Experience under Railway Labor Legislation 38, 46-47, 197-198, 221-222, 230-237 (1955); Use of Federal Power in Settlement of Railway Labor Disputes, H. R. Doc. No. 285, 67th Cong., 2d Sess., 76-85 (1922).

       See 67 Cong. Rec. 4508, 4512-4513, 4517-4518, 4569, 4582, 4648, 4702, 8814, 9205-9206 (1926).

        E. g., Act of Aug. 28, 1963, Pub. L. 88-108, 77 Stat. 132. The Senate Report stated: “This proposal is not and cannot conceivably be considered as a precedent for the railroad industry .... It is what it purports to be — a one-shot solution through legislative means to a situation which imperiled beyond question the economy and security of the entire Nation.” S. Rep. No. 459, 88th Cong., 1st Sess., 7 (1963). See generally 1 Federal Legislation to End Strikes: A Documentary History, c. VI, Subcommittee on Labor of Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess. (Comm. Print 1967); 2 id., ce. X, XI; L. Lecht, Experience under Railway Labor Legislation 176-177, 184-185, 195-196, 200-201, 206-207 (1955).

         Cf., e. g., Steele v. Louisville & N. R. Co., 323 U. S. 192 (1944). See Note, Implying Civil Remedies from Federal Regulatory Statutes, 77 Harv. L. Rev. 285 (1963).

       What little relevant legislative history we have found, however, indicates that in opting for the voluntary settlement of railway labor disputes, Congress intended to limit state authority to impose the rejected compulsions. See 67 Cong. Rec. 4706-4707 (1926).

       Air carriers and their employees were made subject to the Railway Labor Act in 1936. 49 Stat. 1189, 45 U. S. C. §§ 181, 182.

       In the context of labor relations law, this word is fraught with ambiguity. “Protected conduct” may, for example, refer to employee conduct which the States may not prohibit, see, e. g., Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 474 (1955), or to conduct against which the employer may not retaliate, cf., e. g., NLRB v. Truck Drivers, 353 U. S. 87, 96 (1957). Throughout this opinion we use the word in the former sense only.

       The question whether the Norris-LaGuardia Act bars state courts from issuing labor injunctions was argued in a somewhat different context, but not decided, in Avco Corp. v. Machinists, 390 U. S. 557 (1968). It is argued here, but again we find no need to reach it.

       For example, in referring to decisions holding state laws preempted by the NLRA, care must be taken to distinguish pre-emption based on federal protection of the conduct in question, e. g., Teamsters v. Oliver, 358 U. S. 283 (1959); Bus Employees v. Wisconsin Employment Relations Board, 340 U. S. 383 (1951), from that based predominantly on the primary jurisdiction of the National Labor Relations Board, e. g., San Diego Unions v. Garmon, 359 U. S. 236 (1959), although the two are often not easily separable. See NLRB
        v. Insurance Agents, 361 U. S. 477, 493-494, n. 23 (1960). There is, of course, no administrative agency equivalent to the NLRB with jurisdiction over railway labor disputes.

       Cf. §2 Fourth, 48 Stat. 1187, 45 U. S. C. § 152 Fourth: “Employees shall have the right to organize and bargain collectively through representatives of their own choosing.” It has been suggested that this provision is “comparable” to § 7 of the NLRA, which grants employees the right to “self-organization” and the right to engage in “concerted activities . . . ,” and which, even apart from § 13, protects the right to strike, see, e. g., Bus Employees v. Wisconsin Employment Relations Board, 340 U. S. 383, 389 (1951). Memorandum of Mar. 11, 1935, prepared for Senate Committee on Education and Labor comparing S. 1958 (74th Cong.) with S. 2926 (73d Cong.), 1 Legislative History of the National Labor Relations Act, 1935, at 1350-1351. However, § 2 Fourth of the RLA, added in 1934, was designed primarily, if not exclusively, to prohibit coercive employer practices. See H. R. Rep. No. 1944, 73d Cong., 2d Sess., 2 (1934); L. Lecht, Experience under Railway Labor Legislation, c. V (1955). The explicit language of § 7 of the NLRA was probably responsive to the difference between the “embryo organizations in the industries covered by” the NLRA, and the already “strongly organized” railway unions. Memorandum, supra, 1 Legislative History, supra, at 1329. For an indication of the economic power of railway labor organizations prior to enactment of the Railway Labor Act, see G. Eggert, Railroad Labor Disputes (1967).

       Petitioners contend that Senator Taft’s statement, during the congressional debates, that § 8 (b) (4) did not apply to persons subject to the Railway Labor Act, supra, n. 10, necessarily entails that the Railway Labor Act protects secondary conduct. But, except under unusual circumstances, the NLRA in its entirety is inapplicable to such persons. Part II, supra. It would be inappropriate to give any weight to these isolated passing remarks about one statutory scheme made in the context of amending an entirely different one.

       Section 8 (b) (4) “does not speak generally of secondary boycotts . . . [but] describes and condemns specific union conduct directed to specific objectives.” Carpenters v. NLRB, supra, at 98.

       Cf. also Railroad Trainmen v. Atlantic C. L. R. Co., 362 F. 2d 649, 654-655 (1966); NLRB v. Electrical Workers, 228 F. 2d 553 (1955); Douds v. Architects, 75 F. Supp. 672 (1948).

       The right to strike finds support, not only in analogy to the NLRA, but in the history of, and decisions under, the Railway Labor Act itself. Supra, at 379-380, 3S4.

       Our holding is, of course, limited to disputes subject to the Railway Labor Act, and in no way detracts from the power of the States to regulate labor conduct not otherwise governed by a paramount federal scheme. Cf. Giboney v. Empire Storage & Ice Co., 336 U. S. 490 (1949).

       When the strike started on January 23, 1963, respondent designated a special gate for the exclusive use of FEC employees who report to work at the Terminal.
      The strike originally involved only nonoperating employees of FEC. But in 1966 the operating unions also went on strike against FEC.

       We were asked to review a temporary injunction issued by the trial court. See 385 U. S. 935. The permanent injunction, now here, was affirmed per curiam by the District Court of Appeal, 201 So. 2d 253, and the Florida Supreme Court dismissed an appeal and denied certiorari.

       The picketing was first enjoined by the Federal District Court in a proceeding brought by two carriers (other than FEC) and the Terminal Company. That judgment was reversed by the Court of Appeals which held that the requirements of the Norris-LaGuardia Act, 47 Stat. 70, 29 U. S. C. § 101 et seq. had not been met. 362 F. 2d 649.
      We affirmed the Court of Appeals by an equally divided Court. 385 U. S. 20.

       See, e. g., NLRB v. Rice Milling Co., 341 U. S. 665; Electrical Workers v. NLRB, 366 U. S. 667; Steelworkers v. NLRB, 376 U. S. 492.

       See S. Rep. No. 105, 80th Cong., 1st Sess., 19; Teamsters Union v. New York, N. H. & H. R. Co., 350 U. S. 155, 159-160.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Douglas,

license: Public Domain

text:
    IN RE HERNDON.
    No. -.
    Argued January 21, 1969.
    Decided March 25, 1969.

      Charles Morgan, Jr., argued the cause for movants. With him on the brief were Reher F. Boult, Jr., Orzell Billingsley, Jr., Robert P. Schwenn, Melvin L. Wulf, and Eleanor Holmes Norton.

      Perry Hubbard argued the cause for Herndon. With him on the brief was Oeorge A. LeMaistre.

      Louis F. Claiborne argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Griswold, Assistant Attorney General Poliak, Nathan Lewin, and Frank M. Dunbaugh.

   Per Curiam.

The appeal in Hadnott v. Amos, ante, p. 358, decided today, was argued with the motion filed by appellants on November 19, 1968, “for an order to show cause why Judge Herndon should not be held in contempt and for other relief.” 393 U. S. 996.

On September 18, 1968, the three-judge court entered a temporary restraining order enjoining appropriate Alabama officials from using any ballots at the general election of November 5, 1968 which did not include the names of the candidates of the National Democratic Party of Alabama (NDPA). This order was dissolved on October 11, 1968, one judge dissenting. 295 F. Supp. 1003. The appellants sought interim relief from this Court pending appeal, and on October 14, 1968, we entered an order that: “The application for restoration of temporary relief is granted pending oral argument on the application . . . 393 U. S. 815 (1968). Oral argument was heard on October 18, and on October 19 we entered an order that: “The order entered on October 14, 1968, restoring temporary relief is continued pending action upon the jurisdictional statement which has been filed.” 393 U. S. 904. Nevertheless, Judge Herndon, who was responsible for the preparation of the Greene County ballot for local offices, did not place the NDPA candidates for such offices on the ballot.

We conclude that decision on the motion should await timely initiation and completion of appropriate proceedings in the District Court to determine whether Judge Herndon’s failure to place NDPA candidates on the ballot constituted contempt of the order of September 18 of the District Court. Decision on the motion is therefore postponed.

It is so ordered.

Mr. Justice Black took no part in the consideration or decision of this case.

Mr. Justice Douglas,

whom Mr. Justice Harlan joins,

dissenting.

This is a motion requesting that we initiate a proceeding against Herndon, Probate Judge in Greene County, Alabama, for disobedience of our order as described in No. 647, Hadnott v. Amos, ante, p. 358, decided this day. Our order, if obeyed, would have resulted in the black candidates, sponsored by the National Democratic Party of Alabama (NDPA), having been on the ballot for county offices in Greene County in the general election of November 1968. They were, it is alleged, left off the ballot due to the actions of Judge Herndon, as related in Hadnott v. Amos.

This motion, filed by appellants in No. 647, states they are informed and believe that Judge Herndon’s failure to place these nominees on the ballot was done “wilfully and with actual knowledge of the order of this court.” Judge Herndon filed his response to that motion, in which he denied that the omission of the NDPA candidates for county office was “willfully or contumaciously done with actual knowledge of the said orders of this court.”

This motion was briefed and argued when No. 647 was presented on the merits.

I have studied the record and read the briefs; and as presently advised I think there is probable cause to conclude that Judge Herndon knowingly and purposefully evaded our order. What the ultimate conclusion will be depends, of course, on a full hearing at which Judge Herndon receives that notice and that opportunity to be heard which is required by due process. But if what appears to be probable cause matures into full-fledged findings, we have a flagrant violation of our order, which involves a vital problem of civil rights, involving the command of the Fifteenth Amendment, that extends the ballot to the blacks.

In a case of far less consequence the Court, proceeding by contempt on an information filed by the Attorney General, United States v. Shipp, 214 U. S. 386, 439, held a sheriff and his deputies in contempt for silent cooperation with a mob in hanging a prisoner whose case was before this Court. That sheriff acted by merely turning his back and letting the mob run wild. In the present case, if the facts alleged are proved, Judge Herndon’s affirmative acts unlawfully kept the NDPA candidates off the ballot.

Rule 42 (a) of the Federal Rules of Criminal Procedure governs contempt in the presence of the court. Rule 42 (b) covers the contempt alleged here, viz., disrespect or violation of this Court’s order. Rule 42 (b) provides:

“A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.”

I would issue the notice prescribed by Rule 42 (b), designate an attorney to represent the Court, appoint a Master, and get on with the hearings.

Reservation of action on the motion implicates the Double Jeopardy Clause. Successive federal prosecutions of the same person based on the same acts are prohibited by the Fifth Amendment. See United States v. Lanza, 260 U. S. 377, 382; Abbate v. United States, 359 U. S. 187, 197 (opinion of Brennan, J.). It was held in Pereira v. United States, 347 U. S. 1, 9, that:

“[A] defendant may be convicted of [two offenses] even though the charges arise from a single act or series of acts, so long as each requires the proof of a fact not essential to the other.”

In the instant case, however, it is likely that the facts underlying both contempt charges will be identical. In fact, it may have been impossible for Judge Herndon to have violated one court order without violating the other.

         “Our minds rebel against permitting the same sovereignty to punish an accused twice for the same offense.” Francis v. Resweber, 329 U. S. 459, 462 (opinion of Reed, J.).

       “The Constitutional safeguard [against double jeopardy] applies . . . [where] a person has been tried and convicted of a crime and it is sought to prosecute him again for the same or an included offense; [where] a person has been convicted and sentenced and an attempt is made to increase the sentence; [and where] a person has been acquitted after a trial on the merits and an endeavor is made to prosecute him again for the same or an included offense.” United, States v. Whitlow, 110 F. Supp. 871, 872 (D. C. D. C. 1953).


author: Me. Justice Stewart

text:
    FEDERAL MARINE TERMINALS, INC. v. BURNSIDE SHIPPING CO., LTD.
    No. 291.
    Argued January 15, 1969.
    Decided April 1, 1969.

      John W. Hough argued the cause for petitioner. With him on the briefs was Robert C. Keck.

      Paul McCambridge argued the cause for respondent. With him on the brief was Lucian Y. Ray.

   Me. Justice Stewart

delivered the opinion of the Court.

Under § 33 of the Longshoremen’s and Harbor Workers’ Compensation Act, an employer who pays compensation benefits to the representative of a deceased employee may be subrogated to the rights of the representative against third persons. The question presented by this case is whether a stevedoring contractor whose longshoreman employee was killed in the course of his employment is limited to this subrogation remedy in seeking reimbursement from a shipowner on whose vessel the longshoreman met his death. Both the District Court and the Court of Appeals held that statutory subrogation is the stevedoring contractor’s exclusive remedy against the shipowner, and we granted certiorari to consider this novel question under the Act.

I.

According to the stipulation of facts, the M/V Otter-burn, owned and operated by respondent Burnside Shipping Co., was under time charter to Federal Commerce and Navigation Co., a Canadian corporation affiliated with the petitioner, Federal Marine Terminals, Inc. Federal Commerce hired Marine Terminals to continue the operation, already commenced by the ship’s crew, of preparing the vessel to receive a cargo of grain. While the ship was docked in Detroit, the crew had commenced installation of “grain feeders” — walled-in structures erected in the ’tween deck hatches to the height of the main deck hatch. After Marine Terminals had been employed to continue the work of readying the ship for its cargo, the boatswain, acting on the instructions of the ship’s Chief Officer, “winged out” the deep tank lids — that is, pulled them outboard into the wings of the ’tween deck. No railing, wire, or guard of any kind was placed around the resulting deep tank openings.

Marine Terminals’ employees began working on the Otterburn after it had been removed to Chicago. On the morning of the third day of work, a group of Marine Terminals’ stevedores, supervised by Gordon McNeill, arrived at approximately 7 o’clock to continue with carpentry work in the ’tween deck as part of the last stages of completing a grain feeder in the area of the “winged out” deep tank lids. McNeill was last seen alive shortly after 8 a. m. At 8:45 a. m. his lifeless body was discovered lying at the bottom of one of the deep tanks. There were no witnesses to his 30-foot fall.

McNeill’s widow filed a claim for benefits under the Act for herself and three minor children, and the Department of Labor entered a compensation order for weekly payments of $36.75 to the widow and $33.25 to the children. The potential total liability of Marine Terminals for these payments is approximately $70,000. As administratrix of McNeill’s estate, his widow also filed a maritime wrongful death action against Burnside Shipping Co. in the United States District Court for the Northern District of Illinois. Burnside answered the complaint, denying that McNeill’s death had been caused by its negligence or by its failure to furnish a seaworthy vessel.

Burnside also commenced a separate action in the same court against Marine Terminals seeking indemnification for any judgment it might be required to pay in the wrongful death action. The libel charged that, by virtue of the agreement with the time charterer to prepare the ship for its cargo, Marine Terminals “warranted that its services to the vessel would be performed in a safe, workmanlike and seamanlike manner.” That warranty was alleged to have been breached and the accident caused by Marine Terminals’ negligence, giving rise to an obligation to save Burnside harmless from all liability and expense occasioned by McNeill’s death.

Marine Terminals filed an answer denying most of the allegations of the libel, and also filed a counterclaim seeking damages from Burnside for “all sums which have been paid or will be paid” as compensation benefits to McNeill’s dependents. The counterclaim alleged that Burnside, as owner and operator in control of the Otter-burn, owed the stevedoring contractor “the duty of providing and maintaining a safe place to work so that injury to the employees . . . would be avoided.” Burnside had violated that duty, according to the counterclaim, by its negligence

“in failing to properly guard the deep tank opening, or make the passageway secure, or to cover up the said deep tank, and in failing to clear the passageways, and failing to provide adequate lighting in the area or to provide a safety railing around the deep tank opening, thereby causing, suffering and permitting the area and open deep tank to be a source of menace and danger.”

Burnside moved to dismiss the counterclaim for failure to state a cause of action. Each party then filed a motion for summary judgment on its claim and counterclaim.

The District Court, finding that material factual disputes existed concerning the conduct of both parties, denied Burnside’s motion for summary judgment on its complaint. But it did grant the motion to dismiss Marine Terminals’ counterclaim. The court noted Marine Terminals’ concession that its theory of a direct action against the shipowner was novel. Normally the stevedoring contractor is content with its remedy of subrogation to the rights of the deceased longshoreman’s representative against whatever third party may be liable for the death, usually the shipowner. In this case, however, the applicable Illinois Wrongful Death Act limited the amount recoverable by the decedent’s representative to $30,000, far short of Marine Terminals’ potential liability of $70,000. The court recognized that “[t]he existence of such a direct right over is well established in certain situations/’ but concluded that the employer’s rights provided by the Longshoremen’s and Harbor Workers’ Compensation Act are exclusive and “prevent him from maintaining an independent cause of action against the third party tortfeasor.”

The Court of Appeals affirmed, agreeing that Marine Terminals’ sole remedy is by subrogation under the Act. But while the District Court had implied that the steve-doring contractor would have had a direct action had it not been abrogated by the Act, the Court of Appeals appeared to assume that, in the absence of the statutory remedy, federal maritime law would permit no direct recovery from the shipowner:

“There is no common law direct action as the defendant argues. There is only the Longshoremen’s and Harbor Workers’ Compensation Act which creates an entire legal procedure in this part of admiralty law. We cannot search outside of the Act for common law remedies which do not exist. The Act is the source of all remedies.”

This case thus presents two questions. First, does § 33 of the Act exclude whatever other rights of action the stevedoring contractor might have against the shipowner for compensation payments to an employee or his representative? Second, if statutory subrogation is not an exclusive remedy, does the shipowner owe the stevedoring contractor any duty whose breach will give rise to a direct action? We consider these questions in order below.

II.

The Court of Appeals was clearly mistaken in its assertion that “[t]he statutory method provides that the [stevedoring contractor] can sue only as a subrogee.” Nothing on the face of § 33 of the Act purports to limit the employer’s remedy against third persons to subrogation to the rights of the deceased employee’s representative. The provision of § 33 that the employer's payment of compensation “shall operate as an assignment to the employer of all right of the legal representative of the deceased ... to recover damages against such third person” contains no words of limitation. Congress thereby gave the employer, in return for his absolute liability to the employee’s representative, part of the latter’s rights against others. But the legislative grant of a new right does not ordinarily cut off or preclude other nonstatutory rights in the absence of clear language to that effect. When Congress imposed on the employer absolute liability for compensation, it explicitly made that liability exclusive. Yet in the same Act it attached no such exclusivity to the employer’s action against third persons as subrogee to the rights of the employee or his representative.

Nothing in the legislative history of the Act remotely supports the construction adopted by the courts below. And we can perceive no reason why Congress would have intended so to curtail the stevedoring contractor’s rights against the shipowner. The exclusivity of the statutory compensation remedy against the employer was designed to counterbalance the imposition of absolute liability; there is no comparable quid pro quo in the relationship between the employer and third persons. On the contrary, as we emphasized in Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U. S. 124, the Act is concerned only with the rights and obligations as between the stevedoring contractor and the employee or his representative. It does not affect independent relationships between the stevedoring contractor and the shipowner. Neither this Court nor, before this case, any other court has held that statutory subrogation is the employer’s exclusive remedy against third party wrongdoers, and we decline to so hold today.

III.

We must also reject the implication of the Court of Appeals’ opinion that under federal maritime law the shipowner owed the stevedoring contractor no duties whose breach would give rise to a direct action for damages. As we held in Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625, 632, “the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” That duty of due care imposed by law extends to the stevedoring company as well as to others lawfully on the ship, and its breach gives rise to a cause of action for any damages proximately caused. It is not disputed, for example, that if the shipowner’s negligence caused damages to the stevedoring contractor’s equipment, those damages would be recoverable in a direct action sounding in tort. We can see no reason why the shipowner’s liability does not in like fashion extend to the foreseeable obligations of the stevedoring contractor for compensation payments to the representative of a longshoreman whose death was occasioned by the shipowner’s breach of his duty to the stevedoring contractor.

We do not, of course, hold that the shipowner’s duty to the employer is the same as to the employee. Nor do we disapprove the Court of Appeals’ holding that the shipowner does not owe to the stevedoring contractor the absolute duty of seaworthiness owed to individual longshoremen. But Marine Terminals’ counterclaim in this action did not rely on the unseaworthiness of the ship. Rather it charged that Burnside had been negligent in certain particular respects. And we have suggested before this that, while “the duties owing from [the shipowner] to [the longshoreman] were not identical with those from [the shipowner] to [the stevedoring contractor],” the shipowner can be negligent with respect to the stevedoring contractor as well as to the longshoreman. Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U. S. 563, 568. Neither court below reached the question whether the counterclaim sufficiently alleged a breach of the duties owed by Burnside to Marine Terminals, and relevant factual questions remain unresolved. With the case in its present posture, therefore, we express no opinion as to whether the conduct of Burnside’s employees amounted to a breach of the duty it owed to Marine Terminals. We hold only that federal maritime law does impose on the shipowner a duty to the stevedoring contractor of due care under the circumstances, and does recognize a direct action in tort against the shipowner to recover the amount of compensation payments occasioned by the latter’s negligence.

This holding is in no wise a departure from our decision in Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U. S. 282, 285, that we would not “fashion new judicial rules of contribution” between the shipowner and the stevedoring contractor as joint tortfeasors. Marine Terminals is not seeking contribution. It is not asking Burnside to share responsibility for their joint negligence with respect to McNeill. Rather the counterclaim seeks recovery of the full amount of Marine Terminals' liability under the Act to McNeill’s representative; and it is founded not on Burnside’s wrong to McNeill but on its independent wrong to Marine Terminals.

We further note that at this stage of the case it must be assumed that Marine Terminals was faultless vis-á-vis Burnside, for the claim that Marine Terminals breached its Ryan warranty of workmanlike service has not yet been adjudicated and is not before us. We decide nothing today with respect to the interaction between the shipowner’s breach of warranty claim and the steve-doring contractor’s tort claim. Marine Terminals has charged Burnside with negligence not as a defense to the latter’s Ryan claim but in a counterclaim for damages, and we have considered that claim without regard to the implications of the shipowner’s countervailing cause of action. Our holding is perforce limited to a rejection of Burnside’s argument that “a shipowner’s tortious conduct may be used as a shield, but not as a sword.”

IV.

In holding that the stevedoring contractor has a direct action in tort, we do not preclude the possibility of a direct action under some other theory. Marine Terminals argues in this case, for example, that just as a stevedoring contractor impliedly warrants to a shipowner under Ryan that it will perform the stevedoring services in a workmanlike manner, so also there are reciprocal contractual warranties running from the shipowner to the stevedoring contractor. Burnside counters with the observation that the stevedoring contract in this case is between Marine Terminals and its affiliate Federal Commerce, the time charterer, and that there is therefore no privity of contract between Marine Terminals and Burnside. Because the record before us contains neither the contract for stevedoring services nor the charter agreement, we cannot now assess these arguments. We do not know, for instance, whether any provisions of the time charter contain express or implied warranties which would inure to the benefit of Marine Terminals as stevedoring contractor.

Marine Terminals has also argued that, aside from any express or implied-in-fact contract, it has a quasi-contractual right of indemnity for the liability which it incurred under the Act on account of the shipowner’s wrong. This right, which was evidently recognized by the District Court, is said not to stem solely from the pre-existing contractual relationship between the parties, but to be conferred by law in order to place the liability where it justly belongs. As one court has described it,

“admiralty courts have recognized a right to indemnity, as distinguished from contribution, in a person who has responded in damages for a loss caused by the wrong of another. This right has been recognized in two general classes of cases: those in which the person seeking indemnification was without fault; and those in which such person was passively negligent, but the primary cause of the loss was the active negligence of another.”

Recovery can be based on this concept, Marine Terminals contends, because Burnside’s conduct was either solely or primarily responsible for McNeill’s death.

We express no opinion on the validity of this indemnity theory or its application to this case, but hold only that Marine Terminals is not foreclosed by any decision of this Court from raising it in the District Court. We have cautioned that “in the area of contractual indemnity an application of the theories of 'active’ or 'passive’ as well as 'primary’ or 'secondary’ negligence is inappropriate,” Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U. S. 563, 569. But that proscription in terms applied only “in the area of contractual indemnity” under Ryan. In Ryan itself we specifically did “not meet the question of a noncontractual right of indemnity or of the relation of the Compensation Act to such a right.” 350 U. S., at 133. By leaving open the question of such an indemnity action by the shipowner against the stevedoring contractor, a fortiori we did not decide anything with respect to such an action by the steve-doring contractor against the shipowner.

Because, as we hold today, § 33 of the Longshoremen’s and Harbor Workers’ Compensation Act is not the exclusive source of the stevedoring contractor’s remedies against the shipowner, and the former may have a cause of action in tort for the compensation payments caused by the shipowner’s negligence, we reverse the judgment of the Court of Appeals and remand this case to the District Court for further proceedings consistent with this opinion.

It is so ordered.

       Section 33, as amended in 1959, 73 Stat. 391, as set forth in 33 U. S. C. § 933, reads as follows:
      “ (a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.
      “(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.
      “(c) The payment [of such compensation into the fund established] in section 944 of this title shall operate as an assignment to the employer of all right of the legal representative of the deceased (hereinafter referred to as ‘representative’) to recover damages against such third person.
      “(d) Such employer on account of such assignment may either institute proceedings for the recovery of such damages or may compromise with such third person either without or after instituting such proceeding.
      “(e) Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, shall be distributed as follows:
      “(1) The employer shall retain an amount equal to—
      “ (A) the expenses incurred by him in respect to such proceedings or compromise (including a reasonable attorney’s fee as determined by the deputy commissioner);
      “(B) the cost of all benefits actually furnished by him to the employee under section 907 of this title;
      “(C) all amounts paid as compensation;
      “(D) the present value of all amounts thereafter payable as compensation, such present value to be computed in accordance with a schedule prepared by the Secretary, and the present value of the cost of all benefits thereafter to be furnished under section 907 of this title, to be estimated by the deputy commissioner, and the amounts so computed and estimated to be retained by the employer as a trust fund to pay such compensation and the cost of such benefits as they become due, and to pay any sum finally remaining in excess thereof to the person entitled to compensation or to the representative; and
      “(2) The employer shall pay any excess to the person entitled to compensation or to the representative, less one-fifth of such excess which shall belong to the employer.
      “(f) If the person entitled to compensation institutes proceedings within the period prescribed in subdivision (b) of this section the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the Secretary determines is payable on account of such injury or death over the amount recovered against such third person.
      “(g) If compromise with such third person is made by the person entitled to compensation or such representative of an amount less than the compensation to which such person or representative would be entitled to [sic] under this chapter, the employer shall be liable for compensation as determined in subdivision (f) of this section only if such compromise is made with his written approval.
      “(h) Where the employer is insured and the insurance carrier has assumed the payment of the compensation, the insurance carrier shall be subrogated to all the rights of the employer under this section.
      “(i) The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a person other than an officer or employee of the employer.”

       If the representative decides to bring suit against the third person within six months of the award, as in this case, the employer’s liability for compensation is reduced by the amount recovered by the representative from the third person. See §33 (f), supra, n. 1.

       284 F. Supp. 740.

       392 F. 2d 918.

       393 U. S. 820.

       The District Court found that crucial factual issues existed regarding the longshoremen’s knowledge of the open hatch and the parties’ relative duties of inspection. McNeill had been present at the time the hatch lids were “winged out,” but the court noted that the factual question was posed whether McNeill could reasonably have assumed that the covers would be replaced and had merely entered the area to check it for safety.

       The Illinois Wrongful Death Act was amended in 1967 to remove the ceiling on damages, but the amendment was made prospective only, and the Act still limits the recovery to $30,000 “where such death occurs on or after July 8, 1957 and prior to the effective date [August 18, 1967] of this amendatory Act of 1967 . . . Ill. Rev. Stat., c. 70, § 2.
      The District Court has reserved the question whether, suing as subrogee, the employer’s recovery would be limited by the Illinois statute:
      “In our judgment, defendant’s theory of a direct action cannot be supported, and its counterclaim must be dismissed without prejudice to the filing of an amended counterclaim which alleges a cause of action derived from the persons entitled to compensation. If such an amendment is filed, we may then have occasion to consider whether as subrogee or assignee, the defendant’s possible recovery is limited by the damage ceiling of the Illinois Wrongful Death Act.” 284 F. Supp., at 744-745.

       284 F. Supp., at 744. The District Court noted that the petitioner’s theory is summarized in § 96 of the Restatement of Restitution:
      “A person who, without personal fault, has become subject to tort liability for the unauthorized and wrongful death of another, is entitled to indemnity from the other for expenditures properly made in the discharge of such liability.”

       284 F. Supp., at 744.

       392 F. 2d, at 920.

        Ibid.

       Section 5, 44 Stat. 1426, as set forth in 33 U. S. C. § 905, reads as follows:
      "The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.”

       Both the District Court and the Court of Appeals relied upon Doleman v. Levine, 295 U. S. 221, citing it for the proposition that the employer’s “rights are derived from the person entitled to compensation.” The decision, however, held only that, under the predecessor of § 33, the employer could not maintain a wrongful death action in his own name if he was subrogated to the rights of only one of the dependents entitled to bring the action. Not a word of the opinion in that case suggests that § 33 of the Act was the only source of the employer’s rights against third persons for liability to his employees.

       The District Court rested on the following rationale of the District Court for the Southern District of California in California Casualty Indemnity Exchange v. United States, 74 F. Supp. 401, 404:
      “The right of recoupment [under the federal Act] on the ground of third party liability is not a right created in the libelants by Statute as in the California Compensation Act. . . . The difference lies in the fact that the rights of the employer and its insurance carrier under the Longshoremen’s Act result solely by an assignment of the original rights of the injured person, which original rights are not created by the Statute. The act of the injured person, or representatives of decedent in seeking and accepting compensation under the Longshoremen’s Act operates as an assignment of those rights and creates no new right of action in the employer as is done in the California Law. The assignee has and can have no greater right than the assignor. . . .”
      It is clear even from the face of this passage, however, that the court in California Casualty was addressing itself to a different question from that presented by the instant case. The plaintiffs there had brought suit “as subrogee insurance carrier[s],” id., at 403, and the holding was only that when the employer or his insurance carrier sues as subrogee, his rights are derived from and therefore identical to those of the employee. The case did not hold that the employer’s remedy as subrogee is exclusive.
      Nor did the District Court for the Northern District of Ohio so hold in Reiss S. S. Co. v. Cyr, 138 F. Supp. 834, aff’d, 229 F. 2d 849, another case relied on by the District Court below. Language in the Reiss opinion to the effect that § 33 “governs exclusively in instances of third party liability,” id., at 836, referred only to the relationship between employer and employee under the Act, not to the relationship between the employer and third parties.

       See Seas Shipping Co. v. Sieracki, 328 U. S. 85; Mahnich v. Southern S. S. Co., 321 U. S. 96.

       See supra, at 409.

       The context of this statement in Weyerhaeuser was our treatment of the stevedoring contractor’s contention that the shipowner’s conduct had been such as to preclude recovery for the stevedoring contractor’s breach of warranty. The statement that the shipowner owed the stevedoring contractor certain duties did not identify the source of those duties, but our discussion of the subject was in terms of obligations imposed by law:
      “the duties owing from petitioner [the shipowner] to Connolly [the longshoreman] were not identical with those from petitioner to respondent [the stevedoring contractor]. While the jury found petitioner ‘guilty of some act of negligence,’ that ultimate finding might have been predicated, inter alia, on a failure of petitioner to remove the shelter when the ship left New York, or a failure to correct or warn respondent of a latent dangerous condition known to petitioner when respondent began the Boston unloading. Likewise, the finding might have been predicated on a failure of petitioner during the five days in Boston to inspect the shelter, detect and correct the unsafe condition. Although any of these possibilities could provide Connolly a basis of recovery, at least the latter would not, under Ryan, prevent recovery by petitioner in the third-party action.” 355 U. S., at 568.

       The Federal District Court for the Southern District of California has held that the shipowner owes the stevedoring contractor at least the following obligations:
      “(1) to exercise ordinary care under the circumstances to place the ship on which the stevedoring work is to be done, and the equipment and appliances aboard ship, in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship’s service or otherwise, will be able by the exercise of ordinary care under the circumstances to load or discharge the cargo, as the case may be, in a workmanlike manner and with reasonable safety to persons and property; and (2) to give the stevedoring contractor reasonable warning of the existence of any latent or hidden danger which has not been remedied and is not usually encountered or reasonably to be expected by an expert and experienced stevedoring company in the performance of the stevedoring work aboard the ship, if the shipowner actually knows or, in the exercise of ordinary care under the circumstances, should know of the existence of such danger, and the danger is one which the shipowner should reasonably expect a stevedoring contractor to encounter in the performance of the stevedoring contract.” Hugev v. Dampskisaktieselskabet International, 170 F. Supp. 601, 610-611, aif’d sub nom. Metropolitan Stevedore Co. v. Dampskisaktieselskabet International, 274 F. 2d 875, cert, denied, 363 U. S. 803.
      While the court identified these obligations as implied in fact from the stevedoring contract, it indicated that they also constituted the “duty of ordinary care imposed by law toward ‘persons rightfully transacting business on ships/ ” 170 F. Supp., at 610.
      In the case of Mickle v. The Henriette Wilhelmine Schulte, 188 F. Supp. 77, 80, the District Court for the Northern District of California, while rejecting the argument that such obligations were contractual, agreed that the occupier of a ship
      “owes certain duties of care to a business invitee, especially to an independent contractor, such as a stevedore company, which comes onto the premises to perform services, 2 Harper & James, The Law of Torts, Section 27.12 (1956), including the duty not to cause injury by negligent activity, 2 Restatement of Torts, Section 341; the duty to warn of latent perils actually known to the occupier, Prosser on Torts, 453 (1955); and the duty to inspect the premises to discover dangerous conditions. 2 Restatement of Torts, Section 343. See generally Prosser, supra, 452-62.”

       Such reciprocal contractual warranties were recognized in Ryan, Marine Terminals argues, by the Court’s statement that “the steve-doring contractor . . . has received a contractual quid pro quo from the shipowner for assuming responsibility for the proper performance of all of the latter’s stevedoring requirements . . . .” 350 U. S., at 129, n. 3. (Emphasis in original.) Other courts have most often dealt with the shipowner’s duties only in the context of a stevedoring contractor’s defense to a shipowner’s claim for breach of Ryan warranties. See, e. g., D/S Ove Skou v. Hebert, 365 F. 2d 341; T. Smith & Son v. Skibs A/S Hassel, 362 F. 2d 745; Albanese v. N. V. Nederl. Amerik Stoomv. Maats., 346 F. 2d 481, rev’d on other grounds, 382 U. S. 283; Misurella v. Isthmian Lines, Inc., 328 F. 2d 40; Pettus v. Grace Line, Inc., 305 F. 2d 151; Drago v. A/S Inger, 305 F. 2d 139, cert. denied, 371 U. S. 925; Calmar S. S. Corp. v. Nacirema Operating Co., 266 F. 2d 79, cert. denied, 361 U. S. 816. They have on occasion, however, stated or intimated that the shipowner makes certain affirmative warranties to the stevedoring contractor whose breach would support an action for damages. See, e. g., The No. 34, 25 F. 2d 602; Pettus v. Grace Line, Inc., 305 F. 2d 151, 155 (dissenting opinion of Judge Clark); Cusumano v. Wilhelmsen, 267 F. Supp. 164; Ring v. Motor Vessel Cape Clear, 226 F. Supp. 709. See also Mowbray v. Merryweather, [1895] 2 Q. B. 640. See generally Proudfoot, “The Tar Baby”: Maritime Personal-Injury Indemnity Actions, 20 Stan. L. Rev. 423, 442-445 (1968).

       The stevedoring contractor’s warranty of workmanlike service under Ryan extends to the shipowner even in the absence of contractual privity between the parties. Waterman S. S. Corp. v. Dugan & McNamara, Inc., 364 U. S. 421; Crumady v. The Joachim Hendrik Fisser, 358 U. S. 423. For the suggestion that the steve-doring contractor may be the beneficiary of certain of the shipowner’s obligations under the charter agreement, see Drago v. A/S Inger, 305 F. 2d 139, 143.

       See supra, at 410-411.

       This Court has recognized the objective under the Compensation Act of “placing the burden ultimately on the company whose default caused the injury.” Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U. S. 315, 324. And see Reed v. The Yaka, 373 U. S. 410, 414.

        Davis v. American President Lines, 106 F. Supp. 729, 730. For other decisions recognizing such a quasi-contractual right of indemnity under federal maritime law, see, e. g., Parenzan v. Iino Kaiun Kabushiki Kaisya, 251 F. 2d 928, cert. denied, sub nom.

        International Terminal Operating Co. v. Iino Kauin Kaisha, 356 U. S. 939; American President Lines, Ltd. v. Marine Terminals Corp., 234 F. 2d 753, cert. denied, 352 U. S. 926; Berti v. Compagnie de Navigation Cyprien Fabre, 213 F. 2d 397; States S. S. Co. v. Rothschild Int’l Stevedoring Co., 205 F. 2d 253; United States v. Rothschild Int’l Stevedoring Co., 183 F. 2d 181; Standard Oil Co. v. Robins Dry Dock & Repair Co., 32 F. 2d 182; McFall v. Compagnie Maritime Belge, 304 N. Y. 314, 107 N. E. 2d 463.

       See also Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U. S. 315, 320.

       See also 350 U. S., at 132, n. 6. The Ryan opinion also recognized the difference between, and treated separately, the noncon-tractual right of indemnity and the claim for contribution from a joint tortfeasor. Id., at 133.

       Some have thought that the exclusivity of the employer’s statutory liability to the employee would prevent the shipowner from asserting a right of indemnity against the stevedoring contractor based on the latter’s wrong to the employee. See, e. g., Ryan, supra, at 142 (Black, J., dissenting); Brown v. American-Hawaiian S. S. Co., 211 F. 2d 16; Slattery v. Marra Bros., 186 F. 2d 134, cert. denied, 341 U. S. 915. But there is no such barrier, of course, to a direct action by the stevedoring contractor against the shipowner.