100 MARSHALL, J., dissenting has no more than "symbolic significance," ante, at 128, and it defies the lessons of history and law to assert that if the harm is only symbolic, then the federal courts cannot recognize it. Compare Plessy v. Ferguson, 163 U. S. 537, 551 (1896) ("We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it"), with Brown v. Board of Education, 347 U. S. 483, 494 (1954) ("To separate them from others . . . solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.... Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority"). The message the city is sending to Negro residents north of Hein Park is clear, and I am at a loss to understand why the majority feels so free to ignore it. Indeed, until today I would have thought that a city's erection of a barrier, at the behest of a historically all-white community, to keep out predominantly Negro traffic, would have been among the least of the statute's prohibitions. Certainly I suspect that the Congress that enacted § 1982 would be surprised to learn that it has no application to such a case. Even the few portions of debate that I have cited make clear that a major concern of the statute's supporters was the elimination of the effects of local prejudice on Negro residents. In my view, the evidence before us supports a strong inference that the operation of such prejudice is precisely what has led to the closing of West Drive. And against this record, the government should be required to do far more than it has here to justify an action that so obviously damages and stigmatizes a racially identifiable group of its citizens. MARSHALL, J., dissenting 451 U.S. In short, I conclude that the plain language of § 1982 and its legislative history show that the harm established by a fair reading of this record falls within the prohibition of the statute. Because the Court of Appeals reached the same conclusion, I would affirm its judgment.18 18 In light of my disposition of the statutory question, I would ordinarily find it unnecessary to consider the merits of the Thirteenth Amendment argument. But I cannot let the Court's discussion of the constitutional claim pass without comment. The majority reserves until another case the issue whether § 1 of the Amendment by its own force bans "badges and incidents of slavery" because, in its view, "a review of the justification for the official action challenged in this case demonstrates that its disparate impact on black citizens could not . . . be fairly characterized as a badge or incident of slavery." Ante, at 126. For reasons that I have already indicated, I believe that the degree of harm to respondents from the erection of a barrier at the end of West Drive far exceeds the minimal inconvenience found by the majority. Assuming with the majority that the Amendment would, even without implementing legislation, ban more than the mere practice of slavery, I would conclude that official action causing harm of the magnitude suffered here plainly qualifies as a "badge or incident" of slavery, at least as those terms were understood by the Reconstruction Congress. When the Thirteenth Amendment was being debated, supporters and opponents alike acknowledged that it would have the effect of striking down racial discrimination in a wide variety of areas. See, e. g., Cong. Globe, 38th Cong., 1st Sess., 1465, 2944, 2962, 2979, 2982-2983, 2987 (1865). See generally J. ten Broek, Equal Under Law 162-168 (rev. ed. 1965). In enacting §1 of the Civil Rights Act of 1866, the provision that produced both § 1981 and § 1982, see Runyon v. McCrary, 427 U. S. 160, 168, n. 8, 170 (1976), Congress did not believe it was doing more than spelling out the guarantees implicit in § 1 of the Thirteenth Amendment. See Cong. Globe, 39th Cong., 1st Sess., 503-504 (1866) (remarks of Sen. Howard); id., at 602-603 (remarks of Sen. Lane); R. Kluger, Simple Justice 47, 627-629 (1975). Because that Congress included so many of those who had a hand in drafting the Thirteenth Amendment, cf. Jones v. Alfred H. Mayer Co., 392 U. S. 409, 439-440 (1968), I would give its judgment considerable deference. Consequently, I would hold that because the closing of West Drive is forbidden on these facts by § 1982, it is a fortiori a violation of the Thirteenth Amendment as well. Of course, this should not be taken as an argument that Congress cannot under § 2 of the Thirteenth Amendment enact legislation forbidding more than would § 1 of the Amend 100 MARSHALL, J., dissenting III I end, then, where I began. Given the majority's decision to characterize this case as a mere policy decision on the part of the city of Memphis to close a street for valid municipal reasons, the conclusion that it reaches follows inevitably. But the evidence in this case, combined with a dab of common sense, paints a far different picture from the one emerging from the majority's opinion. In this picture a group of white citizens has decided to act to keep Negro citizens from traveling through their urban "utopia," and the city has placed its seal of approval on the scheme. It is this action that I believe is forbidden, and it is for that reason that I dissent. ment standing alone. I simply suggest that Congress did not do so when it enacted § 1 of the Civil Rights Act of 1866. I also do not mean to imply that all municipal decisions that affect Negroes adversely and benefit whites are prohibited by the Thirteenth Amendment. I would, however, insist that the government carry a heavy burden of justification before I would sustain against Thirteenth Amendment challenge conduct as egregious as erection of a barrier to prevent predominantly Negro traffic from entering a historically all-white neighborhood. For reasons that I have already stated, I do not believe that the city has discharged that burden in this case, and for that reason I would hold that the erection of the barrier at the end of West Drive amounts to a badge or incident of slavery forbidden by the Thirteenth Amendment. SCINDIA STEAM NAVIGATION CO., LTD. v. DE LOS SANTOS ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 79-512. Argued December 1, 1980-Decided April 21, 1981 Respondent longshoreman, an employee of respondent stevedore who was engaged by petitioner shipowner to load its vessel, was injured while working in the ship's hold when he was struck by cargo that fell from a pallet being held in suspension by a winch that was part of the ship's gear and was being operated by another longshoreman. The winch's braking mechanism allegedly had been malfunctioning for two days preceding the day of the accident, but there was a dispute as to whether the cargo fell because the suspended pallet was swinging back and forth or because the braking mechanism slipped while the pallet was suspended, and as to whether the shipowner knew or should have known of the alleged condition of the winch. Respondent longshoreman brought suit against petitioner under the provision of the Longshoremen's and Harbor Workers' Compensation Act as amended in 1972, 33 U. S. C. § 905 (b), which states that a longshoreman injured "by the negligence of a vessel . . . may bring an action against such vessel as a third party" and that the vessel's liability "shall not be based upon the warranty of seaworthiness." The District Court granted summary judgment for petitioner, holding that under the negligence standards governing liability under § 905 (b), a shipowner is not liable for dangerous conditions created by the stevedore's negligence while the stevedore is in exclusive control of the work, and that even if petitioner knew or should have known of the defective winch, a shipowner has no duty to warn the stevedore or his employees of open and obvious defects. The Court of Appeals reversed, holding that under the proper standard, petitioner had a duty to continue to inspect conditions of the vessel even if it had been turned over to the stevedore in safe condition, and that if dangerous conditions subsequently developed, in light of the vessel's practical opportunities to discover and remedy the dangers, failure to do so could be negligence. Concluding that there were several material facts in dispute that were for a jury to resolve, the court remanded the case for further proceedings. Held: 1. A shipowner has a duty to have the ship and its equipment in such condition that the stevedore may carry on its cargo operations with reasonable safety; and if the shipowner fails at least to warn the stevedore of hidden danger which was known to the shipowner, or should have been known to him in the exercise of reasonable care, he is liable if his negligence causes injury to a longshoreman. But once the stevedore's cargo operations have begun, absent contract provision, positive law, or custom to the contrary the shipowner has no general duty under § 905 (b) by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore. Thus, the shipowner is not liable to the longshoremen for injuries caused by dangers unknown to the owner and about which he had no duty to inform himself. This conclusion is consistent with Congress' intent under the 1972 Amendments of the Act to foreclose the shipowner's previous faultless liability based on a theory of unseaworthiness or nondelegable duty. The shipowner, within limits, is entitled to rely on the stevedore, and owes no duty to the longshoreman to inspect or supervise cargo operations. Pp. 166–172. 2. However, there are circumstances in which the shipowner has a duty to act where a danger to longshoremen arises from the malfunctioning of the ship's gear being used in cargo operations. In this case, it is possible that the stevedore's judgment in continuing to use the winch despite its malfunctioning was so obviously improvident that petitioner, if it knew of the defect and that the stevedore was continuing to use it, should have realized the winch presented an unreasonable risk of harm to the longshoremen, and that in such circumstances it had a duty to intervene and repair the winch. The same would be true if the defect existed from the outset and petitioner must be deemed to have been aware of its condition. The stevedore's duties under positive law to provide a safe workplace and to use safeguards with respect to the ship's gear, as well as the vessel's justifiable expectations that those duties will be performed, are relevant in determining whether the shipowner has breached its duty. But an equally necessary inquiry is whether the pertinent statutes, regulations, or custom place or assume a continuing duty on the vessel to repair defective ship's gear being used by the stevedore in the cargo operation. Here, the record supports the Court of Appeals' holding that there was a triable issue as to whether the shipowner had actual knowledge of the alleged failure in the winch's braking mechanism or was chargeable with knowledge because the winch was defective from the outset. Thus, the District Court erred in granting summary judgment, and the case should be |