Waganer v. Sea-Land Service, Inc.

• Decision Date: 19 November 1973
• Docket Number: No. 72-2570.,72-2570.
• Citation: 486 F.2d 955
• Parties: Beatrice T. WAGANER, as Administratrix of the Estate of Louis P. Waganer, Jr., Deceased, Plaintiff-Appellant, v. SEA-LAND SERVICE, INC. and S. S. MAIDEN CREEK, her engines, etc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

486 F.2d 955 (1973)

Beatrice T. WAGANER, as Administratrix of the Estate of Louis P. Waganer, Jr., Deceased, Plaintiff-Appellant, v. SEA-LAND SERVICE, INC. and S. S. MAIDEN CREEK, her engines, etc., Defendants-Appellees.

No. 72-2570.

United States Court of Appeals, Fifth Circuit.

November 19, 1973.

Joe H. Little, Jr., Hardy B. Smith, Mobile, Ala., for plaintiff-appellant.

W. Boyd Reeves, Geoffrey V. Parker, Mobile, Ala., for defendants-appellees.

Before ALDRICH^*, SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

Mrs. Waganer brought the action below as administratrix of the estate of Louis P. Waganer, her husband, who died intestate. She appeals from the granting of summary judgment in favor of the defendant-appellee Sea-Land Service, Inc. (Sea-Land). Mrs. Waganer alleged negligence of Sea-Land and unseaworthiness in the maintenance of the S. S. Maiden Creek, a vessel owned by it on which her husband received fatal injuries. The appellant asserts that summary judgment was entered when there were unresolved and contested issues of material fact in the case and that summary judgment was therefore erroneously entered. We agree and reverse.

The S.S. Maiden Creek, an American flag vessel owned by Sea-Land, docked at the Alabama State Docks in Mobile, Alabama on January 1, 1971, and there discharged her cargo. The ship's crew, except for four officers, was released the next day, and the power plant was shut down. The ship was towed to the Mobile repair yard of the Alabama Drydock and Shipbuilding Company (ADDSCO) where it remained from January 4th to January 24th. During that time all power, steam, and water used by the vessel were supplied from shore by ADDSCO.

During the period of repairs, no meals were served on board, the sanitary facilities were inoperative, and none of the remaining officers on duty slept on board. The purpose of the repair work was to perform the maintenance required by the American Bureau of Shipping, pursuant to a survey which had been completed in part prior to the S.S. Maiden Creek's arrival at ADDSCO.

On January 14, 1971, during the course of these repairs, appellant's husband, Louis P. Waganer, Jr., an employee of ADDSCO, fell from the third deck of the number three cargo hold into the after port deep tank and was pronounced dead on arrival at a nearby hospital. With two other employees plaintiff's decedent was patching and replacing some four inch drainage pipe with welding equipment. Immediately prior to the accident, a power failure took place in the lighting circuit which supplied light to the area in which Mr. Waganer was working. All three employees, using flashlights, made their way out of the hold by a ladder located at one end. About ten minutes later with the power failure still uncorrected Waganer re-entered the hold by the ladder to finish a welding job. His fall into the deep tank occurred moments later. There were no safety devices or ropes around the deep tank and no emergency lighting equipment in the area. The protective covers of the deep tanks had been removed by ADDSCO during the repairs.

Mrs. Waganer's suit alleged negligence by Sea-Land and unseaworthiness of its vessel, the S.S. Maiden Creek. The district court found and stated in its Conclusions of Law, that the vessel had been withdrawn from navigation, had been undergoing major repair work, was under the control and custody of ADDSCO and not Sea-Land, and that therefore no warranty of seaworthiness existed. It further found that the repair work created the unsafe working condition, and that as a matter of law Sea-Land could not be found negligent under West v. United States, 1959, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161. This appeal attacks each of these conclusions as erroneous in that material issues of fact remained unresolved with respect to each, asserting that these issues required disposition by a trier of fact at trial, not by the court on a motion for summary judgment.

WARRANTY OF SEAWORTHINESS

Seas Shipping v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 established the right of shore based workers to an action for breach of the warranty of seaworthiness first recognized by the Court as available to seamen in The Osceola, 1896, 189 U.S. 158, 23 S. Ct. 483, 47 L.Ed. 760. West v. United States, 1959, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161, carefully delineated the parameters of that doctrine. While Sieracki extended the seaworthiness warranty to shore-based workers who were on board ship and performing work traditionally done by seamen, West limited its application to "ship's work", which the court said was to be determined by examining, "the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done, rather than the specific type of work that each of the numerous shore-based workmen is doing on shipboard at the moment of injury." 361 U.S. at 122, 80 S.Ct. at 192, 4 L.Ed.2d at 165. As developed by the case law following West this limitation may be roughly equated with the following requirements: (i) the ship in question must have been in navigational status, and not "dead", which in turn depends upon whether the contracted work is minor or major, and who has custody and control of the ship while the work is being done; and (ii) the pattern of repair must reflect work traditionally and ordinarily done by seamen, excluding persons performing such tasks as making major repairs requiring drydocking or special skills.

A. Navigational Status

Initially we note that whether a ship is "in navigation" is a question of fact for determination by the fact finder. Roper v. United States, 1961, 368 U. S. 20, 82 S.Ct. 5, 7 L.Ed.2d 1. Very recently we have restated and reiterated the West criteria for determining the status of a vessel for purposes of maritime tort liability, saying that "inquiry should focus on the extent of repair operations and on who controls those operations." Edwin v. Lykes Brothers Steamship Co., 5 Cir. 1973, 472 F.2d 1217, 1219. A primary touch-stone for distinguishing between major and minor repairs is the purpose for which the vessel has been idled. "A vessel which temporarily leaves commerce, enters a shipyard for minor repairs, and thereupon returns to commerce, remains in navigation for purposes of the warranty." Delome v. Union Barge Line Co., 5 Cir. 1971, 444 F.2d 225, cert. denied, 1972, 404 U.S. 995, 92 S.Ct. 534, 30 L.Ed.2d 547. The pleadings and deposition evidence before the lower court showed that the S.S. Maiden Creek was docked for a survey and repairs required by the American Bureau of Shipping of all American flag vessels every five years, and not because Sea-Land intended to take it out of commerce. The vessel entered port under its own power and had already completed part of the survey. The Chief Mate, Taylor, testified on deposition that no "major" repairs were to be done, that is, that no structural changes, alterations in the hull, or major overhauling were contemplated. Further, the affidavit of John H. van Aken, a marine surveyor and consultant, indicated that he felt the repairs to be minor. The lay up time was twenty-one days in all. Under similar circumstances, this court has held that to deny navigational status to the ship in question "seems hardly plausible." Drake v. E. I. DuPont deNemours & Co., 5 Cir. 1970, 432 F.2d 276, 277. Without intimating an opinion as to how the trier of fact should resolve the question, we are constrained to hold that there is a genuine issue of fact as to the extent of the repairs to be done by ADDSCO.

Similarly, the question of custody and control does not appear to us to be devoid of factual dispute. Appellee Sea-Land asserts that the evidence adduced thus far establishes unequivocally that ADDSCO had complete control and custody of the S.S. Maiden Creek. Assuming our agreement with that proposition, we are nevertheless mindful that "an injured ship repair employee may have a valid claim against a shipowner for damages due to unseaworthiness of the vessel where control of the vessel has been relinquished by the owner. But each case depends on its own facts and circumstances, . . ." Johnson v. Oil Transport Company, 5 Cir. 1971, 440 F.2d 109, 115. See further Chief Judge Brown's concurrence in Moye v. Sioux City & New Orleans Barge Lines, Inc., 5 Cir. 1968, 402 F.2d 238, 241, cited approvingly by Johnson, observing that "it is a mistake, but not one made by this court in this opinion, to read West as a holding that once all of the owner-charterers' employees have left the scene the warranties of seaworthiness or Jones Act statutory obligation of furnishing a safe place to work will evaporate." It is undisputed here that initially four and later five officers were on board during regular working hours and at the time of the accident. Chief Mate Taylor's deposition indicated that he had some degree of authority with respect to safety conditions on board. Sea-Land employed watchmen during the weekends and evenings when officers were not on board. We conclude that the question of custody and...