761 F.2d 1369 (9th Cir. 1985), 83-5591, Solano v. Beilby

Docket Nº:83-5591.
Citation:761 F.2d 1369
Party Name:Joseph SOLANO, Plaintiff-Appellant, v. Chris BEILBY, Amerford International Corporation and California United Terminals, Defendants-Appellees. Michael L. URLEVICH, Plaintiff-Appellant, v. Chris BEILBY, Amerford International Corporation and California United Terminals, Defendants-Appellees.
Case Date:May 24, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1369

761 F.2d 1369 (9th Cir. 1985)

Joseph SOLANO, Plaintiff-Appellant,

v.

Chris BEILBY, Amerford International Corporation and

California United Terminals, Defendants-Appellees.

Michael L. URLEVICH, Plaintiff-Appellant,

v.

Chris BEILBY, Amerford International Corporation and

California United Terminals, Defendants-Appellees.

No. 83-5591.

United States Court of Appeals, Ninth Circuit

May 24, 1985

Argued and Submitted Jan. 7, 1985.

Newton R. Brown, Mitchell Levy, Wilmington, Cal., Louis Goldberg, Beverly Hills, Cal., for plaintiff-appellant.

Page 1370

Erwin E. Adler, Richards, Watson, Dreyfuss & Gershon, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, NELSON and CANBY, Circuit Judges.

NELSON, Circuit Judge:

Joseph Solano and Michael Urlevich, both longshoremen, brought an admiralty action in the Central District of California under 28 U.S.C. Sec. 1333 and Fed.R.Civ.P. 9(h) against California United Terminals for negligence resulting in personal injuries. The district court, finding that there was no duty of care owed to plaintiffs, ruled in favor of the defendant terminal operator in a summary judgment. Solano and Urlevich filed a timely appeal raising the following issues for our review: 1) whether California United had actual, constructive, or inquiry notice of the dangerous condition of the 1946 Cadillac, and 2) whether California United had a duty to warn plaintiff of this dangerous condition. We affirm.

FACTS

Defendant, California United Terminals, is a marine cargo terminal located at the Port of Long Beach, California. An Australian citizen bought a 1946 Cadillac, in need of restoration, from a local resident and asked the seller to arrange to ship the automobile to Australia. Amerford International, the freight forwarder, informed the seller to deposit the vehicle at California United's terminal pending shipment on the vessel Allunga.

Plaintiffs, Joseph Solano and Michael Urlevich, were longshoremen employed by Crescent Wharf & Warehouse Co., a stevedoring company. Solano and Urlevich were assigned to load the Cadillac onto the vessel. The cargo terminal played no part in the loading process; no control was exercised, and no terminal equipment was used. The terminal was responsible only for storing the vehicle until the employees of the stevedoring company picked it up for loading.

The stevedore supervisor instructed one longshoreman to steer the car, while the other pushed from behind with a jitney. While the Cadillac was being pushed down a ramp onto the ship, it rolled ahead of the jitney, up an incline, and then began to roll backwards. Since the brakes were inoperative, the driver was unable to prevent the car from colliding with the jitney. Plaintiffs were both injured in the collision.

Each longshoreman brought an admiralty and maritime claim under rule 9, Fed.R.Civ.P., based on 28 U.S.C. Sec. 1333. The longshoremen alleged that California United negligently failed to inspect the cargo, to warn the plaintiffs of the potential danger in loading the car onto the ship ramp, and to supervise the longshoremen in loading the cargo.

The district court found no duty on the part of the defendant to inspect the car, to warn plaintiffs of the defective brakes, or to supervise plaintiffs in loading the cargo. Since the court found that the terminal operator fulfilled the applicable standard of care of a cargo terminal operator and bailee under the circumstances, defendant's motion for summary judgment was granted. Solano and Urlevich appeal.

I. JURISDICTION

This court is obligated to raise jurisdictional issues sua sponte. Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 n. 2 (9th Cir.1983); In re Exennium, Inc., 715 F.2d 1401, 1402 (9th Cir.1983). The threshold question, therefore, is to determine whether this action is within the federal courts' admiralty jurisdiction. Historically, admiralty jurisdiction was invoked if a tort occurred on or over navigable waters. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253, 93 S.Ct. 493, 497, 34 L.Ed.2d 454 (1972); Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967, 969 (9th Cir.1983). In Executive Jet, however, the Supreme Court rejected exclusive reliance on locality and held that in addition to having a maritime

Page 1371

situs "the wrong must bear a significant relationship to traditional maritime activity." Executive Jet, 409 U.S. at 268, 93 S.Ct. at 504. Although Executive Jet addressed maritime jurisdiction over an aviation tort claim, subsequent decisions have applied the two-part test to torts outside the aviation context. Foremost Insurance Co. v. Richardson, 457 U.S. 668, 674, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300 (1982); Owens-Illinois, Inc., 698 F.2d at 969-70.

In examining the first part of the maritime tort test, courts have traditionally defined the locus of the tort as the place where the injury occurs. See, e.g., Executive Jet, 409 U.S. at 266, 93 S.Ct. at 503; Smith v. Pan Air Corp., 684 F.2d 1102, 1111 (5th Cir.1982); Edynak v. Atlantic Shipping Inc. Cie. Chambon Maclovia S.A., 562 F.2d 215, 221 (3d Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978); Kelly v. United States, 531 F.2d 1144, 1146 (2d Cir.1976); Carroll v. Protection Maritime Insurance Co., 512 F.2d 4, 8 (1st Cir.1975); Oppen v. Aetna Insurance Co., 485 F.2d 252, 256 (9th Cir.1973). The injury in the present case occurred on the ramp of a ship, satisfying the requirement of maritime locality.

To determine whether the second part of the maritime tort standard is met, i.e., whether the alleged tort has a sufficient nexus to traditional maritime activity, this Circuit considers four factors:

(1) traditional concepts of the role of admiralty law;

(2) the function and role of the parties;

(3) the types of vehicles and instrumentalities involved; and

(4) the causation and nature of the injury suffered.

Owens-Illinois, Inc., 698 F.2d at 970 (citing T.J. Falgout Boats, Inc. v. United States, 508 F.2d 855, 857 (9th Cir.1974), cert. denied, 421 U.S. 1000, 95 S.Ct. 2398, 44 L.Ed.2d 667 (1975)).

In Foremost Insurance Co., the Supreme Court defined the principle focus of maritime jurisdiction as "the protection of maritime commerce." Foremost Insurance Co., 457 U.S. 668, 674, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300 (1982). The loading of cargo onto a vessel by two longshoremen falls squarely within the ambit of traditional maritime services or activities in furtherance of commerce. The goal of uniformity in the law governing maritime industries and the concern for providing remedies to those confronting the dangers of maritime...

To continue reading

FREE SIGN UP