Green v. Pope & Talbott, Inc.

• Decision Date: 06 April 1971
• Docket Number: 4997,Civ. No. 18189,No. 4809,18220 and 19814.,4809
• Citation: 328 F. Supp. 71
• Parties: Paisley GREEN, to his own use and to the use of Liberty Mutual Insurance Company v. POPE & TALBOTT, INC., a body corporate. William RANDOLPH v. CENTRAL GULF STEAMSHIP CORP., a body corporate, and Lawrence E. Wilson CENTRAL GULF STEAMSHIP CORP., a body corporate v. TERMINAL SHIPPING COMPANY and Maryland Port Authority. Bert ROBINSON v. GRACE LINE, INC. Oscar EADDY v. EMDER DAMPFERCOMPAGNIE A. G. AKTIENGESELLSCHAFT v. ROBERT C. HERD & CO., Inc. James R. MILES v. SS PRODROMOS, her boilers, engine, tackle, etc., Sampasa Compania, the Western Maryland Railway Company, a Maryland corporation, and Westinghouse Electric Corporation, a Pennsylvania Corporation.
• Court: U.S. District Court — District of Maryland

328 F. Supp. 71

Paisley GREEN, to his own use and to the use of Liberty Mutual Insurance Company

v.

POPE & TALBOTT, INC., a body corporate.

William RANDOLPH v. CENTRAL GULF STEAMSHIP CORP., a body corporate, and Lawrence E. Wilson

CENTRAL GULF STEAMSHIP CORP., a body corporate v. TERMINAL SHIPPING COMPANY and Maryland Port Authority.

Bert ROBINSON v. GRACE LINE, INC.

Oscar EADDY v. EMDER DAMPFERCOMPAGNIE A. G. AKTIENGESELLSCHAFT v. ROBERT C. HERD & CO., Inc.

James R. MILES v. SS PRODROMOS, her boilers, engine, tackle, etc., Sampasa Compania, the Western Maryland Railway Company, a Maryland corporation, and Westinghouse Electric Corporation, a Pennsylvania Corporation.

Nos. 4809, 4997, Civ. Nos. 18189, 18220 and 19814.

United States District Court, D. Maryland.

April 6, 1971.

Franklin Freeman, Baltimore, Md., for libelant Paisley Green.

Raymond J. Cardillo and Howard Fine, Baltimore, Md., for libelant William Randolph.

H. Carl Butler, Baltimore, Md., for plaintiff Bert Robinson.

Jerome B. Monfred and Monfred & Lentz, Baltimore, Md., for plaintiff Oscar Eaddy.

David K. Ebersole, Jr., Leroy W. Preston, O'Connor & Preston, Baltimore, Md., for plaintiff James R. Miles; John J. O'Connor, Baltimore, Md., of counsel. Eugene A. Edgett, Jr., Baltimore, Md., for respondent, Pope & Talbott, Inc.

Randall C. Coleman, Thomas W. Jamison, III, and Ober Williams & Grimes, Baltimore, Md., for respondent Central Gulf Steamship Co. and another.

Southgate L. Morison, Randall C. Coleman, and John R. Crumpler, Jr., Baltimore, Md., for defendant Grace Line, Inc.

Southgate L. Morison, Richard R. Jackson, Jr., and Ober, Williams & Grimes, Baltimore, Md., for defendant and third-party plaintiff Emder Dampfercompagnie A. G. Aktiengesellschaft.

Richard R. Jackson, Jr., and Ober, Williams & Grimes, Baltimore, Md., for defendant Sampasa Compania.

Joseph H. Young and Paul V. Niemeyer, Baltimore, Md., for defendant The Western Maryland Railway Co.

Eugene A. Edgett, Jr., Baltimore, Md., for defendant Westinghouse Electric Corp.

Louis G. Close, Jr., and Due, Whiteford, Taylor & Preston, Baltimore, Md., for first-respondent impleaded Terminal Shipping Co.

Herbert F. Murray, Baltimore, Md., for second-respondent impleaded Md. Port Authority.

Eugene A. Edgett, Jr. and A. Douglas Owens, Baltimore, Md., for third-party defendant Robert C. Herd & Co., Inc.

WATKINS, District Judge.

These five, factually uncomplicated, cases bring us into some of the most troubled waters in admiralty today. Two of the five cases, Green and Randolph, were commenced as libels in admiralty; the other three, were instituted as civil actions at law. In each of the five cases, the party instituting the action was an employee of a stevedoring company who was injured on a pier or in a pier-based structure in the performance of his work. In each case, the employee brought his action against a shipowner, and in some cases others, making the usual allegations of the shipowner's negligence and the unseaworthiness of the vessel. That some of the cases were brought as libels in admiralty while the others were instituted as actions at law, is insignificant as far as common "substantive" questions are concerned. "For it is now clear that the maritime law controls all `substantive' issues in the disposition of maritime claims regardless of the form or forum of the suit." Larios v. Victory Carriers, Inc., 316 F.2d 63, 65 (2d Cir. 1963).

Two of the cases, Green and Robinson, have proceeded to trial and await decision; the other three, are before this court on various defendants' motions to dismiss. Each longshoreman alleges that his action is an admiralty and maritime claim within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure. Accordingly, the threshold question presented by each of these cases is whether this court has admiralty jurisdiction over its subject matter.

Rule 9(h) is based upon 28 U.S.C. § 1333, which, in turn, paraphrases the constitutional grant of power. Article III, section 2 of the United States Constitution extends the judicial power, inter alia, "to all Cases of admiralty and maritime Jurisdiction." Thus, if these five controversies do not present cases of admiralty and maritime jurisdiction, this court lacks admiralty jurisdiction over their subject matter and, absent an independent basis of jurisdiction, they must be dismissed. Fed.R.Civ.P. 12(h); United States v. Mississippi Valley Barge Line Co., 285 F.2d 381 (8th Cir. 1960); 1A Barron & Holtzoff (Wright ed.), § 370 n.2. As the resolution of the jurisdictional questions presented herein depends as much on the facts of each case as the development of the law, it will be most helpful to discuss the former first.

THE FACTS

Admiralty No. 4809

Paisley Green was a longshoreman. On September 6, 1961, he was injured while working for the Jarka Corporation, a stevedoring company that had been engaged to unload a palletized cargo of canned goods from the SS P & T Builder, owned by the respondent Pope & Talbott, Inc. The ship was berthed at Pier 7, Western Maryland Railway, Port Covington, in the Port of Baltimore. On this pier was constructed a two-story warehouse where cargoes were stored. The pier itself had a movable second level, so that cargo could be transferred directly from the second level of the pier to the second story of the warehouse.

The palletized canned goods in question had been removed from the hold of the vessel by the ship's gear. This was done by placing pallet bars under the already palletized cargo and lifting a pallet or two to the first level of the pier. The ship's gear then transferred the cargo to the second level of the pier, adjacent to the second story of the warehouse, where a member of the stevedoring gang would remove the pallet bars and send the gear back for additional loads. After a pallet of canned goods was discharged on the second level of the pier, a tow-motor tractor would drive up from inside the second story of the warehouse, place its forklift or boom under the pallet, and after lifting it to the appropriate height, drive back into the warehouse to place the pallet in its proper location for storage prior to ultimate distribution.

Green worked inside the second floor of the warehouse, about fifty feet from where the pallets were landed on the second level of the pier. His job was to "spot" the pallets in their proper location in the warehouse according to markings on the cargo. He was also responsible for seeing that the pallets were properly stored and for removing spillage when it occurred.

The pallets in question were not framed or strapped, but were glued together. They were stored in the warehouse by the tow-motor's tiering them two or three high. Green testified that at about 11:30 a. m. on the day of the accident, he noticed that several cases had fallen off the top of one of the stacks of palletized cans. He also testified that as the remaining cases did not seem to lean, he began to pick up the fallen cases when someone yelled, "Look out! Look out!" and he was struck in the back and knocked to the floor of the warehouse by another case falling from the same pallet. No testimony was offered to explain what made these particular cases fall from the pallet. No personnel from the ship were present at the accident, inside the second story of the warehouse and out of sight of the ship.

Admiralty No. 4997

On November 30, 1963, William Randolph was employed as a longshoreman by Terminal Shipping Company, a stevedoring firm. Terminal Shipping had been engaged to stow cargo on the SS Green Bay, owned by the respondent Central Gulf Steamship Corporation, and berthed at Dundalk Marine Terminal in Baltimore. This pier was owned by the Maryland Port Authority and had constructed upon it a gantry, or a pier-based traveling crane, also owned by the Authority. This crane was being used to transfer steel drafts to the vessel from railroad gondola cars located on the pier. Its operator was Lawrence E. Wilson, the other respondent herein, who apparently had been hired to operate the crane by the Authority.

According to Randolph's libel, he was working in the railroad gondola car, assisting in unloading the steel drafts, "when suddenly, and without notice or warning, the hook affixed to said crane was prematurely, and at a great rate of speed, dropped into the gondola car in which the libelant was working, causing the libelant to be violently hurled from the gondola car to the pier surface, thereby causing him to suffer" injury. No allegation was made of any of the ship's personnel having anything to do with the accident. Nevertheless, Randolph filed his libel against the owner of the ship, Central Gulf, and the crane operator, Wilson.

Central Gulf, as might have been expected, impleaded Terminal Shipping, Randolph's employer, alleging a breach of its warranty of workmanlike service. The ship owner also impleaded the Authority, the pier and gantry owner, alleging an identical breach, as well as negligence on the part of the Authority's putative servant, Wilson.

For its part, the Authority answered the libel, denying the subject matter jurisdiction of the court and alleging that at the time of the accident, both the crane and its operator had been rented to Terminal Shipping and were under its control. The Authority renewed its jurisdictional argument at a later date by way of a "Motion to Dismiss for Lack of Jurisdiction." This case has not proceeded to trial and the Authority's motion is currently pending.

Civil No. 18189

The SS Santa Olivia, owned by the defendant, Grace Line, Inc., was berthed at Pier 8, Canton Railroad, in Baltimore, Maryland, on December 6, 1965. Bert Robinson was a member of a longshoring gang working for The Cottman Company, the stevedoring firm that had been employed to unload Grace's ship.

The SS Santa Olivia had holds which were covered by pontoons which had to be removed when loading or discharging cargo. At...