Alfred v. MV Margaret Lykes

Decision Date16 July 1968
Docket NumberNo. 24566.,24566.
Citation398 F.2d 684
PartiesMrs. Bertha ALFRED, widow of Harold Harang, Appellant, v. MV MARGARET LYKES, her engines, tackle, apparel and furniture, et al., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Marvin C. Grodsky, New Orleans, La., for appellant.

Donald L. King, Edward S. Bagley, New Orleans, La., for appellees.

Before COLEMAN and CLAYTON, Circuit Judges, and JOHNSON, District Judge.

PER CURIAM:

This action by the personal representative of Harold Harang, deceased, for damages for his death began as an inpersonam libel against Avondale Shipyards, Inc., and as an in rem action against the MV Margaret Lykes.

Avondale filed exceptions, a motion to dismiss and a motion for summary judgment upon the basis that the exclusive remedy against it was under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. § 905).

Lykes Brothers Steamship Company, Inc., as claimant of the MV Margaret Lykes, filed an answer and a motion for summary judgment which in its amended final form encompassed the grounds that the structure which became the MV Margaret Lykes was not a vessel in navigation at the time, that no wrongful death claim survives under general maritime law or in rem under Louisiana law and that the aforementioned structure owed no duty of seaworthiness to the decedent.1 Both of these motions for summary judgment were sustained, and disposition in district court was made accordingly. Libelant appeals here.

None of the relevant facts are in dispute. Lykes Brothers Steamship Company was the owner of the vessel with which we are concerned.2 Lykes had contracted with Avondale for the construction of a vessel which afterward became the MV Margaret Lykes. Harang, the deceased, was an employee of Avondale, working on this structure as a painter when he died on November 13, 1963, by being fatally burned in an explosion and fire which occurred in a tank or hold where he was working. At that time, the vessel had not been completed, although it had been launched and was afloat. Substantial work yet needed to be done by Avondale before this vessel could be inspected, registered and commissioned. A temporary certificate of inspection was issued by the United States Coast Guard but not until almost six weeks after Harang died — December 26, 1963. The hull was registered and commissioned December 27, 1963, and the vessel commenced her first voyage on January 4, 1964.

The short answer with respect to appellant's claims against Avondale is that an employee of a shipbuilding company may not maintain a tort action against his employer for an injury sustained on a vessel afloat, where the vessel has been launched, but not fully completed or commissioned. Frankel v. Bethlehem-Fairfield Shipyard, Inc., 132 F.2d 634 (4 Cir. 1942), cert. den. 319 U.S. 746, 63 S.Ct. 1030, 87 L.Ed. 1702. See also, General Engine and Machine Works, Inc. v. Slay, 222 F.Supp. 745 (S.D.Ala. 1963), and Hill v. Diamond, 311 F.2d 789 (4 Cir. 1962). Some of the language from Frankel is applicable here. Inter alia, the court stated:

In the first place, a contract to build a vessel is nonmaritime in nature. Robinson on Admiralty (1939), 162-165; People\'s Ferry Co. v. Beers, 20 How. 393, 15 L.Ed. 961. As stated by the Supreme Court:
"Under decisions of this court the settled rule is that a contract for the complete construction of a ship or supplying materials therefor is nonmaritime, and not within the admiralty jurisdiction." Thames Towboat Co. v. The Francis McDonald, 254 U.S. 242, 243, 41 S.Ct. 65, 66, 65 L.Ed. 245.
* * * * * *
Accordingly, since a contract for the building of a ship is nonmaritime in character, a tort arising out of work on a launched but incompleted vessel also lacks maritime flavor, despite the fact that the vessel is lying in navigable waters. Furthermore, an incompleted vessel has yet to take her place in commerce and navigation; whereas a vessel which has been commissioned and taken into navigation and commerce remains in that status even when coming into a dock and undergoing certain repairs.
For these reasons, we do not feel that the plaintiff was a seaman within the meaning of the Jones Act, since he was not a member of the crew and his duties had no direct relation to navigation. He was merely working on an incompleted structure which was being erected under a nonmaritime contract. * * *

There is another aspect of appellant's claim against Avondale which, in effect, is the same as her claim against Lykes. Appellant urges that Avondale was either the owner or owner pro...

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    ...alleged maritime negligence. See Garcia v. American Marine Corp., supra, 432 F.2d at 7 [ (5th Cir.1970) ]; Alfred v. M/V MARGARET LYKES, supra, 398 F.2d at 685, [ (5th Cir.1984) ]. The district court correctly granted summary judgment on that claim as well as on the others."[517 F.2d 921, 9......
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    ...5, 7, 7 L.Ed.2d 1 (1961). See also West v. United States, supra; Stark v. United States, 5 Cir., 1969, 413 F.2d 253; Alfred v. MV Margaret Lykes, 5 Cir., 1968, 398 F.2d 684; Van Horn v. Gulf Atlantic Towing Corporation, 4 Cir., 1968, 388 F.2d 636; Guenard v. United States, E.D.La., 1968, 27......
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    ...view.8 The cases, Rogers v. M/V Ralph Bollinger, 279 F.Supp. 92 (E.D.La.1968); Frankel, supra; Williams, supra; and Alfred v. M/V Margaret Lykes, 398 F.2d 684 (5th Cir. 1968), merely state at most that the warranty of seaworthiness does not arise if the ship is uncompleted, not that complet......
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