Baker v. Pacific Far East Lines, Inc.

• Decision Date: 06 April 1978
• Docket Number: No. C-76-1555 WHO.,C-76-1555 WHO.
• Citation: Baker v. Pacific Far East Lines, Inc., 451 F.Supp. 84 (N.D. Cal. 1978)
• Parties: Dwain B. BAKER, Plaintiff, v. PACIFIC FAR EAST LINES, INC., Defendant.
• Court: U.S. District Court — Northern District of California

451 F. Supp. 84

Dwain B. BAKER, Plaintiff, v.PACIFIC FAR EAST LINES, INC., Defendant.

No. C-76-1555 WHO.

United States District Court, N. D. California.

April 6, 1978.

Morton L. Silvers, San Francisco, Cal., for plaintiff.

George M. Perrochet, John Shea Pierce, Acret & Perrochet, San Francisco, Cal., for defendant.

OPINION

ORRICK, District Judge.

This case poses the important question whether a person performing the duties of a longshoreman, after passage of the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq.("LHWCA"), may maintain a negligence action against his employer (who also happens to be the vessel owner) to recover damages for injuries incurred during the course of employment.This question of first impression in this Circuit we answer in the negative, holding that Congress intended by the 1972Amendments to eliminate the possibility of direct employee versus employer lawsuits and to limit the longshoreman to the workers' compensation-type benefits provided under the LHWCA.

Procedurally, the question comes before the Court on plaintiff's motion for leave to file an amended complaint and defendant's motion to enter judgment.Plaintiff, Dwain B. Baker, originally filed this action under the Jones Act, 46 U.S.C. § 688 et seq.Defendant, Pacific Far East Lines, Inc.("PFEL"), in answering plaintiff's complaint, not only denied that plaintiff had sustained any injuries¹ while employed by defendant, but also put in issue the threshold question whether plaintiff could even qualify as a Jones Act seaman.After an evidentiary hearing, the Court found that plaintiff did not qualify as a Jones Act seaman, whereupon plaintiff moved the Court for leave to file an amended complaint sounding in negligence against his employer, and defendant moved the Court to enter judgment.For the reasons hereinafter stated, the Court denies plaintiff's motion and grants defendant's motion.

I.

We first address the question whether plaintiff was a "seaman/crew member" within the meaning of the Jones Act.

A.

From April, 1975, through July 11, 1975, plaintiff was employed as a "casual" member of PFEL's maintenance and repair gang, sometimes referred to as the "shore gang."He had been dispatched by his union, the Sailors Union of the Pacific, as a casual replacement for, or supplement to, defendant's regular shore gang personnel.Plaintiff worked on an as-needed basis three to five days per week, performing such tasks as his supervisors directed.He was paid on an hourly basis, whereas regular shore gang members were paid on a weekly basis.Plaintiff, who lived, ate, and slept on shore, never replaced, even on a temporary basis, any member of the crew of any vessel.

The shore gang was divided into two separate groups — a "van" or "container" gang and a "barge" gang.During the period surrounding his injuries, plaintiff worked with the barge gang.Daily work orders and assignments for the shore gang typically originated with defendant's port engineer who was, in effect, the manager of the gang.These orders and assignments were relayed to members of the barge gang by the bosun, who was the gang foreman.Members of the gang were not responsible to, or given orders by, any officers or masters of any vessels.

The barge gang spent most of its time painting, cleaning, scraping, and generally maintaining the interiors of defendant's "LASH"(lighter aboard ship) barges moored at Pier 96 of the Port of San Francisco.Although the barge maintenance work was usually performed when the barges were tied to the pier, at times it was done while the barges were stored in racks on land.The purpose of such maintenance was to keep the cargo free of contamination and the vessels fit for navigation.

The LASH barges are large floating containers lacking quarters or motor power of their own, which are used principally to transport defendant's cargo back and forth between the pier and the LASH ship.They are loaded, unloaded, cleaned and maintained at Pier 96; barge tows or tugs transport them between the pier and various LASH ships, aboard which they are hoisted by cranes.The LASH barges had no operational crew at any time material herein.Although a "master" was designated on Coast Guard registration papers for each barge, said master did not have any duties with respect to the barge's maintenance, repair or operation.The LASH barges are not assigned to specific LASH ships.

Although the primary work of the barge gang was barge cleaning and maintenance, the gang performed other tasks such as moving and refinishing furniture, painting traffic control lines on the pier, handling and splicing mooring lines, sandblasting, operating forklifts and other vehicles, assisting in annual inspection activities aboard various of defendant's ships, and painting the hulls and sides of such ships in port.Other work, such as performing welding repairs, loading and unloading cargo, and transporting the barges around the Bay, is performed by independent contractors or longshoremen, not by the shore gang.

As a casual member of defendant's shore gang, plaintiff spent more than ninety percent of his overall work time cleaning and maintaining the insides of defendant's LASH barges, and cleaning and painting the hull, trim and equipment of defendant's ships.²Plaintiff performed this work while the barges and ships were moored at Pier 96.Neither plaintiff nor any other member of the shore gang was assigned to a specific barge or group of barges on anything remotely resembling a permanent basis.Rather, they were given a series of temporary, task-oriented assignments on constantly shifting barges.Since the cleaning and maintenance of any given barge is a short-term project, plaintiff rarely, if ever, worked on a single barge for more than a few consecutive hours.

Plaintiff was dispatched and assigned through his union to the barge gang and not to a specific, identifiable barge or group of barges.Defendant kept no records of the specific barges on which a particular shore gang member worked on a given day.Plaintiff himself is apparently unable to identify which barges he cleaned or maintained on any particular day; indeed, he did not know from day to day during his employment which barges he would be assigned to, or even if he would be working on barges.During each of the two days on which plaintiff claims to have sustained injuries, he worked on more than one barge.Although plaintiff knows he was injured aboard two of defendant's barges, he appears unable to identify which barges.

B.

The test to be applied by the trier of fact in determining "seaman" status for Jones Act purposes is as follows: first, there must have been a vessel in navigation; second, the plaintiff must have been aboard the vessel primarily to aid in navigation; and, third, the plaintiff must have had a more or less permanent connection with the vessel or with a specific group of vessels.E. g., Whittington v. Sewer Construction Co., Inc.,541 F.2d 427(4th Cir.1976);Offshore Co. v. Robison,266 F.2d 769, 779(5th Cir.1959);Lewis v. Roland E. Trego & Sons, Inc.,359 F.Supp. 1130, 1132(D.Md.1973), modified,501 F.2d 372(4th Cir.1974); 1B Benedict on Admiralty§ 11 (7th ed. 1976).

As a preliminary matter, the Court notes that plaintiff's assertions that he was formerly a "seaman" by occupation and that he intended to resume such status at some point in the future, even if true, do not determine the issue before this Court.Sullivan v. American President Lines, Ltd.,206 F.Supp. 547(N.D.Cal.1961).Similarly, the facts that plaintiff was a member of a seafaring union at the time of his injuries and that he was doing work which a seaman might also perform are not controlling.Id.;Whittington v. Sewer Construction Co., supra,541 F.2d at 433.

The application of the aforementioned three-pronged test, on the other hand, is determinative.With respect to the first prong, barges have consistently been considered "vessels" for purposes of admiralty jurisdiction; equally important, vessels have often been held to be "in navigation" even though moored to a dock.Id. at 436 n.14;Griffith v. Wheeling Pittsburgh Steel Corp.,521 F.2d 31(3d Cir.1975), cert. denied,423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643(1976).Here, the barges upon which plaintiff worked typically were tied up alongside Pier 96 on a short-term basis, waiting to be towed across San Francisco Bay to defendant's LASH ships.The docked ships upon which plaintiff occasionally worked were also between voyages.Thus, both the barges and the ships satisfy the "vessel in navigation" requirement.

The second part of the seaman test — "primarily aiding in navigation" — has been so liberally construed that "cooks, drillers, and musicians, as well as other persons not subject to being tattooed like ordinary seamen" have been found to be Jones Act crew members.Perez v. Marine Transport Lines,160 F.Supp. 853, 855(E.D.La.1958).Subsequent cases have noted that this requirement has been so broadly construed that the words have lost their natural meaning.E. g., Offshore Co. v. Robison, supra,266 F.2d at 780.Citing Perez,the Court in Mietla v. Warner Co.,387 F.Supp. 937, 939(E.D.Pa.1975), stated that "we have no difficulty in concluding that a dock worker who helps maintain a vessel aids in navigation."In order to satisfy this requirement, the duties of the plaintiff must have contributed to the vessel's function or to the accomplishment of its mission.SeeOffshore Co. v. Robison, supra,266 F.2d at 779.In the case at hand, plaintiff's primary duties were cleaning, scraping, painting, and maintaining defendant's barges and ships, which were temporarily moored to the pier.The Court is compelled to conclude, in light of the liberal stance adopted by Perez and subsequent cases, that plaintiff's duties contributed to the mission of the vessels upon which he worked...