Boyd v. Ford Motor Co., 91-1285

• Citation: 948 F.2d 283
• Decision Date: 06 November 1991
• Docket Number: No. 91-1285,91-1285
• Parties: James BOYD and Elizabeth Boyd, Plaintiffs-Appellants, v. FORD MOTOR COMPANY; Rouge Steel Company; the Motor Vessel Ms. Henry Ford II, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 283

948 F.2d 283 1992 A.M.C. 706 James BOYD and Elizabeth Boyd, Plaintiffs-Appellants,
v.
FORD MOTOR COMPANY; Rouge Steel Company; the Motor Vessel
Ms. Henry Ford II, Defendants-Appellees. No. 91-1285. United States Court of Appeals,
Sixth Circuit. Argued Sept. 26, 1991.
Decided Nov. 6, 1991.

Alvin L. Levine, Bloomfield Hills, Mich. (argued and briefed), for plaintiffs-appellants.

Paul D. Galea, John L. Foster, Paul A. Kettunen, Foster, Meadows & Ballard (argued and briefed), Detroit, Mich., for defendants-appellees.

Before MILBURN and SUHRHEINRICH, Circuit Judges; and JORDAN, District Judge ^*.

Page 284

MILBURN, Circuit Judge.

Pursuant to a stipulation of the parties which resulted in a voluntary dismissal of all remaining claims following the entry of a partial summary judgment in favor of the defendants, the district court entered a final judgment in the case below. Plaintiffs James and Elizabeth Boyd appeal the partial summary judgment in this personal injury action brought under 46 U.S.C.App. § 688 ("Jones Act") and general maritime law. The principal issue in this case is whether or not THE MOTOR VESSEL MS. HENRY FORD II was a vessel in navigation on February 11, 1987, thereby giving plaintiff James Boyd the status of a seaman under the Jones Act when he allegedly fell and injured himself aboard the vessel. For the reasons that follow, we affirm.

I.

A.

On March 28, 1990, James Boyd and his wife, Elizabeth Boyd, filed a complaint in the district court alleging that James Boyd was injured on four occasions while employed as a seaman by the defendants, the Ford Motor Company, the Rouge Steel Company, and THE MOTOR VESSEL MS. HENRY FORD II. In Count I of their complaint, plaintiffs alleged negligence on the part of the defendants and asserted remedies under the Jones Act. In Count II James Boyd asserted that his injuries were caused by an unsafe dock and the unseaworthiness of the defendant vessel. In Count III James Boyd asserted claims for maintenance and cure with respect to each of his injuries. Additionally, his wife, Elizabeth Boyd, presented a claim for loss of consortium.

The first three of the four injuries alleged by plaintiff James Boyd occurred in 1982, 1984, and 1985. Because these injuries occurred outside the applicable three-year limitations period, the district court granted summary judgment in favor of the defendants as to all the Jones Act and unseaworthiness claims.

Plaintiff James Boyd's fourth injury was alleged to have occurred on February 11, 1987, or within the three-year limitations period for bringing claims under the Jones Act and for unseaworthiness. However, upon determining that the MS. HENRY FORD II was not "in navigation" on February 11, 1987, the district court granted partial summary judgment on all claims arising out of Mr. Boyd's alleged injury on that date, including the claim for maintenance and cure. With respect to the claims for maintenance and cure based on the alleged injuries in 1982, 1984, and 1985, the district court denied defendants' motion for summary judgment but later dismissed those claims, as earlier stated, on stipulation of the parties and entered a final judgment.

Plaintiffs have not chosen to raise a question concerning the district court's ruling that the claims arising from injuries allegedly sustained in 1982, 1984, and 1985 are time-barred. Accordingly, any issues pertaining to that ruling are considered abandoned on appeal and thus not reviewable. See First State Bank v. City and County Bank, 872 F.2d 707, 719 n. 5 (6th Cir.1989); McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir.1986). The only ruling of the district court which the plaintiffs have appealed is the granting of partial summary judgment to the defendants on all claims arising from the injuries plaintiff Mr. Boyd allegedly sustained on February 11, 1987.

B.

The underlying facts in this case are not disputed. Within a few days of Christmas, 1986, and before January 1, 1987, THE MOTOR VESSEL MS. HENRY FORD II, a ship in navigation on the Great Lakes, entered port at Dearborn, Michigan, to conclude its sailing season by entering a phase known as "winter lay-up." The vessel was moored to its dock with its normal lines and with additional "winter lines" designed to insure a stronger and more permanent attachment to the dock. Shortly after the ship was moored, the sailing crew, with certain exceptions, was paid off and dismissed.

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Plaintiff Boyd, however, with other members of the ship's engineering crew, remained with the vessel to supervise the winter lay-up activities. As of January 8, 1987, plaintiff's employment classification was changed from Chief Engineer AA to Chief Maintenance Engineer AA, and his monthly salary was reduced from $5,406 per month to $3,460.78 per month, changes reflecting his transfer to "temporary winterwork classification." Rather than sleeping aboard the vessel, plaintiff supervised lay-up work during the day and returned to his home each night. During the five-day winter work week, non-crew personnel came aboard the ship to perform various jobs. The ship itself had lost her classification with the United States Coast Guard and was not permitted to sail again before passing a fit-out inspection. Moreover, the vessel's main engine was disassembled and was not operable at the time of plaintiff's alleged injury. During the period of winter lay-up, only one navigating officer was aboard the ship, and he was almost entirely engaged in supervising repair work.

II.

Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. A district court's grant of summary judgment is reviewed de novo. Pinney Dock and Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). In its review, this court views all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987).

The moving party carries the burden in showing that no genuine issue of material fact exists. Id. Yet, in the face of a summary judgment motion, the nonmoving party cannot rest on its pleadings, but must come forward with some probative evidence to support its claim and make it necessary to resolve the differences at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The dispute must be genuine, and the facts must be such that, if they were proven at trial, a reasonable jury could return a verdict for the nonmoving party. 60 Ivy St. Corp., 822 F.2d at 1435. If the disputed evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citations omitted).

The district court granted summary judgment in favor of defendants because, based on the undisputed facts, it found that "no reasonable jury could find that the SS Henry Ford II (sic) was 'in navigation' on February 11, 1987." The "in navigation" requirement comes from this court's definition of a seaman.

Although the [Jones] Act does not define the term 'seaman', the Sixth Circuit has stated that in determining whether a particular employee is a 'seaman' the following test shall be applied: (1) is the vessel in navigation, (2) does the employee have a more or less permanent connection with the vessel, and (3) was the employee on board the vessel primarily in aid of navigation? ¹

Searcy v. E.T. Slider, Inc., 679 F.2d 614, 616 (6th Cir.1982). Under this court's test, a person must be more or less permanently connected with a vessel in navigation in order to fit the definition of a seaman within the Jones Act.

As earlier indicated, the district court found the following undisputed facts:

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(1) The [2-11-87] injury occurred during winter lay-up;

(2) The ship was not sailing and was in fact secured with special "winter lines";

(3) The full crew was not stationed aboard the ship. Only engineers and persons engaged in winter repair work were retained during the...