Dixon v. Grace Lines, Inc.

Decision Date17 August 1972
Citation103 Cal.Rptr. 595,27 Cal.App.3d 278
CourtCalifornia Court of Appeals Court of Appeals
PartiesRobert Lee DIXON, Plaintiff and Appellant, v. GRACE LINES, INC., Defendant and Respondent. Civ. 39487.

Magana, Cathcart, Marin & Pierry, John A. Marin, Wilmington, and William B. Murrish, Los Angeles, for plaintiff and appellant.

Lillick, McHose, Wheat, Adams & Charles and Michael D. Dempsey, Los Angeles, for defendant and respondent.

DUNN, Associate Justice.

This is an appeal by the plaintiff from a summary judgment entered in favor of the defendant in an action, commenced in the California Superior Court, to recover damages under the Jones Act (46 U.S.C.A. § 688) and the general maritime law for personal injuries sustained by plaintiff while he was a seaman in the employ of defendant.

In the complaint, filed July 26, 1968, it was alleged: defendant, Grace Lines, Inc., owned and operated the vessel 'S. S. Santa Ines,' which transported cargo for hire in interstate and foreign commerce; on April 26, 1968, and for some time prior thereto, plaintiff was a member of the crew of the Santa Ines; on April 26th, while the vessel was in Qui Nhon Harbor, South Vietnam, plaintiff met with an accident, and thereby sustained personal injuries, as a result of defendant's negligence and the unseaworthiness of the vessel. In the first cause of action plaintiff sought general and special damages under the Jones Act (46 U.S.C.A. § 688) on the claim of negligence, and under the general maritime law on the claim of unseaworthiness. In the second cause of action he sought to recover the expenses of his maintenance and cure, plus his earned wages and wages to the end of the voyage, alleging that he was injured while in the service of the vessel.

Defendant filed an answer generally denying the allegations of the complaint. Interrogatories were propounded by each party and answers thereto were filed. Defendant took plaintiff's deposition and plaintiff took the deposition of Donald Lindsay, one of plaintiff's fellow crewmen at the time of his alleged accident.

Thereafter defendant moved for summary judgment (Code Civ.Proc. § 437c). In addition to the declaration of defendant's attorney, the motion was based upon plaintiff's answers to defendant's interrogatories and upon the two depositions, 1 both of which were on file with the court.

In the two depositions it was testified: in January 1968 plaintiff signed on the Santa Ines as an ordinary seaman; he was so employed when the vessel reached Qui Nhon in April 1968; early on the afternoon of April 26th, plaintiff went ashore on leave; the Santa Ines was then tied up to the pier at Qui Nhon, and no sailing board was posted when plaintiff left the ship; he met Lindsay on the pier and they went into Qui Nhon where they had lunch at a hotel; while they were there, they saw the third assistant engineer from the Santa Ines; he told them the ship was going to go to the outer harbor and that he was leaving to board it before it moved; plaintiff and Lindsay decided to stay ashore a little longer and return to the ship by launch; late in the afternoon they left the hotel and walked to the M.S.T.S. pier (a pier of the 'Military Sea Transport Service' maintained by the United States Navy) in order to return to the Santa Ines on an M.S.T.S. launch; the man in charge of the pier told them no more launches would be going out that day; plaintiff and Lindsay then proceeded to a native launch area, which was approximately 2 miles from the M.S.T.S. pier and 2--3 miles from the place where the Santa Ines had been tied up earlier in the afternoon; they had received no instructions from anyone on the vessel as to whether they could or should use private launch facilities in Qui Nhon; it was customary for the officers and crew of the ship to use either M.S.T.S. launches free of charge, or native launches at their own expense; it was sunset when plaintiff and Lindsay reached the native pier, which consisted merely of a rock embankment; at the pier they saw several native boats; Lindsay left to find someone to operate the boats; while he was gone, plaintiff walked onto a plank 15--20 feet long which led from the pier to one of the boats; when he was half way across the plank, it broke behind him; he fell into the water, sustaining personal injuries; when Lindsay returned to the native pier, he heard plaintiff call for help and saw him floating in the water; Lindsay pulled plaintiff out and summoned American military personnel, who took plaintiff to an army hospital in Qui Nhon; the Santa Ines sailed at midnight April 26--27, 1968; plaintiff did not know who owned the pier or the boats, nor did he know where the plank came from or what caused it to break.

The declaration in support of the motion for summary judgment set forth much of the contents of plaintiff's deposition. It was also stated in the declaration that neither the master, the owner nor the agents of the Santa Ines had 'any connection' with the native boat which plaintiff was attempting to board, and that the Santa Ines did not contract with the owner of the boat for transportation of the ship's personnel.

Plaintiff filed three declarations in opposition to the motion. In these he stated: the captain of the Santa Ines refused to contract with the M.S.T.S. authorities for launch service for those granted shore leave in Qui Nhon; instead, he approved the use of native launches for this purpose even though he knew of the unsafe conditions at the native pier; when plaintiff attempted to return to the ship from authorized shore leave on April 26, 1968, a native boat was the only means of transportation available to him; in order to board this boat it was necessary to walk upon a wooden plank; while plaintiff was doing so, the plank broke, causing him to fall into the water and sustain serious personal injuries; following the accident, plaintiff did not receive the maintenance and cure to which he was entitled.

The motion for summary judgment was granted. An order was filed dismissing the action upon the grounds it had no merit and there was no triable issue of fact. Summary judgment was entered in favor of defendant. Plaintiff appeals, 2 contending that under the applicable law there were triable issues of fact as to both unseaworthiness and negligence.

I. Seaworthiness

State courts have concurrent jurisdiction with federal courts to try actions under the maritime law (Engel v. Davenport, 271 U.S. 33, 37, 46 S.Ct. 410, 70 L.Ed. 813, 817 (1926)), but the substantive law to be applied in such actions is federal law. (Garrett v. Moore-McCormack Co., 317 U.S. 239, 245, 63 S.Ct. 246, 87 L.Ed. 239, 243 (1942); Intagliata v. Shipowners & Merchants etc. Co., 26 Cal.2d 365, 371--372, 159 P.2d 1 (1945).)

The doctrine of seaworthiness imposes upon a shipowner the duty to furnish a vessel and appurtenant appliances and equipment reasonably fit for their intended use. (Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 213, 83 S.Ct. 1185, 10 L.Ed.2d 297, 303 (1963); Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941, 948 (1960).) The duty is absolute and nondelegable (Italia Societa, etc. v. Oregon Stevedoring Co., 376 U.S. 315, 323, 84 S.Ct. 748, 11 L.Ed.2d 732, 740 (1964); Crumady v. 'Joachim Hendrik Fisser,' 358 U.S. 423, 427, 79 S.Ct. 445, 3 L.Ed.2d 413, 416 (1959); Seas Shipping Co. v. Sieracki,328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946)); it cannot be 'shifted about, limited, or escaped by contracts.' (Reed v. Steamship Yaka, 373 U.S. 410, 414, 83 S.Ct. 1349, 1352, 10 L.Ed.2d 448, 452 (1963).) A seaman injured through breach of this duty may recover from the shipowner, for the general maritime law makes the owner liable for such losses. (Turcich v. Liberty Corp., 119 F.Supp. 7, 11 (E.D.Pa.1954), aff'd 217 F.2d 495 (3rd Cir. 1954), cert. denied 350 U.S. 983, 76 S.Ct. 470, 100 L.Ed. 851 (1956).)

The duty to provide a seaworthy vessel includes furnishing a seaman with reasonably safe ingress and egress to and from the vessel, either through the vessel's own equipment or that of others upon whom the shipowner relies; and this principle applies when the seaman is departing for or returning from shore leave as well as when he is departing or returning in the performance of his duties as a seaman. (Davis v. Associated Pipe Line Contractors, Inc.,305 F.Supp. 1345, 1352 (W.D.La.1968), Aff'd 418 F.2d 920 (5th Cir. 1969), cert. denied 397 U.S. 988, 90 S.Ct. 119, 25 L.Ed.2d 396 (1970); Trahan v. Superior Oil Co., 204 F.Supp. 627 (W.D.La.1962), aff'd sub. nom. Superior Oil Co. v. Trahan, 322 F.2d 234 (5th Cir. 1963); Broussard v. United States, 1956 A.M.C. 882, 890--891 (E.D.Pa.1956); Buch v. United States, 122 F.Supp. 25, 26 (S.D.N.Y.1954), rev'd on other grounds 220 F.2d 165 (2nd Cir. 1955).) In Novick v. United States, 324 F.Supp. 1138 (E.D.Pa.1971), defendant shipowner arranged with a third party to provide a launch to transport crewmen of defendant's vessel ashore and back to the ship. While plaintiff crewman was boarding the launch to return to the vessel from shore leave, he was injured by the negligence of one of the members of the launch crew. It was held that defendant was liable to plaintiff because the acts of the launch crew member rendered defendant's vessel unseaworthy. (See also: Davis v. Associated Pipe Line Contractors, Inc., Supra, 305 F.Supp. 1345.)

As defendant points out, where a seaman returning from shore leave is injured enroute to the dock area to board his vessel, the shipowner is not liable on the ground the vessel was unseaworthy. (D'Costa v. United States Lines Co., 227 F.Supp. 180, 181 (S.D.N.Y.1964); Dangovich v. Isthmian Lines, Inc., 218 F.Supp. 235, 236 (S.D.N.Y.1963), aff'd 327 F.2d 355 (2nd Cir. 1964).) However, in the instant case plaintiff already had reached the native dock and was attempting to board a native boat which would take him back to the vessel. It...

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