Johnson v. Oil Transport Company, 28418.

• Decision Date: 24 June 1971
• Docket Number: No. 28418.,28418.
• Parties: James JOHNSON, Plaintiff-Appellant, v. OIL TRANSPORT COMPANY, Inc., a corporation, Defendant and Third-Party Plaintiff-Appellee, v. BENDER WELDING & MACHINE COMPANY, Inc., Third-Party Defendant.
• Court: U.S. Court of Appeals — Fifth Circuit

440 F.2d 109 (1971)

James JOHNSON, Plaintiff-Appellant, v. OIL TRANSPORT COMPANY, Inc., a corporation, Defendant and Third-Party Plaintiff-Appellee, v. BENDER WELDING & MACHINE COMPANY, Inc., Third-Party Defendant.

No. 28418.

United States Court of Appeals, Fifth Circuit.

March 12, 1971.

Rehearing Denied and Rehearing Denied June 24, 1971.

Francis M. Thigpen, Ross Diamond, Jr., Diamond & Lattof, Mobile, Ala., for appellant.

A. Clay Rankin, III, Alex F. Lankford, III, Edwin J. Curran, Jr., Mobile, Ala., Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., of counsel, for plaintiff-appellee.

Deutsch, Kerrigan & Stiles, Brunswick G. Deutsch, New Orleans, La., Vickers, Riis, Murray & Curran, Mobile, Ala., of counsel, for defendant-appellee.

Before JOHN R. BROWN, Chief Judge, and AINSWORTH and GODBOLD, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied June 24, 1971.

AINSWORTH, Circuit Judge:

This is a suit in admiralty by a shore-based shipyard worker for damages for personal injuries against a shipowner, growing out of the servicing and repairing of a vessel in dry dock. James Johnson, an experienced shipyard sandblaster, was injured in a fall to the floor of a dry dock from a scaffolding on which he was standing while sand-blasting the outside hull of the M/V FLYING A, which was out of the water, preparatory to the vessel's being painted. The scaffolding, which was made up of various connecting metal sections, had been rented by appellant's employer, Bender Welding & Machine Company Inc., and erected on the floor of its dry dock by Bender employees. The scaffolding extended up and around the vessel but was not attached to it and at no time had appellant been on board the vessel. The platform, from which appellant fell, consisted of two 2×10-inch boards placed side by side upon the scaffolding. According to appellant, the unsupported boards "gave way" when he walked on them. A few minutes later he fell. He did not know what actually caused his fall, whether the boards broke or again "gave way." There was nothing he could grasp when he felt himself falling.

Johnson sued the vessel and its owner, Oil Transport, Inc., alleging negligence and unseaworthiness. The shipowner thereafter filed a third-party complaint against Bender Welding & Machine Company, Inc. for indemnity. Based on the pleadings, various affidavits, depositions and exhibits on file, the District Court then granted the shipowner's motion for summary judgment on the grounds that the allegation of negligence was not supported by the undisputed facts, and that plaintiff was not entitled to the warranty of seaworthiness because (1) the vessel was not in navigation at the time of the accident complained of and (2) plaintiff was not performing the type of work traditionally performed by seamen.

For reasons which follow, we affirm the District Court. We agree that the facts do not support a finding of shipowner negligence, that no warranty of seaworthiness was owing to appellant as the vessel was not in navigation, and further that appellant was not performing seaman's work when injured.

THE NEGLIGENCE ISSUE

Appellant's charge of negligence is predicated on the alleged failure of appellee to provide him with a safe place to work.¹ There is no contention, however, that the vessel itself was unsafe. The place upon which appellant was working — the scaffolding and dry dock upon which it rested — was not provided by the shipowner but by appellant's employer Bender. The District Court found from the undisputed facts that "appellant never went aboard the vessel, * * * he never touched the vessel. His work was to be performed completely on the outside of the vessel with equipment which was owned and managed by his employer and which was shorebased. The plaintiff worked completely under the direction and supervision of Bender's personnel. None of the equipment or scaffolding was supplied, operated or owned by the defendant." The additional finding by the Court, that the vessel and the overhaul operation were in the complete care and custody of the shipyard, is satisfactorily established by the record.² The District Court, therefore, correctly dismissed the negligence claim.

THE WARRANTY OF SEAWORTHINESS

In order to prevail under the unseaworthiness aspect of this case, appellant as a dry dock-based non-seaman must show that he fits somewhere between the broad confines of Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L.Ed. 1099 (1946), on one end of the spectrum, and the outside limitations of West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d (1959), on the other. Essential to the existence of the warranty of seaworthiness is the in-navigation status of the vessel. The principle is self-evident. If the vessel is not in navigation there is no warranty of seaworthiness. Roper v. United States, 368 U.S. 20, 82 S.Ct. 5, 7 L.Ed.2d 1 (1961).³ Noted to this statement in the margin in Roper is the following language:

"The view that a vessel not in navigation extends no warranty has often been expressed in the more familiar context of to whom does the warranty extend. E. g., Union Carbide Corp. v. Goett, 4 Cir., 1958, 256 F.2d 449. Implicit within such cases is the reasoning that those working on vessels not in navigation are not seamen (or doing seamen\'s work) and consequently not among those employees protected by the warranty of seaworthiness."

368 U.S. at 24, 82 S.Ct. at 7, 8. Consequently, if the vessel here was not in navigation it follows that the work appellant was performing at the time of the accident was not seamen's work, and that the District Court properly held no warranty of seaworthiness was owed.

The question of whether the warranty of seaworthiness should attach to a vessel which had been turned over by its owner to a contractor and dry docked for repairs or reactivation was considered extensively by the Supreme Court in West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959). There a United States vessel, the MARY AUSTIN, which had been "deactivated" for "several years" was turned over from the "moth ball fleet" to an independent contractor for reactivation and a complete overhaul. An employee of the contractor was injured while working inside a low pressure cylinder when a loose-fitted plug hit his knee. Under the agreement the "contractor was to have complete responsibility and control of the making of the repairs, with the right in the United States to inspect the work and materials to insure compliance with the contract. For this purpose, the United States placed six of its men — a captain, chief mate, second mate, chief engineer, assistant engineer, and steward — on board the vessel. However, they signed no shipping articles and had no `control of the ship in the ordinarily accepted context,' their sole function being to serve as inspectors for the United States." 361 U.S. at 119, 120, 80 S.Ct. at 191. Under these circumstances, the Supreme Court affirmed a judgment denying recovery against the shipowner on claims of negligence and unseaworthiness, holding, inter alia, that "the Mary Austin, as anyone could see, was not in maritime service." 361 U.S. at 122, 80 S.Ct. at 192. The Court made numerous important observations, useful as governing principles, in finding that no duty was owed to the injured worker. For instance, it reiterated the Sieracki principle that the warranty applies when a shoreworker "is, in short, a seaman * * * doing a seaman's work and incurring a seaman's hazards." 361 U.S. at 120, 80 S.Ct. at 192. It distinguished the case from those in which the vessels "were, at the times of the injuries, in the hands and under the control of the owners or charterers, and, instead of undergoing general repairs, were in active maritime service in the course of loading or unloading cargo pursuant to voyages." 361 U.S. at 121, 80 S.Ct. at 192. It indicated that the warranty requires something more than the circumstances of the employee merely being "on board ship and performing work traditionally done by seamen," 361 U.S. at 120, 80 S. Ct. at 191, and that the warranty does not attach when the vessel is "not in maritime service * * * undergoing major repairs and complete renovation" with petitioner taking "his orders from the contractor, not the shipowner * * *" in an "undertaking" which "was not `ship's work' but a complete overhaul of such nature, magnitude, and importance as to require the vessel to be turned over to a ship repair contractor and docked at its pier for the sole purpose of making her seaworthy." 361 U. S. at 122, 80 S.Ct. at 192.

The Court, in West, further said:

"It would appear that the focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done, rather than the specific type of work that each of the numerous shore-based workmen is doing on shipboard at the moment of injury."

361 U.S. at 122, 80 S.Ct. 192.

The following year, in Roper v. United States, supra, the Supreme Court cited its decision in West with approval and said:

"The test for determining whether a vessel is in navigation is the `status of the ship,\' West v. United States * * *."

368 U.S. at 22, 82 S.Ct. at 7. The vessel in Roper, a deactivated Liberty ship, had been relegated to the "moth ball fleet" and later used solely as a granary. A longshoreman was injured while assisting in an unloading operation of grain from the vessel after it had been towed to a grain elevator for that purpose. The issue presented was whether events subsequent to the ship having been withdrawn from navigation altered this status. The Court held that the ship had not been converted to any navigational use; further, that the vessel had been moved under the control of the tug captain, and that there was no warranty of seaworthiness in favor of the injured longshoreman since the vessel was not in navigation.

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