Kathriner v. Unisea, Inc.

• Decision Date: 17 September 1992
• Docket Number: No. 91-35480,91-35480
• Citation: Kathriner v. Unisea, Inc., 975 F.2d 657 (9th Cir. 1992)
• Parties: Don W. KATHRINER, Plaintiff-Appellant, v. UNISEA, INC., a Washington corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 657

975 F.2d 657

1994 A.M.C. 2787

Don W. KATHRINER, Plaintiff-Appellant, v. UNISEA, INC., a Washington corporation, Defendant-Appellee.

No. 91-35480.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 17, 1992.

Decided Sept. 17, 1992.

Kurt M. LeDoux, LeDoux & LeDoux, Kodiak, Alaska, for plaintiff-appellant.

Michael M. Holmes and George B. Davenport, Faulkner, Banfield, Doogan & Holmes, Anchorage, Alaska, for defendant-appellee.

Appeal from the United States District Court for the District of Alaska.

Before: HUG, D.W. NELSON, and T.G. NELSON, Circuit Judges.

HUG, Circuit Judge:

Appellant, Kathriner, brought an action under the Jones Act against appellee, Unisea, for injuries sustained while working aboard a floating fish processing plant. The district court granted summary judgment in favor of Unisea on the ground that recovery under the Jones Act, 46 U.S.C.App. § 688, was precluded because the fish processing plant was not a vessel in navigation. The district court also denied Kathriner's motion to amend his complaint to allege a cause of action under the Longshoremen's and Harbor Worker's Compensation Act, 33 U.S.C. § 901 et seq., on the ground that the floating fish processing plant was not a vessel for purposes of the LHWCA. The district court had jurisdiction pursuant to 28 U.S.C. § 1333(1), and we have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I.

On March 14, 1989, while working for Unisea, Inc., Kathriner was seriously injured aboard the floating fish processing plant known as the UNISEA. Kathriner lived and worked aboard the UNISEA. He was injured when he fell off a metal stand while performing his duties as a processing worker.

The UNISEA is a former liberty ship that was converted into a fish processing plant. It has a raked hull and appears from the outside to be identical to other liberty ships. It is the same structure involved in Garcia v. Universal Seafoods, Ltd., 459 F.Supp. 463 (W.D.Wash.1978), and continues to operate in the same manner.

The UNISEA is permanently anchored and tied to a dock. It has been at the same location and has been used for the same purpose since it was first towed to Iliulik Harbor, Alaska, in 1975. Except for repositioning in 1987 to permit the construction of new docks, the hull has not moved since 1975, other than to rise and fall with the tide.

The UNISEA is self-contained. It supplies its own electricity and has steam boilers for processing and heat. It is hooked up to city sewage, city water mains, telephone lines, and cable television. The propulsion engine, shaft, propeller, rudder, and all navigational equipment, navigational lights, and engine controls have been removed.

II.

In order to recover as a seaman under the Jones Act, a plaintiff must prove that (1) the vessel on which the plaintiff was employed was in navigation, (2) the plaintiff had a more or less permanent connection with the vessel, and (3) the plaintiff was aboard primarily to aid in navigation. Bullis v. Twentieth Century Fox Film Corp., 474 F.2d 392, 393 (9th Cir.1973). ¹ The district court granted summary judgment in favor of Unisea after concluding that the UNISEA was not a "vessel in navigation" at the time Kathriner was injured. Kathriner appeals from this order.

In reviewing a grant of summary judgment, the reviewing court's task is identical to that of the lower court. M/V Am. Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1487 (9th Cir.1983). Viewing the evidence in the light most favorable to the nonmoving party, the court must determine de novo whether there is a genuine issue of material fact or whether the moving party is entitled to judgment as a matter of law. Id.

Once the moving party meets its initial burden of identifying the portions of the record that it believes demonstrate the absence of any genuine issue of material fact, the responding party may not rely on the allegations in the pleadings to preclude summary judgment. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). Instead, the responding party must set forth, by affidavit or as otherwise provided, "specific facts showing that there is a genuine issue for trial." Id.

In general, the term "vessel in navigation" is a broad term that encompasses many vessels that do not literally navigate the high seas. In Estate of Wenzel v. Seaward Marine Serv., Inc., 709 F.2d 1326 (9th Cir.1983), we held that a submerged cleaning and maintenance platform (SCAMP) could be considered a vessel for purposes of the Jones Act. In that case we reversed the district court's grant of summary judgment which had held that, as a matter of law, a SCAMP was not a vessel. We remanded the case so that the characterization issue could be determined by a jury. Id. at 1328. However, the characteristics of a SCAMP differ from those of the UNISEA. Consequently, the Wenzel decision does not support reversing the district court in the instant case.

The SCAMP in Wenzel was an underwater platform six feet in diameter and twenty inches deep. A SCAMP travels underwater along a ship's hull so that divers holding scrapers can clean the bottoms of ships. A SCAMP connects to the bottom of a ship and travels at a preset speed. It can be operated by remote control or steered manually by divers. Id. at 1327-28. Although the SCAMP was developed for a purpose other than transportation, we concluded that the proper characterization of the mechanism was for a jury to decide and was not appropriate for summary judgment. Id. at 1328.

Unlike the SCAMP at issue in Wenzel, however, the UNISEA has no capability of movement. It has no independent source of propulsion, no means of navigation, and no transportation function whatsoever. The UNISEA is permanently moored and is operated merely as a fish processing factory. Although neither a SCAMP nor the UNISEA can navigate the high seas, a SCAMP is still an independent mechanism that is designed to perform its function in the water. The UNISEA, however, is designed as a floating factory--merely extending land over water for the purpose of increasing the usable space of a dock-side fish processing operation.

Another recent Ninth Circuit case that addressed the characterization issue is Gizoni v. Southwest Marine, Inc., 909 F.2d 385 (9th Cir.1990), aff'd, --- U.S. ----, 112 S.Ct. 486, 116 L.Ed.2d 405 (1991), where we held that a floating platform with no independent power, means of steering, navigation lights, navigation aids, or facilities for crew, could nonetheless be a "vessel in navigation" for purposes of the Jones Act. Id. at 387-88. The platform at issue in Gizoni was moved about by tug boats and was powered by external sources. However, we concluded that summary judgment was nonetheless inappropriate because a reasonable jury could conclude that the platform was a vessel. The facts of Gizoni, however, are distinguishable from the facts of the instant case. The platform at issue in Gizoni moved over the water and often transported equipment and ship parts around a dock. Id. at 387. The transportation function of the platform made it much more like a vessel in navigation than the UNISEA. The UNISEA is incapable of performing this function. Wenzel and Gizoni represent the only recent authority from this court on the characterization issue and both are distinguishable from the instant case.

While the general rule in Jones Act cases is that the question of whether or not a "vessel" is involved is typically a jury question, the present case presents a clear-cut answer. Common sense counsels that we could not reasonably consider the UNISEA a vessel under the Jones Act since she is unfit for offshore use--when the UNISEA was converted to a shrimp processing plant, a large opening was cut into her hull to allow for dock traffic. When she put out to sea, she would surely sink. Summary judgment is "mandated where the facts and the law will reasonably support only one conclusion." McDermott Int'l, Inc. v. Wilander, --- U.S. ----, ----, 111 S.Ct. 807, 818, 112 L.Ed.2d 866 (1991) (citation omitted). We conclude that the facts of this case justify summary judgment in favor of Unisea.

Generally, floating structures are not classified as vessels in navigation if they are incapable of independent movement over water, are permanently moored to land, have no transportation function of any kind, and have no ability to navigate. The SCAMP in Wenzel and the platform in Gizoni were not connected to land, were capable of transportation, and could be steered and controlled. A SCAMP is connected to a ship and logically can be considered an extension of it. The platform in Gizoni was used to transport items across water and was actually transporting a rudder from a shipyard to a floating dry dock at the time the plaintiff in that case was injured. Those facts created jury questions while the characteristics of the UNISEA do not. The district court properly entered summary judgment in favor of Unisea.

In support of its decision that, as a matter of law the UNISEA was not a vessel in navigation for purposes of the Jones Act, the district court cited Garcia v. Universal Seafoods, Ltd., 459 F.Supp. 463 (W.D.Wash.1978). Garcia is an unrelated district court case from the Ninth Circuit that characterizes this same barge, the UNISEA, as a nonvessel. The Garcia decision was never appealed.

As described in Garcia:

The UNISEA was converted from a "liberty ship," laid up, withdrawn from service, and relegated to the "mothball fleet." It was extensively modified to become an integral part of a seafoods processing operation. It is connected to shore by spring lines and anchor chains, permanent utility connections, and two access piers. It has not moved in almost three years and defendant has no intention of moving it. In short, the UNISEA was neither designed for nor used for navigation or transportation. It has no navigation or propulsion gear...