McKinley v. All Alaskan Seafoods, Inc.

• Decision Date: 24 November 1992
• Docket Number: Nos. 91-35637,91-35792,s. 91-35637
• Citation: 980 F.2d 567
• Parties: Linda McKINLEY, Personal Representative of the Estate of Charles E. McKinley, deceased, Plaintiff-Appellant, v. ALL ALASKAN SEAFOODS, INC., Defendant-Appellee. Linda McKINLEY, Personal Representative of the Estate of Charles E. McKinley, deceased, Plaintiff-Appellee, v. ALL ALASKAN SEAFOODS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 567

980 F.2d 567

1993 A.M.C. 305

Linda McKINLEY, Personal Representative of the Estate of Charles E. McKinley, deceased, Plaintiff-Appellant, v. ALL ALASKAN SEAFOODS, INC., Defendant-Appellee.

Linda McKINLEY, Personal Representative of the Estate of Charles E. McKinley, deceased, Plaintiff-Appellee, v. ALL ALASKAN SEAFOODS, INC., Defendant-Appellant.

Nos. 91-35637, 91-35792.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 17, 1992.

Decided Nov. 24, 1992.

Edward Miner, Ross, Gingras & Miner, Anchorage, Alaska, for plaintiff-appellant/cross-appellee.

Michael M. Holmes and Michael A. Barcott, Faulkner, Banfield, Doogan & Holmes, Seattle, Wash., for defendant-appellee/cross-appellant.

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

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

T.G. NELSON, Circuit Judge:

Charles E. McKinley was killed in a fire aboard the hull of an oil drill ship undergoing conversion to a seagoing fish and crab processing ship. Linda McKinley ("McKinley"), Mr. McKinley's personal representative, sued for damages contending the ship was a vessel in navigation for purposes of the Jones Act. The district court granted summary judgment to the owners of the vessel and the personal representative appeals, contending genuine issues of material fact preclude summary judgment. We affirm.

FACTS AND PROCEDURAL HISTORY

All Alaskan Sea Foods, Inc. ("All Alaskan") purchased the hull of an oil drill ship in New Orleans for $451,000 and spent $14,082,000 in the next seventeen months converting it to a seagoing fish and crab processing ship, known as the M/V All Alaskan.

After its purchase in July, 1987, the vessel underwent extensive reconstruction over the next fourteen months at various shipyards in the southern United States. Although All Alaskan conducted a portion of this work itself, most of it was completed by contractors.

At the end of September, 1988, with approximately $3,000,000 worth of work left to be finished, All Alaskan obtained the necessary certificates from the United States Coast Guard and the American Bureau of Shipping, thereby permitting the M/V All Alaskan to be moved by sea to Tacoma, Washington for completion of the work. The ship was moved to Tacoma for the sole purpose of continuing with the conversion work closer to All Alaskan's base of operations in Seattle. The vessel carried no cargo and engaged in no commerce on the trip. The trip to Tacoma took twenty-eight days and work on the ship continued during the journey. The vessel encountered substantial problems with its throttle controls, including inability to get underway in the Panama Canal. Throttle problems developed again off the west coast, but the vessel made it to Tacoma All Alaskan had control of the vessel in Tacoma. Some of the work was done by its employees and some was completed by contractors. On December 28, 1988, the fire occurred which took Mr. McKinley's life. At that time, the vessel had undergone stability testing, but had not yet been granted a stability letter; in short, the M/V All Alaskan was not seaworthy at the time of Mr. McKinley's death.

under its own power, although it could not go astern at the time it anchored.

McKinley sued for damages under the Jones Act, 46 U.S.C. app. § 688 (1982). The district court granted summary judgment for All Alaskan, holding the vessel was not in navigation as a matter of law at the time of the fire. This appeal followed. ¹

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). Summary judgment shall be considered proper if, viewing the evidence in the light most favorable to the nonmoving party, the movant is clearly entitled to judgment as a matter of law. Estate of Wenzel v. Seaward Marine Servs., Inc., 709 F.2d 1326 (9th Cir.1983).

DISCUSSION

As the Supreme Court said in McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991), regarding the issue of seaman's status under the Jones Act: ²

When the underlying facts are established, and the rule of law is undisputed, the issue is whether the facts meet the statutory standard.... [S]ummary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion.

498 U.S. at ----, 111 S.Ct. at 818. This is such a case.

The Jones Act represents an extension of the maritime negligence remedy to seamen. See McDermott Int'l, 498 U.S. at ----, 111 S.Ct. at 810-811 (the purpose of the Jones Act was to grant seamen the same rights as others to recover for negligence). In Wenzel, this court set out a three part test for determining "seaman" status under the Jones Act:

(1) the vessel on which the claimant was employed must be in navigation;

(2) the claimant must have a more or less permanent connection with the vessel; and

(3) the claimant must be aboard primarily to aid in navigation. ³

Wenzel, 709 F.2d at 1327.

Only the first part of the Wenzel test needs to be addressed in this case. A vessel is in navigation when "engaged as an instrument of commerce and transportation on navigable waters." Caruso v. Sterling Yacht and Shipbuilders, Inc., 828 F.2d 14, 15 (11th Cir.1987). Caruso relied on the Fifth Circuit case of Williams v. Avondale Shipyards, Inc., 452 F.2d 955 (5th Cir.1971). Both Caruso and Williams involved newly constructed vessels, which had not yet undergone final sea trials. In fact, Williams was injured on a new Coast Guard cutter while on its final sea trials. On summary judgment in both cases, the district courts determined that the vessels were not in navigation.

McKinley contends that a jury issue is presented on the question of whether the M/V All Alaskan was in navigation. She cites Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 37 (3rd Cir.1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976), and Waganer v. Sea-Land Service Inc., 486 F.2d 955 (5th Cir.1973), for the proposition that a ship that temporarily leaves commerce and enters a shipyard for routine or minor repairs is still in navigation.

We agree with this as a general proposition. However, there is no dispute in this case that the M/V All Alaskan was not in Tacoma for routine repairs. As the Fifth Circuit said in Waganer, "a primary touch-stone for distinguishing between major and minor repairs is the purpose for which the vessel has been idled." 486 F.2d at 958. Here, there is no question that the M/V All Alaskan was undergoing more than even "major" repair. The fourteen million dollar project amounted to a complete conversion of the ship. During the reconstruction period, it cannot be said that the ship was in navigation.

Major overhaul or refitting of a vessel will take the vessel out of navigation. In West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959), the appellant, injured while employed by an independent contractor engaged in a complete overhaul of a "moth balled" World II liberty ship which was being recommissioned, sought to impose the maritime warranty of seaworthiness on the United States as owner of the ship. The Supreme Court rejected West's claim, noting that it was "evident that the sole purpose of the ship's being at Atlantic's Repair Dock ... was to make her seaworthy." Id. at 121, 80 S.Ct. at 192. The Court distinguished cases where the ships were in active maritime service, contrasting West's vessel which was undergoing major repairs and complete renovation. The Court held:

[T]he 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. at 192.

West has been cited by the Fourth and Fifth Circuits in analyzing when a vessel is in navigation for purposes of the Jones Act. ⁴ Thus, the status of the vessel and the scope of work to be completed are factors to be considered when a vessel is undergoing renovations in port.

The Fifth Circuit in Wixom v. Boland Marine & Mfg. Co., Inc., 614 F.2d 956 (5th Cir.1980), held that "[i]n determining whether a ship under repair is still in navigation, the court should look at the extent and nature of the repair operations and who controls them." 614 F.2d at 957. The court determined on summary judgment that the vessel was not in navigation where the work performed included "major structural changes" and the costs exceeded twenty-five million dollars. Id.

It is clear that major renovations can take a ship out of navigation, even though its use before and after the work will be the same. See West, 361 U.S. 118, 80 S.Ct. 189. It is equally apparent that conversion of the vessel from one use to another would also take the ship out of navigation, if the change required extensive work. See Wixom, 614 F.2d at 957.

Although a summary listing of the work done to the M/V All Alaskan cannot fairly reflect the magnitude of the reconstruction, such a list provides insight into the scope of the project. The major items of work done included:

(1) stripping off virtually everything above the main deck;

(2) enclosing a 26' by 26' hole through the hull and decks which allowed the drilling shaft to be lowered for drilling;

(3) removing and adding bulkheads as necessary (4) adding two anchors, an additional sewage system, pumps for potable water, salt water, and hydraulics, two auxiliary generators, two boilers and a water maker;

(5) adding a weather deck above the main deck, known as the fish house, 223' in length;

(6) raising the forecastle and the sides of the hull...