Perez De La Cruz v. Crowley Towing and Transp. Co.

• Decision Date: 18 December 1986
• Docket Number: No. 86-1419,86-1419
• Citation: 807 F.2d 1084
• Parties: Narciso Rafael PEREZ De La CRUZ, et al., Plaintiffs, Appellants, v. CROWLEY TOWING AND TRANSPORTATION COMPANY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1084

807 F.2d 1084

1987 A.M.C. 1297

Narciso Rafael PEREZ De La CRUZ, et al., Plaintiffs, Appellants, v. CROWLEY TOWING AND TRANSPORTATION COMPANY, Defendant, Appellee.

No. 86-1419.

United States Court of Appeals, First Circuit.

Argued Nov. 3, 1986.

Decided Dec. 18, 1986.

Philip E. Roberts, Hato Rey, P.R., with whom Harry A. Ezratty, San Juan, P.R., was on brief for plaintiffs, appellants.

F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., Jacques B. Gelin and Michael W. Reed, Dept. of Justice, David A. Colson and Eugene M. Pinkelmann, Jr., Oceans Intern. Environmental and Scientific Affairs, Dept. of State, Washington, D.C., on brief, for U.S., amicus curiae.

J. Ramon Rivera-Morales with whom William A. Graffam, David C. Indiano and Jimenez, Graffam & Lausell, San Juan, P.R., were on brief, for defendant, appellee.

Rafael Ortiz-Carrion, Sol. Gen., Norma Cotti-Cruz, Deputy Sol. Gen., and Vannessa Ramirez, Asst. Sol. Gen., Hato Rey, P.R., on brief, for Com. of Puerto Rico, amicus curiae.

Before CAMPBELL, Chief Judge, TIMBERS, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

TIMBERS, Senior Circuit Judge:

Narciso Rafael Perez de la Cruz ("appellant") and his wife appeal from a summary judgment entered February 19, 1986 in the District of Puerto Rico, Juan M. Perez-Gimenez, Chief Judge, dismissing their complaint. The complaint alleged that appellee Crowley Towing & Transportation Company ("appellee") was liable under the Jones Act, 46 U.S.C. Sec. 688 (1982), for injuries sustained by appellant when he fell while on board appellee's tug. The court held that, because the tug was in Puerto Rico's local waters at the time of appellant's accident, his sole remedy was under the Puerto Rico Workmen's Accident Compensation Act ("PRWACA"), 11 L.P.R.A. Secs. 1-42. On appeal, appellant argues that the court impermissibly resolved the disputed fact issue of the tug's location at the time of the accident. Appellant also argues that the court misinterpreted a 1980 amendment to the federal statute, 48 U.S.C. Sec. 749 (1982), which confers local maritime jurisdiction on the government of Puerto Rico. We hold that the court was correct in finding that there was no genuine issue of material fact as to the tug's location at the time of the accident. We also hold that PRWACA provides the sole remedy for covered seamen who claim to have sustained injuries caused by their insured employers in accidents which occur within three marine leagues of the Puerto Rican coastline. We affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

Appellant is a resident of Puerto Rico and a merchant seaman. Appellee owns and operates out of San Juan harbor a tug named the Pawnee. Appellant has worked for appellee as an ordinary seaman and cook since 1977. It is undisputed that appellee is an insured employer under PRWACA and that appellant is a covered employee.

On September 19, 1983 appellant was serving as the "day man" on the Pawnee as it returned to San Juan harbor from the Dominican Republic. The day man's chief responsibility is to clean the tug. Sometime between 9:00 and 10:00 A.M. appellant slipped and fell on a ladder between the bridge and the deck. Appellant sustained injuries to his back and hand.

On April 17, 1984 appellant commenced the instant action in the district court. He alleged that under the Jones Act and general maritime law appellee was liable for appellant's injuries. He further alleged that appellee's negligent maintenance of the Pawnee had rendered the tug unseaworthy and caused his injuries. Appellee's answer denied these allegations and asserted as an affirmative defense the exclusive remedy provisions of PRWACA. See 11 L.P.R.A. Secs. 19, 21.

On October 11, 1984 appellee moved for summary judgment. Appellee claimed that, because the tug was within Puerto Rico's local waters at the time of the accident, PRWACA provided appellant's sole remedy. Appellee included with its motion an affidavit of the Pawnee's captain and the tug's log book for the day of the accident with an explanatory affidavit. The captain in his affidavit stated that, based on his navigational readings and radar plottings, the Pawnee was six miles from the Puerto Rican shore at 7:30 A.M. on the day of the accident and continued to move closer to shore throughout the morning, reaching a distance of four miles from shore by 11:00 A.M. The tug's log book also showed that it was six miles from shore at 7:30 A.M. and four miles from shore at 11:00 A.M. The explanatory affidavit, sworn to by another of appellee's captains, stated how the radar plottings were made and vouched for their accuracy. Appellee asserted that Puerto Rico's local waters extended for three marine leagues or 10.38 miles.

Appellant's opposition to summary judgment was two-pronged. First, appellant claimed that the tug was twenty to twenty-five miles off shore at the time of the accident and therefore outside of Puerto Rico's local waters. Appellant supported this contention with his own affidavit in which he stated that, based on his own observations, the Pawnee was twenty to twenty-five miles from shore at the time of the accident. Appellant argued that the tug's location at the time of the accident was a genuinely disputed material fact which precluded summary judgment. Second appellant claimed that, even if the tug was between four and six miles from shore at the time of the accident, Puerto Rico's local waters extended to only three miles from shore.

In an opinion dated February 10, 1986 the court granted summary judgment in favor of appellee and dismissed the complaint. The court held that while the tug's location at the time of the accident was a material fact, there was no genuine issue as to that location in light of the parties' submissions. The court found that appellant's vague and unsubstantiated personal observations as to the tug's location failed to overcome appellee's showing based on navigational charts and radar plottings. The court found that the tug was within six miles of Puerto Rico at the time of the accident.

As to the scope of Puerto Rico's local waters, the court held that Congress, in the 1980 amendment to Puerto Rico's Second Organic Act, 48 U.S.C. Sec. 749 (1982) ("Sec. 749"), extended Puerto Rico's maritime jurisdiction to the navigable waters within three marine leagues of the Puerto Rican coastline. Relying on the long established law of this Circuit, the court held that, since the accident occurred within this area of Puerto Rican maritime jurisdiction and since appellant's accident was covered under PRWACA, appellant's sole remedy was provided by PRWACA. The court dismissed the complaint. This appeal followed. The United States has submitted a brief as amicus curiae in opposition to the court's judgment. The Commonwealth of Puerto Rico has submitted a brief as amicus curiae in support of the court's judgment.

For the reasons stated below, we affirm the judgment dismissing the complaint.

II.

Appellant raises two arguments aimed at overturning the court's grant of summary judgment. First, he argues that the court erred in deciding the fact question of the tug's location at the time of the accident on a motion for summary judgment. Second, he argues that, even if the tug was only between four and six miles off shore at the time of the accident, the tug was still beyond Puerto Rico's maritime jurisdiction and therefore within the ambit of the Jones Act.

We need spend little time in disposing of appellant's first argument. The standards governing the award of summary judgment are well settled and require little elaboration. While the burden is on the party seeking summary judgment to show that there are no genuine issues of material fact, the party opposing summary judgment "may not rest upon the mere allegations ... of his pleading, but his response ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The Supreme Court recently has defined a genuine issue as one in which the party opposing summary judgment provides evidence "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., --- U.S. ---, ---, 106 S.Ct. 2505, 2510 (1986). In the instant case, appellee more than satisfied its burden of showing that there was no genuine issue of material fact with respect to the tug's location at the time of the accident. Appellee's affidavits and log book entries, based on navigational charts and radar plottings, established that the tug was no more than six miles from the Puerto Rican coastline at the time of the accident. Appellant produced virtually no evidence to refute this showing. His only submission was his own affidavit in which he stated "I know from my past experience that I was approximately the distance from Puerto Rico that I allege in my deposition which was 20-25 miles." We agree with the district court that this bare allegation did not satisfy appellant's burden in resisting summary judgment. Appellee's submissions made it necessary for appellant to bring "significant probative evidence" to the district court's attention which would have tended to show a genuine dispute over the tug's location. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290 (1968). Appellant's vague allegation based on his observations is composed of "the gossamer threads of whimsey, speculation and conjecture" which we have held insufficient to defeat a properly supported motion for summary judgment. Manganaro v. Delaval Separator Co., 309 F.2d 389, 393 (1st Cir.1962). We agree with the district court that, based on the parties' submissions, no reasonable jury could have found that the tug was twenty to twenty-five miles from shore at the time of the accident. We hold that the district court was correct in holding...