Powers v. Bethlehem Steel Corporation

• Decision Date: 09 April 1973
• Docket Number: 72-1198.,No. 72-1197,72-1197
• Citation: 477 F.2d 643
• Parties: Donald E. POWERS, Plaintiff, Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant, Appellee, v. McKIE LIGHTER CO., INC., Defendant, Appellee. Donald E. POWERS, Plaintiff, Appellant, v. McKIE LIGHTER CO., INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

477 F.2d 643 (1973)

Donald E. POWERS, Plaintiff, Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant, Appellee, v. McKIE LIGHTER CO., INC., Defendant, Appellee.

Donald E. POWERS, Plaintiff, Appellant, v. McKIE LIGHTER CO., INC., Defendant, Appellee.

Nos. 72-1197, 72-1198.

United States Court of Appeals, First Circuit.

Heard March 7, 1973.

Decided April 9, 1973.

Rehearings Denied May 10, August 23, 1973.

COPYRIGHT MATERIAL OMITTED

Michael B. Latti, Boston, Mass., with whom Robert S. Wolfe, and Kaplan, Latti & Flannery, Boston, Mass., were on brief, for plaintiff-appellant.

Leo F. Glynn, Boston, Mass., for defendant-appellee, McKie Lighter Co., Inc.

Charles E. Colson, Boston, Mass., with whom Cargill, Masterman & Cahill, Boston, Mass., was on brief, for defendant-appellee, Bethlehem Steel Corp.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Appellant Powers, a pile driver employed by McKie Lighter Co., suffered a serious eye injury as he stood on a McKie-owned raft next to Pier 3 of the Bethlehem shipyard in Boston. McKie was under contract with Bethlehem Steel Corporation, the owner of the pier, to repair the pilings underneath. Powers, who received compensation for the injury under the Longshoremen's and Harbor Workers' Compensation Act, 33 U. S.C. § 901 et seq., commenced separate actions in the district court against McKie, claiming damages under the Jones Act, 46 U.S.C. § 688, and damages and maintenance and cure under general maritime law; and against Bethlehem, under diversity jurisdiction, claiming damages for negligence. The jury returned substantial verdicts against both defendants, jointly and severally. Powers appeals from the district court's entry of judgments notwithstanding the verdicts in favor of both defendants, D. C., 343 F.Supp. 17.

Standing under the pier on a raft or "float" owned by McKie, Powers and other workmen would first clean the piles by chipping and sandblasting, and then place a form around them into which concrete would be poured. The raft was about twenty-five feet long and five feet wide. Without deck or railing, it was made of 12 by 12 timbers, bonded together. There were rings for lines at its four corners. The men would descend by ladder to the raft, which when not in use lay tied to the pier, lower to the raft sandblasting equipment, water pumps, and forms to be placed around the pilings, and move the raft under the pier to the piles by poling or pulling on lines attached to the pier. They would tie the raft to a larger raft on opposite sides of a row of piles, and span the rafts with planks, so that they could move between and work around the piles. Lines containing water, air, steam and electricity for cleaning, sandblasting and lighting were led from the pier by the men on the raft to where they were working.

The pier was thirty to forty feet wide. The raft's only movement was from the pier front to the piles underneath or from one row of piles to another. Even when so moving it was normally attached by at least one line to the pier.¹ It had earlier been towed by a workboat to Pier 3 from Pier 2 and had also been towed through Boston harbor to other jobs.

The lighting for the work area, supplied by Bethlehem, consisted of drop lines with a male plug at one end, plugged into a fuse box, and a socket at the other with a bulb in it. The line would be slung over the side of the pier, and taken under the pier by a workman. Some but not all of the bulbs had reflectors. None had protective covering around them. The bulbs had popped frequently while the men worked, sometimes when Bethlehem supervising employees were present. As late as the week of the accident, a bulb had popped in their presence. Powers had twice complained to the Bethlehem job supervisor, recommending that the bulbs be surrounded with a steel or wire cage, with a piece of plexiglass enclosure. There is no evidence of what response Powers received, if any.

The accident happened before daylight, as Powers, standing on the raft, then attached to the pier, was preparing to move it about twenty feet to piles under the pier.² The light cable, supplied by a Bethlehem employee to a McKie employee, lay hanging over the side of the pier, the bulb about ten to thirteen feet above Powers' eye level. The bulb was unprotected. When Powers looked up toward the light, the bulb popped, sending pieces of glass into his eye.

This case is one more taking us literally to the water's edge, having to do with the circumstances under which a harbor-worker may become entitled to a seaman's remedies. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). Recovery under the Jones Act or under the general maritime law for unseaworthiness requires affiliation with a "vessel"—either as a crew member or as one injured aboard doing seaman's work. Swanson v. Marra Brothers, Inc., 328 U.S. 1, 4, 7, 66 S.Ct. 869, 90 L.Ed. 1045 (1946); Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 99, 66 S.Ct. 872, 90 L. Ed. 1099 (1946). We believe the raft upon which Powers was injured was not a vessel.

What is a vessel, like who is a crew member, is "except in rare cases", a jury question. Offshore Company v. Robison, 266 F.2d 769, 780 (5th Cir. 1959). Nevertheless, the broad parameters of definition must be established if the terms are to have content. If what emerges from facts and inferences taken most favorably to the plaintiff³ cannot be a vessel, the jury may not make it one. See Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42, 46 (5th Cir. 1960); Hill v. Diamond, 311 F.2d 789, 792-793 (4th Cir. 1962); Texas Company v. Savoie, 240 F.2d 674, 675 (5th Cir. 1957); rehearing denied, 242 F.2d 667 (5th Cir. 1957); cert. denied, 355 U.S. 840, 78 S.Ct. 49, 2 L.Ed.2d 51 (1957).

We agree with the 5th Circuit in Cook v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir. 1973), that a floating construction platform secured to land is not a vessel for purposes either of the Jones Act or general maritime law. The non-vessel in Cook was a flatdeck barge, 180 by 54 feet, upon which employees fabricated concrete barges. Equipped with pipes and pumps for flooding or evacuating interior compartments, but without its own propulsion, it was occasionally moved to different positions alongside the dock to pick up materials, would be towed into deeper water to launch completed barges, and had been towed considerable distances. While barges were being fabricated, it was fastened by ropes to the dock. The court said, at 1001:

. . . . in the instant case the floating construction platform was capable of limited movement and was, in the normal course of its service, towed from point-to-point in the navigable waters. . . . The permanence of fixation, however, is not the criterion which governs the maritime status of floating dry docks and similar structures. As the Supreme Court pointed out in The Robert W. Parsons 191 U.S. 17, 30, 24 S.Ct. 8, 48 L.Ed. 73 (1903) the "determinative factors upon the question of jurisdiction are the purpose for which the craft was constructed and the business in which it is engaged". . . .

Cook, supra, relied on cases emanating from Cope v. Vallette Dry-Dock Company, 119 U.S. 625, 627, 7 S.Ct. 336, 30 L.Ed. 501 (1887), that a floating drydock is not a vessel. See Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279, 283 (5th Cir. 1969), cert. denied, 396 U.S. 846, 90 S.Ct. 105, 24 L.Ed.2d 96 (1969).⁴ In our own case of DeMartino v. Bethlehem Steel Co., 164 F.2d 177, 179 (1st Cir. 1947), holding that a floating dock was not a vessel, we cited Berton v. Tietjen & Lang Dry Dock Co., 219 F. 763 (D.N.J.1915), in which, at 771, the court said,

. . . A stage designed to be used in connection with painting or repairing the side of a vessel would not become a vessel merely because it was capable of floating on the water, though it were used by workmen in thus painting and repairing, while the same was on the water, rising and falling with the tide, or because it could be moved alongside or around such vessel, and while being moved was capable of holding persons and property. . . .

The purpose and business of the present craft was not the transportation of passengers, cargo, or equipment from place to place across navigable waters. It was tied to the pier or its pilings virtually all of the time. Nearly as long as the pier was wide, it was used to provide a stable platform for men repairing defective piles. While so used, it was lashed with the other raft to piles, planks being placed from raft to raft, and was indistinguishable from a permanent floating dock. See DeMartino v. Bethlehem, supra. Its brief movement consisted of being hauled, poled or paddled from the pier to the piles underneath, or from pile to pile; even when moving it was usually attached to the pier by one or more lines. Its occasional "voyages"—when towed by workboat from one pier to another—were no different from the dragging of a section of floating dock from one location to another. See Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., supra, 271 U.S. at 20-21, 46 S.Ct. 379; Cook, supra, 472 F.2d 1001, n. 5.

Rafts, of course, may be designed or used "to encounter perils of navigation" (See Evansville v. Chero Cola Co., supra, 271 U.S. at 22, 46 S.Ct. 379); if so they may be vessels. See The Mary, 123 F. 609 (S.D.Ala.1903); United States v. Marthinson, 58 F. 765 (E.D.S.C.1893); Seabrook v. Raft of Railroad Cross-Ties, 40 F. 596 (D.S.C. 1889). But we cannot reasonably describe the present raft as other than a floating stage. Even with men and equipment on it, its movement, amounting mostly to a positioning under the pier incidental to its intended use, was not navigation.

The raft, moreover, was unlike special purpose floating structures whose function requires exposure to the hazards of the sea usually at some distance from the shore, such as barges,...