Richardson v. Norfolk Shipbuilding and Drydock Corp., 79-1686
Decision Date | 02 June 1980 |
Docket Number | No. 79-1686,79-1686 |
Citation | 1980 A.M.C. 2247,621 F.2d 633 |
Parties | Calvin RICHARDSON and Thywenston G. Swain, Appellants, v. NORFOLK SHIPBUILDING AND DRYDOCK CORPORATION, Appellee. |
Court | U.S. Court of Appeals — Fourth Circuit |
Ralph Rabinowitz, Norfolk, Va. (Rabinowitz, Rafal & Swartz, Norfolk, on brief), for appellants.
John B. King, Jr., Norfolk, Va. (Charles F. Tucker, Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellee.
Before RUSSELL, WIDENER and PHILLIPS, Circuit Judges.
Plaintiffs Calvin Richardson and Thywenston Swain (claimants) appeal the entry of summary judgment in favor of defendant Norfolk Shipbuilding and Drydock Corporation (Norfolk Shipbuilding) in this action to recover damages for personal injuries allegedly caused by the negligence of a vessel owned by Norfolk Shipbuilding. We agree with the district court that their suit is barred by the exclusive remedies provisions of the Longshoremen and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. § 905, and affirm.
On May 4, 1978, Richardson and Swain were employed by Norfolk Shipbuilding as sandblasters. When they reported to work that morning they were assigned to work on the U.S.S. Nashville, a navy ship undergoing repair in the shipyard. The sandblasting they were to do required their being suspended in a tray alongside the Nashville by means of a crane. Because the work was to be done on the side of the ship away from the pier, the crane used to hoist the tray into position was one mounted atop a wooden barge owned and operated by Norfolk Shipbuilding. The two men were injured when the tray was dropped precipitously to the deck of the barge through fault of the crane operator, also an employee of Norfolk Shipbuilding.
The LHWCA provides for compensation without regard to fault as an employer's exclusive liability to injured employees. 33 U.S.C. § 905(a). Claimants contended below and on this appeal that the immunity thus created does not extend to Norfolk Shipbuilding in respect of this negligence action because in addition to being a compensating employer, Norfolk Shipbuilding was on this occasion also a shipowner exposed to liability for its employee's negligence notwithstanding its status as claimants' employer.
Section 905(b) provides that an employee injured as a result of the negligence of a "vessel" may bring an action for damages against the vessel. Claimants contend that Norfolk Shipbuilding's wooden barge to which the crane was affixed was such a "vessel" and that in Norfolk Shipbuilding's capacity as owner of the barge the negligence of the crane operator must be imputed to it. 33 U.S.C. §§ 905(b), 933; see Allied Towing Corp. v. Tatem, 580 F.2d 702 (4th Cir. 1978). 1
It is clear that § 905 immunity does extend to employers who are also shipowners where an injured employee was a repairman or shipbuilder and was injured as a result of the negligence of other employees performing similar functions in respect of an employer-shipowner's vessel. Section 905(b). Richardson, Swain and the crane operator were all engaged in providing repair services to the Nashville. Claimants argue, however, that the relevant "vessel" for purpose of their claim is not the Nashville, but the wooden barge. It was negligence in the operation of the barge, not the Nashville, that led to their injury, and in respect of the barge the three men were not engaged in repair work but were acting in effect as crew members of this "vessel."
Claimants rely heavily in their argument on Smith v. Eastern Seaboard Pile Driving, Inc., 604 F.2d 789 (2d Cir. 1979). In Smith, a scuba diver was drowned in the course of a dive from a tug to examine the damage to a dredge. In an action by the diver's personal representative...
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