Rose v. Chaplin Marine Transport, Inc.

• Decision Date: 26 July 1995
• Docket Number: Civ. A. No. 2:93-0444.
• Citation: 895 F. Supp. 856
• Court: U.S. District Court — Southern District of West Virginia
• Parties: John Michael ROSE, Plaintiff, v. CHAPLIN MARINE TRANSPORT, INC. and Mon River Towing, Inc., Defendants.

895 F. Supp. 856

John Michael ROSE, Plaintiff, v. CHAPLIN MARINE TRANSPORT, INC. and Mon River Towing, Inc., Defendants.

Civ. A. No. 2:93-0444.

United States District Court, S.D. West Virginia, Charleston Division.

July 26, 1995.

Carl E. Hostler, Hostler Law Offices, Charleston, WV, James J. Bedortha, Joel I. Persky and Joseph J. Cirilano, Goldberg, Persky, Jennings & White, P.C., Pittsburgh, PA, for plaintiff.

Mark D. Shepard, George H. Crompton and Paul D. Kruper, Buchanon Ingersoll, Pittsburgh, PA, for defendants.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending is the motion for summary judgment filed by Defendants Chaplin Marine Transport, Inc. ("Chaplin") and Mon River Towing, Inc. ("Mon River"). Plaintiff has responded and Defendants have replied. This issue is ripe for adjudication.

Plaintiff initiated this action on May 28, 1993. He filed an amended complaint on December 7, 1994. Plaintiff contends he was injured while working on the M/V Lillian G, a tow boat, on November 25, 1992. The Lillian G is owned by Mon River, but was being operated pursuant to a bareboat, or demise charter by Chaplin. In turn, Chaplin was operating the boat pursuant to a purported time charter between it and Mon River. Plaintiff contends he was following the common practice of his employer, Chaplin, when he was seriously burned as he attempted to incinerate garbage in a barrel located on the deck of the vessel. He asserts Mon River was aware of the presence and use of the barrel to burn garbage at the time of the incident. Plaintiff asserts causes of action based upon this Court's admiralty jurisdiction and the Jones Act, 46 U.S.C.App. § 688.¹

I.

Defendants contend they are entitled to summary judgment. The standard used to determine whether a motion for summary judgment should be granted or denied is stated by our Court of Appeals as follows:

"A moving party is entitled to summary judgment `if the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.' Fed R.Civ.Pro. 56(c). See Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir.1979).

"A genuine issue of material fact exists `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgement, the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. at 2513-14. The plaintiff is entitled to have the credibility of all his evidence presumed. Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). The party seeking summary judgment has the initial burden to show absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). The opposing party must demonstrate that a triable issue of fact exists; he may not rest upon mere allegations or denials. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A mere scintilla of evidence supporting the case is insufficient. Id." Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 67, 130 L.Ed.2d 24, and cert. denied, ___ U.S. ___, 115 S.Ct. 68, 130 L.Ed.2d 24 (1994).

Accord, McCoy v. United Postal Service, 890 F.Supp. 529, 531 n. 3 (S.D.W.Va.1995) (Haden, C.J.); Browning v. Snead, 886 F.Supp. 547, 549-50 (S.D.W.Va.1995) (Haden, C.J.).

II.

Mon River asserts it is not liable for any negligence occurring on or unseaworthiness of the Lillian G. It relies on the bareboat charter agreement between it and Chaplin. It claims the bareboat charter turns exclusive control, operation and navigation of the vessel over to Chaplin, thus relieving it of responsibility for Plaintiff's injuries. For the reasons that follow the Court agrees.

The owner of a vessel is normally liable for injuries caused by the vessel's unseaworthiness. McAleer v. Smith, 57 F.3d 109, 111-12 (1st Cir.1995), citing, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90, 66 S.Ct. 872, 875, 90 L.Ed. 1099 (1946) (citing, The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903)); Moore v. Phillips Petroleum Co., 912 F.2d 789, 792 (5th Cir.1990) ("The vessel owner remains responsible for the seaworthiness of the vessel.").

Nonetheless, an owner may turn the exclusive possession, control and navigation over to another party through a bareboat, or demise charter. A bareboat charter is

"created when `the owner of the vessel ... completely and exclusively relinquishes possession, command, and navigation thereof to the demisee. They are therefore tantamount to, though just short of, an outright transfer of ownership. However, anything short of such a complete transfer is a time or voyage charter party or not a charter party at all.'" McAleer v. Smith, supra, 57 F.3d at 113, citing, Guzman v. Pichirilo, 369 U.S. 698, 699-700, 82 S.Ct. 1095, 1096, 8 L.Ed.2d 205 (1962) (internal quotation and citation omitted).

See Wheatley v. Gladden, 660 F.2d 1024, 1026 (4th Cir.1981) ("Under a bareboat charter the charterer assumes all the obligations of ownership, including those of the employer and crew. United States v. W.M. Webb, Inc., 397 U.S. 179, 90 S.Ct. 850, 25 L.Ed.2d 207 (1970). The test for establishing a bareboat charter is one of control — has the owner completely relinquished possession and command of the boat."); Carolina Seafoods, Inc. v. United States, 581 F.2d 1098, 1100 (4th Cir.1978). The charterer under a bareboat or demise charter thus stands in the shoes of the owner and becomes the owner pro hac vice. Because the bareboat charterer stands in the shoes of the owner, the bareboat charterer assumes the duties and responsibilities appurtenant to ownership, and the owner is relieved of the same. As stated recently in Dow Chemical Co. v. Texaco Refining and Marketing, Inc., 887 F.Supp. 853, 863, (E.D.Va.1995):

"Under a bareboat or demise charter, full possession and control of the chartered vessel is turned over to the charterer. Reed v. S.S. Yaka, 373 U.S. 410, 412, 83 S.Ct. 1349, 1351, 10 L.Ed.2d 448 (1963) (`It has long been recognized in the law of admiralty that for many, if not most purposes the bareboat charterer is to be treated as the owner, generally called the owner pro hac vice.'); Alex L. Parks & Edward V. Cattel, Jr., The Law of Tug, Tow & Pilotage 875 (3d ed.1994). The United States Court of Appeals for the Fourth Circuit has stated:

This rule recognizes that when the owner of the vessel enters into a demise charter, he surrenders all possession and control of the vessel to the charterer. Since he no longer has the right to control the use of the vessel, he is no longer charged with the duties and liabilities of its ownership. Conversely, the demise charterer `becomes subject to the duties and responsibilities of ownership.'

Kerr-McGee Corp. v. Law, 479 F.2d 61, 63 (4th Cir.1973) (quoting Leary v. United States, 81 U.S. (14 Wall) 607, 610, 20 L.Ed. 756 (1872)). As a bareboat charterer, the charterer is held to be a bailee of the vessel. Richmond Sand & Gravel Corp. v. Tidewater Constr. Corp., 170 F.2d 392, 393 (4th Cir.1948); 2b Benedict on Admiralty § 51, at 3-3 (1995)."

See Forrester v. Ocean Marine Indem. Co., 11 F.3d 1213, 1215 (5th Cir.1993) ("In a demise charter, the vessel owner transfers full possession and control to the charterer, who in turn furnishes the crew and maintenance for the vessel (thus the term `bareboat')."). And as stated in Wolsiffer v. Atlantis Submarines, Inc., 848 F.Supp. 1489, 1494 (D.Haw.1994):

"In order for the agreement to be considered a demise charter, complete transfer of possession, command, and navigation of the vessel from the owner to the charterer is necessary. Guzman v. Pichirilo, 369 U.S. 698, 700, 82 S.Ct. 1095, 1096-97, 8 L.Ed.2d 205 (1962); Gaspard v. Diamond M. Drilling Co., 593 F.2d 605, 606 (5th Cir.1979). `Anything short of ... a complete transfer is a time or voyage charter party or not a charter party at all.' Guzman, 369 U.S. at 700, 82 S.Ct. at 1096. Courts are reluctant to find a demise charter when the dealings between the parties are consistent with any lesser relationship."

The owner of a vessel impliedly warrants its seaworthiness² to the point of delivery to the bareboat charterer.³ Kerr-McGee Corp. v. Law, 479 F.2d 61 (4th Cir. 1973); Dow Chemical Co. v. Texaco Refining and Marketing, Inc., 887 F.Supp. at 864, citing, Dempsey v. Downing, 11 F.2d 15, 17 (4th Cir.1926); In the Matter of D & H Corp., 1994 WL 574143, *1 (E.D.Va.1993); Cos v. French-Polish Shipping Co., 1986 WL 13361, *1 (D.Md.1986); Interocean Shipping Co. v. M/V Lygaria, 512 F.Supp. 960 (D.Md. 1981). If the vessel was unseaworthy when delivered, the owner is liable for injuries caused by such unseaworthiness notwithstanding the existence of the bareboat charter. If the vessel is seaworthy upon delivery, the bareboat charterer then assumes the responsibilities of the owner for liability for injuries thereafter caused by the unseaworthiness of the vessel. McAleer v. Smith, supra, 57 F.3d at 112 ("In general, if there is an owner pro hac vice, the title owner will be absolved of personal liability (except for defective conditions that existed before the owner pro hac vice took control of the vessel)."); Forrester v. Ocean Marine Indem. Co., 11 F.3d at 1215 ("The demise charterer is ... responsible in personam for the negligence of the crew and the unseaworthiness of the vessel."); Wolsiffer v. Atlantis Submarines, Inc., 848 F.Supp. at 1494 ("The remedy of unseaworthiness for an injured seaman applies in rem against the vessel and in personam against either the title owner of the vessel ..., or the owner pro...