Simko v. C & C Marine Maintenance Co.

• Decision Date: 20 February 1979
• Docket Number: Nos. 78-1174,s. 78-1174
• Citation: 594 F.2d 960
• Parties: John R. SIMKO, Administrator of the Estate of John R. Simko, III, Deceased, and Luella Campbell Miller, on her own behalf, and as parent and natural guardian of John R. Campbell, a minor on behalf of John R. Campbell, a minor v. C & C MARINE MAINTENANCE CO., a corporation, Appellant, American Commercial Barge Lines Company, a corporation, Georgetown Landing Co., a corporation. through 78-1176.
• Court: U.S. Court of Appeals — Third Circuit

Page 960

594 F.2d 960

John R. SIMKO, Administrator of the Estate of John R. Simko III, Deceased, and Luella Campbell Miller, on her own behalf, and as parent and natural guardian of John R Campbell, a minor on behalf of John R. Campbell, a minor v. C & C MARINE MAINTENANCE CO., a corporation, Appellant American Commercial Barge Lines Company, a corporation, Georgetown Landing Co., a corporation.

Nos. 78-1174 through 78-1176.

United States Court of Appeals, Third Circuit.

Argued Nov. 14, 1978.

Decided Feb. 20, 1979.

Bruce R. Martin, Pittsburgh, Pa., for appellant.

Stanley M. Stein, Feldstein, Grinberg, Stein & McKee, Pittsburgh, Pa., for appellee, Simko, et al.

John W. Jordan, IV, Thomson, Rhodes & Grigsby, Pittsburgh, Pa., for appellee, American Commercial Barge Lines.

Before SEITZ, Chief Judge, and GIBBONS and WEIS, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

This appeal presents the question whether John R. Simko, III occupied the status of a seaman for purposes of recovery under the Jones Act, 46 U.S.C. § 688, at the time of his death. It also requires this Court to venture into the maelstrom of the maritime doctrine of unseaworthiness and its counterpart, the right of a shipowner to claim indemnity from a stevedore for expenses incurred in defending an action for damages brought by the stevedore's employee. ¹

I.

John Simko was hired by C & C Marine Maintenance Company (C & C) as a laborer. He was assigned the job of assisting in the cleaning and minor repair of barges brought to C & C's facilities along the Ohio River by a variety of barge companies. On March 11, 1972, some two weeks after his hiring by C & C, Simko was assisting in the cleaning of barge # 2699, owned by American Commercial Barge Lines Company (ACBL). While pulling on a water hose being used by another employee in washing ACBL # 2699's deck, Simko slipped and fell overboard. Despite efforts to throw him a line Simko was swept beneath barges moored nearby by the swift current and he drowned. His estate brought this wrongful death and survival action against both C & C and ACBL, seeking recovery under the Jones Act and the doctrine of unseaworthiness. Both defendants denied liability under either claim, and ACBL crossclaimed against C & C for indemnity from any liability or expense incurred in defending the lawsuit that was attributable to C & C's breach of its implied warranty of workmanlike service in contracting to clean and repair barge # 2699.

II.

In order to facilitate an understanding of the issues presented in this appeal it is necessary to recount the theories of liability asserted by plaintiffs. Their cause of action was founded on the Jones Act and the maritime laws of this country, particularly the doctrine of unseaworthiness. The plaintiffs demanded a jury trial on both the Jones Act and unseaworthiness claims.

This case was submitted to the jury with separate instructions on the two claims. The court instructed the jury that they could find that Simko was a Jones Act seaman employed by C & C as a member of the crew of either ACBL # 2699 or C & C's crane barge, to which # 2699 had been moored, and that C & C's negligence caused his death. ² The court also instructed the jury that ACBL, as Simko's employer, could be found liable under the Jones Act for Simko's death if its negligence in controlling and supervising his duties while aboard barge # 2699 had caused the accident. ³

With respect to the unseaworthiness claim the court instructed the jury that they could find either defendant liable if an unseaworthy condition aboard one of its vessels caused Simko's death. The instructions permitted recovery against C & C alone if the crane barge were found unseaworthy; if ACBL # 2699 were found unseaworthy, liability could be imposed against its registered owner or against C & C, as owner pro hac vice. Moreover, the instructions permitted liability to be imposed against either defendant for an unseaworthy condition on ACBL # 2699 if Simko were found to have been working as a longshoreman aboard that vessel, rather than as a member of its crew.

The jury returned a general verdict in favor of the plaintiffs on their Jones Act and unseaworthiness claims against C & C, in the amount of $61,000.00. The jury found in favor of ACBL on the plaintiffs' claims, and also found for ACBL on its cross-claim against C & C for indemnity. Following a non-jury trial on the amount of expenses incurred by ACBL in defending this lawsuit, the court awarded ACBL $5,794.52 on its indemnity claim.

III.

C & C has appealed from both judgments entered by the district court, contending, as it did throughout the course of the trial proceedings, that the evidence presented at trial was insufficient to permit the submission of the Jones Act claim to the jury. Thus, C & C argues that the district court should have directed a verdict in favor of the defendants on that claim and disposed of the unseaworthiness claim without a jury on the admiralty side. C & C also argues that ACBL's indemnity claim should have been tried to the court on the question of C & C's liability to ACBL, that C & C should not be held liable for indemnity in a case in which it may have been found to have been the owner pro hac vice of the shipowner's vessel, and that the amount of expenses awarded by the court to ACBL was excessive.

A.

We agree with C & C's contention that the evidence presented at trial was insufficient to permit the submission of the Jones Act claim to the jury and that the district court should have directed a verdict in favor of both defendants on that claim. See note 3 Supra.

This Court has previously held that among the "decisive elements necessary of proof in determining who is 'a member of a crew' within the meaning of the Jones Act" is a requirement " 'that the worker be aboard (the ship) primarily to aid in navigation.' " Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 36 (3d Cir. 1975), Cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976). The estate's Jones Act claim was submitted to the jury on the theory that Simko, at the time of his death, was a member of the crew of either ACBL # 2699 or C & C's crane barge, to which # 2699 was moored. However, the evidence introduced at trial could not support a jury finding that Simko was aboard either barge primarily to aid in its navigation.

Testimony introduced at trial shows that Simko was hired by C & C as a laborer and that his function was to assist in the cleaning of barges moored to C & C's crane barge. He shoveled debris from their interiors, squirted their decks with water hoses, and helped in carrying pumps and other equipment used in the cleaning operations. There was no evidence presented to show that in performing those duties he was engaged, at any time, in the handling or maneuvering of any barge. Simko was not involved in the transporting of ACBL # 2699 to C & C's facilities or the mooring of # 2699 to the crane barge. Moreover, neither ACBL # 2699 nor the crane barge was ever in motion at any time Simko was aboard.

In Griffith this Court held that a worker injured while engaged in loading a barge at a steel mill along the Ohio River had not been aboard that barge primarily to aid in its navigation, and thus we affirmed the district court's entry of summary judgment against the plaintiff on a Jones Act claim. Yet Griffith testified that he had assisted in the throwing of lines from one barge to another while they were being "rounded," a procedure utilized in moving loaded barges away from the seawall. We deemed the navigational functions performed by Griffith to be too insignificant to establish seaman status given that his primary duties involved the work of a harbor worker, namely, handling cargo. 521 F.2d at 37-38.

The focus applied by this Court in Griffith to the nature of the duties performed by the putative Jones Act claimant is consistent with the leading Supreme Court opinion in this area, Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957). There, in reversing a lower court's determination that the plaintiff "was not 'naturally and primarily on board (a dredge) to aid in navigation,' " the Court's majority relied on testimony presented at trial giving rise to an inference that the plaintiff was responsible for the dredge's seaworthiness and that his duties included the taking of soundings and the cleaning of navigation lights when the dredge was in transit. Id. 372-73, 77 S.Ct. 415. We cannot draw a similar inference from the record made in this case.

Like Griffith, Simko's primary duties involved the work of a harbor worker. The clear import of our opinion in Griffith is that a maritime worker who does not actually go to sea but who is injured while performing duties on a navigable vessel must establish that he performed significant navigational functions with respect to that vessel in order to recover under the Jones Act. The record is devoid of any proof that Simko performed such functions; thus, the district court erred in denying C & C's motion for a directed verdict on the estate's Jones Act claim.

B.

C & C contends that, absent a valid Jones Act claim, the district court lacked jurisdiction on the civil side over the unseaworthiness and indemnity claims and that the jury's verdicts on those claims have no validity. Thus, appellant asks this Court to vacate both judgments of the district court and remand this case for a trial to the court on both claims in the exercise of its admiralty jurisdiction. We do not find C & C's jurisdictional arguments persuasive.

There is no question but that the district court had subject matter jurisdiction over all the claims raised by the parties to this lawsuit. Stripped of its jurisdictional overtones, C & C's contention is that, absent a finding that Simko was a Jones Act seaman, the district court was precluded from submitting the admiralty claims arising...