Specht v. Pittsburgh Coal Co.

• Decision Date: 02 December 1975
• Docket Number: Civ. A. No. 74-746.
• Citation: 432 F. Supp. 717
• Parties: Helmut B. SPECHT v. PITTSBURGH COAL COMPANY, a Division of Consolidation Coal Company, and Campbell Barge Lines.
• Court: U.S. District Court — Eastern District of Pennsylvania

432 F. Supp. 717

Helmut B. SPECHT v. PITTSBURGH COAL COMPANY, a Division of Consolidation Coal Company, and Campbell Barge Lines.

Civ. A. No. 74-746.

United States District Court, W. D. Pennsylvania.

December 2, 1975.

Edwin H. Beachler, Pittsburgh, Pa., for plaintiff.

Karl Alexander, Rose, Schmidt & Dixon, Pittsburgh, Pa., for defendant, Pittsburgh Coal Co.

Stephen W. Graffam, Pittsburgh, Pa., for defendant, Campbell Barge Lines.

OPINION

ROSENBERG, District Judge.

This matter is before me on motions for summary judgment by both defendants, Pittsburgh Coal Company, a Division of Consolidation Coal Company (Consol) and Campbell Barge Lines (Campbell) against the plaintiff, Helmut B. Specht. The defendants' motions are based upon the record of this case, which consists of the plaintiff's deposition of November 22, 1974 and uncontradicted answers of the defendant to the plaintiff's interrogatories. From all of these certain uncontradicted essential facts appear which lend a foundation to the elements of law which must be applied in this case. The plaintiff Specht was the employee of the defendant Consol who was contracted to repair the M/V D. J. Johnson owned by Campbell.

From the allegations of the complaint, the averments as set forth in the pretrial statement as filed by the plaintiff, and from the deposition of the plaintiff, it is undisputed that the plaintiff was attempting to remove external rubber stripping from the defendant Campbell's vessel, the M/V Johnson, and while so engaged, the old rubber stripping which he was removing flew backwards, knocked him off the scaffolding and injured him. The plaintiff alleges that while performing this function he was engaged as a seaman and that while working on the scaffolding alongside the M/V Johnson, he was injured permanently.

From the record the facts appear that the defendant, Campbell had contracted with the defendant Consol to do specific repair work on the M/V Johnson at the defendant Consol's Marine Ways adjacent to the Monongahela River, Elizabeth, Pennsylvania, and that the vessel was out of the water resting on a cradle on shore while the contracted repairs were being done. It was also undisputed that the Marine Ways' function is to repair towboats, barges and other vessels, mechanically and structurally.

The plaintiff alleges jurisdiction under the Jones Act, 46 U.S.C. § 688 et seq. and under applicable maritime laws, together with the doctrine of pendent jurisdiction. He contends different theories of liability for each defendant. As to the defendant Consol, his employer, the plaintiff contends that:

(1) it was negligent in violation of the Jones Act by

(a) failing to provide a safe place to work;

(b) failing to provide seaworthy facilities and equipment;

(c) failing to provide a sufficient crew;

(d) failing to provide a competent crew;

(e) requiring the plaintiff to place himself in a dangerous position;

(f) failure to warn of dangers; and

(g) being negligent, and

(2) it failed to provide the plaintiff with a seaworthy vessel and equipment, which resulted in the plaintiff's injury. The plaintiff also contends that the defendant employer Consol has not furnished him with maintenance and cure.

As to the defendant, Campbell, the plaintiff contends that:

(1) the M/V D. J. Johnson was in unseaworthy condition which resulted in his injuries; and

(2) this defendant was negligent because of inadequate warning to the plaintiff of the dangers aboard the M/V Johnson, when it knew or should have known of the defective condition of the rubber stripping which caused his injury.

In the defendant Consol's Motion for Summary Judgment, it, as the employer of the plaintiff and as an independent contractor, contends that the plaintiff Specht:

(1) was not a seaman under the Jones Act at the time of his injury and while under its employ; and

(2) is not entitled to recover against it on the basis of lack of seaworthiness.

The plaintiff argues that there is enough evidence on the record to preclude summary judgment and allow this issue to go before a jury. The plaintiff charges that his employment included securing of boats and barges with ropes, working consistently with the towboat M/V Elizabeth, owned by the defendant Consol, checking boats and barges for leaks on disrepairs and in moving vessels with the M/V Elizabeth in the checking and making of repairs. However, in his answers in the deposition the plaintiff admitted that he had not been on the M/V Elizabeth for a period of up to three or four years before the date of the taking of the deposition in 1974, while the accident occurred in 1972. Also, that he was an iron worker and a member of the Iron Workers Union 5400. The plaintiff's assertion is also to the effect that he worked both in the shop on shore and in the repair of boats and barges when necessary.

An individual is a seaman under the Jones Act¹ if (1) the ship is in navigation; (2) there is more or less a permanent connection with the ship and (3) the worker be aboard primarily to aid in navigation. Griffith v. Wheeling Pittsburgh Steel Corp. and American Commercial Lines, Inc., 521 F.2d 31, C.A. 3, 1975.

As the Griffith case directs, I must scrutinize the record carefully before summary judgment is granted on the issue of seaman status. However, after doing so, only one simple difference exists between this case and Griffith. The plaintiff here is a repairman rather than a loader of cargo. The noticeable similarities in the two cases are (1) that the repairman in this case and the loader of cargo in Griffith lacked permanency of vessel relationship; and (2) that the employment of both the repairman in this case and of the loader in Griffith were not aboard the respective boats primarily for the purpose of aiding in navigation. In the Griffith case he was aboard for the purpose of loading its cargo. In this case, the repairman was not actually aboard but on the side of the boat for the purpose of removing the old rubber stripping and replacing it with new. To be a seaman under the Jones Act these two elements are requirements which must be met. They are not met here.

If the plaintiff had any connection permanent or otherwise it was with the towboat M/V Elizabeth where during the past some work had taken place. The plaintiff's injury occurred from an accident involving the rubber stripping of the M/V Johnson, which was not being moved at that time but was rather up and out of the water. Repair of the rubber stripping was that action that caused the injury and not the moving or removing of the vessel from the Marine Ways. The plaintiff had only a temporary relationship with this particular vessel and this does not as a matter of law give rise to his being included as a seaman, for his primary function as an employee of defendant Consol was to repair vessels while in their control.

Also the plaintiff was not aboard the vessel or connected with it to aid in its navigation. While work was being done, the vessel was stationary, out of the water, completely free of fuel, and under other repairs. Moreover, the plaintiff was not injured while the boat was entering or leaving the defendant Consol's charge. These facts are from interrogatories and depositions filed.

The determination as to whether the vessel was "in navigation" need not be decided because in the first instance, it is in dispute and should be left for a jury determination and secondly, it is not essential in determining the status of seamanship where the other requirements are not met. Griffith, supra. As a matter of law, I conclude that the plaintiff Specht was not a seaman at the time the injury occurred.

As to the argument that the defendant Consol breached its implied warranty of seaworthiness, it is well settled that under the implied warranty of seaworthiness "the shipowner is under a duty to maintain the vessel, its gear and appurtenances, reasonably safe and suitable for the purposes intended." McDonald v. United States, 3 Cir., 321 F.2d 437, 439 (1963). Being absolute it also extends beyond the vessel's crew to shore-based employees of independent contractors working aboard ship in work customarily performed by seamen. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Bryant v. National Transport Corp., 3 Cir., 467 F.2d 139 (1972); McDonald v. United States, supra. Nevertheless, the implied warranty will not be extended in cases where the vessel is not in navigation undergoing extensive repair. West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959); Bryant v. National Transport Corp., supra; McDonald v. United States, supra.

The plaintiff Specht contends that the defendant, Consol, the employer, being in complete control and possession of the vessel is the owner pro hac vice and must make the vessel seaworthy. Also the vessel was "in navigation" extending the doctrine to include himself. As was stated above, a determination as to whether the M/V Johnson was "in navigation" is a factual dispute and should be allowed to go to a jury. However, it should be determined whether (1) there was a doctrine of seaworthiness in this case, and (2) if there was, did it apply here.

Because it is the shipowner's duty to maintain the vessel, its gear and appurtenances in a safe condition, an individual who is connected in some way with the vessel relies upon this implication when he works at or on the vessel itself. In other words, an individual assumes that the vessel is seaworthy as warranted by the vessel owner. However, the situation changes when the owner has directed an independent contractor to take his vessel into his drydock and make specific repairs in order to enable the vessel to return to the water and operate in a safe and orderly fashion. Thus it is that the independent contractor and his employee work to repair that which is not in a...