Whittington v. Sewer Const. Co., Inc.

• Citation: 541 F.2d 427
• Decision Date: 12 May 1976
• Docket Number: No. 74-1234,74-1234
• Parties: Lawrence WHITTINGTON, Appellant, v. SEWER CONSTRUCTION COMPANY, INC., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 427

541 F.2d 427

Lawrence WHITTINGTON, Appellant, v. SEWER CONSTRUCTION COMPANY, INC., Appellee.

No. 74-1234.

United States Court of Appeals Fourth Circuit.

Argued Sept. 30, 1974.

Decided May 12, 1976.

Thomas P. Maroney, Charleston, W. Va., for appellant.

Henry C. Bias, Jr., Charleston, W. Va. (Lively, Light & Bias, Charleston, W. Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WIDENER, Circuit Judge.

BOREMAN, Senior Circuit Judge:

On motion of the defendant, Sewer Construction Company, Inc. (hereafter Company or defendant), the district court dismissed this suit for lack of asserted admiralty jurisdiction. From the judgment of dismissal the plaintiff, Lawrence Whittington (hereafter Whittington or plaintiff), prosecutes this appeal.

In his complaint, containing two counts, Whittington alleged that the jurisdiction of the district court arises under and by virtue of the admiralty and maritime jurisdiction of the district courts of the United States; that this is an admiralty or maritime claim within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure; that the defendant had in its possession and under its control a certain barge which was in navigation on the inland waterways of the United States, that is, on the Elk River in Kanawha County, West Virginia; that at all times mentioned in the complaint the plaintiff was employed on said barge by the defendant, "performing the work of a deckhand and seaman"; that while the plaintiff was a member of the crew of said barge working on the Elk River, within the territorial jurisdiction of the district court as an "able-bodied seaman in connection with his assigned duties and tasks," the defendant was negligent in that the plaintiff was being lowered from an overhead bridge to said barge and, in being so lowered, the plaintiff fell into said barge and was thereby seriously injured. In the second count Whittington alleged that because of his injuries it became the duty of the defendant to furnish the plaintiff with prompt medical care, attention and medicine and "the expenses of his maintenances (sic) and cure." The complaint concluded with a demand for the sum of $150,000 for injuries, $10,000 for maintenance and cure, court costs and attorneys' fees, and a trial by jury.

After filing an answer the defendant, by leave of court, filed an amended answer alleging, in pertinent part, that the district court was without jurisdiction; that plaintiff's complaint fails to state a cause of action upon which relief could be granted; and that plaintiff is barred from recovery by virtue of the Workmen's Compensation statute of the State of West Virginia. The defendant denied, generally, the material allegations of the complaint, both in counts 1 and 2, and called upon plaintiff for strict proof.

The defendant took Whittington's discovery deposition and, at the time it moved for dismissal for lack of jurisdiction, the defendant moved that the discovery deposition be made a part of the record and the motion to dismiss. This was accomplished by a formal order.

At the time Whittington was injured he was 47 or 48 years old. His employer, the defendant, was engaged in the demolition of a bridge which spanned the Elk River in Kanawha County, West Virginia, and one section near the east bank of the river had partially collapsed. In that section a hole approximately twelve feet square had been cut in the bridge flooring and an open barge was moored in the water underneath the hole between a bridge pier and the river bank. As the bridge was dismantled some of the wood decking, steel, concrete, and portions of the bridge structure were loaded into the barge to be later towed away.

In his opening brief Whittington stated the question involved in the case as follows:

Did the Court err in ruling, as a matter of law, that the plaintiff was not a seaman, and, therefore, the Court did not have jurisdiction under the Admiralty or Maritime Laws of the United States? ^*

In his statement of the case he asserts in his brief that he filed his complaint alleging that he was a seaman, and that, as such, was entitled to recover under the admiralty laws of the United States for injuries sustained caused by the negligence of his employer and the unseaworthiness of the vessel "which he was assigned." Further, he alleges that on the day he was injured "he was performing the work of a deckhand and seaman on Barge ABL358"; that the defendant was negligent, and that the barge or vessel was unseaworthy, and that the defendant failed to provide proper methods of ingress and egress; that the question of whether or not plaintiff was a seaman, or doing the work of a seaman, at the time of the injury was a question of fact to be determined by a jury, and not a question of law to be determined by the court.

The sole question here is the very narrow one of the admiralty jurisdiction of the district court. The undisputed factual disclosures lead us to conclude that this controversy is not within the district court's admiralty jurisdiction. Consequently, we affirm the judgment dismissing the suit.

Turning to the discovery deposition of Whittington, we glean from the questions asked and his answers thereto certain facts which will be shown in the following four paragraphs.

At various times and for about twenty-one years of his adult life he had worked as an overhead crane operator for different manufacturing plants and he had labored at different jobs, including seasonal work for the West Virginia Highway Department.

When employed by the defendant he was hired "as a crane and backhoe operator" on a bridge demolition job. Whittington checked out a crane for approximately two hours when he first went to work for the defendant and then he was put to work operating a pick, shovel and a jack hammer tearing up the concrete on the bridge deck. The west end of the bridge was intact and the workmen gained access to the bridge from that end as it was possible to drive trucks out on the bridge to help carry away the debris. Referring to the hole in the bridge flooring Whittington stated "You could have dropped a truck down through it if you had backed it up."

There was a barge in the river underneath the hole in the bridge which was for the purpose of "hauling away" the dismantled portions. Stationed on the bridge was a motored winch equipped with a drum and a cable line, the line running from the drum through a pulley on the superstructure of the bridge which was used for lowering materials through the hole in the bridge into the barge. There was a hook on the end of the cable and on the day before the plaintiff was injured he and another workman were, in turn, lowered through the hole in the bridge into the barge by means of the cable so they could detach bridge materials from the cable hook. On that occasion Whittington thought he worked there as much as "a half of a day." On the following day the plaintiff was directed to go into the barge again by the same means, riding the cable down with a "choker on the end." As the plaintiff explained "A choker is a steel cable with two eyes in the end, one in one end and one in the other; that would be two loops." The choker was a piece of steel cable about five feet long; and he stated that he put his foot in the lower loop of the choker, the upper loop being fastened to the hook on the end of the winch's cable, and he grasped the cable line above the hook, above the top end of the choker line. In preparing to be lowered he was standing at the east side of the hole in the bridge and a short distance underneath there was a steel beam with a flange on it which went across the bridge below the flooring. He had one foot on the flange of the beam and put his other foot in the eye of the choker which was swinging free, preparing to descend into the barge. He had descended about five feet when the hook on the end of the cable rubbed against a piece of steel. As Whittington described it, "Well as I was going down, trying to push myself off the flange of the bridge, the hook caught on the flange of the bridge and rubbed the choker off rubbed the eye off that hook, that is all. I just fell the rest of the way." A workman was on top of the bridge to push the whipline out so that plaintiff could descend into the barge but apparently the line was not pushed out far enough to avoid the flange of the steel beam. Plaintiff was injured when he landed on the debris and dismantled materials which had already been placed in the barge.

Near the end of his deposition Whittington stated that when he was employed he was supposed to have been the only skilled craftsman on the bridge, an "operator," but he wound up, in effect, doing laborer work which was what most of the other men on the demolition job did. He was asked the question whether, at any time, he considered himself an able-bodied seaman. He was instructed by his counsel not to answer. He was asked further whether, at any time from the time he was hired until he was injured, he understood that he was to work on a boat as such, and his counsel again objected. His deposition concluded, however, with interrogation by his own counsel and answers to the questions. His counsel asked whether he understood on the day before he was injured and the day on which he was injured that he was to work on a barge and he answered "The day before I will phrase it this way: On the day before I got hurt, Gary Backland come to me and said, 'Larry, they need a guy to work down on the barge.' I said, 'All right; I don't mind.' "

One who seeks to recover for injuries in a suit based upon admiralty jurisdiction must show (1) that his injuries occurred upon navigable waters and had a maritime nexus, or (2) that the injuries were caused by a vessel in navigable waters or an appurtenance of the vessel, or (3) that the person injured was a seaman, a member of a crew of a vessel, injured in...