Opinion
No. 1:98-CV-366.
January 31, 2000.
OPINION AND ORDER ON LAKE MICHIGAN CONTRACTORS' MOTION FOR SUMMARY JUDGMENT
In his Second Amended Complaint filed in this action, plaintiff Michael B. Huss alleges that on May 3, 1995, while he was employed as a crewman aboard a dredge owned and operated by defendant The King Company, Inc. ("King"), he sustained injuries when a work boat which he had been ordered by King to retrieve fell on top of him while he and other King employees were attempting to lower it into the water. The work boat was owned by defendant Lake Michigan Contractors, Inc. ("LMC").
Huss has asserted claims against both defendants based on negligence under the Jones Act, 46 U.S.C. App. § 688 et seq. and unseaworthiness of the work boat under general admiralty and maritime law. The matter is currently before the court on a motion filed by LMC for summary judgment. Both Huss arid King have opposed the motion. For the reasons to follow, the court grants the motion and dismisses Huss' claims against LMC with prejudice.
FACTS
On May 3, 1995, Michael Huss was working for King as an operator and engineer. On that day, King was in need of a work boat or dredge tending boat to push one of its barges involved in a pipeline job on the Grand River. Although King owned such a work boat, its own boat had broken down. Randy King, King's president, therefore telephoned Joe Walsh, vice-president of LMC, which also performed dredging operations, and asked whether King could borrow one of LMC's work boats. Walsh agreed.
Walsh has testified, and neither Huss nor King has disputed, that in agreeing to allow King to borrow the boat, Walsh specifically informed Randy King that he did not know when the boat had last been used and that he was unaware of its condition. According to Walsh,
. . . They own several of these boats themselves, and I told them again, as I stated earlier, that I didn't know exactly what the condition of the boat was at the time, and that I couldn't, you know, guarantee that they were just gonna set it in water and start it up and drive it away and have it do everything they want it to do, but that, you know, that [King] could use the boat and return it to us in as good a shape as or better than what they took it in, and that would be satisfactory to us; and also that we didn't have any way to pick the boat up and put it in water, and it was out of the water so that he would have to, you know, figure a way to get it in the water which he said he had no problem [because] he had a boom truck that he could take up there and put it in the water. . . .
Walsh Dep. at 24. After some discussion about payment for borrowing the boat, Walsh ultimately agreed not to charge King for use of the boat; Walsh informed Randy King that he did not "feel comfortable" charging rent because he did not know what condition the boat was in. Id. at 28.
Somehow, arrangements were made to enable King's employees to gain access to LMC's yard in Grand Haven, Michigan. It is undisputed that the four King employees sent by King to retrieve the boat — plaintiff Michael Huss, James Morehouse, Dan Miller, and Gary "Skip" Meyer — encounterd no LMC employees when they arrived at LMC's yard, and no claim has been made that they sought LMC's assistance in performing their assigned task.
Meyer, who served as supervisor of the other King employees at the site, identified the boat they were to retrieve from LMC's yard. The boat, made from aluminum, measuring approximately 22 to 24 feet in length, six to eight feet in width, and weighing approximately 4,000 pounds, was resting in a cradle situated on sand adjacent to the water. According to Huss, the plan was for them to lift the boat off its cradle and place it in the water, with the help of a boom truck, operated by Morehouse, which they had brought to the site. After the boom truck had been maneuvered to the starboard side of the boat, Huss, as operator and engineer, entered the boat to check on its readiness for operation, while his co-workers attempted to prepare the boat for lifting, rigging the boat by using lines already present on the boat when they arrived.
After Huss exited the boat, Meyer instructed Morehouse, who was running the boom, to lift the boat. After Morehouse had lifted the boat approximately three to three and one-half feet off the ground, Huss noticed a line caught in the boat's propeller shaft. After he had alerted the others to the presence of the line, Meyer instructed Morehouse to stop the boom so that they could remove the line. Morehouse stopped, but did not lower the boat. Instead, while it still hung in the air, Huss and Meyer went underneath the boat to try to remove the line, Seconds later, upon quickly realizing that the line was stuck, Meyer walked away to retrieve a knife while Huss remained under the boat attempting to pull the line loose. Immediately after Meyer walked out from under the boat, it suddenly fell on Huss.
The boat remained on top of Huss briefly before he was able to climb out from under it with the help of his co-workers, who managed to move the boat sufficiently so that he could escape its weight. Although the incident was short in duration, due to the weight of the boat and its height above him, Huss sustained serious injuries and was hospitalized thereafter for a short period. (Apparently, the fact that the boat fell while over sand saved Huss from more serious injuries.) He was eventually able to return to work, although he has alleged that he suffered aggravation of his injuries during an unrelated work incident in July, 1997.
Apart from the alleged aggravation of his pre-existing injuries, Huss has not implicated LMC in the events of July, 1997.
ANALYSIS
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988). In evaluating a motion for summary judgment, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the burden of establishing the non-existence of any genuine issue of material fact and may satisfy this burden by "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). While inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Only factual disputes which may have an effect on the outcome of a lawsuit under the applicable substantive law are "material." Anderson, 477 U.S. at 248.In its motion, LMC argues that Huss' claim against the company under the Jones Act is subject to dismissal as a matter of law because LMC is not his employer. LMC also argues that Huss' claim against the company based on unseaworthiness is also subject to dismissal because King, his employer, and not LMC, was in control of the work boat at the time of the incident. LMC further argues that even if Huss has a viable claim of unseaworthiness against LMC, there is no evidence that the boat was unseaworthy. Finally, LMC argues that there is no evidence that it was negligent. JONES ACT CLAIM
"The Jones Act provides a cause of action in negligence for `any seaman' injured `in the course of his employment.'" Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (quoting 46 U.S.C. App. § 688(a)). LMC argues, however, that even assuming that Huss' duties with King provide him with seaman status, he has no employment relationship with LMC. Because the Jones Act does not permit an employee to sue a third-party non-employer, LMC further argues, Huss has no cause of action against the company under the statute.
Here, the court's task is easier, for neither Huss nor King has disputed LMC's position that Huss' status as a seaman does not provide him with a cause of action against a non-employer under the Jones Act. Authority does support LMC's position in this regard. See In re Petition of Cleveland Tankers, Inc., 843 F. Supp. 1157, 1159-60 (E.D.Mich. 1994) ("It is undisputed that a seaman does not have a cause of action under the Jones Act against a party that is not the seaman's employer") (citing Perkins v. Union Barge Line Corp., 373 F.2d 714 (6th Cir. 1967)). Given the undisputed facts and the existence of this authority, the court concludes that LMC is entitled to dismissal of Huss' claim against the company under the Jones Act. UNSEAWORTHINESS CLAIM
"It is, of course, settled law that Jones Act recovery by an injured seaman does not preclude his right to an action against a third party whom he alleges to have caused his injury." Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217, 221 (6th Cir. 1969) (citations omitted). Here, Huss claims that LMC breached its responsibility, as owner of the work boat, to provide him with a seaworthy vessel. "The maritime duty of seaworthiness requires a vessel owner `to furnish a vessel and appurtenances reasonably fit for their intended use.'" Babbitt v. Hanover Towing, Inc., 7 F. Supp.2d 650, 652 (E.D.N.C. 1998) (quoting Mitchell v. Trawler Racer, 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960)). Moreover,
A vessel owner or a `constructive owner' exercising exclusive control over tile vessel, may be held liable for a breach of the duty of seaworthiness even without a finding of negligence on his part . . . . The warranty of seaworthiness may be breached by temporary conditions like the improper loading and stowing of cargo as well as by the presence of permanent physical defects in the vessel. . . .Id. (citations omitted).
In some instances, a shipowner may escape liability for the unseaworthiness of its vessel on the ground that it has temporarily been relieved of this obligation. Specifically, where the vessel is subject to a "bare boat" charter, as to injured seamen the charterer "steps into the shoes of the shipowner,"Schaeffer, 416 F.2d at 223 (citing Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963)). Charters have been described as follows:
A `charter' is an arrangement whereby one person (the `charterer') becomes entitled to the use of the whole of a vessel belonging to another (the `owner'). There are essentially two types of charters: the voyage or time charter and the bareboat or demise charter.
In a time charter the vessel owner retains possession and control of the vessel; provides whatever crew is needed and is responsible for normal operating expenses. Further, in a time charter the owner fully equips and maintains the vessel, makes repairs as needed and provides insurance on the vessel.
Generally the charterer's use of the vessel is limited under a voyage charter to a particular voyage between two defined points and under a time charter to a defined period of time. Since the principal purpose of a time or voyage charter is to move cargo owned by the charterer or to transport people who are employed by or performing work for the charterer, the courts have frequently compared a voyage or time charter to a contract of affreightment. The charterer pays a stated fee for the transportation services involved.
Under a bareboat or demise charter, on the other hand, the full possession and control of the vessel is transferred to the charterer. The stated consideration for a demise charter is payable periodically but without regard to whether the charterer uses the vessel gainfully or not. Under a bareboat or demise charter the vessel is transferred without crew, provisions, fuel or supplies, i.e., `bareboat'; and when, and if, the charterer operates the vessel he must supply also such essential operating expenses. Because the charter's personnel operate and man the vessel during a demise charter, the charterer has liability for any and all casualties resulting from such operation and therefore provides insurance for such liability.Walker v. Braus, 995 F.2d 77, 80-81 (5th Cir. 1993).
"Because the bareboat charterer, also called a demise charterer, is considered the owner, of the chartered vessel pro hac vice, his potential liabilities to third persons are much more extensive than those of either the time or voyage charterer." Blanco v. United State, 775 F.2d 53, 58 (2d Cir. 1985). Specifically, "the demise charterer is liable for collision damages, . . . as well as for personal injuries resulting from unseaworthiness of the vessel, . . . and he is deemed to be the crew's `employer' for purposes of Jones Act liability." Id.; see Kerr-McGee Corp. v. Law, 479 F.2d 61, 63 (4th Cir. 1973) (demise charterer "becomes subject to the duties and responsibilities of ownership"); see also Rodriguez v. McAllister Bros, Inc., 736 F.2d 813, 815 (1st Cir. 1984) ("liability for unseaworthiness, or negligence in maneuvering, turns upon who possessed control of the ship such that it could best be charged as the owner at the time the accident occurred"). Under the circumstances, because the owner surrenders all possession and control of the vessel to the demise charterer, the owner of a vessel under such a charter is liable only for unseaworthiness or negligence that pre-exists the charter. Id.
A charter need not be in writing. Torch, Inc. v. Alesich, 148 F.3d 424, 426 (5th Cir. 1998). "In the absence of a writing, a demise charter requires showing essentially a change in ownership, a complete relinquishment of `possession, command and navigation.'"Rodriguez, 736 F.2d at 815 (quoting Guzman v. Pichirilo, 369 U.S. 698, 82 S.Ct. 1095, 8 L.Ed.2d 205 (1962)). The burden of proving a bareboat charter rests with the owner of the vessel, and generally, "courts are reluctant to find a demise when the dealings between the parties are consistent with any lesser relationship." Deal v. A.P. Bell Fish Co., 674 F.2d 438, 440-41 (5th Cir. 1982) (quoting Guzman, 369 U.S. at 700, 82 S.Ct. at 1097).
Although LMC's original brief in support of its motion does not use the term of art "charter," King has, in its response, graciously supplied that missing term in referring to its relationship with LMC. Moreover, as LMC has observed, the terms and conditions of the charter have not been contradicted in the non-movants' submissions in opposition to the motion. Those terms are (1) that King could borrow the boat; (2) that King had to return the boat to LMC in as least as good a condition as when King borrowed it; and (3) that King had the sole responsibility for getting the boat in the water. Given this uncontradicted testimony by Walsh, the court concludes that no genuine issue remains regarding who was responsible, at the time of the incident, as owner pro hac vice of the boat: King was responsible.
For his part, plaintiff Huss' briefing does not dispute that the work boat had been chartered to his employer King. This is not for lack of an opportunity to address the issue, for the court permitted him to file an additional brief above and beyond that typically permitted in response to dispositive motions. In that additional brief, "Plaintiff's Surresponse to [LMC's] Motion for Summary Judgment," Huss merely argues that both LMC and King remain liable for unseaworthiness because the testimony shows that the boat was unseaworthy both before the commencement of the charter and afterwards. Id. at 6.
However, does a genuine issue of fact remain regarding whether the boat was unseaworthy before the commencement of the charter? Huss argues that it does. Specifically, Huss relies on evidence that Huss and his co-workers used ropes or lines already on the boat in order to lift it. Huss also states that "[d]eposition testimony of crewmembers indicates the boat fell when the pick lines broke." Plaintiff's Memorandum in Support of Response, at 6. In support of this argument, Huss cites to his own testimony, at page 74 of his deposition, in which he stated that he "heard a snap" only "[a]bout a millisecond before I was on the ground." However, the undisputed evidence shows that Huss himself was under the boat when it fell. Moreover, Huss himself testified that he was unable to state, based on his personal knowledge, how the boat came down. The entire context of Huss' testimony regarding hearing a "snap" is as follows:
Q: Do you have any knowledge of your own how it is that the boat came down?
A: I can, whatever that big word they use, or speculate or something, but, no, I don't.Q: Well, tell me what our speculation is.
A: I think when that line come up and they had the other one tied there, they had the hook there picking it up. Because if they would have had it in the eye, and the front come untied, the ass of the boat would have still been in the air. Or it would have swung to one way when the line come undone It wouldn't come straight down. I think it was just in the line and the bow either come untied or broke. I don't know. It didn't one or the other. I heard a snap. I don't know if it bowed or whether the tail when it come untied hit the side of the boat and snapped. I don't know.
Huss Dep. at 74. Clearly, "I don't know" and "I can . . . speculate" do not constitute evidence that the lines failed, at least not evidence sufficient to create a genuine issue of fact that they failed.
In support of his position that evidence exists showing that the lines failed, Huss also cites to pages 70 and 71 of the deposition testimony of Dan Miller, who, Huss argues, indicated that he remembered "the bow of the boat dropping first and snapping the stern line." Plaintiff's Memorandum in Support of Response at 6. However, a review of this testimony on which Huss relies indicates that Miller, like Huss, testified that he did not know what caused the boat to drop. Instead, Miller testified, he surmised that the bow line "slipped" from the bit — even though he did not see it slip — because the line did not break. Miller Dep. at 69-70. Miller's testimony does not support a finding that the line "snapped" or "failed," but rather merely that it "slipped" or came untied. Thus, even assuming that the condition of the lines or ropes was a factor pre-existing the charter, the evidence does not create a genuine issue indicating that they were defective or failed.
LMC, in addition to citing testimony of King's employees indicating that the lines did not appear to be in poor condition, has also provided the court with a copy of a report authored by Huss' liability "expert," Dr. Jiri E. Kresta. Dr. Kresta, who is identified on the report as a Research Professor at the University of Detroit Mercy's Polymer Institute, opines that there are "two basic possibilities why the boat fell from the hook": (1) "Structural failure of the rope (breakage)" and (2) "Rope slippage (from the hook, cicat, T-bits)." Based on the information provided to him, Dr. Kresta further opines that "it is highly unlikely that breakage of the ropes (lines) was a reason for the accident. It is likely that the rope was improperly tied to the work boat and slipped off resulting in the boat falling onto Mr. Huss." Defendant LMC's Brief in Support of Motion for Summary Judgment, Exhibit B.
Instead, the evidence indicates that they may not have been properly tied. And, of course, the undisputed evidence is that King and its employees were responsible for getting the boat into the water. The evidence also indicates that Huss and his co-workers could have safely accomplished this task using the equipment on hand — whether it be the lines apparently belonging to LMC or chains belonging to King (which the testimony shows Morehouse brought to the site) — had the boat been properly rigged.
Huss also argues that the boat was unseaworthy because it lacked a "picking harness," which the testimony showed was the "best" way to pick tip a boat. Assuming that a picking harness would have been a preferable means of lifting the boat, the testimony remains undisputed that Walsh indicated to King that he could not provide a means of getting the boat into the water; instead, that was King's responsibility. Therefore, any argument that the boat was unseaworthy because it was not accompanied by a picking harness is more properly asserted against King, not LMC.
Given the undisputed testimony that LMC chartered the work boat to King, which agreed to be responsible for its condition and navigation, and given the lack of evidence showing unseaworthiness which pre-existed the charter, the Court concludes that LMC is entitled to summary judgment in its favor on the claim of unseaworthiness.
NEGLIGENCE CLAIM
For similar reasons, the court also concludes that LMC is entitled to summary judgment in its favor on Huss' claim of negligence. As noted by the court in Rodriguez, 736 F.2d at 815 "liability for unseaworthiness, or negligence in maneuvering, turns upon who possessed control of the ship such that it could best be charged as the owner at the time the accident occurred." Here, the evidence clearly shows that King was in control of the ship for all intents and purposes at the time of the accident. Under the circumstances, if anyone is liable for negligence in the rigging of the boat, King is.
Huss also argues that LMC may also be held liable as a supplier of a dangerous chattel under the principle stated § 388 of the Restatement of Torts 2d. Under this principle, followed by Michigan courts,
2 Restatement Torts, 2d, § 388, pp. 300-301, concerning chattels known to be dangerous for their intended use, provides:
`One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.'Goldman v. Phantom Freight, Inc., 162 Mich. App. 472, 413 N.W.2d 433, 436 (1987). However, as noted above, the evidence does not support a finding that the ropes or lines provided with the boat rendered the boat dangerous; if anything, it was merely the manner in which King's employees performed their work which created a dangerous situation. In addition, Huss' argument fails to recognize other language in Goldman which distinguishes a bailment for gratuitous use from a bailment for the mutual benefit of both parties:
Further, where a bailment for mutual benefit is established, 8 Am.Jur.2d, Bailments, § 163, pp. 895-896, provides the general rule where a chattel is let for hire:
`While in bailments for gratuitous use the bailor is only liable for injuries due to his failure to disclose latent defects of which he was aware, it is otherwise where there is compensation for the use and the bailment is for the mutual benefit of both parties; in such a case his obligation is correspondingly enlarged. This distinction is fundamental and seems to be generally recognized.Id. Here, the uncontradicted evidence presented indicates that LMC did not charge King for the use of the boat, and that Walsh was not aware of the condition of the boat. Given the evidence, the court concludes that Huss has no claim based on negligence against LMC as a matter of law.
To the extent that Huss argues that the lack of a picking harness was a dangerous condition, even if one assumes that Huss is correct in this regard, this condition was not latent but rather readily observable, and therefore LMC had no duty to warn of it. Clearly, King's employees elected to proceed with the lifting operation despite the absence of the harness.
CONCLUSION
For the foregoing reasons, the court grants LMC's motion for summary judgment. Summary judgment is hereby entered in favor of LMC and against plaintiff Huss on all claims against this defendant, which is dismissed from this action.
So ordered this 31st day of January, 2000.