Opinion
File No. 1:01-CV-90
May 28, 2002
ORDER AND JUDGMENT AS TO LIABILITY ONLY
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Plaintiff's motion for summary judgment as to liability (Docket # 23) is GRANTED.
IT IS FURTHER ORDERED that JUDGMENT AS TO LIABILITY ONLY is entered against Defendant Pere Marquette Shipping.
OPINION
This action alleging Jones Act negligence and unseaworthiness is before the Court on Plaintiff's affirmative motion for summary judgment as to liability only. For the reasons that follow the Court will grant the motion.
I.
On October 16, 1998, Plaintiff Jim Klingenberg was employed by Defendant Pere Marquette Shipping as the lead operator aboard Defendant's cargo vessel, the Pere Marquette 41. The Pere Marquette 41 is an integrated tug/barge owned by Defendant Pere Marquette Shipping. The Pere Marquette 41 was used to haul gravel, stone, pig iron, synthetic gypsum and other cargo on the Great Lakes. (Klingenberg at 50). As lead operator, Plaintiff was responsible for the loading and unloading operations.
In 1998, the first year the ship was in operation, the loading and unloading was accomplished by use of two hydraulic excavators and a front-end loader. (Wiltse dep. at 14-15). In July 1999, in order to enter into the market of transporting smaller aggregate, Defendant had the excavator converted to a conveyor cat by the engineering firm of Edmondson Engineering, Inc. (Wiltse dep. at 15-16; 25). Along one side of the conveyor belt there was a catwalk to enable personnel to walk up the side of the boom. (Wiltse dep. at 27). When the conveyor was installed in July 1999, a person would have to climb on the frame of the conveyer system to getup onto the catwalk. (Wiltse dep. at 28). Captain Oldow and Plaintiff discussed the need for easier access to the catwalk. After obtaining permission from Edward Wiltse, executive vice-president of Pere Marquette Shipping, Captain Oldow had Tim Nys, a crew member who was an experienced welder, fabricate a platform adjacent to the operator compartment of the conveyer cat and a stairway to facilitate access to the catwalk. (Wiltse dep. at 28, 32; Oldow dep. at 44-47). The platform ran across the front of the cab and was between eight and twelve inches wide and two and a half feet across. (Oldow dep. at 56).
There is a question of fact as to whether or not Tim Nys was a certified welder. (Wiltse dep. at 32; Oldow dep. at 36, 69). However, that issue is not material to the resolution of this motion.
On October 15, 1999, Plaintiff was in the process of unloading stone at Mackinac Island when he observed sparks from the end of the conveyor. He was standing on the platform, preparing to go up the catwalk, when the platform collapsed. (Klingenberg dep. at 44-46). Plaintiff fell approximately six feet to the deck below and suffered injuries to his right foot. (Klingenberg dep. at 41).
II.
Plaintiff has filed an affirmative motion for summary judgment as to liability only. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If Plaintiff carries his burden of showing that there are no issues of fact and that it is entailed to judgment as a matter of law, then Defendant must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986).
On summary judgment, all reasonable inferences drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Hanover Ins. Co. v. American Engineering Co., 33 F.3d 727, 730 (6th Cir. 1994) (citing Matsushita, 475 U.S. at 586-88). Nevertheless, the mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient to create a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. See generally, Street v. J.C. Bradford Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).
III.
Plaintiff's complaint includes a negligence claim under the Jones Act, 46 U.S.C. § 688, and an unseaworthiness claim under admiralty law. These two claims are distinct and must be analyzed separately. "While the remedies available pursuant to a seaman's unseaworthiness cause of action are generally no broader than those available under the Jones Act, the causes of action themselves have different elements and must be analyzed separately." Szymanski v. Columbia Trans. Co., 154 F.3d 591, 595 (6th Cir. 1998). A claim under the Jones Act, 46 U.S.C. § 688, is based on a shipowner's negligence, while an unseaworthiness cause of action has no negligence element. Id. "[T]he Jones Act requires negligence, but has a relaxed standard of causation, while unseaworthiness claims rest on strict liability but require traditional proximate cause." Id. at 596. "[U]nseaworthiness is a condition, and how that condition came into being — where by negligence or otherwise — is quite irrelevant to the owner's liability for personal injures resulting from it." Perkins v. American Elec. Power Fuel Supply, Inc., 246 F.3d 593, 602 n. 6 (6th Cir. 2001) (quoting Ferrara v. A. V. Fishing, Inc., 99 F.3d 449, 453 (1st Cir. 1996)).
The admiralty doctrine of unseaworthiness imposes an absolute, nondelegable duty on a shipowner to provide a vessel and its equipment, appurtenances, and crew reasonably suited for their intended purpose. Cook v. American S.S. Co., 53 F.3d 733, 741 (6th Cir. 1995) (citing Usner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971)). "Under the seaworthiness doctrine, there is an absolute duty to maintain a seaworthy ship, the breach of which imposes liability without fault, i.e., strict liability." Perkins v. American Elec. Power Fuel Supply, Inc., 246 F.3d 593, 602 (6th Cir. 2001). "It is well-settled law that even a temporary or unforeseeable failure of a piece of vessel equipment under proper and expected use is sufficient to establish unseaworthiness provided that the unseaworthy condition was the proximate cause of the harm suffered by the plaintiff." Id.
"To prove an unseaworthiness claim, a plaintiff must show that the unseaworthy condition of the vessel was the substantial and direct or proximate cause of the plaintiff's injuries." Id. In response to an unseaworthiness claim a shipowner may not raise the defense of assumption of the risk, but may raise the defense of comparative negligence. Cook, 53 F.3d at 741 (citing Tolar v. Kinsman Marine Transit Co., 618 F.2d 1193 (6th Cir. 1980)).
An unseaworthiness claim generally calls for two inquiries: first, whether the condition of unseaworthiness existed, and second, what extent, if any, Plaintiff's own negligence contributed to the creation of that unseaworthy condition. Cook, 53 F.3d at 741.
In this case the first question must be answered in the affirmative. The evidence is uncontroverted that the Pere Marquette 41 was unseaworthy on the date of Plaintiff's injury because the platform failed to fulfill its intended purposes during ordinary use. (Wiltse dep. at 40; Oldow dep. at 37). The evidence is also unrefuted that as a proximate result of the Pere Marquette 41's unseaworthy condition James Klingenberg was injured.
In its response to Plaintiff's motion for summary judgment Defendant does not deny that the vessel was unseaworthy. The only issue raised by Defendant's response is whether the evidence is sufficient to raise a genuine issue of material fact as to Defendant's affirmative defense that Plaintiff's injuries and damages are the result of his own comparative negligence.
There is no evidence that Plaintiff was negligent for using the platform. There were sparks from the conveyor, and Plaintiff, as lead operator, needed to get up on the catwalk to check out the situation. The platform was the only convenient way to access the catwalk. (Wiltse dep. at 33-34; Klingenberg dep. at 48). There is also no evidence that Plaintiff was negligent in the manner in which he used the platform. Captain Oldow, the only witness to the incident, testified that Plaintiff "stepped around to that little platform, and . . . he never even got to getting his hands up to where he would be grabbing ahold of the cylinder to make his next step, he just fell. At that time the whole thing caved away and broke off in the front of the cab of the conveyor." (Oldow dep. at 33). Captain Oldow was aware of no conduct on the part of Plaintiff that caused the step to break away. (Oldow dep. at 33). Captain Oldow had no criticism of Plaintiff regarding his use of the platform. Nothing Plaintiff did contributed to this piece of equipment fading in the fashion that it did. (Oldow dep. at 35, 38).
There being no evidence that Plaintiff's use of the platform was negligent, Defendant instead rests its claim of comparative negligence on the contention that Plaintiff was injured as a result of his own failure to inspect, maintain, and repair the loading and unloading equipment for which Plaintiff, as lead operator, was solely responsible.
Defendant contends that this defense arises under the maritime "Primary Duty Rule" as articulated in Reinhart v. United States 457 F.2d 151, 154 (9th Cir. 1972). The Primary Duty Rule provides that a supervising seaman may not recover against his employer for negligence or unseaworthiness when there is no cause of the injuries other than the supervisor's breach of his consciously assumed duty to maintain safe conditions aboard the vessel. Walker v. Lykes Bros. S.S. Co., Inc., 193 F.2d 772 (2nd Cir. 1952). If a seaman's conduct falls under the Primary Duty Rule, that conduct is an absolute bar to recovery. Id. at 774.
As noted by the Seventh Circuit, such a total bar to recovery is not consistent with the Congressional intent embodied in the Jones Act or with modern case law. Kelley v. Sun Transp. Co., 900 F.2d 1027, 1031-32 (7th Cir. 1990). In the Sixth Circuit "[i]t is settled that contributory negligence is a valid defense in an action of this kind, though it results in an allocation of fault on a comparative basis rather than a bar to recovery." Tolar v. Kinsman Marine Transit Co., 618 F.2d 1193, 1195 (6th Cir. 1980).
Plaintiff has come forward with evidence that he was not responsible for maintaining the structural integrity of the equipment. The job description for the lead operator position provides that the lead operator is responsible for the handling and movement of the cargo in a safe and timely manner and is required to operate the machinery and to train others to operate the machinery. (Pl. Exh. 5). There is no mention in the job description regarding a duty to inspect, maintain and repair the equipment.
Captain Oldow testified that the safety of the crew was his responsibility. (Oldow dep. at 13). As lead operator Plaintiff was responsible for the day-to-day maintenance of the equipment so that it could be operable and anything that fell within that area of his expertise. (Oldow dep. at 16, 63-64). According to Captain Oldow, this meant that Plaintiff was responsible for the smaller things that would come up, such as changing the oil, keeping parts greased, and taking care of any belts. Larger problems would be phoned into the office to see what their decision would be. (Oldow dep. at 17). "Welding would not be his area of expertise." (Oldow dep. at 63-64). When there were structural problems, Tim Nys did the welding as needed. (Oldow dep. at 17-18).
In response, Defendant has come forward with evidence to suggest that inspection and maintenance of the equipment was within Plaintiff's sphere of responsibility. Captain Oldow testified that if Plaintiff noticed a problem that made a piece of equipment unsafe, it would have been his responsibility to tell the captain or to get the problem fixed. (Oldow dep. at 64). According to Charles Comstock, the relief lead operator, the lead operator was responsible for inspecting the equipment to determine whether or not there was something that needed to be welded or repaired. (Comstock dep. at 10). Edward Wiltse, who was the executive vice-president and part owner of Pere Marquette Shipping and also served as a relief captain on the Pere Marquette 41, (Wiltse dep. at 6, 8), testified that the lead operator was responsible for the maintenance and operation of equipment, and that it was the lead operator's responsibility to inspect the equipment to evaluate whether or not there were any structural problems with it. (Wiltse dep. at 42-43). Although Wiltse testified that the equipment was solely the lead operator's responsibility, he acknowledged that the whole ship is the captain's responsibility, and the captain is ultimately responsible for the safety and efficiency of the vessel and the crew. (Wiltse dep. at 6, 43).
Although the Court finds no evidence to support Defendant's contention that Plaintiff was "solely" responsible for the inspection and maintenance of the equipment, the Court is satisfied that there is a question of fact as whether Plaintiff's responsibilities as lead operator included responsibility for the inspection and maintenance of the equipment. Accordingly, viewing the facts in the light most favorable to Defendant, the party opposing the motion for summary judgment, the Court will assume, for purposes of this motion, that Plaintiff, as lead operator, was responsible for inspecting and maintaining the loading and unloading equipment. This does not mean, however, that if there was a failure in the equipment, that it was attributable to Plaintiff's negligence.
An inspection after the accident revealed that the platform fell because the welds for the braces holding the platform to the cab of the conveyor all broke. (Oldow dep. at 35). Captain Oldow testified that the "conveyor had so many vibration problems that we were fixing welds on that machine on a continuous basis." (Oldow dep. at 32, 64). Prior to the accident Captain (Oldow had advised management that the conveyor was vibrating so much that it was causing welds to fail on various points on the machine. (Oldow dep. at 73-74). Many of the braces had fractured. The bucket that was used to drop the cargo onto the belt was cracked everywhere, and had to be welded after every offload. (Oldow dep. at 73). However, the crew never knew where the next problem was going to show up until it happened. (Oldow dep. at 64). "[A]nytime you get vibration on a ship — this is just from experience — it'll pop welds, and you don't see it until it comes." (Oldow dep. at 75).
Captain Oldow testified that there was no indication that the vibrations were weakening or damaging the welds supporting the platform, that collapsed. (Oldow dep. at 74-75). After Nys fabricated the platform Captain Oldow tested it by stepping up on it and stepping out on the edge. (Oldow dep. at 49). He walked around on it to make sure it felt sturdy. (Oldow dep. at 50). "Did I look at each little weld? Well, no. You know, I mean, I wouldn't know what it was telling me anyway." (Oldow dep. at 49). "I'm not a professional welder, and I don't test strength of materials and things like that. There wasn't any indication that it was going to fail before it failed." (Oldow dep. at 52). Captain Oldow noted that neither he nor Klingenberg was a welding inspector, "and I don't think either Jim or I could be held responsible for what's done with it once we weld something up. I have no way of knowing whether that's going to be safe or not without taking it into a shop and having it torn apart by a big hydraulic machine." (Oldow dep. at 67). "I don't know anything about welding. I don't know anything about fabricating anything. I mean, I can — I can't tell you a good weld from a bad one, and I don't think anybody can without some pretty extensive knowledge, you know? This is the welder that the company supplied to us. So it was use him or don't do it at all." (Oldow dep. at 68). "[A]ll of us watched the machinery as closely as we possibly could. And . . . . we felt that . . . it was safe." (Oldow dep. at 68).
If, at any time before the accident Captain Oldow had felt that the platform was inadequate or unsafe, he had the power to order it corrected. (Oldow dep. at 50). However, Captain Oldow was not aware of any problems with the step between the time it was repaired by Nys in August and the time of the accident. (Oldow dep. at 31). In fact, just prior to the accident Captain Oldow had gone up the conveyor belt to check on the head roller. He had stepped on the platform on his way up to the catwalk and again on his return. (Oldow dep. at 58). He did not notice anything unstable about the platform. (Oldow dep. at 56) If he had felt that it was unsafe he would have done something about it, but he did not feel that it was unsafe. (Oldow dep. at 58). There was nothing about the platform that indicated to him that it was loose or broken. (Oldow dep. at 30). Captain Oldow never felt the need to tell anybody at the office that the platform needed to be repaired.
The walkway had never come loose before. (Klingenberg dep. at 46-47). Plaintiff testified that the walkway did not feel loose or flexible or move at all prior to the accident. (Klingenberg dep. at 47). Comstock, who filled in occasionally for Plaintiff as lead operator, testified that he never observed a structural problem with the catwalk on the conveyor. (Comstock dep. at 19).
Defendant has come forward with no evidence to suggest that Plaintiff failed to perform an adequate inspection, or that an inspection would have alerted him to the danger.
Because the evidence is unrefuted that the vessel was unseaworthy and because there is no evidence of negligence on the part of Plaintiff, Plaintiff is entitled to summary judgment on his unseaworthiness claim.
IV.
Although a claim of unseaworthiness is distinct from a claim under the Jones Act, the remedies available under the two doctrines are identical. Szymanski, 154 F.3d at 595. Accordingly, in light of this Court's determination that Plaintiff is entitled to a judgment of liability against Defendant for his unseaworthiness claim, it is unnecessary for this Court to make a separate finding on Plaintiff's alternative cause of action under the Jones Act. Nevertheless, the Court is satisfied that liability must also be found under the Jones Act.
The Jones Act, 46 U.S.C. § 688, allows seamen to sue their employers for negligence resulting in injuries and grants seamen all the benefits of suits brought under the Federal Employers Liability Act, 45 U.S.C. § 51, et seq. In an action under the Jones Act, a plaintiff's negligence is not a complete bar, but rather reduces his damages as comparative fault.
Cook, 53 F.3d at 740. Because the Jones Act is remedial legislation enacted for the benefit and protection of seamen, it has been liberally construed to attain that end. Perkins, 246 F.3d at 598.
[I]n suits under the Jones Act, the court must determine whether the evidence justifies the conclusion that the employer was negligent and that the employer's negligence played any part, however slight, in producing the injury to the seaman.
Perkins, 246 F.3d at 598 (emphasis added). "In essence, there is a reduced standard for causation between the employer's negligence and the employee's injury." Perkins, 246 F.3d at 598.
In this case there is unrefuted evidence that the employer was negligent to equipping the Pere Marquette 41 with a conveyor cat loading and unloading system that was not adequately constructed or maintained. The equipment was subject to excessive vibrations that caused welds to crack and fail without prior notice.
Defendant was on notice of those defects but failed to correct them. As noted in the unseaworthiness discussion above, the evidence is also unrefuted that as a result of Defendant's negligence Plaintiff was injured and his injuries were not the result of his own negligence.
Accordingly, this Court finds that Plaintiff is entitled to summary judgment as to liability only, both on his unseaworthiness claim and on his Jones Act claim.
An order and partial judgment consistent with this opinion will be entered.