The opinion of the court was delivered by: KNIGHT
This is a motion, under Rule 56 of Rules of Civil Procedure of the District Courts of the United States, 28 U.S.C.A.following section 723c, made by defendant, Pittsburgh Steamship Company, to dismiss the second cause of action of plaintiff's amended complaint.
In this cause of action plaintiff alleges that this defendant, a West Virginia corporation, was and is the owner and operator of the merchant steam vessel William J. Filbert, which, at time of accident, was moored adjacent to the codefendant's steamer United States Gypsum in a harbor in Ecorse, Michigan; that, on March 26, 1944, while plaintiff's intestate, a steward and member of the crew employed by the codefendant on said vessel Gypsum, and an 'invitee' of this defendant, was lawfully using a gangplank erected between said two vessels, he was caused to fall therefrom and sustain injuries from which he died; that said fatal accident was caused without any fault of the intestate but was caused by the negligence of this defendant 'in failing to provide a safe and sufficient passageway; causing or permitting said passageways to become highly dangerous; failing to provide safe and sufficient safeguards; maintaining and operating said vessel Filbert in an unsafe and unseaworthy manner with unsafe and unseaworthy equipment and these and other acts both negligent and in violation of the rules and customs of navigation.' Par. Ninth.
Plaintiff further alleges:
'Eleventh: This second cause of action is brought under the laws of the State of Michigan governing death by tortious act, more particularly, Number 297 of the Public Acts of 1939 of the State of Michigan.'
After general denial and setting up as separate defenses, the intestate's 'negligent acts' and 'willful misconduct' (Par. XII) and his assumption of risks (Par. XIII), the moving defendant for a further separate and complete defense alleges that, on March 26, 1944, and prior thereto, its steamer William B. Dickson, without cargo, was lying starboard side to the north side of the large slip, heading in at the shipyard of the Great Lakes Engineering Works at Ecorse, Michigan; that, on same date and prior thereto, it said steamer Filbert, without cargo, was lying starboard side to port or outboard side of said steamer Dickson, also heading into said slip, the Dickson and Filbert being abreast of each other, that, on same date and prior thereto, said steamer Gypsum, a self-unloading vessel owned and operated by codefendant, was lying port side to port side of said steamer Filbert, heading out of said slip, 'also without cargo but in water ballast so that the level of her spar deck was several feed below the level of the spar decks of the Steamers Filbert and Dickson' (Par XIV); that said vessels had been and were lying at shipyard for winter repairs by said Engineering Works as per contract; that, in connection with such repairs, 'the said shipyard had certain lumber and other materials owned by (it) and rigged a wooden gangplank therefrom between the deck of the Steamer Filbert and the Steamer United States Gypsum and another gangplank between the deck of the Steamer Dickson and the deck of the Steamer Filbert, access to the Steamer Dickson being over a ramp on the dock, also owned by the shipyard; that said ramp and gangplanks were rigged to afford ingress and egress to employees of the shipyard in going to and from the vessels for the purpose of making winter repairs; that there was no connection between the repair work going on on board the Steamer United States Gypsum, owned by (codefendant), and the repair work going on on board the Steamer Dickson and Filbert, or either of them, owned and operated by (this moving defendant).' Par. XV.
It is further alleged (Par. XVI) that codefendant's employees, including intestate, were employed on the Steamer Gypsum and used the means provided by the shipyard in going to and from it across the decks of the Steamer Filbert and Dickson to the dock.
It is then alleged (Par XVII) that neither codefendant nor intestate was 'an agent, servant, employee or invitee' of this defendant; that intestate was, at most, 'a gratuitous licensee' to whom this defendant 'did not owe the duty of ordinary care in furnishing a means of ingress and egress' to the said Steamer Gypsum across the decks of the Steamers Dickson and Filbert; that it 'owed no duty to plaintiff's intestate except to refrain from willful and wanton acts, which might proximately cause or contribute to (his) death.'
The motion for summary judgment by the defendant Pittsburgh Steamship Company, based on the pleadings and two affidavits, is made on the grounds: (1) That this court lacks jurisdiction over the subject of plaintiff's claim against said defendant; (2) that plaintiff has failed to state a claim or cause of action against it.
Rule 56 provides: '(c) The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'
It is said in Engl v. AEtna Life Ins. Co., 2 Cir., 139 F.2d 469, 472, that 'the history of the development of this (summary-judgment) procedure shows that it is intended to permit 'a party to pierce the allegations of fact in the pleadings and to obtain relief by summary judgment where facts set forth in detail in affidavits, depositions, and admissions on file show that there are no genuine issues of fact to be tried.' 3 Moore's Federal Practice 3175.'
Annexed to the notice of motion are the following two supporting affidavits:
James Brock Stewart, this defendant's assistant superintendent of construction, in his affidavit verified March 22, 1946, alleges the relative position of the three vessels Dickson, Filbert and Gypsum, as it is alleged in Paragraph XIV of this defendant's separate and complete defense. He then alleges: 'That access to and from said vessels when they were lying alongside of each other in the slip referred to was afforded by a ramp from the dock of the Great Lakes Engineering Works leading up to the deck of the Steamer Dickson, then a wooden gangplank from (its) deck * * * to the deck of the Steamer Filbert and another wooden gangplank from (its) deck * * * to the deck of the Steamer * * * Gypsum; said ramp and gangplanks being owned by the said Great Lakes Engineering Works. Said gangplanks * * * were rigged and installed by the direct employees of the (latter) for the use of (its) employees * * * in going to and from the shipyard on board the vessels referred to for * * * making repairs. That several times during the progress of the work on board said vessels as Assistant Superintendent of construction in the employ of (this defendant * * * (deponent) was in and around the shipyard and said Steamers Filbert and Dickson and there was no connection whatever between the repair work going on on board (those) Steamers * * * owned by (this) defendant * * * and the repair work going on on board the Steamer * * * Gypsum, owned by the (codefendant). That employees of (codefendant), including * * * plaintiff's intestate * * * had nothing whatever to do with any of the winter repair work or fitting out operations going on on board the said Steamers Filbert and Dickson and * * * when he would go ashore and return aboard and cross the decks of (said) Steamer * * * it was in connection with his own personal business or in behalf of his employer (codefendant), and not in connection with any matter, cause of thing having to do with (said) Steamer * * * or (this) defendant * * * .'
Harry Starkweather, a ship carpenter and foreman employed by Great Lakes Engineering Works at its shipyard at Escore, Michigan, on March 26, 1944, in his affidavit verified February 22, 1946, after describing the position of the three vessels and the gangplanks as in the preceding affidavit, alleges: 'Said gangplanks between the decks of the Steamers Dickson and Filbert and between the decks of the Filbert and * * * Gypsum were rigged and installed by the direct employees of the Great Lakes Engineering Works under the supervision of deponent for the use of employees of the said * * * Engineering Works in going to and from the shipyard on board the vessels referred to for the purpose of making winter repairs; that as far as (both defendants) were concerned, there was no connection whatever between repair work being done by the Great Lakes Engineering Works going on on board the Steamers Filbert and Dickson and the repair work going on on board the Steamer * * * Gypsum; that the Steamer * * * Gypsum after fitting out in the spring of 1944 and when she was ready to depart on or about the 1st day of April, 1944 * * * those on board constituting members of her crew dismantled the gangplank from the deck of the Filbert to the deck of the * * * Gypsum, whereupon the planking, handrails, etc., were placed on the deck of the Steamer Filbert.'
Rule 56(e) * * * provides, inter alia, as follows: 'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.' The rule requires that affidavits in support of a motion for summary judgment must contain evidence which would be admissible as testimony at trial.' Dickheiser v. Pennsylvania R. Co., D.C., 5 F.R.D. 5, 9.
Under this test, the two affidavits are admissible. The complaint alleges: 'Eighth: That * * * on or about the 26th day of March, 1944, while the plaintiff's intestate, an invitee of the defendant, Pittsburgh Steamship Company, was lawfully using a gangplank erected between the vessel 'Filbert' and 'Gypsum,' he was caused to fall therefrom causing the injuries from which he died.' From the moving defendant's answer and the two affidavits it clearly appears that the Steamer Sypsum, owned and operated by intestate's employer and on which he 'was employed as a steward and member of the crew' (Par Second), was the outmost of three vessels lying alongside each other in a 'large slip' for winter repairs to be made by the Great Lakes Engineering Works; that the gangplank from which intestate fell was owned by the latter and was rigged and installed by the latter's employees for their use in going to and from the shipyards for the purpose of making the said repairs; that the repair work on the Filbert, owned by this defendant, was wholly independent of the repair work on the adjacent Gypsum, owned and operated by the intestate's employer.
Assistant Superintendent Stewart, in his said affidavit, alleges: 'That the Steamer Filbert arrived at said shipyard on or about the 9th day of December, 1943; was placed in drydock * * * on or about December 24, 1943, and was removed (therefrom) and placed in the large slip on the outboard side of the Steamer Dickson, also without cargo, on or about the 5th day of January, 1944. During her stay at the ...