The opinion of the court was delivered by: TENNEY
This is a personal injury action arising out of an alleged accident which occurred aboard the "S. S. TADDEI VILLAGE" on August 19, 1963. The complaint alleges negligence under the Jones Act (46 U.S.C. § 688) and the unseaworthiness of the vessel under the General Maritime Law.
The case was tried before the Court as trier of fact and law. At the behest of both parties the first and only issue tried and to be decided at this juncture is whether the "S. S. TADDEI VILLAGE" was at the time of the alleged accident a vessel in navigation.
Plaintiff is a resident and citizen of the State of New York, and while defendant is a corporation organized and existing by virtue of the Laws of Delaware, its principal place of business is 19 Rector Street, New York City. Accordingly, there is no diversity of citizenship between the parties. (See 28 U.S.C. § 1332(c) (Supp.1965)).
Counsel have agreed that if no diversity jurisdiction exists, the case be transferred to the admiralty side of the Court and a determination be made whether the vessel, at the time of the accident, warranted its seaworthiness, and/or whether Lupo (now libelant) would be entitled to the benefits of the Jones Act.
In approaching a consideration of the issues presented, it must be borne in mind that in order for Lupo to be in a position to assert the causes of action he asserts herein, there must be a concurrence of at least two factors: (1) a vessel in navigation, and (2) a seaman in being. (Kissinger v. United States, 176 F. Supp. 828, 832 (E.D.N.Y.1959)). This is a prerequisite both under the unseaworthiness claim as well as the Jones Act cause of action, (Roper v. United States, 368 U.S. 20, 23-24, 82 S. Ct. 5, 7 L. Ed. 2d 1 (1961)), and if there be no vessel in navigation the claims must fail, irrespective of what type of work the injured party was doing.
As trier of fact on the issue of whether the vessel was in navigation, based on the documentary evidence and testimony presented before me, I find the facts to be as follows:
1) The "S. S. TADDEI VILLAGE" (hereinafter referred to as "TADDEI" or "vessel") was purchased by Consolidated Mariners, Inc. (hereinafter referred to as "defendant"), at a United States Marshal's sale held pursuant to the order of the United States District Court for the Eastern District of New York on July 30, 1963.
2) The TADDEI was an American flag C-2 dry cargo vessel, formerly named the "S. S. EMELIA". She was owned and operated by the A. H. Bull Steamship Company until that company went bankrupt.
3) At the time of purchase the vessel was and had been moored for six months (since December 1962) at Pier 3, Erie Basin, foot of Columbia Street, Brooklyn, New York. For that period of time she was without any crew in an unmanned status, except for some security personnel tending heating devices and refrigeration units.
4) Defendant took possession of the vessel on August 1, 1963. She was then towed without steam and power by tug to Todd Shipyards, Brooklyn, New York.
5) Before the vessel was purchased by defendant the Certificate of Inspection of the vessel (at the time still the "S. S. EMELIA") had been revoked by the United States Coast Guard on July 9, 1963. The revocation was based on the need for boiler repairs.
6) A provisional Coast Guard Certificate of Inspection permitting the vessel to proceed to Baltimore for completion of boiler repairs, but without cargo, and passengers, was not issued until September 3, 1963* after the repairs hereinafter set forth had been made at Todd Shipyards.
7) It was not until September 5, 1963 that the Coast Guard Certificate of Inspection was returned to the vessel at ...