The opinion of the court was delivered by: SWEET
The history of the pleadings and claims of the plaintiff, widow of the deceased seaman, first assistant engineer of the Mobil Chicago, is as follows. The plaintiff sued Mobil Oil Corporation, owner of Mobil Chicago, pursuant to the Jones Act and in admiralty. Mobil then impleaded the dock, Perth Amboy Dock Co., asserting admiralty jurisdiction based upon a maritime contract. Perth then impleaded Interstate Industrial Protection Co. Inc., its security guard service, seeking indemnity for any liability it had to Mobil. At the close of discovery, Mobil made a motion to amend the complaint to allege an admiralty claim against Perth Amboy and Interstate on behalf of the plaintiff pursuant to Rule 14(c) of the Federal Rules of Civil Procedure. Such motion was joined in by the plaintiff in the pre-trial order and was granted by this Court on the eve of trial.
The plaintiff's evidence, in the light most favorable to the plaintiff, has established that Mr. Quam, plaintiff's husband, was employed by Mobil on the ship; that the ship was at the Perth Amboy dockyard on May 3, 1976; that on that date Quam went ashore and made two phone calls to his wife, one at 5:50 p.m. and a second at approximately 7:30 p.m.; that he told his wife he was returning to the ship; that his body was found the following day in the water some distance from the location of the dock where his ship was moored; and that his wrist watch and wallet were found in his room on board the vessel. Mrs. Quam testified that her husband customarily wore his watch even at work. The plaintiff also introduced photographs of the pier taken approximately a year and five months after the accident, as well as testimony by the yard supervisor of defendant Perth Amboy that the conditions a year ago were similar to those in 1976. Based on those photographs and his September 1977 visit, plaintiff's expert testified as to certain unsafe conditions on the pier, and the crane barge situated in the water, to which Mobil Chicago was moored at the time of the accident. There was testimony that access to the ship consisted of a gangway from the pier to the crane barge which was the dock's property and from the crane barge to the ship.
Motions to dismiss have been made on behalf of all the defendants. I will treat each claim against each defendant separately.
Plaintiff's claim against Interstate
Plaintiff's evidence makes no reference whatsoever to Interstate. Plaintiff has failed to establish any duty on the part of Interstate vis-a-vis the plaintiff or the breach of any duty to the plaintiff. Therefore, plaintiff's admiralty claim directed against Interstate must be dismissed.
Plaintiff's claim against Perth Amboy
Plaintiff by the amended complaint has a claim in admiralty against Perth Amboy. Perth Amboy is the owner of both the dock and the crane barge. The claim differs depending upon the place where the alleged accident occurred.
The dock: There is no cause of action in admiralty with respect to any accident alleged to have occurred on the dock, since any injury resulting from the condition of the dock is deemed to have occurred on land, and in that I rely upon Wiper v. Great Lakes Engineering, 1965 AMC 2509, 340 F.2d 727 (6 Cir., 1965), cert. den. 382 U.S. 812, 86 S. Ct. 28, 15 L. Ed. 2d 60, which counsel have cited. Therefore, the admiralty claim by the plaintiff against Perth Amboy with respect to the dock must be dismissed.
However, on my own motion I will conform the pleadings to the evidence pursuant to Rule 15(b) of the Federal Rules of Civil Procedure. Therefore, as to the dock, plaintiff has sufficiently alleged a common law negligence action, based upon state law, against Perth Amboy. Under the principles of the pendent jurisdiction this action is within the jurisdictional province of this court. Such cause of action is treated in all respects as if it had been raised in the pleadings; therefore it is considered to relate back to the original claim against Perth Amboy. However, the original claim against Perth Amboy by the plaintiff was not made until June 26, 1978, upon motion of defendant Mobil Oil to amend the complaint. It is the opinion of this Court that, pursuant to Rule 15(c) of the Federal Rules of Civil Procedure, the amended complaint related back to the original pleadings in this action. Therefore, the common law negligence claim also relates back to the original pleadings and is not time-barred by the statute of limitations, as urged by Perth Amboy.
The barge: Plaintiff has a claim in admiralty against Perth Amboy for any accident alleged to have occurred on the crane barge or its gangplanks. This negligence claim is in admiralty, since the barge and the gangplanks were in or floating on navigable water.
Although plaintiff has these claims against Perth Amboy, for the reasons set forth below, both must be dismissed from this action.
The plaintiff has the burden of proving her case. From the facts considered in the light most favorable to the plaintiff, there is sufficient evidence for the jury to conclude that Perth Amboy was negligent. However, assuming for the purpose of this motion that negligent conditions existed, there is no evidence upon which the jury could conclude that such negligence was the proximate cause of the injury.
Mr. Quam's body was not found where the plaintiff alleges the accident occurred. Mrs. Quam testified that during her telephone conversation with Mr. Quam he stated he was returning to the ship. There is no direct evidence that Mr. Quam actually did return to the ship. Even assuming he did head back to the ship, there is no evidence that Mr. Quam fell from Perth Amboy's docks, gangplanks, or crane barge. There is no evidence before this Court, other than that with respect to Mr. Quam's watch and wallet, with which I will deal in a moment, that Mr. Quam even made it as far as Perth Amboy's dockyard at the pier.
Furthermore, if there was sufficient evidence for the jury to conclude that Mr. Quam fell from the dock, gangplank or barge, plaintiff has made no showing that any act or omission of Perth Amboy played a substantial part in bringing about the fall. The mere fact that these places were in a dangerous condition is ...