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September 1, 1981

In the Matter of Peter J. FEEHAN, as Personal Representative of the Estate and Beneficiaries of Walter J. Minchick, Deceased, Plaintiff,
UNITED STATES LINES, INC., The United States of America, Hyster Company d/b/a Hyster Company, Inc., and Nacirema Operating Co., Inc., Defendants

The opinion of the court was delivered by: STEWART


Plaintiff brought suit for the wrongful death of a merchant seaman against decedent's employer, United States Lines, Inc. ("Lines"), the dock owner ("United States") and against the manufacturer and operator of the "straddle carrier" that allegedly struck and killed the decedent. Plaintiff's amended complaint based jurisdiction over Lines on the Jones Act, 46 U.S.C. § 688 (1976), and jurisdiction over United States on 28 U.S.C. § 1345 (1976), and jurisdiction over both the manufacturer of the straddle carrier, Hyster Company, Inc. ("Hyster"), and the operator of the machine, Nacirema Operating Co., Inc. ("Nacirema"), on 28 U.S.C. § 1332 (1976).


 Hyster previously moved to dismiss the amended complaint on the basis of the statute of limitations. In response to Hyster's motion, plaintiff sought to change tacks, without amending the complaint, and rely on the Admiralty Extension Act, 46 U.S.C. § 740 (1976), instead of diversity of citizenship over Hyster and Nacirema. By Memorandum Decision dated December 18, 1980, we held that § 740 did not apply as the accident was not "caused by the vessel." Plaintiff now moves for reconsideration of our prior decision. Changing tacks for the second time, plaintiff contends that the Admiralty Extension Act applies as against Hyster because the shipowner, Lines, allegedly breached the implied warranty of seaworthiness owed to the decedent. Plaintiff argues that the breach of the implied warranty of seaworthiness makes the accident one "caused by the vessel" within the meaning of § 740 and permits admiralty jurisdiction over Hyster. *fn1"

 The threshold question is whether injury to a seaman on a dock during loading operations by pier-based equipment states a claim for unseaworthiness against Lines. This case requires us to reconcile Gutierrez v. Waterman, 373 U.S. 206, 215, 83 S. Ct. 1185, 1191, 10 L. Ed. 2d 297 (1963), holding that a longshoreman injured on the dock during unloading operations by defective cargo containers may maintain an unseaworthiness claim against the shipowner, and Victory Carriers v. Law, 404 U.S. 202, 213-14, 92 S. Ct. 418, 426, 30 L. Ed. 2d 383 (1971), holding that a longshoreman injured on the dock during loading operations by the stevedore's defective forklift truck may not maintain such an action against the shipowner. The significant factual distinction between Gutierrez and Victory Carriers is the control or origin of the instrumentality of injury. *fn2" In Gutierrez, the shipowner was under a duty to make the cargo containers safe, while in Victory Carriers the stevedore and not the shipowner was required to make the fork lift safe. Compare Victory Carriers, 404 U.S. at 213-14, 92 S. Ct. at 418, with Gutierrez, 373 U.S. at 210-11, 83 S. Ct. at 1188. The Victory Carriers court concluded:


In the present case ... the typical elements of a maritime cause of action are particularly attenuated: respondent Law was not injured by equipment that was part of the ship's usual gear or that was stored on board, the equipment that injured him was in no way attached to the ship, the forklift was not under the control of the ship or its crew, and the accident did not occur aboard ship or on the gangplank.

 Victory Carriers, 404 U.S. at 213-14, 92 S. Ct. at 426. The Court sanctioned the apparent inequitable result as between longshoremen injured by land-based or ship-based equipment. Id. at 213, 92 S. Ct. at 425. Although a logical limit to admiralty jurisdiction might be drawn by the relation of an event to maritime commerce, see, e.g., 7A Moore's Federal Practice, P .325(5) (1979), the Supreme Court has not entirely abandoned the historical distinctions of locality and causation, for fear of unduly expanding the legislative basis of admiralty jurisdiction or subverting state law. See Victory Carriers, 404 U.S. at 211-12, 92 S. Ct. at 424-25.

 In the course of its decision in Victory Carriers, the Court necessarily overruled that part of the decision in Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303 (9th Cir. 1970), that upheld an unseaworthiness claim against the shipowner by a longshoreman injured on the dock during loading operations by a pier-based straddle carrier. Port Administration v. S.S. American Legend, 453 F. Supp. 584, 589 (D.Md.1978). The emphasis in Gebhard was on the fitness of the straddle carrier; it was alleged that "neither the pier nor the straddle carrier had lights, that the carriers were so designed as to block the driver's view of pedestrians, and that the lack of these safety precautions was the proximate cause of plaintiff's injury." Gebhard, 425 F.2d at 1305. Similarly, the three claims against Hyster in the amended complaint all relate to defective manufacture and design of the straddle carrier. Thus, Victory Carriers apparently forecloses the question whether an unseaworthiness claim of the sort accepted in Gebhard is properly asserted in this action.

 Alternatively, plaintiff appears to suggest that the method of unloading and not the condition of the straddle carrier is the basis of his unseaworthiness claim against Lines and, derivatively, of the claim against Hyster. To state a claim for unseaworthiness, sufficient facts must be pleaded to raise a question concerning an unsafe condition of the ship, its appurtenances, its cargo or its crew. See Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 500, 91 S. Ct. 514, 518, 27 L. Ed. 2d 562 (1971); Edynak v. Atlantic Shipping, Inc., 562 F.2d 215, 224 (3d Cir. 1977), cert. denied 434 U.S. 1034, 98 S. Ct. 767, 54 L. Ed. 2d 781 (1978). The amended complaint does not plead any facts in support of the unseaworthiness claim. There is no allegation that Lines engaged in "a congeries of negligent acts that are of such a character or that continue for such a length of time that they become related to the status of the vessel." See id. at 224 (quoting Robinson v. Showa Kaiun K.K., 451 F.2d 688, 690 (5th Cir. 1971)). The amended complaint merely recites the term "unseaworthiness."

 If it were alleged in the complaint that an unsafe method of unloading adopted by Lines caused plaintiff's injuries, the Admiralty Extension Act requirement that an injury on land be "caused by a vessel" would be satisfied as to Lines. There would still remain the question whether § 740 encompasses negligence or products liability claims against Hyster. See Garrett v. Gutzeit O/Y, 491 F.2d 228, 231 (4th Cir. 1974) ("(T)he scope of admiralty jurisdiction is not always equal to the breadth of the seaworthiness warranty.") Plaintiff would have us extend admiralty jurisdiction to Hyster by broadly interpreting § 740 to include "all claims arising out of a vessel-caused injury, regardless of the parties sought to be charged." Gebhard, 425 F.2d at 1307; see Maryland Port Administration v. S.S. American Legend, 453 F. Supp. at 589. This interpretation is based on the language of § 740, which extends admiralty jurisdiction to "all cases" of injury caused by a vessel whether the injury is "done or consummated" on land or navigable water, and upon judicial economy. Gebhard, 425 F.2d at 1307. This principle has only been applied to obtain jurisdiction over a stevedoring company, see, e.g., id.; Maryland Port Administration v. S.S. American Legend, 453 F. Supp. at 589; a pier owner, see Hovland v. Fearnley & Eger, 110 F. Supp. 657, 658 (E.D.Pa.1952); and a harbor pilot, see Fematt v. Nedlloyd Line, 191 F. Supp. 907, 909 (S.D.Cal.1961). It has not, to our knowledge, been applied to obtain jurisdiction over the manufacturer of pier-based equipment. Even assuming that the vessel caused plaintiff's injury because supervision of the loading procedures did not adequately safeguard decedent, there is no contention that the manufacturer of the "straddle carrier" caused or even contributed to the inadequate supervision or procedures. The manufacturer did not participate in the activities that gave rise to the admiralty claim. The claim against Hyster does not arise out of the condition that might render the injury vessel-caused. See Heim v. City of New York, 442 F. Supp. 35, 37 (E.D.N.Y.1977) (An injury on land was "the result of a classic non-maritime tort ... (and) the role of the vessel in the chain of events is marginal at best.") Hyster may have an independent duty enforceable in a tort action. Such an action may be joined with an admiralty claim in an appropriate case, but it is not an admiralty claim.

 The peculiar procedures and remedies available in admiralty, fashioned especially for the maritime industry, see 7A Moore's Federal Practice, P .325(5) (1979), should not lightly be extended to disturb the traditional application of state law to non-maritime relationships. See Victory Carriers, 404 U.S. at 212-16, 92 S. Ct. at 425-27; Heim v. City of New York, 442 F. Supp. at 37. Nor should we extend maritime jurisdiction merely to shift the obligation of seaworthiness from the shipowner to the manufacturer of tools and equipment used by the shipowner. *fn3" See Pryor v. American President Lines, 520 F.2d 974, 982 (4th Cir. 1975), cert. denied, 423 U.S. 1055, 96 S. Ct. 787, 46 L. Ed. 2d 644 (1976); but see Gebhard, 425 F.2d at 1312.

 Thus, upon reconsideration of our prior decision, we conclude that plaintiff's unseaworthiness claim does not provide a basis for admiralty jurisdiction over Hyster. We abide by our prior decision dismissing the complaint as to Hyster for failure to satisfy the statute of limitations.


 After witnessing Hyster's successful assertion of a statute of limitation defense to plaintiff's claim, Nacirema filed a motion to dismiss plaintiff's claim under Fed.R.Civ.P. 12(b)(6). Nacirema did not assert the statute of limitations as an affirmative defense in its original answer or in its answer to the amended complaint, although Hyster had done so. Rather, Nacirema raised the defense of laches which generally governs the timeliness of admiralty claims. The statute of limitations defense was asserted by Nacirema in a pleading served on January 14, 1981. At no time did Nacirema seek leave of court to amend its answer, as required by Fed.R.Civ.P. 15(a). Accordingly, we construe Nacirema's present motion as seeking leave to amend its answer and as seeking to dismiss plaintiff's complaint.

 Leave to amend a pleading "shall be freely granted when justice so requires." Fed.R.Civ.P. 15(a); See Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). Plaintiff opposes the motion to amend on the ground that Nacirema's delay in asserting the statute of limitations defense prejudiced plaintiff's ability to bring suit in a forum where this action would not be barred. Nacirema was brought into the action on March 4, 1980. According to plaintiff's calculations, that was some seven months before the longest applicable statute of limitations in another forum would run out. Plaintiff was aware that the statute of limitations was in issue in this case, at least as to Hyster, within the time period during which it could have brought suit in another forum. There is no contention that plaintiff attempted or even considered such a protective measure, even as to Hyster. Also, there is no claim that Nacirema deliberately delayed in asserting the statute of limitations defense. The amendment was sought less than one year after the commencement of suit against Nacirema and approximately seven months after the answer to the second amended complaint. We therefore conclude that Nacirema should be granted leave to amend its answer to assert the statute of limitations as a defense.

 Having amended its answer, Nacirema seeks the same relief as Hyster. Part I of this decision, as well as our previous decision dismissing the complaint as against Hyster, reasons that: (1) allegations of unfitness of pier-based equipment owned, controlled and operated by someone other than the shipowner which causes injury on land do not state an unseaworthiness claim against the shipowner; (2) factual allegation of an improper method of unloading may state a claim for unseaworthiness against the shipowner for an injury arising out of the operation of pier-based equipment; and (3) an unseaworthiness claim against the shipowner does not provide admiralty jurisdiction over all claims or all parties to a case, unless the parties participated in the acts that form the basis of the unseaworthiness claim. We hold that the amended complaint failed to state the necessary factual allegations of improper unloading. Even assuming that the allegations were proper, we hold that Hyster did not in any way contribute to the inadequate procedures that form the basis of the unseaworthiness claim.

 Plaintiff's failure to plead facts sufficient to support a claim of unseaworthiness against Lines precludes jurisdiction under § 740 against Nacirema. If plaintiff can remedy the shortcoming in its amended complaint, there is a basis for asserting jurisdiction over Nacirema pursuant to § 740. The amended complaint states that Nacirema "failed ... to perform its work at Pier 4, Navy Terminal, Norfolk, Virginia, in a reasonably safe, careful, proper, prudent and workmanlike manner." The amended complaint also alleges that Nacirema "signaled and directed" the straddle carrier "at the time of the activity alleged herein." Thus, the primary defect in plaintiff's allegations against Hyster is alleviated by its allegations against Nacirema. The acts of Nacirema are related to the unloading procedures that form the basis of plaintiff's unseaworthiness claim against Lines. Accordingly, the Admiralty Extension Act would apply to Nacirema.


 Plaintiff's motion to reconsider our prior decision dismissing the complaint against Hyster is granted, and upon reconsideration our prior opinion is affirmed. We grant plaintiff leave to amend the complaint within fifteen days of the date of this decision to assert a factual basis for the unseaworthiness claim against Lines and to repair the jurisdictional allegations. We reserve decision on Nacirema's motion to dismiss until we consider the allegations of the amended complaint.


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