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CLARK v. SOLOMON NAVIGATION

March 31, 1986

ELLIS LEROY CLARK and JEAN C. CLARK, Plaintiffs,
v.
SOLOMON NAVIGATION, LTD., and MV OCEANUS CAMPAIGNER, her Engines, Tackle and Appurtenances, etc., Defendants



The opinion of the court was delivered by: MOTLEY

MOTLEY, Ch. J.

 Plaintiff Ellis Leroy Clark, an independent river pilot on the Columbia River near Portland, Oregon, has brought this action for injuries sustained while disembarking from the M/V Oceanus Campaigner onto a barge floating alongside. Plaintiff claims that his injuries were caused by a defectively arranged Jacob's or pilot's ladder which unfurled suddenly, throwing him onto the deck of the tug some fifteen feet below. Plaintiff sets forth causes of action sounding in negligence and in the general maritime law of seaworthiness.

 Prior to trial, at a conference before the court, it became clear that a key legal dispute still remained in this case. This is whether plaintiff was in fact a person to whom the general maritime duty of seaworthiness was owed. Defendant argued essentially that because of plaintiff's status as a non-employee of the vessel, and because of his putative coverage by the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), Clark is not entitled to assert a cause of action for unseaworthiness. Plaintiff, however, countered that the LHWCA, along with its removal of the traditional unseaworthiness claim from covered employees, does not apply to river pilots such as Clark and that, accordingly, he could sue under the seaworthiness doctrine.

 The court requested supplemental briefs and advised the parties it would decide this issue on submission, treating it as a motion to dismiss plaintiff's cause of action for unseaworthiness. After careful consideration of this troublesome problem, the court concludes, for the reasons that follow, that as river pilot of defendant vessel, plaintiff was a member of the class of persons to whom the general maritime duty of seaworthiness is owed. Accordingly, he is entitled to press his cause of action against defendant for breach of its duty of seaworthiness.

 FACTS

 There is no dispute in this case that at the time of his accident plaintiff was in the service of defendant as a ship's pilot. There is also no dispute that the term "pilot" signifies "a person taken on board at a particular place for the purposes of conducting a ship through a river, road, or channel or from or into port." Encyclopedia Britannica (11th Edition). It is further agreed that as a river pilot to defendant for purposes of navigating the vessel along the Columbia River, plaintiff was not an employee of defendant at the time of his accident. Instead, he was an employee of his own company, Leroy Clark, Inc., which in turn was a member of a local cooperative of independent contractors, The Columbia River Pilots Association, which provides pilotage services to vessels travelling the river. In short, it is agreed that plaintiff's relation to defendant vessel and vessel owner was that of an independent contractor taken on board as a pilot to perform traditional navigational duties at the wheel of the ship. *fn1"

 DISCUSSION

 The general maritime duty of seaworthiness obligates a vessel owner "to furnish a vessel and appurtenances reasonably fit for their intended use." Mitchell v. Trawler Racer, 362 U.S. 539, 550, 4 L. Ed. 2d 941, 80 S. Ct. 926 (1960). The doctrine of seaworthiness has undergone "a most extraordinary expansion" since the 1940's, Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 497, 27 L. Ed. 2d 562, 91 S. Ct. 514 (1971), both with respect to the conditions for which a vessel owner may be held liable and with respect to the class of persons who may invoke its guarantee.

 As a duty to furnish "a vessel and appurtenances fit for their intended use," the doctrine of seaworthiness imposes a very strict standard of liability. While not quite a standard of strict liability, the warranty of seaworthiness is completely divorced from concepts of negligence. Mitchell v. Trawler Racer, 362 U.S. 539, 550, 4 L. Ed. 2d 941, 80 S. Ct. 926 (1960). The warranty of seaworthiness has expanded over the years to apply to conditions that are temporary as well as those that pertain to permanent features of the vessel. Id. The condition of unseaworthiness includes as well such circumstances as defective gear or appurtenances, an unfit or insufficient crew, or the improper methods utilized by a vessel in loading or stowing cargo, or in handling equipment. See Usner v. Luckenbach Overseas Corp. 400 U.S. 494, 499, 27 L. Ed. 2d 562, 91 S. Ct. 514 (1971). Because seaworthiness refers to a condition, however, and despite the fact that it imposes liability even where there has been no negligence with regard to the unseaworthy condition challenged, the doctrine, though generous, will not give rise to a remedy for some one-time act of negligence. Id. at 498-500.

 The crucial aspect of the unseaworthiness remedy in this case, however, at least for present purposes, regards the question of to whom the duty of seaworthiness is owed. It should be noted initially that the warranty of seaworthiness is separate and independent of statutory and other general maritime remedies. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 27 L. Ed. 2d 562, 91 S. Ct. 514 (1971); Mitchell v. Trawler Racer, 362 U.S. 539, 549, 4 L. Ed. 2d 941, 80 S. Ct. 926 (1960). Thus, the class of persons to whom it is owed may include some persons who are not covered by familiar maritime remedies, including statutory ones. Whether or not, for example, a plaintiff is a "seaman" covered by the Jones Act, 46 U.S.C. Section 688, the general maritime remedy of seaworthiness may still be available to him.

 In the instant case this independence of the general seaworthiness remedy is crucial. Jones Act status requires 1) a vessel in navigation; 2) plaintiff's more or less permanent attachment to the vessel, and 3) that plaintiff's employment be primarily in aid of navigation. Harney v. William M. Moore Bldg. Corp., 359 F.2d 649, 654 (2d Cir. 1966). Because plaintiff Clark concededly had no sort of permanent attachment to the ship on which his accident occurred, he is clearly not covered by the Jones Act, and can only rely on the general maritime remedy of seaworthiness if he is to prevail on a cause of action for unseaworthiness. *fn2"

 The development of the coverage of the general maritime duty of seaworthiness has a complicated and somewhat obscure history. Beginning at least as early as 1903 with The Osceola, 189 U.S. 158, 175, 47 L. Ed. 760, 23 S. Ct. 483 (1903), and as gropingly expounded in numerous Supreme Court cases since that time, see Mitchell v. Trawler Racer, 362 U.S. 539, 4 L. Ed. 2d 941, 80 S. Ct. 926 (1960) (an exhaustive and erudite survey of the doctrine's history), American courts have recognized the right of seamen crew members under general maritime law to recover for injuries sustained because of the unseaworthy condition of their vessel.

 The scope of the class of persons to whom the duty of seaworthiness is owed was greatly expanded in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90 L. Ed. 1099, 66 S. Ct. 872 (1946). The plaintiff in this case was a stevedore not directly employed by the vessel on which his injury occurred. Sieracki held that the existence or not of a contractual relationship between plaintiff and a ship owner was immaterial to the availability of the seaworthiness remedy. Instead, what was crucial to the remedy was "not the owner's consent to liability, but his consent to [plaintiff's] performance of service" on his ship. Id. at 96. The court's opinion was based on its judgment that because the seaworthiness remedy historically was derived from "the hazards which maritime service places upon men who perform it, rather than any consensual basis of responsibility," id. at 94, "when a man is performing a function essential to maritime service on board a ship[,] the fortuitous circumstances of his employment by the shipowner . . . should not determine the measure of his rights." Id. at 97.

 The doctrine of the Sieracki seaman was explicitly reaffirmed by the Supreme Court several years later in the case of Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 412-413, 98 L. Ed. 143, 74 S. Ct. 202 (1953). See also Alaska Steamship Co v. Petterson, 347 U.S. 396, 98 L. Ed. 798, 74 S. Ct. 601 (1954). In extending the duty of seaworthiness to a plaintiff who was an independent contractor repairman aboard defendant vessel, the Pope & Talbot court emphasized that the expansive legal protection granted in Sieracki was based not on the stevedore status of plaintiff in that case but on more general considerations. The remedy allowed by Sieracki depended "not . . . on the name 'stevedore' but on the type of work [plaintiff] did and its relationship to the ship and the historic doctrine of seaworthiness." Pope & Talbot, supra at 413. In sum, Sieracki's expansion of the class of persons to whom the ...


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