Jones Act, 46 U.S.C.App. § 688. Poling impleaded third-party
defendant Automatic Comfort Corp. (Automatic Comfort).
On June 2, 1989 Judge McLaughlin, to whom the case had been
assigned, denied Automatic Comfort's motion to dismiss the
third-party complaint for lack of personal jurisdiction.
Plaintiff then filed an amended complaint seeking damages from
both Poling and Automatic Comfort and asserting diversity of
citizenship between plaintiff and Automatic Comfort.
On December 21, 1989 Poling moved for an order pursuant to
Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure
dismissing the action against Poling. Plaintiff cross-moved for
summary judgment against Poling. All the motion papers were
filed by April 25, 1990, and the motion was marked on Judge
McLaughlin's calendar as submitted.
In November of 1990 the case was assigned to this judge.
On December 21, 1986, the Poling's vessel was docked in East
Hartford, Connecticut, and was delivering petroleum products to
Automatic Comfort. Plaintiff, the cook on the Vessel, had given
the crew their supper and left the vessel at about 6:15 P.M. to
go shopping for groceries. He proceeded across the dock for
about 300 feet and started to climb the only exit from the
dock, that is, the stairway leading up to the shore. He says
that it was dark and that when he was about three or four feet
above ground level he slipped and fell, sustaining injuries.
Automatic Comfort owns, occupies, and maintains the dock
facility including the stairway, built more than twenty years
before and located entirely on land.
Poling contends that plaintiff may not recover under the
theory of negligence under the Jones Act or under the doctrine
of unseaworthiness because the stairway was not part of the
vessel's equipment and because Poling neither owned nor
exercised control over the stairway.
Plaintiff says that the only way he could get from the vessel
to go shopping was to go up the stairway. He claims the steps
on the stairway were uneven and worn down, with sharp edges. He
says that after his injury he found oil on his clothes. The
vessel's searchlight, which in the past had been used to light
docks to enable the vessel to secure lines, was not lit.
Plaintiff says: "There is no doubt in my mind that said
searchlight could have been used to light up the stairway which
was to be used by me to get ashore."
Plaintiff does not claim that the searchlight was broken or
that, on the numerous occasions he had used the stairway on
previous dockings, the searchlight had been used to light up
A ship owner's duty with respect to seaworthiness is a duty
to furnish a vessel reasonably fit for its intended use, fitted
out with proper equipment in good order, and carrying a
qualified crew and officers. The Osceola, 189 U.S. 158, 175, 23
S.Ct. 483, 487, 47 L.Ed. 760 (1903).
In Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 213,
83 S.Ct. 1185, 1190, 10 L.Ed.2d 297 (1963), the Supreme Court
described the "essence" of the seaworthiness doctrine to be
"that things about a ship, whether the hull, the decks, the
machinery, the tools furnished, the stowage, or the cargo
containers, must be reasonably fit for the purpose for which
they are to be used."
"[T]he owner's duty to furnish a seaworthy ship is absolute
and completely independent of his duty under the Jones Act to
exercise reasonable care." Mitchell v. Trawler Racer, Inc.,
362 U.S. 539, 549, 80 S.Ct. 926, 932, 4 L.Ed.2d 941 (1960); see
also The H.A. Scandrett, 87 F.2d 708, 711 (2d Cir. 1937) (per
A.N. Hand). The liability for unseaworthiness "is essentially a
species of liability without fault" and is "[d]erived from and
shaped to meet the hazards which performing the service
imposes." Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94, 66
S.Ct. 872, 877, 90 L.Ed. 1099 (1946).
A ship that fails to furnish the seamen with seaworthy
appliances is absolutely liable under the doctrine of
unseaworthiness. The fact that a ship's officer negligently
furnishes a seaman with a defective appliance when suitable
ones are available does not relieve the ship of that liability.
Mahnich v. Southern S.S. Co., 321 U.S. 96, 100-101, 64 S.Ct.
455, 458, 88 L.Ed. 561 (1944).
But to recover for unseaworthiness the plaintiff must prove
that something about the ship was not reasonably fit for its
intended purpose. Victory Carriers, Inc. v. Law, 404 U.S. 202,
210-211, n. 11, 92 S.Ct. 418, 424, n. 11, 30 L.Ed.2d 383
(1971). Here plaintiff presents nothing to show that anything
about the ship or its equipment or appliances was defective.
Indeed, he says that the unbroken searchlight "could have been
used to light up the stairway." He makes no claim the crew and
officers were unqualified.
At most plaintiff has made out that the ship's personnel
failed to use the searchlight so as to avert the accident
caused by the alleged defect in a stairway owned, maintained,
and controlled not by Poling but by Automatic Comfort. That is
not enough to show liability for unseaworthiness.
The claim for damages for negligence stands on a different
footing. The Jones Act, 46 U.S.C.App. § 688, gives seamen
suffering personal injury in the course of their employment the
right to maintain an action for damages against their employer
and extends to them the remedies railroad workers have under
the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq.
That act makes a railroad liable to its employees for injuries
"resulting in whole or in part from the negligence" of its
agents or employees.
The Supreme Court has interpreted the Federal Employers
Liability Act to impose on a railroad the duty to provide its
employees "with a safe place to work even when they are
required to go onto the premises of a third party over which
the railroad has no control." Shenker v. Baltimore and Ohio
Railroad Company, 374 U.S. 1, 7, 83 S.Ct. 1667, 1671-72, 10
L.Ed.2d 709 (1963). Moreover, this duty includes the
responsibility to inspect those premises and "to take
reasonable precautions to protect its employees from possible
danger." Cazad v. Chesapeake & Ohio Railway Co., 622 F.2d 72,
75 (4th Cir. 1980).
It would be unreasonable to impose a duty on Poling to
inspect plaintiff's route all the way to the grocery store and
back and to take precautions over the entire way. But here,
according to plaintiff, the stairway was only some 300 feet
from the vessel and was the sole means by which plaintiff could
reach the shore so as to fulfill his responsibility as cook to
obtain more food. The vessel had on numerous occasions docked
in the same place, and its officers were familiar with the
stairway. Plaintiff states that he has no doubt that the
searchlight could have been used to light up the defective
stairway he had to use.
This is enough to raise an issue of fact as to whether Poling
was negligent and failed to take reasonable precautions to
Polings's motion is granted to the extent that the claim of
unseaworthiness is dismissed. That motion is otherwise denied.
Plaintiff's motion is denied. So ordered.
© 1992-2003 VersusLaw Inc.