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SALAMON v. MOTOR VESSEL POLING BROS.

November 14, 1990

ROMOLO SALAMON, PLAINTIFF,
v.
MOTOR VESSEL POLING BROS. NO. 11, INC., DEFENDANT. MOTOR VESSEL POLING BROS. NO. 11, INC., THIRD-PARTY PLAINTIFF, V. AUTOMATIC COMFORT CORP., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Nickerson, District Judge.

MEMORANDUM AND ORDER

Plaintiff Romolo Salamon brought this action against defendant Motor Vessel Poling Bros. No. 11, Inc. (Poling) for personal injuries, asserting claims both for unseaworthiness and for negligence under the 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.

I.

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 the stairway.

II.

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 ...


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