The opinion of the court was delivered by: Haight, Senior District Judge
MEMORANDUM OPINION AND ORDER
This is an action for personal injury suffered by a seaman on a United States flag, Coast Guard inspected ocean-going container ship. Plaintiff sues the vessel's owner in personam and the vessel in rem. Plaintiff alleges negligence under the Jones Act, 46 U.S.C. § 688, and unseaworthiness under the general maritime law. Trial is scheduled to begin on November 5, 2007. Plaintiff now moves for partial summary judgment on liability, based on the contention that the defendant shipowner's violations of statutory regulations caused or contributed to his injury. Those violations, plaintiff contends, entitle him to partial summary judgments that defendant was negligent and the vessel unseaworthy as a matter of law, and that defendant is precluded from asserting a defense of comparative negligence. Plaintiff's motion follows extensive discovery. Defendant opposes the motion. For the reasons that follow, plaintiff's motion is denied.
In May 2004, plaintiff Eddie Johnson was a seaman and member of the crew of the M/V HORIZON CONSUMER, the defendant in rem. The defendant in personam, Horizon Lines LLC.
("Horizon Lines"), was the owner pro hac vice and operator of the HORIZON CONSUMER.
Johnson was an electrician and a member of the vessel's engine department. On May 27, 2004, the HORIZON CONSUMER was moored to a pier in the port of Honolulu, conducting cargo operations. Reefer (that is to say, refrigerated) containers were stowed in two tiers on the main deck. In the early morning hours of May 27, Johnson was engaged in unplugging and stowing electric cables used for the refrigeration of reefer containers stowed in way of the number 7 and 8 hatches. These cables connect the reefer containers to the ship's main power system. Preparatory to discharging a reefer container from the vessel to the pier, an electrician (such as Johnson) must unplug the cable, coil it up, and stow it in an area near the container, awaiting the loading of the next refrigerated containerized cargo.
On this occasion, reefer containers on top of the numbers 7 and 8 hatches were stowed in two tiers. The lower tier of containers rested on the main deck. The second tier of containers rested on the tops of the first tier containers. To reach the cables on the second tier containers, Johnson had to use a ladder, which he placed in the deck space between the 7 and 8 hatch coamings. That space also contained what Horizon Line's Incident Investigation Report, Pl. Ex. B, describes as "[a]n approximately 32" by 32" square girder box hatch cover providing access to the tunnel below."
At about 1:00 a.m., Johnson placed the ladder on the deck and climbed up to unplug cables on second-tier reefer containers. Whether these containers were stowed on top of the 7 or the 8 hatch is not clear from the present record, but it is not material to the resolution of this motion. Johnson unplugged the cable on a second-tier container, stowed it away, and started down the ladder to the main deck. He testified at his deposition: "I was coming down the ladder and I was pretty much all the way down the ladder and the next thing I know I was trying to get up." Pl. Ex. L, Tr. 137. The place from which Johnson was trying to arise was the steel deck of a tunnel space some 12 to 14 feet below the main deck. The Horizon Lines Injury Report, Pl. Ex. A, gives the time of the accident as "0106" (1:06 a.m.) on May 27.
It is clear from the evidence that Johnson fell from the bottom or near the bottom of the ladder through the 32" square hatch and into the tunnel space below, suffering the injuries of which he complains. Johnson fell down the hatch because the hatch was open. Its cover was not in place. Johnson seems to argue that the hatch was partially covered by a loose and unhinged hatch cover. Horizon Lines seems to argue that the hatch was entirely open. Any dispute on this point is not material to the present motion.
A. Plaintiff's Objective on This Motion
While of course the question is for the jury, it seems clear enough from the present record that Horizon Lines is liable in personam and the HORIZON CONSUMER liable in rem to Johnson for providing him with an unsafe place to work. The main deck space between the 7 and 8 hatches, where Johnson had to place his ladder to ascend to the second tier of containers, was unsafe because the smaller hatch leading to the tunnel below was uncovered. This is a common sense conclusion, requiring no particular expertise. The vessel's witnesses have testified that the practice was to leave this hatch covered and dogged down while she was in port. The reason why is obvious: it is dangerous to have an open hatch on a deck where work is going on. Indeed, a photograph of the hatch cover in question, in a closed position during a joint examination on board the vessel after the accident, shows that the yellow surface of the hatch cover displays the instructions, in large red capital letters: "KEEP DOGGED CLOSED. KEEP CLOSED IN PORT." The decks of ships are busy places. Seamen, longshoremen, and others come and go. The safe procedure, reflected by these dramatically displayed instructions, is to keep the hatches closed while the vessel is in port, unless it is necessary to open them for the handling of cargo or giving the crew access to below-deck spaces.
But these same circumstances may very well lead the jury to the conclusion that Johnson's own negligence contributed to his injuries, resulting in application of "the longstanding maritime doctrine of comparative fault," Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514, 515 (9th Cir. 1996). Johnson seeks by this motion for partial summary judgment to take any contributory negligence on his part out of the case, and with it any reduction of his damages based on comparative fault.
Johnson moves for partial summary judgment on liability under Fed.R.Civ.P. 56. Pursuant to Rule 56, summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); SCS Communications, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir. 2004).
A material fact for Rule 56(c) purposes is one that would "affect the outcome of the suit under the governing law," and a dispute about a material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty /Lobby, Inc., 477 U.S. 242, 248 (1986).
C. Plaintiff's Theory of the Case
According to Johnson's theory of the case, the governing law is found in two U.S. Coast Guard regulations promulgated under statutory authority. Johnson contends that Horizon Lines' ...