APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (Civil Action No. 73-706).
Seitz, Chief Judge, Aldisert and Gibbons, Circuit Judges.
This appeal presents us with issues of first impression concerning the proper construction and application of the negligence remedy created by § 18(a) of the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, Pub. L. No. 92-576, 86 Stat. 1263, 33 U.S.C. § 905(b), amending § 5 of the Longshoremen's and Harbor Workers' Compensation Act, ch. 509, § 5, 44 Stat. 1426, 33 U.S.C. § 905 (LHWCA). Because we believe that the district court misapplied § 905(b) of the 1972 amendments in the action below,*fn1 we reverse and remand for further proceedings.
Appellee Wheeling-Pittsburgh Steel Corporation (Wheeling) operates a steel mill along the banks of the Monongahela River at Allenport, Pennsylvania. It first employed appellant Thomas Griffith on February 11, 1973, about four months before the date of the injury that was to become the subject of this action. He worked out of a common labor pool in the construction department and was assigned on a daily basis to a variety of land-based jobs. On April 1, 1973 Griffith bid into the hot mill labor pool where as before, he was assigned to various jobs on a daily basis. As part of this pool he was assigned to work at the company's barge landing on the river for a total of 3 3/4 days including the date of the accident on May 26, 1973.
On that day, plaintiff was assigned to work with the barge crew at the landing to assist in the loading of two barges. The barge on which the accident was to occur, No. 2730, was owned by defendant-appellant American Commercial Lines, Inc. (American). Three days earlier, on May 23rd, it had been delivered to Wheeling and was incorporated into the latter's "coal fleet" to await future use. On May 25th, No. 2730 was relocated next to the seawall at the barge landing to take on a load of sheet steel which was destined to move down river to Louisville, Kentucky. A second barge, described as a pipe barge, was positioned next to No. 2730, and it too was to be loaded. The pipe barge was positioned immediately next to the seawall, and No. 2730 was lashed alongside further out on the river.
On the morning of the day of the accident, Griffith and the regular rivermen in the barge crew first loaded pipe into the pipe barge. During the loading of the pipe barge, which was completed before noon, Griffith worked on the seawall and barge. No. 2730 was then moved into position for loading by a procedure known as "rounding" in which a crane on the seawall pushed the barges away from the wall permitting the current to turn the boats around in the water so that No. 2730 was situated next to the seawall. Griffith's sole assistance during the procedure involved his throwing ropes from one barge to the other.
The crew then turned to the loading of No. 2730. At that time, Joseph Allfree, the crew's foreman, who was employed as river foreman by Wheeling, became aware that the barge covers were difficult to move. The wheels and track mechanism on which the covers ordinarily roll were without lubrication and were rusty and bent. At about 2:00 p. m. Allfree directed the crew to stop loading the barge and to close the covers. Allfree then returned to his office away from the area. The only other experienced riverman on the crew, Joseph Armstrong, then had difficulty closing one of the covers. A cable was attached from the crane on the seawall to the cover to pull it shut; a second cable was attached to an adjacent cover for leverage. Because eyelets on the stuck cover were missing, the hook at the end of the cable was attached to the lip on the underside of the cover. Both Armstrong and plaintiff were standing on top of the stuck cover when tension was applied to the cable. As the stuck cover began to rise they stepped back onto an adjacent cover, but that cover moved backward and the two men fell into the hold and both were injured.
II. PROCEDURAL HISTORY AND DECISION BELOW.
Griffith filed an action in August, 1973 against both his employer Wheeling, and against the vessel owner American. He alleged negligence on the part of both, and the unseaworthiness of the vessel. Both defendants denied liability to Griffith, and each cross-claimed against the other for indemnification or contribution. Each defendant then filed a motion for summary judgment in its favor against Griffith, and against each other on the cross-claims. The district court concluded: (1) that Griffith was performing stevedoring duties when injured and was not a seaman; (2) that Wheeling, in possession and control of barge No. 2730, was a vessel owner pro hac vice ; (3) that the 1972 amendments precluded a claim against the vessel owner for unseaworthiness by a longshoreman performing stevedoring duties; (4) that the 1972 amendments permitted a longshoreman covered by the Longshoremen's and Harbor Workers' Compensation Act to sue the vessel owner for negligence; but (5) that the longshoreman could not sue the vessel owner pro hac vice, Wheeling, who employed him to perform stevedoring duties for negligence; and, that (6) American was not entitled to indemnification or contribution from Wheeling. Thus Griffith was left with his workmen's compensation claim against Wheeling, and a negligence action against American.
Both Griffith and American jointly appeal the order granting Wheeling's motion for summary judgment. The district court having determined that the order be entered as a final judgment pursuant to Rule 54(b), Fed. R. Civ. P., we have jurisdiction to entertain this appeal, although Griffith's negligence action against American is still pending.
III. GRIFFITH'S STATUS AS A SEAMAN.
Griffith argues for relief on alternative grounds. On the one hand he contends that he was entitled to sue Wheeling his employer since he was a member of the crew of the barge when he was injured, and thus was a seaman entitled to a Jones Act remedy against Wheeling and an action for unseaworthiness against both Wheeling and American. On the other hand he argues that if he was not a seaman, he was a longshoreman within the protective scope of the LHWCA, and entitled to a § 905(b) negligence remedy against Wheeling as owner pro hac vice of the vessel, and American, the vessel owner. We will first consider the merits of Griffith's contention that he was a Jones Act "seaman."
The district court, after reviewing the deposition testimony of Griffith and other members of the barge crew, concluded that there was "no evidentiary evidence whatsoever . . . to support a finding that the plaintiff was a seaman when injured . . . .", and so granted summary judgment against Griffith and in favor of Wheeling on the Jones Act claim. 384 F. Supp. at 235.
With respect to the propriety of summary judgment on the issue of seaman status, a leading treatise states:
"The determination of whether the plaintiff is a seaman under the Jones Act should not be taken from the jury by the trial judge if there is an evidentiary basis for making a finding. When conflicting inferences may be drawn from undisputed underlying facts the determination of whether an individual is a seaman must be made by the factfinder. Only when there is no evidentiary basis to support a jury finding that a plaintiff was a seaman when injured, can the court's decision of summary judgment for the defendant be sustained as a matter of law. The standard of review where summary judgment has been granted is strict; the record must negate the probability that evidence calling for a contrary result might be developed at the trial." 2 M. Norris, The Law of Seamen § 664, at 297-98 (3d ed. 1970) (footnotes omitted) (emphasis supplied).
See also 6 J. Moore, Federal Practice para. 56.17, at 2464 (2d ed. 1974).
Griffith argues that there was evidence in the record which indicates that at the time of the accident he was doing seaman's work, and points to the following facts as indicia of his seaman status: he was substituting for permanent employees designated as rivermen; his duties included those of a seaman's, he was dressed like a seaman; he received the same rate of pay; he was working on a navigable river when injured; and he was supervised by experienced river workers. (App. at 129a-32a). But these facts standing alone, do not preclude summary judgment. The district ...