The opinion of the court was delivered by: LORD, JR.
JOHN W. LORD, Jr., District Judge.
This is a personal injury action brought by a member of the United States Coast Guard for injuries he sustained while attempting to tow defendant's yacht off of a sandbar. The yacht had run aground in Ludlam Bay, in the New Jersey inland waterway. Plaintiff alleges liability under two theories: negligence and unseaworthiness. The defendant yacht owner has vigorously contended that plaintiff is not within the class of persons protected by the doctrine of unseaworthiness and has asked dismissal of this phase of the case. Both parties concede that the question is one of first impression.
The accident occurred on August 25, 1965. Plaintiff was a member of the Coast Guard unit stationed at the Townsend Inlet, New Jersey, life boat station. He held the rank of seaman apprentice. On the day of the accident plaintiff and Coxswain Short were ordered by their superior officer to take a thirty foot utility vessel and go to the assistance of defendant's craft that had run aground. The defendant had not summoned the Coast Guard, although he did have a radio on board. Prior to the arrival of the Coast Guard craft, the defendant had received some assistance from an unidentified boat, which had proven unsuccessful. The parties speculate that this boat had notified the Coast Guard.
Upon arriving at the scene of the grounding, the Coast Guard offered their assistance to the defendant. He accepted. The plaintiff then embarked from the Coast Guard boat, waded through the shallow water to defendant's vessel, and boarded it. He asked the defendant to answer a series of questions listed on a Coast Guard questionnaire. The defendant complied. The plaintiff returned to his own boat. Coxswain Short then asked the defendant whether the forward stanchion on defendant's boat was solid, as the Coast Guard would use this stanchion to anchor their towing rope. The defendant gave an affirmative answer. The plan proposed was to use the Coast Guard boat to pull defendant's vessel off the sandbar and into the channel. A line was thrown to the defendant. The defendant took the line, passed it through a bow deck cleat and then looped it around the stanchion. During one of the initial attempts to pull the boat free, the deck cleat on defendant's bow pulled loose. The Coast Guard boat changed position. After about fifteen minutes had elapsed, the Coxswain decided to attempt to pull the bow of defendant's yacht sideways across the bar, into the channel. During this operation some sideways movement of defendant's boat was observed. At this point the stanchion post suddenly broke loose and because of the tautness of the towing line flew into the cockpit of the Coast Guard boat, striking plaintiff in the eye, blinding him. This injury is the basis of the present suit.
The first three motions listed above all center around the question of whether, under the facts of this case, the plaintiff, a member of the Coast Guard, will be entitled to base his claim on the alleged unseaworthiness of defendant's boat. The plaintiff initially had attempted to present this issue to the court for determination in a motion to strike the defense that plaintiff had failed to state a claim upon which relief could be granted. Plaintiff's motion to strike was denied on January 4, 1967 on the basis that the "* * * motion is not intended to furnish an opportunity for the determination of disputed and substantial questions of law." 1A Barron & Holtzoff Federal Practice and Procedure (1960) § 369 at p. 508. Defendant's present motion to strike the unseaworthiness portions of plaintiff's complaint will be denied on the same basis.
Plaintiff's motion for summary judgment may also be briefly considered. A prerequisite to summary judgment under Fed.R.Civ.P. 56(c) is that "* * * there is no genuine issue as to any material fact * * *." Plaintiff has urged that this court can find that the defendant's boat was unseaworthy as a matter of law since the stanchion was not reasonably fit for its intended use. Villarosa v. Massachusetts Trustees of Eastern Gas & Fuel Associates, 39 F.R.D. 337 (E.D.Pa.1966); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561 (1944). Defendant has replied that since the Coast Guard boat had been able to apply a full power tow against the stanchion for about fifteen minutes before it pulled loose, the stanchion appeared "uncommonly sound". This court agrees with the defendant's argument to the extent that there still exists a material issue of fact as to whether the stanchion was "reasonably fit for its intended use" and that this issue must await resolution at trial. For this reason, plaintiff's motion for summary judgment will be denied.
Defendant's motion for partial summary judgment on the issue of unseaworthiness is based on his position that he "* * * is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). This motion will be denied, for it is the opinion of this court that the plaintiff, under the facts as developed in this case, is entitled to the protections of the doctrine of unseaworthiness in his action against the defendant.
The defendant's motion for partial summary judgment squarely presents the issue of whether plaintiff is to be afforded the unseaworthiness protections that would be extended to him if he were a member of defendant's crew. The extension of the unseaworthiness protections to those other than crewmen has been a rapidly expanding area of law. See, Gilmore & Black, The Law of Admiralty (1957) § 6-1. See also, Note: Risk Distribution and Seaworthiness, 75 Yale L.J. 1174 (1966). Under the broad expansion inaugurated by the Supreme Court decision in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), the proposition has become well established that unseaworthiness extends to anyone engaged in the service of the ship, if such service is one traditionally performed by the crew. Accord, Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143 (1953); Alaska S.S. Co., Inc. v. Petterson, per curiam, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798 (1954); The Tungus v. Skovgaard, 358 U.S. 588, 79 S. Ct. 503, 3 L. Ed. 2d 524 (1959); Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S. Ct. 1185, 10 L. Ed. 2d 297 (1963); and Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 87 S. Ct. 1410, 18 L. Ed. 2d 482 (1967). This proposition has been recently phrased in the following language: "It is now elementary that all who do traditional seaman's work are owed, and may sue on, the warranty of seaworthiness." Biggs v. Norfolk Dredging Co., 360 F.2d 360, 364 (4th Cir. 1966).
Historically the work of loading and unloading is the work of the ship's service, performed until recent times by members of the crew. That the owner seeks to have it done with the advantages of more modern divisions of labor does not minimize the worker's hazard and should not nullify his protection. Id. at 96, 66 S. Ct. at 878.
The protections outlined in the Sieracki decision have been extended to situations where the injury did not occur on board the ship, but on the deck adjacent to the ship. Gutierrez v. Waterman S.S. Corp., supra. The doctrine was not extended to a repairman engaged in overhauling a ship's generators, since the Supreme Court concluded that the ship was a "dead" ship with its generators dismantled. United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 79 S. Ct. 517, 3 L. Ed. 2d 541 (1959). Under the guidelines developed in such decisions as Sieracki, the specific question facing this court is whether the plaintiff was doing the type of work traditionally done by seamen engaged in the service of their ship. West v. United States, 143 F. Supp. 473 (E.D.Pa.1956).
It is now a matter of common knowledge that, under the modern division of labor in the maritime industry, particularly in the case of small pleasure vessels plying the inland waterway, the United States Coast Guard has taken up the role of assisting a grounded vessel, instead of the disabled vessel seeking to free itself or seeking assistance from private sources. See, e.g., Petition of United States, 255 F. Supp. 737, 748-749 (D.Mass.1966). Traditionally, when a vessel became stranded, a crew was not able to abandon its obligation to serve its ship. The Davidson, 9 Biss. 275, 50 F. 323, 324 (D.Wis.1880). Quite to the contrary, once a ship ran aground, the officers and crew had a duty to attempt everything within their means to free the vessel, whether by attempting to tow the ship free by manning the long boats, or by carrying out anchors and attempting to pull the vessel off the obstruction. The Ella Hand, 8 Fed.Cas.No.4,369, pp. 502, 503 (D.Fla.1837). Seamen are under a strict duty "* * * to exert themselves to the utmost to save their ship and cargo." Bertel v. Panama Transport Co., 109 F. Supp. 795, 797 (S.D.N.Y.1952), aff'd 202 F.2d 247, 248 (2nd Cir. 1953). Under the above precedents, it can be concluded that the plaintiff was performing a service ...