and (4) defendant's motion to join the United States of America as a third-party defendant.
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).
Sieracki forms the focal point of analysis in the determination of extending the warranty of seaworthiness to plaintiff. In Sieracki the Supreme Court extended the benefits of the doctrine of seaworthiness to a land based stevedore who had been employed by the stevedoring firm pursuant to a contract between the ship and the stevedore's employer. The rationale of the decision was that Sieracki was entitled to the protections of the doctrine of seaworthiness in the same fashion as a crew member, since he had been exposed to the risks and hazards of maritime employment identical to those traditionally encountered by the crew of the vessel. The Supreme Court conceded that the so-called "norm of liability" for unseaworthiness "has been historically and still is the case of the seaman under contract with the vessel's owner," pointing out, however, "that contract alone is neither the sole source of the liability nor its ultimate boundary." Id. 328 U.S. at 90-91, 66 S. Ct. at 875-876. One factor emphasized in Sieracki was that performance of "the ship's service" is done by an individual when such activity is rendered with the shipowner's " consent or by his arrangement." Id. at 95, 66 S. Ct. 872. The Supreme Court concluded:
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 to defendant's vessel, with the defendant's express consent and authorization, that traditionally would have been done by the crew of defendant's vessel, but that under modern division of labor such service is performed by members of the Coast Guard, especially in situations involving pleasure craft in inland waters.
It is important to note that the disabled ship situation in the present case is distinct from a normal towing operation. There is no indication that defendant's ship could not resume its normal course of navigation once it was freed from the sand bar. Defendant's vessel was not a "dead" ship, nor was it in a position akin to a barge in tow, where a member of the barge crew might be hard pressed to demonstrate that he was also in the service of the tug and thus entitled to allege the unseaworthiness of the tug. Flanagan v. The H. F. Gilligan, 170 F. Supp. 793 (S.D.N.Y.1958) modified 170 F. Supp. 217 (S.D.N.Y.1959). See also, Williams v. Pennsylvania R. R. Co., 313 F.2d 203, 207, n. 3 (2nd Cir. 1963) (semble).
One final point remains. The defendant has argued that the doctrine of unseaworthiness should not extend to plaintiff because of his status as a United States Coast Guardsman. Defendant places his principal reliance on the case of McDaniel v. The Lisholt, 155 F. Supp. 619 (S.D.N.Y.1957), aff'd 257 F.2d 538 (2nd Cir. 1958) vacated 359 U.S. 26, 79 S. Ct. 602, 3 L. Ed. 2d 625 (1959), on remand 180 F. Supp. 24 (D.C.1959), aff'd 282 F.2d 816 (2 Cir. 1960), cert. denied 365 U.S. 814, 81 S. Ct. 694, 5 L. Ed. 2d 692 (1961.) McDaniel was a member of the Panama Canal Zone fire department. A fire had broken out on board the Lisholt while the ship was tied up in the Balboa Docks. After the fire had been extinguished, McDaniel had been placed on board as a fire watchman to warn of any reoccurence of fire. He was injured by an unexplained explosion while on board. The district court denied McDaniel the protections of the warranty of unseaworthiness, commenting:
A demarkation line must be drawn between those shore people performing activities ancillary to the functioning of a vessel and those relieving the seaman of truly maritime functions, such as navigation, ship maintenance and loading and discharging cargo. 155 F. Supp. at 626.