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March 19, 1970

Margaret T. MURPHY, Administratrix Ad Prosequendum of the State of Francis George Murphy, Deceased
NATIONAL BULK CARRIERS, INC., Pittman Manufacturing Company and H.K. Porter Company, Inc., Successor to Electric Service Manufacturing Company. M-W EQUIPMENT COMPANY, a Division of Metalweld, Inc. v. SUN SHIPBUILDING & DRY DOCK COMPANY

Troutman, District Judge.

The opinion of the court was delivered by: TROUTMAN

TROUTMAN, District Judge.

 The present suit is a wrongful death and survival action brought by Margaret T. Murphy, administratrix ad prosequendum of the estate of Francis George Murphy, against defendants National Bulk Carriers, Inc. (National Bulk), shipowner, Pittman Manufacturing Company, H.G. Porter Company, Inc., and M-W Equipment Company. Decedent's employer, Sun Shipbuilding & Drydock Company, has been joined as third-party defendant. In her complaint, plaintiff has alleged, inter alia, that decedent's fatal injuries were attributable to negligence on the part of the shipowner National Bulk in failing to provide decedent with a safe place to work and allowing a dangerous and defective machine to be used in connection with decedent's work on defendant's vessel. It is further alleged that defendant's vessel, the SS ORE TRANSPORT, was unseaworthy.

 Presently before us is a motion by defendant shipowner National Bulk for summary judgment. Therein it is contended that as a matter of law the doctrine of unseaworthiness is not applicable to the shipowner under the circumstances of this case, and that there is no genuine issue of material fact concerning the shipowner's alleged negligence.

 Our examination of defendant's motion, the pleadings, affidavits and applicable discovery tend to establish the following material facts:

 Decedent, Francis George Murphy, was a shore-based rigger foreman employed by third-party defendant, Sun Shipbuilding & Drydock Co. (Sun), a company engaged in the business of repairing seagoing vessels. An arrangement was made for Sun to perform certain repair work on defendant's vessel, the SS ORE TRANSPORT, and pursuant thereto the ship was brought to Sun's docks on May 14, 1968. The repair order, in part, *fn1" called for inspection, cleaning and repairs to the vessel's propellers, sea valves, sea chests, rudders and tail shaft, the cost of which totaled $116,646.00. The repairs called for could not be accomplished while the ship remained in the water *fn2" and, therefore, it was placed on a floating drydock, secured, and raised completely out of the water where it remained from May 14, 1968, to May 20, 1968, the duration of the repair work. It is not disputed that while the SS ORE TRANSPORT was in drydock the ship's crew was dismissed. Nor is it controverted that during the time of these repairs the ship's engines were shut down and the vessel's electric current, water, steam, air, fire lines and phone service were provided by the drydock.

 Decedent was fatally injured on May 15, 1968, while he was in the process of preparing to remove the ship's propeller. During the course of this operation, decedent was raised toward the ship in the basket of a personnel hoisting device called a "cherry picker", *fn3" which was owned, maintained and furnished to him by his shipyard employer. *fn4"

 After decedent had rigged a chain fall to the basket of the "cherry picker" the basket carrying decedent broke loose from its boom causing decedent to fall to his death to the floor of the drydock. At the time of the accident the "cherry picker" was resting on the floor of the drydock *fn5" and it was not connected to or attached to the ship, but was some thirty feet away. *fn6" The deposition of Sun's vice president indicates that defendant shipowner, its masters, crew and officers were not permitted to participate in any decisions pertaining to the manner or means of carrying out any work done by employees of Sun. *fn7" This deposition also indicates that the nature of the work involved required the use of specific shipyard tools and facilities, including chain falls, pneumatic wrenches, mobile equipment for staging and a drydock. *fn8"



 The first question presented is whether, under the circumstances of this case, the warranty of seaworthiness was owed by the defendant shipowner to decedent.

 The doctrine of seaworthiness is in essence that the things about a ship be reasonably fit for the purpose for which they are to be used. Henry v. S.S. Mount Evans, 227 F. Supp. 408 (D. Md. 1964); Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S. Ct. 1185, 10 L. Ed. 2d 297 (1963). The doctrine "is essentially a species of liability without fault" and is "neither limited by conceptions of negligence or contractual in character. It is a form of absolute duty owing to all within the range of its humanitarian policy". Seas Shipping Co. v. Sieracki, 328 U.S. 85, 87, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). The rationale underlying the seaworthiness rule lies in the fact that the conditions of a seaman's employment are such as to make him a "ward of the admiralty" and justify placing a large responsibility for his safety on the shipowner. Mahnich v. Southern S.S. Co., 321 U.S. 96, 103, 64 S. Ct. 455, 88 L. Ed. 561 (1944). The Supreme Court in this connection has observed that:

"[A seaman] is subject to the rigorous discipline of the sea, and all the conditions of his service constrain him to accept, without critical examination and without protest, working conditions and appliances as commanded by his superior officer. These conditions, which have generated the exacting requirement that the vessel or the owner must provide a seaman with seaworthy appliances with which to do his work, likewise require that safe appliances be furnished when and where the work is to be done." Mahnich v. Southern S.S. Co., supra, at pp. 103-104, 64 S. Ct. at p. 459.

 Additionally, and quite appropriately, the warranty of seaworthiness has not been limited to members of the ship's crew, but is extended to shorebased employees who come within the ambit of its humanitarian policy because engaged on board a vessel in work traditionally performed by seamen. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). The warranty, however, is not applied to one who does not perform traditional seaman's work nor to a situation where the vessel is out of navigation ...

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