The opinion of the court was delivered by: MASTERSON
MASTERSON, District Judge.
This action was instituted by Seymour Hamilton, a seaman, to recover damages from defendant, his employer, under the Jones Act,
and general maritime law as a result of an accident which Hamilton sustained on February 20, 1969.
Hamilton contends that defendant is liable to him for personal injuries which he claims were caused by (1) the negligence of the defendant and/or his agents and (2) the unseaworthiness of defendant's vessel. Defendant has filed a motion for summary judgment which is presently before this court. For purposes of the motion, we will consider plaintiff's version as an accurate reflection of the events surrounding the accident.
On February 20, 1969, plaintiff while in the employ of defendant as a crew member on the SS Commander was injured when he stepped into an ice covered hole on a dock at Westhaven, Holland. The vessel which sailed from Philadelphia had been berthed at the dock for three days for the purpose of discharging a cargo of coal onto floating barges. The Port Authority of Amsterdam owned the dock and defendant exercised no control over it.
In order for a crew member to leave the pier area where the Commander was berthed and reach the public highway, it was necessary to pass through a guarded gate which was located about one-half mile from the vessel's gangway. This was the only available general route to travel from the vessel to the public highway. Throughout this half mile distance, the dock was approximately sixty feet wide and there were specific "widths" in the pier which one could follow to reach the gate.
On the date of his accident, plaintiff assumed the responsibilities of a "day worker" which means that he could have been assigned a job by the Chief Mate or Boatswain from 8 A.M. until 4 P.M. Plaintiff, however, did not receive an assignment, so he decided to go into Amsterdam for personal reasons.
While in Amsterdam, plaintiff bought some items, ate lunch and then returned to the pier in a taxi cab with the ship's steward. After leaving the taxi cab at the gate, plaintiff and the steward walked down the pier toward the SS Commander. While walking, plaintiff stepped onto an area of the road which appeared to him to be solid, but which gave way under plaintiff's weight causing him to fall on his face. He had stepped onto a pothole which the snow had concealed. The pothole was located approximately 250 to 300 feet from the gangway of the SS Commander. After his fall, plaintiff was taken to a hospital in Amsterdam where he was treated for a fractured left ankle.
Prior to the accident, plaintiff had gone into Amsterdam on two occasions. Both times he used the same route as the one used on the day of the fall.
At no time did the ship's master order or request any crew member to shovel a path from the vessel to the gate even though the ship had shovels aboard. Nor did he request the pier owner or stevedore personnel to clear a path. Captain Wood never gave any instructions to the crew that they were to walk on a particular area of the dock. Nor did he inquire as to the nature of the dock's surface.
For the reasons set forth below, defendant's motion for summary judgment will be denied as to both theories of liability advanced by the plaintiff.
I. LIABILITY UNDER THE JONES ACT
A. NEGLIGENCE OF DEFENDANT'S AGENT
In part, the Jones Act provides:
"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with right of trial by jury, and in such action all statutes of the United States modifying or extending the commonlaw right or remedy in cases of personal injury to railway employees shall apply * * *"
There is no question that plaintiff was a seaman and that his shore activities fell within the scope of his employment as required by the Act. See, e.g., Aguilar v. Standard Oil of New Jersey, 318 U.S. 724, 63 S. Ct. 930, 87 L. Ed. 1107 (1942). Under the Act, the gravamen of a seaman's action for personal injuries occurring in the course of employment is negligence.
And in Hopson v. Texaco, Inc., 383 U.S. 262, 86 S. Ct. 765, 15 L. Ed. 2d 740 (1965) (per curiam), the Supreme Court explained that "The Jones Act incorporates the standards of the Federal Employers' Liability Act, as amended, which renders an employer liable for the injuries negligently inflicted on its employees by its ' officers, agents, or employees. '" (emphasis added).
See 45 U.S.C. § 51.
In this case, plaintiff asserts that he is entitled to recover from the defendant for the negligence of the Port of Amsterdam. This question raises two subsidiary issues: (1) was the Port of Amsterdam which owned the pier an agent of the defendant, and (2) if so, did the agent act negligently toward the plaintiff?
As to the first issue, plaintiff relies upon Carter v. Union Railroad, 438 F.2d 208 (3rd Cir. 1971). In Carter, a railroad employee brought an FELA action when he was injured while walking on property owned by General Motors Corporation en route to the job site of his employment with the railroad. Carter was part of a railroad crew whose daily starting point was a shanty located next to the tracks at a General Motors plant. The railroad had contracted with General Motors for its crew members to park their cars on GM's lot and thereafter traverse a dirt road that led to the shanty. Carter suffered injuries when he slipped on the muddy path. On these facts, the court ...