The opinion of the court was delivered by: BRODERICK
BRODERICK, District Judge.
The facts in this case are as follows:
1. On August 20, 1969, the plaintiff, who resided in Philadelphia, Pennsylvania, was employed by Philadelphia Ceiling and Stevedoring Company as a longshoreman assigned to discharge cargo from the S/S COLORADO MARU.
2. The S/S COLORADO MARU was owned, operated and controlled by the defendant corporation, which was formed under the laws of and had its principal place of business in Japan. This merchant vessel, on August 20, 1969, was moored at Pier 78, South Warves, Philadelphia, Pennsylvania.
3. On August 20, 1969, while driving a forklift truck on the pier, the plaintiff was injured when the overhead guard of the forklift truck collapsed and struck the plaintiff on the head and shoulders. The plaintiff had not yet worked any cargo of the vessel prior to the time he was injured. The forklift truck, owned by the Philadelphia Ceiling & Stevedoring Company, had been stored at the head of the pier.
4. There are no allegations that the ship's officers or crew members exercised any control over the forklift truck, the work area or the plaintiff.
5. In plaintiff's Amended Complaint he alleged that his injuries were due both to the unseaworthy condition of the S/S COLORADO MARU and to the negligence of the defendant. In his brief in opposition to defendant's motion for summary judgment, however, the plaintiff has conceded that he cannot prove that his injuries were caused by defendant's negligence and, therefore, his claim against the defendant is limited to that of unseaworthiness.
On the basis of the above facts, taken in the light most favorable to the plaintiff, it is clear that the plaintiff's claim is not cognizable as a federal maritime cause of action and that he is not entitled to the warranty of seaworthiness.
The recent Supreme Court opinion of Victory Carriers, Inc. v. Law
held that federal maritime law does not govern an accident suffered by a longshoreman injured on a dock by allegedly defective equipment which was owned and operated by his stevedore employer, which equipment was not an appurtenance of the ship.
In that case, the overhead protection rack of a forklift truck, which was owned and under the direction of the stevedore employer and which was being operated on the dock, came loose and fell on the longshoreman thus causing his injuries. The Court, recognizing a legal distinction between a longshoreman injured on the pier in the course of loading or unloading a vessel and a longshoreman performing similar services on the ship,
found particularly thin the necessary elements of a maritime cause of action because:
. . . Law was not injured by equipment which was part of the ship's usual gear or which was stored on board, the equipment which injured him was in no way attached to the ship, the forklift was not under the control of the ship or its crew, and the accident did not occur aboard ship or on the gang plank.
The plaintiff argues, however, that under diversity of citizenship he is entitled to the warranty of seaworthiness as a matter of state law. By relying on Victory, the plaintiff contends, the defendant has confused the concepts of maritime jurisdiction and maritime law. Citing Seas Shipping Co. v. Sieracki,
Gutierrez v. Waterman Steamship Corp.,
Petterson v. Alaska S.S. Co.,
and Spann v. Lauritzen,
the plaintiff claims that a longshoreman who is injured by defective equipment is entitled to recover from the shipowner provided that the equipment which he is using is necessary for the loading procedure and further provided that the longshoreman is engaged in the process of unloading or loading of the vessel. The plaintiff then argues that since the maritime law as set forth in the above named cases was not overruled, the mere fact that the federal courts do not have maritime jurisdiction does not hinder the application of this general maritime law, as also found within the law of the state of Pennsylvania as set forth in Garrett v. Moore-McCormack Co.