The opinion of the court was delivered by: GREEN
CLIFFORD SCOTT GREEN, District Judge.
Presently before the Court is defendant's motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. "It is . . . well settled that a motion for summary judgment does not present a trial of issues but is for the purpose of determining whether there are any genuine issues as to material facts, and that it must clearly appear on such a motion that there is no genuine issue as to any material fact if the motion is to be granted." Janek v. Celebrezze, 336 F.2d 828, 834 (3rd Cir. 1964). Viewing the record before us, in this light, the pleadings, affidavits, and depositions show that there is no genuine issue as to any material fact, and that defendant is entitled to summary judgment as a matter of law.
The facts are essentially undisputed. On May 19, 1971, plaintiff, a resident and citizen of Pennsylvania, was injured while performing duties within the course of his employment as a longshoreman. Plaintiff was an employee of the Luckenbach Steamship Company. On said date, plaintiff was assisting in the unloading of bales of wool from a ship, The SS Concordia Sun, owned by defendant. Plaintiff started working at approximately 8:00 A.M. and the accident causing plaintiff's injury occurred at approximately 9:00 A.M. At the time of the accident, plaintiff was working on the wharf at Pier 84, Philadelphia, standing right in the door of the pier shed, about 12 feet from defendant's ship. While bending over and unhooking a draft of cargo, plaintiff was struck in the head by a swinging hook attached to a cherry picker, which is a small mobile crane. Plaintiff had not been issued nor was he wearing a hard hat at the time of the accident. Plaintiff claims that the cherry picker was defective because it was not possible for the cable upon which the hood was attached to wind up properly. Defendant did not own the alleged defective cherry picker, and in fact it was owned, operated, possessed, and maintained by plaintiff's employer, Luckenbach. Moreover, at the time of the accident, Luckenbach was the lessee and in possession of Pier 84, and defendant was not a lessee or in possession of said pier.
Plaintiff alleges, notwithstanding the foregoing undisputed facts, defendant was, in fact, in control of the entire discharge operation and in control of the pier and cherry picker at the time of the accident. The affidavit of the manager of defendant and the affidavit of the vice chairman of Luckenbach are sufficient to establish that control of the unloading operation, pier, and cherry picker was in Luckenbach and not the defendant. Plaintiff's position regarding control of the operation, pier, and cherry picker rest upon mere allegations or denials and not upon specific facts supported by affidavits. Accordingly, we find that there is no genuine issue concerning control; thus, there is no genuine issues for trial. Fed. R. Civ. P. 56(e).
Plaintiff relies for jurisdiction of the district court on both admiralty and maritime jurisdiction under 28 U.S.C. § 1333, for his claim of unseaworthiness, and on diversity jurisdiction under 28 U.S.C. § 1332, for a claim said to be based on the law of Pennsylvania.
Victory Carriers, Inc., et al v. Law, 404 U.S. 202, 92 S. Ct. 418, 30 L. Ed. 2d 383 (1971), is controlling and dispositive of plaintiff's unseaworthiness claim. In Victory Carriers, supra, Law, a longshoreman, was employed by a stevedore company as a forklift driver. Law was injured while loading a vessel owned by Victory. At the time of Law's injury, said ship was tied up to the pier and Law had picked up a cargo load on the dock and was transferring it to a point alongside defendant's ship where it was to be subsequently hoisted aboard by the ship's own gear. As Law returned toward the original pick-up point, the overhead protection rack of the forklift he was driving broke and fell on him. Thus, Law's injury occurred on the dock caused by a defective forklift which was owned and under the control of the stevedore employer and not the shipowner, Victory Carriers. The issue before the Supreme Court in Victory Carriers was ". . . whether maritime law governs accidents suffered by a longshoreman who is injured on the dock by allegedly defective equipment owned and operated by his stevedore employer."
Specifically, the Court held:
". . . federal maritime law does not govern this accident. Nor, in the absence of congressional guidance, are we now inclined to depart from prior law and extend the reach of the federal law to pier-side accidents caused by a stevedore's pier-based equipment."
The rationale for this holding is clearly and unequivocally stated:
"The historic view of this Court has been that the maritime tort jurisdiction of the federal courts is determined by the locality of the accident and that maritime law governs only those torts occurring on the navigable waters of the United States."
The facts in this case are not distinguishable from the facts in Victory Carriers. In both cases, plaintiff, a longshoreman, was injured on a pier by defective equipment owned and operated by his stevedore employer. The Court in Victory Carriers decided that federal maritime law does not govern such an accident.
The aforementioned holding of Victory Carriers has been consistently applied and followed in this Court. See, Cooper v. Australian Coastal Shipping Commission et al., 338 F. Supp. 1056 (E.D. Pa. 1972); Howard v. Kawasaki Kisen K.K., 341 F. Supp. 801 (E.D. Pa. 1972); McGrath v. N.V. Reederij "Nautiek" et al., No. 70-3361 (E.D. Pa. 1971).
Plaintiff notwithstanding this substantial body of legal authority, urges that Victory Carriers should not be applied to the facts of this case because the locality test as announced in Victory Carriers was expressly or impliedly rejected by the Supreme Court in Executive Jet Aviation, Inc., et al. v. City of Cleveland et al., 409 U.S. 249, 93 S. Ct. 493, 34 L. Ed. 2d 454 (1972). Plaintiff's reliance on this case is misplaced.