The opinion of the court was delivered by: TEITELBAUM
This case involves an action for damages brought by plaintiff, Thomas W. Griffith, against his employer, Wheeling-Pittsburgh Steel Corporation, and against American Commercial Lines, Inc. Plaintiff was injured on May 26, 1973, while working on American's coal barge No. 2730 which, according to Wheeling-Pittsburgh's earlier request, was in the possession and use of Wheeling-Pittsburgh Steel at the time. Plaintiff's complaint alleges that his injury was caused by the negligence of both defendants as well as by the unseaworthy condition of American's barge. Both defendants have filed cross-claims for indemnity. Presently before the Court are 1.) Wheeling-Pittsburgh's motion for summary judgment in its favor as to plaintiff's claims against it and American's claim for indemnity, and 2.) American's motion for summary judgment in its favor as to plaintiff's claims against it and its own claim for indemnity from Wheeling-Pittsburgh.
On February 11, 1973, Griffith began his employment with the Wheeling-Pittsburgh company at its Allenport, Pennsylvania plant. Griffith began work in the common labor pool of the construction department. The nature of his work was such that he would report to the pool each morning and thereafter report to whatever assignment was available that day. During this period, all of Griffith's duties were performed on land. On April 1, 1973, Griffith bid into the hot mill labor pool. As was the case with his work previously, while a member of the hot mill labor pool, Griffith had no permanent duties, but rather was assigned to various jobs on a daily basis.
Including the date of the accident as a full day of work, Griffith worked 74 days for Wheeling-Pittsburgh. Of this time, he was temporarily assigned to work at the company's barge landing with longshoreman-type duties for 3 3/4 days, specifically, April 23rd for less than a full day, April 27th, April 28th and May 26th, 1973. Thus, of Griffith's work while he was employed by Wheeling-Pittsburgh, 94.6% was exclusively upon the land and only 5.4% of the time that he was employed by the company was spent in and about the barge landing at the Allenport plant. Of that 5.4% only about one-half of that time was actually spent working on a barge while it was in the water. The rest of the time that he was assigned to the barge landing, Griffith spent working on the railroad cars in the billet yard.
On the day of the accident, Griffith was assigned to work with the barge crew at the landing. Initially, the group with which he was working loaded an open hopper barge with pipe and tubing. Griffith worked inside the hopper of this barge loading this cargo. Then, the first barge was moved and American's barge no. 2730 was placed into loading position. Neither the pipe barge nor American's barge no. 2730 were "navigated" as that term is used in a Jones Act context. After the pipe barge was loaded, the two barges were simply "rounded," or turned around in the water so that the outside barge (no. 2730) was then in the loading position. During the time that the barges were moving, Griffith's sole assistance in the task involved merely throwing ropes from one barge to another.
The accident which is the focus of this case occurred around 2:30 P.M. on May 26, 1973 as the group with which Griffith was working was attempting to pull one of the barge's covers shut. The covers would not move properly and thus a crane was being used to attempt to pull them shut with a cable. Griffith and another man were injured when the cable hook attached to the cover came loose and Griffith and the other man were thrown by its impact into the hold of the barge.
Since the Jones Act does not define the word "seaman," the interpretation of what persons fall within the Act's coverage has been left to the courts. The decision of the Supreme Court in International Stevedoring Company v. Haverty, 272 U.S. 50, 71 L. Ed. 157, 47 S. Ct. 19 (1926), expanded the strict construction of the word "seaman" to include shoreside workers and those involved in loading or unloading barges. Since the enactment of the LSHWCA in 1927, however, the courts have consistently held that the benefits of the Jones Act are available only to a member of a crew or vessel, e.g., Swanson v. Marra Brothers, Inc., 328 U.S. 1, 90 L. Ed. 1045, 66 S. Ct. 869 (1946), since a member of a crew or vessel is excluded from the otherwise broad coverage of the Longshoremen's Act.
It is said in the Swanson case, "We must take it that the effect of these provisions of the Longshoremen's Act is to confine the benefits of the Jones Act to members of the crew of a vessel plying in navigable waters." Id. at 7. Thus, for Griffith to have any rights under the Jones Act, he must be able to prove that he was a seaman, that is, a member of a crew of a vessel when he was injured.
On the other hand, it is clear that Griffith is a worker covered by the Longshoremen's Act. The amended act contains the following definition of an employee at 33 U.S.C. § 902(3):
"The term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, ship builder, and ship breaker, but such term does not include a master or member of a crew of any vessel. . ." (emphasis added)
It is also clear that Wheeling-Pittsburgh is an employer under the terms of the Longshoremen's Act. The amended act contains the following definition at 33 U.S.C. § 902(4):
"The term 'employer' means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, . . . or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel)."
As the employee of a LSHWCA employer, Griffith has been receiving LSHWCA benefits since ...