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SWANS v. UNITED STATES LINES

December 23, 1975

BENNIE SWANS
v.
UNITED STATES LINES, INC., Defendant and Third-Party Plaintiff v. J. A. McCARTHY, INC. Third-Party Defendant



The opinion of the court was delivered by: FOGEL

 FOGEL, District Judge

 Third-party defendant in this matter, J. A. McCarthy, Inc. (McCarthy), has filed a motion to dismiss the action as to it under Fed. R. Civ. P. 12(b)(6). Disposition of this matter, apparently raising an issue of first impression with respect to the construction of the word "vessel", requires an interpretation of certain of the amendments enacted by Congress in 1972 to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et. seq. This suit was brought by plaintiff against the original defendant, United States Lines, Inc. (United), on the basis of an injury allegedly suffered by him on April 24, 1974, while in the employ of third-party defendant as a longshoreman. Original defendant had retained McCarthy to perform stevedoring activities for the S.S. "American Alliance", then at berth in the port of Philadelphia. The injury is averred to have occurred on the pier while plaintiff was attaching a container to an allegedly defective trailer frame which was owned and operated by United.

 Plaintiff, a citizen of Pennsylvania, brought suit against United, a New York corporation with its principal place of business in that state; jurisdiction is based upon diversity of citizenship, as to a claim that exceeds $10,000.00 exclusive of interest and costs, 28 U.S.C. § 1332; plaintiff charges negligence on the part of defendant in the operation and maintenance of the trailer frame. United joined McCarthy as third-party defendant in this action pursuant to Fed. R. Civ. P. 14(a), demanding contribution and/or indemnity based on its averment that McCarthy was negligent in its supervision of the unloading process. McCarthy's motion to dismiss is rooted in the proposition that § 905(b) of the LHWCA *fn1" renders that company immune from suit by the vessel owner in an action arising from an injury to an employee longshoreman. In response to this contention, United advances a two-pronged defense: First, they state that the case of Victory Carriers v. Law, 404 U.S. 202, 30 L. Ed. 2d 383, 92 S. Ct. 418 (1971) ousts federal maritime jurisdiction when an injury occurs on a pier and is caused by pier-based equipment. Thus, United argues that the provisions of the federal LHWCA are not applicable, given the facts of this case; rather, they contend that liability of the third-party defendant must be determined according to Pennsylvania law. Second, they state that even if the terms of the LHWCA control the outcome of the third-party claim, § 905(b) does not insulate the stevedore from liability in this case. The latter contention is grounded upon United's construction of the word "vessel" as it is defined in 33 U.S.C. § 902(21) and used in § 905(b); original defendant argues that the owner of a land-based trailer frame into which the cargo of a ship is placed is not a "vessel" as defined by those statutory sections.

 We agree with McCarthy that the 1972 amendments to the LHWCA should be interpreted to preclude an action by the vessel owner against the stevedore in this case; we base this finding upon the legislation and its pertinent history. Accordingly, we will grant the motion of third-party defendant to dismiss the third-party complaint.

 In reaching this decision we have relied upon supplemental memoranda submitted by both sides; thus having been presented with matters dehors the pleadings within the meaning of Fed. R. Civ. P. 12(b), we will treat the motion as one for summary judgment under Fed. R. Civ. P. 56, and dispose of it in accordance with the provisions of that Rule.

 I. STATEMENT OF THE FACTS AND HISTORY OF THE CASE

 The following facts are relevant to disposition of this action:

 On April 24, 1974, the S.S. "American Alliance", owned by original defendant, was at berth at Tioga Marine Terminal in Philadelphia. Third-party defendant, an independent contractor, was hired by United to act as stevedore. Plaintiff, who was employed by McCarthy as a longshoreman, was a member of the gang charged with the task of unloading the "American Alliance".

 The operation consisted of the removal of cargo containers by crane from the ship to the pier. Containers were first removed from the vessel by means of the shore-based crane, and then lowered onto a trailer frame located on the pier surface; at that point the containers were positioned and secured on the frame, which was then removed from the immediate work area adjacent to the vessel. Plaintiff was stationed on the pier in order to carry out the job of first guiding and then securing the containers upon the frames.

 While engaged in the operation of attaching a container to a trailer frame, plaintiff suffered an injury to his left hand, allegedly when it was caught between the container and the frame. Plaintiff avers that the trailer frame, which was owned and controlled by United, was in a defective condition, and that it was maintained in a negligent manner.

 It is uncontroverted that the trailer frame was neither a physical part of the vessel, nor located on it. Rather, it had been stored on shore prior to the berthing of the ship, and transported by trailer cab to the side of the vessel when it did berth and the cargo operations commenced.

 Third-party defendant avers, and United does not dispute, that plaintiff has received compensation benefits under the terms and provisions of the LHWCA, and that McCarthy, as the employer of plaintiff, has provided for the payment of these benefits as required by 33 U.S.C. § 904.

 II. THE LEGAL CONTENTIONS OF THE PARTIES

 In seeking dismissal of the complaint, McCarthy relies upon the language of § 905(b); that section authorizes an injured employee to sue the vessel for negligence, and provides specifically that "the employer shall not be liable to the vessel for such damages directly or indirectly." See note 1, supra. Third-party defendant argues that plaintiff is clearly an employee within the meaning of the LHWCA, and has in fact already received benefits in accordance with its terms. As the employer of plaintiff, McCarthy contends that it is, ...


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