The opinion of the court was delivered by: FULLAM
In this maritime personal injury action a longshoreman seeks to recover damages from a shipowner for injuries allegedly caused by the "carelessness and negligence of the defendant, by its agents, servants, workmen and employees . . . and the failure of defendant to satisfy its nondelegable duty and obligation to provide plaintiff with a reasonably safe place to work." The Complaint asserts jurisdiction based on diversity of citizenship and demands a trial by jury. Plaintiff was injured on or about September 11, 1973, and his maritime tort claim is therefore governed by the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (Pub.L. 92-576).
Prudential-Grace Lines, as third-party plaintiff, filed a Complaint against the plaintiff's employer, Independent Pier Co., for contribution, indemnity, set-off, or credit, alleging that Independent's own negligence and breach of warranty of workmanlike performance of stevedore services had caused plaintiff's injuries. On January 12, 1976, I granted Independent's motion for summary judgment on the third-party Complaint, on the authority of 33 U.S.C. § 905(b) and Lucas v. "Brinknes" Schiffahrts Ges., 379 F. Supp. 759 (E.D.Pa.1974).
Plaintiff has also filed suit against the owner of the pier on which the accident occurred, Independent Terminals Co. (Civil Action No. 74-1820). That case has been consolidated with the present one, and a cross-claim is pending by Prudential-Grace against Independent Terminals. Meanwhile, Prudential-Grace has moved for summary judgment against the plaintiff in the main action. That motion is the subject of this Memorandum and Order.
No affidavits have been submitted by either side, and although the parties have served interrogatories upon each other the record shows no sign that answers were filed.2a This motion must therefore be decided upon the pleadings, the motion papers, and the deposition of the plaintiff, Otis Givens. I have concluded that there is no genuine issue of material fact as to the liability of Prudential-Grace and that the defendant shipowner is entitled to summary judgment as a matter of law.
Plaintiff's activities were interrupted on the morning of the accident when he was told by a fellow longshoreman that "the boss said catch a draft of plywood which was coming out number 2 hatch." (Plaintiff's deposition, p. 13) Plaintiff's "boss" was Albert Williams, in whose gang plaintiff was a registered wharf man. The plywood being lowered from hatch # 2 was to be reloaded into hatch # 1. It consisted of a bundle of 12 to 14 sheets, stacked, secured to the lifting gear of the ship by a rope sling, which in turn was suspended from the ship's cargo hook.
The plywood draft was lowered onto the forks of plaintiff's truck at hatch # 2 and the rope sling was unhooked from the cargo hook at that hatch. Plaintiff then drove his forklift towards hatch # 1, coming to a stop inside the pier doorway facing the hatch, underneath the head of the inshore boom. Other longshoremen came forward and hooked the rope sling of the plywood draft onto the hatch # 1 cargo hook for lifting. At this point the lifting gear at hatch # 1 included a set of spreader bars, which the wharf men previously had been using to load the paper bags of cargo. Instead of detaching the spreader bars from the lifting gear, the longshoremen simply placed the spreader bars loosely on top of the plywood and gave the signal to lift. The draft rose quickly, and the spreader bars fell off the plywood, and, still hanging from the lifting gear, swung back and caught in the forks of plaintiff's vehicle, dragging it forward toward the edge of the pier. Plaintiff, believing that he and his forklift were about to be pitched into the river, struggled to jump out of the truck. In the process he twisted his right leg and fell off the forklift, onto the pier, on his left side. The lift was halted; the forklift came to a stop with its forks and front wheels extending beyond the pier. All this happened in a matter of seconds. Shortly thereafter, other longshoremen or a supervisor employed by the stevedore company disentangled the spreader bars, and the forklift was hoisted up and back to the inside doorway of the pier.
There is no dispute concerning the facts surrounding this accident. On what basis could the shipowner be liable for negligence? The Complaint contains no specific allegations of negligence, and plaintiff's deposition does nothing to clarify the role, if any, which the ship or its crew played in the event. The only persons named by the plaintiff as having supervised or worked with him on the pier or on board the vessel as deck men, hatch tenders, or winch operators were fellow longshoremen (Plaintiff's deposition, pp. 13-14, 16-17, 29-31, 39-40):
"Q Did any of the ship's crew members or any employees of Prudential Grace Line, as far as you know, tell you or the other longshoremen what to do or how to do it in the course of your work that day?
"A I can't say. I don't remember now.
"Q Did any of the ship's personnel or other employees of Prudential Grace Lines see your accident ...