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SIMKO v. C & C MARINE MAINTENANCE CO.

January 23, 1980

JOHN P. SIMKO, Administrator of the Estate of JOHN R. SIMKO, III, Deceased and LUELLA CAMPBELL MILLER, on behalf of JOHN R. CAMPBELL, a minor, Plaintiffs
v.
C & C MARINE MAINTENANCE CO., a corporation; AMERICAN COMMERCIAL BARGE LINES COMPANY, a corporation, Defendants.



The opinion of the court was delivered by: TEITELBAUM

The instant litigation, now approximately six years old, is apparently at last approaching the end of its long and perplexing journey. A very brief summary of already familiar facts in the form presented by the United States Court of Appeals for the Third Circuit is more than sufficient for purposes of understanding the issues remaining to be decided.

John Simko was hired by C & C Marine Maintenance Company (C & C) as a laborer. He was assigned the job of assisting in the cleaning and minor repair of barges brought to C & C's facilities along the Ohio River by a variety of barge companies. On March 11, 1972, some two weeks after his hiring by C & C, Simko was assisting in the cleaning of barge # 2699, owned by American Commercial Barge Lines Company (ACBL). While pulling on a water hose being used by another employee in washing ACBL # 2699's deck, Simko slipped and fell overboard. Despite efforts to throw him a line Simko was swept beneath barges moored nearby by the swift current and he drowned. His estate brought this wrongful death and survival action against both C & C and ACBL, seeking recovery under the Jones Act and the doctrine of unseaworthiness. Both defendants denied liability under either claim, and ACBL cross-claimed against C & C for indemnity from any liability or expense incurred in defending the lawsuit that was attributable to C & C's breach of its implied warranty of workmanlike service in contracting to clean and repair barge # 2699.

 The plaintiffs demanded a jury trial under both the Jones Act and maritime laws of this country, particularly the doctrine of unseaworthiness.

 The jury returned a general verdict in favor of the plaintiffs on their Jones Act and unseaworthiness claims against C & C, in the amount of $ 61,000.00. The jury found in favor of ACBL on the plaintiffs' claim, and also found for ACBL on its cross-claim against C & C for indemnity. Following a non-jury trial on the amount of expenses incurred by ACBL in defending the lawsuit, this Court awarded ACBL $ 5,794.52 on its indemnity claim. In Simko v. C & C Marine Maintenance Company and American Commercial Barge Lines Company, 594 F.2d 960 (3rd Cir. 1979), the United States Court of Appeals for the Third Circuit affirmed the jury verdict rendered in favor of defendant ACBL on both the Jones Act claim and the unseaworthiness claim. Additionally, recovery against defendant C & C under the Jones Act claim was precluded based upon insufficiency of evidence. The only remaining viable legal theory recognized by the Court of Appeals, which could result in a recovery for plaintiffs, is the unseaworthiness claim against C & C. Being unable to determine from the general verdict whether the jury rendered decision based upon the impermissible Jones Act claim against C & C or the permissible unseaworthiness claim, remand was ordered to determine the merits of the unseaworthiness claim. Finding the unseaworthiness claim by itself not entitled to jury consideration, a determination of the claim must now be made by this Court rather than another jury. Lastly, the amount of damages awarded to ACBL on its indemnity claim must also be reevaluated in light of the Court of Appeals' opinion.

 UNSEAWORTHINESS

 The Court of Appeals specifically set forth the issues to be determined by this Court. "On remand, the district court must first decide whether Simko was a temporary seaman aboard ACBL # 2699 within the meaning of Sieracki. If he was, it should then determine whether C & C was owner pro hac vice of that barge, as that term has been defined in this Circuit, . . . and whether Simko's death was attributable to the unseaworthiness of that barge." 594 F.2d at 967-968. (Citations omitted).

 The threshold issue, therefore, is whether or not Simko was a Sieracki seaman. See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). Even though a longshoreman, Simko would be a Sieracki seaman while temporarily engaged in seaman's work. Whether or not Simko was temporarily engaged in seaman's work is governed by the standard enunciated by Judge Hastie in Bryant v. National Transport Corporation, 467 F.2d 139, 140 (3rd Cir. 1972):

 
"Normal maintenance activities that are the responsibility of a ship's crew include some repair work. A sensible and practical distinction can be and is drawn between repairs that can be and are likely to be made by seamen during the course of a voyage and repairs the nature and extent of which take them beyond the area of a seaman's normal responsibilities." (Citations omitted).

 The evidence in the case sub judice suggests that Simko was primarily engaged in the cleaning and minor repair of barge # 2699. Such tasks being normal maintenance activities, this Court finds that Simko was a Sieracki seaman.

 Even though a Sieracki seaman, Simko can recover damages from C & C only if C & C is found to be owner pro hac vice of barge # 2699 and thereby liable for an unseaworthy condition on such barge. The definition of owner pro hac vice generally accepted in this Circuit was first stated in Aird v. Weyerhaeuser S. S. Co., 169 F.2d 606, 609-610 (3rd Cir. 1948), and later repeated in Blair v. United States Steel Corporation, 444 F.2d 1390 (3rd Cir. 1971):

 As defined, the pertinent characteristics of an owner pro hac vice are possession and control. More recently, the case of Rao v. Hillman Barge and Construction Company, 467 F.2d 1276 (3rd Cir. 1972), attempted to pinpoint the precise components of possession and control. Those components relied upon were:

 
1. whether or not the vessel was afloat,
 
2. whether or not the vessel was capable of being ...

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