The opinion of the court was delivered by: COHILL
Dennis G. Lynn, the plaintiff, has labored as an ironworker for thirty-five years. On or about November 25, 1975, Heyl and Patterson, Inc., the defendant, hired Mr. Lynn through a union hiring hall to work as a rigger at a construction site located on the Ohio River at Pennsylvania Power Company's Bruce Mansfield Plant. In general terms, a rigger is an ironworker who moves pieces of iron by using cables and clamps. Heyl and Patterson, Inc. had contracted with Pennsylvania Power Company to construct a barge haul system a facility designed to unload raw materials from barges.
In order to assist in the construction of the barge haul system, Heyl and Patterson, Inc. had leased a crane from Dravo Company. It mounted that crane on a barge that it had leased from McDonough Marine Company. An employee of the defendant operated the crane. Heyl and Patterson, Inc. also had contracted with Johnson Towing Company for a tugboat and crew to move the crane barge. A captain, a deckhand and a cook manned the tugboat.
In the days prior to the accident, the plaintiff had gone on board the barge numerous times. Mr. Lynn had assisted on several occasions in securing the barge next to the riverbank by using a sledgehammer to knock out a pin that restrains an anchor-like device. He also had helped to build a gangplank between the shore and the barge by laying down wooden boards. Moreover, Mr. Lynn had participated in attaching and detaching the barge and the tugboat through the use of a winch and cable. Finally, the plaintiff often had boarded the barge to coordinate his activities with the crane operator and to prepare the rigging on the crane.
Mr. Lynn also had travelled aboard the tugboat. On several occasions, the tugboat had transported the entire five-man ironworker crew over a three-quarter mile stretch of the Ohio River between the construction site and a loading ramp. The crew went to the ramp to pick up a twenty-ton piece of iron that was to serve as the keystone for the barge haul system. After a couple of test runs, the crew lashed the piece to the outside of the crane barge, and the tugboat pushed the load to the construction site. While on the tugboat, the plaintiff checked the depth of the channel with a bobber on two or three occasions. Mr. Lynn testified at his deposition that any available man, including ironworkers, would check the depth. He also signaled to the crane operator to lower the boom as the barge and tugboat approached a cable that spanned the river. On the day of the accident, Mr. Lynn arrived at the construction site by automobile and went aboard the tugboat only to help to detach the barge.
Following the December 2, 1975 accident, Dennis Lynn applied for and began to receive Pennsylvania Workmen's Compensation benefits. On December 18, 1978, the Bureau of Workers' Compensation held a hearing to address a commutation petition that the claimant had filed. Although a referee granted the petition on March 26, 1979, and awarded plaintiff $ 109,030.58, the insurance carrier has appealed that order.
On December 1, 1978, exactly three years after the accident, Mr. Lynn filed a complaint in this Court against Heyl and Patterson, Inc. Although the complaint lacks clarity, we read it as asserting four claims. First, alleging seaman status, the plaintiff seeks to recover damages at law from his employer under the Jones Act, 46 U.S.C. § 688 (1976). Second, Mr. Lynn seeks the traditional seaman's remedy of maintenance and cure. Third, he advances a claim against his employer for statutory compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1976 & Supp.1977). Finally, he asserts a claim for the alleged unseaworthiness of the crane barge under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b) (1976). The complaint, relying on the Jones Act, the Longshoremen's and Harbor Workers' Compensation Act and "applicable maritime laws," invokes this Court's subject matter jurisdiction over admiralty cases. See 28 U.S.C. § 1333 (1976).
On February 16, 1979, the defendant filed a motion to dismiss the complaint. This Court subsequently granted a motion that delayed disposition of the motion to dismiss until the parties had an opportunity to take certain depositions. Now having received copies of these depositions, we will treat the defendant's motion as a motion for summary judgment. See Fed.R.Civ.P. 12(c). In determining whether a genuine issue as to a material fact exists, we must construe all pleadings in favor of the plaintiff. We may grant a motion for summary judgment only if there is no substantial evidence in support of the plaintiff's position, or if the supporting evidence is too incredible to be accepted by reasonable minds, or if the supporting evidence, even conceding its truth, lacks legal probative force. Thibodaux v. Atlantic Richfield Co., 580 F.2d 841, 844 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S. Ct. 2820, 61 L. Ed. 2d 274 (1979).
The plaintiff has asserted a claim under the Jones Act, 46 U.S.C. § 688 (1976), which provides in relevant part:
Any seaman who shall suffer personal injury in the course of his employment may . . . maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply . . . .
Only a seaman may invoke the Jones Act. The pivotal question raised by the defendant's motion is whether, as a matter of law, Dennis Lynn does not qualify for seaman status.
Two Third Circuit opinions have extensively explored the elements that constitute seaman status. In Griffith v. Wheeling-Pittsburgh Steel Corp., 521 F.2d 31 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S. Ct. 785, 46 L. Ed. 2d 643 (1976), the court identified three essential elements: The vessel connected with the injury must be in navigation; the injured worker must have a more or less permanent nexus with the vessel; and the worker must be aboard the vessel primarily to aid in navigation. 521 F.2d at 36. The court then applied these elements to the case before it.
The plaintiff in Griffith worked as a laborer at a Wheeling-Pittsburgh steel mill along the banks of the Monongahela River. He was assigned for four days to work at the company's barge landing. On the day of the accident, he was helping the barge crew to load two barges. In the course of the loading process, Griffith worked both on the seawall and on the barges. After the crew had finished with one barge, they moved the second barge into a position for loading; Griffith assisted by throwing lines from one barge to the other.
After the loading of the second barge had begun, the river foreman noticed that the barge covers were difficult to move because of rust and corrosion. He ordered the crew to halt the loading and to close the covers. In order to close one cover the crew attached to it a cable from a crane. Griffith and another workman were standing on the cover when the crane operator applied tension. As the stuck cover began to rise, the men stepped on ...