The opinion of the court was delivered by: BRODERICK
RAYMOND J. BRODERICK, D.J.
Plaintiff Glen Spearman commenced this action, pursuant to the Public Vessels Act, 46 U.S.C.App. Section 781 et seq., and the Suits in Admiralty Act, 46 U.S.C.App. Sections 741-752, against defendant United States of America, alleging that on March 22, 1986, he had an accident on board the USS Independence in which he sustained personal injuries, as a result of defendant's negligence and the defective and unseaworthy nature of defendant's vessel. Count I of the Complaint prays for recovery founded on negligence while Count II seeks relief based upon "Breach of Warranty of Seaworthiness." Pursuant to Fed. R. Civ. P. 56, defendant United States has moved for summary judgment as to Count II of the Complaint on the ground that plaintiff, due to his status as a harbor worker, cannot maintain an action against the United States predicated on the alleged unseaworthiness of the USS Independence For the reasons that follow, this Court will grant defendant's motion.
The material facts concerning which there is no genuine issue are as follows: The Naval Regional Contracting Center, Naval Base, Philadelphia, issued contract no. N00140-85-C-1521, as amended by amendment no. P00002 to the Small Business Administration, as prime contractor, and Research Management Corporation ("RMC"), as subcontractor, for the performance of work on the USS Independence while the ship was docked and being retrofitted at the Philadelphia Naval Shipyard. The contract established the scope of work to be performed by RMC employees as assisting shoreside shipyard workers performing hot work (i.e., welding and other related work) on the ship. The contract provides in relevant part:
The Contractor shall provide competent, trained personnel to assist those shipyard workers accomplishing hot work or working in confined spaces. . . . The assistance to be provided is to enhance the safety of the shipyard worker performing his required duties. The service to be performed by the contractor will be that of a member of the hot work team, commonly called a Fire Watch.
Plaintiff Glen Spearman was employed by RMC to perform work under the aforementioned contract. The USS Independence remained docked at the shipyard and never got underway during the period when the plaintiff was working on board. Plaintiff, who never served as either an officer or enlisted member of the United States Navy, was required to possess the following qualifications:
Must have completed 10 years of general education. No special experience required. Must be able to communicate in English to report fires/summon assistance under emergency conditions. The incumbent must be physically qualified to carry out the duties required by Fire Watch/Top Watch instructions and/or training. The individual must successfully pass the required training course outlined herein. Candidates with less than 10 years of general education may be approved on a case by case basis by PNSY (Philadelphia Naval Shipyard). (emphasis added)
Contract, p. 8. The training course referred to above, exclusively emphasized proper procedures for watching for and preventing fire hazards on board the ship while hot work was being performed.
The basic issue before this Court is whether, as a matter of law, the plaintiff can maintain, in addition to his negligence claim contained in Count I of the Complaint, the breach of seaworthiness claim against defendant United States as contained in Count II of the Complaint. Preliminarily, it should be noted that the theories of negligence and unseaworthiness are analytically distinct. The negligence standard in the maritime context is not substantively different from the negligence standard in the common law. Thus, a vessel owner's duty to those lawfully on board the ship is nothing more than the standard of reasonable care. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 409, 3 L. Ed. 2d 550 (1959). Conversely, "it is now recognized that the shipowner's liability for failure to furnish a seaworthy vessel is a species of liability without fault and is not limited by conceptions of negligence." Norris, The Law of Seamen, Section 27:3 at 200 (4th ed. 1985). A shipowner has an absolute duty to provide to every member of his crew "a vessel and appurtenances reasonably fit for their intended use." Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S. Ct. 926, 933, 4 L. Ed. 2d 941 (1960). The duty includes maintaining the ship's equipment in proper operating condition, Mahnich v. Southern Steamship Co., 321 U.S. 96, 104, 64 S. Ct. 455, 459, 88 L. Ed. 561 (1944), and is breached by transitory as well as permanent defects in such equipment. Mitchell v. Trawler Racer, Inc., 362 U.S. at 549, 80 S. Ct. at 932. Thus, "if an unseaworthy condition is present which is the proximate cause of the injury, then the exercise of due diligence or of reasonable care does not relieve the shipowner of his obligation." Norris, The Law of Seamen, Section 27:3 at 200.
Whether plaintiff Spearman is entitled to the protective umbrella of the virtual strict liability standard of the warranty of seaworthiness depends upon his status as either a seaman or a harbor worker at the time of the accident. All maritime workers are covered by one of two statutory schemes: the Jones Act, 46 U.S.C.App. Section 688 or the Longshoremen's and Harbor Workers' Compensation Act ("LSHWCA"), 33 U.S.C. Sections 901-950. The Jones Act, enacted in 1915, gives "any seamen" the right to maintain an action for damages at law against his employer for personal injuries suffered in the course of his employment. Because the Jones Act does not define the word "seamen", the interpretation of what persons fall within the Act's coverage has been left to the Courts. Conversely, the LSHWCA, enacted in 1927, covers all persons "employed in maritime employment . . . upon navigable waters," and establishes such persons' exclusive rights against their employers. 33 U.S.C. Section 905. The Act excepts from its provisions "a master or member of a crew of any vessel," 33 U.S.C Section 903(a); Section 902(3). See Swanson v. Marra Brothers, Inc., 328 U.S. 1, 66 S. Ct. 869, 90 L. Ed. 1045 (1946).
For some fifty years from the passage of the LSHWCA, an action based on breach of warranty of seaworthiness was available to maritime workers covered under both the Jones Act (i.e., seamen) as well as the LSHWCA (i.e., harbor workers). See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90, 66 S. Ct. 872, 875, 90 L. Ed. 1099 (1946). However, the harbor workers' entitlement to the warranty of seaworthiness was eliminated by the 1972 amendments to the LSHWCA. Since 1972, the LSHWCA has provided, in pertinent part, that "The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred." 33 U.S.C. Section 905(b). See Cooper Stevedoring Company v. Kopke, Inc., 417 U.S. 106, 113 n. 6, 94 S. Ct. 2174, 2178 n. 6, 40 L. Ed. 2d 694 (1974) (1972 amendments to the LSHWCA statutorily overruled Sieracki). Thus, under the maritime law as it stood at the time of the alleged incident in question, plaintiff Spearman could maintain an action against the defendant United States for breach of the warranty of ...