Eric M. Linden v. Eastern Associated Terminals Company

Fifth Circuit

Eric M. Linden v. Eastern Associated Terminals Company

485 F.2d 580

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 13, 1973

Docket73-2201

StatusPublished

This text of 485 F.2d 580 (Eric M. Linden v. Eastern Associated Terminals Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eric M. Linden v. Eastern Associated Terminals Company, 485 F.2d 580 (5th Cir. 1973).

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Opinion

PER CURIAM:

Appellant was injured while walking across a spar barge owned by his employer, the appellee. He seeks to recover damages from his employer, despite the exclusive coverage provisions of applicable workmen’s compensation legislation, on the theory that his injury resulted from breach of the vessel’s warranty of seaworthiness. See Jackson v. Lykes Bros. S.S. Co., 1967, 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488. The court below entered summary judgment for the employer on the grounds that the barge was not in navigation and thus extended no warranty of seaworthiness. We affirm.

The appellee operates barge docks. However, barges are not secured directly to its docks. Rather, they are secured to a row of floating spar barges which themselves are moored against the docks. The spar barge on which appellant was injured had no cargo bottom, had never been used by the appellee as other than a spar barge and, according to the appellee, was permanently committed to such use as a dock extension. While it conceivably was usable for carrying deck cargo, any movement of the barge would have required loosening numerous cables attaching the barge to the dock, to adjacent *581 spar barges, and to deadmen sunk in the river bottom. The only instance in which appellee had moved the barge was about nine months before appellant’s injury and was for the exclusive purpose of repair.

In Roper v. United States, 1961, 368 U.S. 20, 23, 82 S.Ct. 5, 7 L.Ed.2d 1, 3, the Supreme Court stated that, “The test for determining whether a vessel is in navigation is the ‘status of the ship’ .... This is a question of fact, . . . and consequently reversible only upon a showing of clear error.” Applying this standard we conclude that the district court was not clearly erroneous in finding that appellee’s spar barge had been withdrawn from navigation. Therefore, the judgment of that court is

Affirmed.

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PER CURIAM:

Appellant was injured while walking across a spar barge owned by his employer, the appellee. He seeks to recover damages from his employer, despite the exclusive coverage provisions of applicable workmen’s compensation legislation, on the theory that his injury resulted from breach of the vessel’s warranty of seaworthiness. See Jackson v. Lykes Bros. S.S. Co., 1967, 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488. The court below entered summary judgment for the employer on the grounds that the barge was not in navigation and thus extended no warranty of seaworthiness. We affirm.

The appellee operates barge docks. However, barges are not secured directly to its docks. Rather, they are secured to a row of floating spar barges which themselves are moored against the docks. The spar barge on which appellant was injured had no cargo bottom, had never been used by the appellee as other than a spar barge and, according to the appellee, was permanently committed to such use as a dock extension. While it conceivably was usable for carrying deck cargo, any movement of the barge would have required loosening numerous cables attaching the barge to the dock, to adjacent *581 spar barges, and to deadmen sunk in the river bottom. The only instance in which appellee had moved the barge was about nine months before appellant’s injury and was for the exclusive purpose of repair.

In Roper v. United States, 1961, 368 U.S. 20, 23, 82 S.Ct. 5, 7 L.Ed.2d 1, 3, the Supreme Court stated that, “The test for determining whether a vessel is in navigation is the ‘status of the ship’ .... This is a question of fact, . . . and consequently reversible only upon a showing of clear error.” Applying this standard we conclude that the district court was not clearly erroneous in finding that appellee’s spar barge had been withdrawn from navigation. Therefore, the judgment of that court is

Affirmed.

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485 F.2d 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eric-m-linden-v-eastern-associated-terminals-company-ca5-1973.

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