746 F.2d 294
1985 A.M.C. 1408, 53 USLW 2275
Mrs. Amy HALL, Widow of Jose R. Duncan, Individually and as
Natural Tutrix of the Minors, Alan Renaldo Duncan
and Cindy Winkleth Duncan, Plaintiff-Appellant,
v.
HVIDE HULL NO. 3 and Avondale Shipyards, Inc., Defendants-Appellees.
Thanh H. DANG, Plaintiff-Appellant,
Fidelity & Casualty Co., Intervenor-Appellant,
v.
AVONDALE SHIPYARDS, INC., et al., Defendants-Appellees.
Joe ROSETTI, Plaintiff-Appellant,
v.
AVONDALE SHIPYARDS, INC., Defendant-Appellee.
Nos. 83-3471, 83-3580 and 83-3607.
United States Court of Appeals,
Fifth Circuit.
Nov. 15, 1984.
Greenberg & Dallam, Nathan Greenberg, Gretna, La., for plaintiff-appellant in No. 83-3471.
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stewart E. Niles, Jr., Charles E. Leche, New Orleans, La., for defendants-appellees in No. 83-3471.
Amato & Creely, Gayle A. Reynolds, Gretna, La., for Dang.
Camp, Carmouche, Barsh, Hunter, Gray & Hoffman, George J. Nalley, Jr., New Orleans, La., for intervenor-appellant.
Adams & Reese, Robert E. Couhig, Jr., William B. Gaudet, New Orleans, La., for Avondale and El Paso.
Paul S. Minor, Biloxi, Miss., Judy M. Guice, Biloxi, Miss., for plaintiff-appellant in No. 83-3607.
Robert P. Hogan, Covington, La., Hailey, McNamara, Hall, Larmann & Papale, Nelson W. Wagar, III, H.D. McNamara, Jr., Metairie, La., for defendant-appellee.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before RUBIN, REAVLEY, and TATE, Circuit Judges.
TATE, Circuit Judge:
The central issue in these three appeals is whether a hull, floating on navigable waters during shipbuilding construction, is a vessel for purposes of a tort action authorized by section 5(b), 33 U.S.C. Sec. 905(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901 et seq. (hereinafter, "Longshoremen's Act"). The district court said "no". We reverse, on the basis of our decision in Lundy v. Litton Systems, Inc., 624 F.2d 590 (5th Cir.1980), reh. denied, 629 F.2d 1349, cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981). The panel agrees that we are bound by Lundy and that, under the law of the circuit, it must be followed in the absence of en banc overruling. However, the panel also notes that an issue of bancworthy dimension may be presented by the conflict between Lundy' § rationale and some expressions in our more recent jurisprudence that an injury to ship construction workers on board a vessel under construction, although on navigable waters, is not a maritime tort, since ship construction is not a maritime business. See, e.g., Lowe v. Ingalls Shipbuilding, A Division of Litton, 723 F.2d 1173, 1185, 1187 (5th Cir.1984).
The issues will be discussed as follows: I. The Lundy holding and its rationale; II. Federal admiralty jurisdiction of a Sec. 905(b) action for injuries upon a hull that is under construction and floating in navigable waters; and III. Facts and issues peculiar to each of the three appeals.
I. The Lundy holding and its rationale.
In each of the present three suits, an employee admittedly within the coverage of the Longshoremen's Act was injured or killed at work on a floating hull from, variously, 70-90% completed. In each suit, the employee or his survivors brought suit against the vessel or its owner to recover damage that allegedly resulted from the defendant's negligence.
The Longshoremen's Act, as amended in 1972, permits a person covered by the Act to recover tort damages for injuries resulting from the negligence of a vessel. 33 U.S.C. Sec. 905(b). All parties concede that the employees in question were covered by the Act at the time of their injury or death. The defendants dispute, however, that a "vessel" was involved in the respective work accidents.
In Lundy v. Litton Systems, Inc., 624 F.2d 590 (5th Cir.1980), reh. denied, 629 F.2d 1349, cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981), the plaintiff, Lundy, a person covered by the Longshoremen's Act, fell through an escape hatch while working aboard the USS Hewitt. When the accident occurred, the USS Hewitt was 97% complete, was being prepared for sea trials, and had an assigned crew. Lundy sued his employer, as owner of the ship, for damages resulting from negligent injury under, inter alia, Sec. 905(b). The district court dismissed Lundy's claim, holding that an incomplete ship is not a vessel for purposes of Sec. 905(b). We reversed, holding
The definitional section of the LHWCA provides that "[t]he term 'vessel' means any vessel upon which or in connection with which a person entitled to benefits under this chapter suffers injury or death arising out of or in the course of his employment ..." 33 U.S.C.A. Sec. 902(21) (West 1978). Persons entitled to benefits under the LHWCA are "employees." See id Sec. 903(a). "The term 'employee' means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker ...." Id. Sec. 902(3). We have previously held that "[s]hipbuilders who do the initial work to construct a vessel for launching are just as engaged in shipbuilding as those who are completing the task after something is finished which can be called a ship." Ingalls Shipbuilding Corp., Division of Litton Systems, Inc. v. Morgan, 551 F.2d 61 (5th Cir.1977). Thus, incomplete ships upon which 33 U.S.C. Sec. 902(3) employees are working at a site which [is within] the coverage of the Act, 33 U.S.C. Sec. 903, are vessels within the meaning of 33 U.S.C. Sec. 902(21). The USS Hewitt was thus moored to the statute.
624 F.2d at 592.
In the panel's view, the rationale and holding in Lundy represent controlling precedent in this circuit and require reversal of the summary judgments granted in the three appeals before us, insofar as they are based upon the district court's appreciation that the floating hulls in the three present cases could not be vessels because uncompleted. Lundy 's characterization of the hull in that case as a vessel for Sec. 905(b) purposes rested directly upon its holding that the incomplete ship afloat was a "vessel" within the statutory meaning of the Longshoremen's Act.
The application of Lundy to the present facts, thus, cannot be respectably distinguished, as argued, simply because the present floating hulls were only, respectively, 75-90%, 70%, and 80-85% complete, instead of, as in Lundy, 97% complete. The floating hulls in the present cases, equally to that in Lundy, were "capable of being used as a means of transportation on water", 1 U.S.C. Sec. 3, and were thus likewise "vessels" for the purposes of the Longshoremen's Act. Burks v. American River Transportation Company, 679 F.2d 69, 75 (5th Cir.1982).
Furthermore, to anticipate II infra, in Lundy the sole basis of federal jurisdiction asserted for this Sec. 905(b) action was the admiralty jurisdiction. The Lundy panel rejected (although without express comment) contentions of the defendant therein, similar to those that are presently advanced, that an action for negligent injury to a shipbuilding employee could not be brought in federal court against the uncompleted vessel within the ambit of Sec. 905(b) because the injury did not arise from a maritime tort. Indeed, the Lundy defendant relied in part upon Hollister v. Luke Construction Company, 517 F.2d 920 (5th Cir.1975), the same decision relied on heavily by the present defendants, see II infra. Lundy 's application to the present facts, thus, cannot be distinguished on a jurisdictional basis either.
Lundy 's definition of a floating hull as a vessel for purposes of Sec. 905(b) is consistent with our decision in Burks v. American River Transportation Company, 679 F.2d 69 (5th Cir.1982) and with the definition of vessel in Title 1 (General Provisions), Chapter 1 (Rules of Construction), of the United States Code:
The word "vessel" includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.
1 U.S.C. Sec. 3.
In Burks, supra, 679 F.2d at 75, we held that this code definition provides the meaning of vessel "as that term is used in the LHWCA [Longshoremen's and Harborworkers' Act]." That a waterborne structure is "capable of being used for transportation on water" (emphasis the court's) is, thus, the test. Id. In Burks, the court further indicated that a harbor worker on a vessel so defined would have a Sec. 905(b) negligence action for injury thereupon, 679 F.2d at 76.
The Second Circuit, by a similar rationale, likewise recognized the principle that, for purposes of the Longshoremen's Act, a hull is a vessel if, even though not self-powered, it is capable of being towed on the water. In McCarthy v. The Bark Peking, 716 F.2d 130, 133-34 (2nd Cir.1983), cert. denied sub. nom. South Street Seaport Museum v. McCarthy, --- U.S. ----, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984), the issue was whether an employee covered by the Longshoremen's Act was injured as the result " 'of the negligence of a vessel ' within the meaning of Sec. 905(b)", 716 F.2d at 133 (emphasis added), and thus entitled to bring an action against the vessel under Sec. 905(b) for its negligent injury to the plaintiff employee. The ship on which the employee was injured was a floating museum vessel, which, rudderwelded, had not put to sea under its own power for half a century, and which was not susceptible to use as a self-navigating craft (although capable of being towed). The vessel defendants contended that the plaintiff employee could not avail himself of a Sec. 905(b) remedy because this ship allegedly could not be considered a vessel within the meaning of the Longshoremen's Act.
The Second Circuit rejected the defendant's contention. Relying on our decisions in Burk and Lundy, cited above, the Second Circuit held that the ship in question met the test of being a vessel, since it was "capable of being used as a means of transportation on water " within the statutory definition provided by 1 U.S.C. Sec. 3. Id., 716 F.2d at 134. The court, additionally, pointed out uniform jurisprudence by which, under this test, a waterborne structure capable of being used for water transportation, even if only while towed, could be considered a vessel. Id., 716 F.2d at 134-35. The court also noted that the 1972 amendments to the Longshoremen's Act had been held "to be broadly inclusive." Id., 716 F.2d at 133.
By this test, all three hulls in the present cases were vessels for purposes of a Sec. 905(b) action. They had been launched and were afloat in navigable waters, although moored to the shore.
By its terms, Sec. 905(b), enacted by the 1972 revision of the Act, recognizes that an Act-covered employee injured while working on an uncompleted vessel is entitled to assert a negligence action against it or its owner. The statutory section also recognizes that a "person employed by the vessel to provide shipbuilding ... services" may bring a negligence action against the vessel (except where the injury results from the negligence of persons engaged in providing shipbuilding or repair services. See note 2 supra (quoting Sec. 905(b) in full)). Prior to the 1972 amendments of the Act, "[a] shipbuilder's worker ... assisting in the building and ultimate commissioning of a launched but uncompleted vessel floating or maneuvering in navigable waters" had been held to be entitled under general maritime negligence principles to sue the vessel or its owner for injuries sustained while on the incompleted vessel in navigable waters. Williams v. Avondale Shipyards, Inc., 452 F.2d 955, 958-59 (5th Cir.1971). For reasons to be set forth more fully in part II infra, the statutory language of Sec. 905(b) in this regard was intended, in our opinion, to preserve maritime jurisdiction over the shipbuilder's cause of action against a floating vessel under construction that had been previously recognized by decisions such as Williams.
Thus, Lundy 's rationale and holding--controlling as to the three cases now before us--is consistent both with principles expressed by relevant jurisprudence of this court and with the statutory intent of Sec. 905(b).
II. Federal admiralty jurisdiction of a Sec. 905(b) action for injuries upon a hull under construction, which is floating in navigable waters
For reasons to be stated more fully, we also find that Lundy 's holding is consistent with prior jurisprudential holdings and the Congressional intent, in its implicit finding that there is federal admiralty jurisdiction over Sec. 905(b) actions brought by shipbuilders injured aboard partially constructed vessels floating on navigable waters. We are further of the opinion that the language of Sec. 905(b) was intended to preserve maritime jurisdiction over such claims, which under pre-1972 judicial interpretations were considered to be maritime actions. We are thus unable to accede to the argument of the defendants that, even though their hull might under the statutory intent of Sec. 905(b) be considered a "vessel" against which a negligence action is recognized by Sec. 905(b), nevertheless, federal admiralty jurisdiction would not extend to a Sec. 905(b) action against such a vessel because a hull under shipbuilding construction bears no significant relationship to traditional maritime activity. We find no such distinction between a Sec. 905(b) cause of action and admiralty jurisdiction to have been Congressionally intended by the enactment of Sec. 905(b).
However, we recognize that this holding is in conflict with expressions in at least two decisions of this circuit, which (although concerning distinguishable issues) indicated that federal admiralty jurisdiction did not extend to injuries on uncompleted vessels. Relying on these decisions, the defendants in two of the cases before us argue that federal jurisdiction is lacking, on the principle we stated in Lowe v. Ingalls Shipbuilding, A Division of Litton, 723 F.2d 1173 (5th Cir.1984), that "an injury to a ship construction worker onboard a ship under construction and lying in navigable waters is not a maritime tort". Id. at 1187).
Lowe did not cite Lundy, but in support of this principle relied upon the holding to this effect in Hollister v. Luke Construction Co., 517 F.2d 920 (5th Cir.1975), which had been cited to the Lundy panel but ignored by it as noncontrolling. See text at notes 6 and 7 supra. Hollister had conceded the principle expressed in Williams v. Avondale Shipyards, Inc., supra, 452 F.2d at 959--that an injury on a vessel (broadly defined as in 1 U.S.C. Sec. 3) on navigable waters may give rise to a maritime negligence action--but distinguished it as inapplicable because "a tort arising out of work on a launched but incomplete vessel ... lacks maritime flavor." Hollister, supra, 517 F.2d at 921.
Without reference to the construction of the Longshoremen's Act by Lundy, the Lowe panel construed the Supreme Court's holding in Executive Jet Aviation Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), reaffirmed in Foremost Insurance Company v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982), as providing that "where [under previous decisional law] the tort was previously maritime only because of situs, the activity being nonmaritime, Executive Jet now requires that the tort be considered nonmaritime." Lowe, supra, 723 F.2d at 1187. Lowe indicated that, therefore, Executive Jet had overruled prior decisional law that had recognized as a maritime tort the negligence of an incompleted vessel, if afloat on navigable waters, that injured a construction worker aboard. 723 F.2d at 1185-1187.
The decision in Lundy, which the panel finds to be directly applicable to and controlling of the present facts, is essentially inconsistent with the rationale of Lowe and Hollister, although consistent with our decision in Burks v. American River Transportation Company (1982), cited in part I supra. En banc resolution of the conflicting rationales may thus be necessary.
We should perhaps note, however, that Lowe and Hollister arose in a context distinguishable from the present. Lowe did not concern a Sec. 905(b) action; rather, it was a declaratory judgment action to determine the indemnity rights of a shipyard employer against an asbestos manufacturer, with regard to the manufacturer's liability to the employer for longshoremen's compensation benefits which the shipyard employer had paid its employees contracting asbestosis during their employment. See note 13 supra. Similarly, Hollister can arguably be distinguished as not pertaining to a Sec. 905(b) action, because there the injured employee himself denied Longshoremen's Act coverage and sought recovery only under the Jones Act and the general maritime law (i.e., not as an employee covered by the Act asserting a maritime negligence claim preserved for him by Sec. 905(b) of the 1972 amendments to the Act).
More importantly, however, the central rationale of Lowe is not applicable to the Congressionally contemplated Sec. 905(b) action by a shipbuilder injured on an uncompleted vessel afloat on navigable waters, which was considered at the time of enactment of Sec. 905(b) in 1972 as a maritime action since arising on a navigable situs. Lowe 's central rationale was that shipbuilding was a non-maritime activity, so that therefore an injury sustained in such activity did not meet the test announced in Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), that, even though an injury to an employee occurs over navigable waters, it is "also" necessary "that the wrong bear a significant relationship to traditional maritime activity." Id., 409 U.S. at 268, 93 S.Ct. at 504. Lowe 's rationale is of doubtful relevance to the present issues, because of its differences with the present cases in cause of action and in the legal values of federalism there (not here) at issue.
Of more central importance to rejecting the application of the Lowe rationale to the federal-jurisdiction issue now before us, however, is that the Supreme Court itself has held that the remedies of employees who are covered by the Longshoremen's Act and who are injured on navigable waters are not affected by Executive Jet. Director, Office of Workers' Compensation Programs v. Perini North River Associates, 459 U.S. 297, 320 n. 29, 103 S.Ct. 634, 649 n. 29 (1984). Thus, in effect, if injury to an Act-covered employee was considered to constitute a maritime tort prior to the 1972 amendments, then "the wrong [to him] bear[s] a significant relationship to traditional maritime activity," Executive Jet, supra, 409 U.S. at 268, 93 S.Ct. at 504, so as to meet this quoted "nexus" prong of the Executive Jet test for maritime-tort federal admiralty jurisdiction. (The present injury having occurred on the navigable waters, the "situs" test of Executive Jet is also here satisfied.)
In Perini, supra, the Court specifically rejected the contention that Executive Jet (characterized as applicable to a " 'wholly fortuitous' " maritime situs) required limitation of a remedy to amphibious workers injured on navigable waters--a remedy that was Congressionally contemplated by the 1972 amendments to the Longshoremen's Act, in view of the absence of shown legislative intent to change prior jurisprudential interpretations so providing. 459 U.S. at 320 n. 29, 103 S.Ct. at 649 n. 29. In holding that the marine construction worker there involved, who was injured on actual navigable waters, was entitled to the Congressionally contemplated compensation remedy, the Court noted that he "was by no means 'fortuitously' on the water when he was injured", and also referred to the Act's legislative history and "jurisprudential interpretations over the course of decades" as affording a consideration by which Executive Jet did not apply so as to limit the remedy of an employee covered by the Act. Id.
Earlier, in describing the effect of the 1972 amendments to the Act, the Supreme Court in 1981 had noted that, while an Act-covered employee's right to recover for the ship's unseaworthiness was thereby abolished, nevertheless the Congressional intent was that "his right to recover from the shipowner for negligence was preserved in Sec. 905(b), which provided a statutory negligence action against the ship." Scindia Steam & Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 165, 101 S.Ct. 1615, 1621, 68 L.Ed.2d 1 (1981) (emphasis added). Prior to the 1972 amendments to the Longshoremen's Act, an employee covered by the Act clearly had a maritime tort remedy against the vessel or its owner, when negligently injured by a vessel (broadly defined) that was afloat on navigable waters. Lowe v. Ingalls Shipbuilding, supra, 723 F.2d at 1185-86; Burks v. American River Transportation Company, 679 F.2d 69, 75-76 (5th Cir.1982); Rogers v. M/V Gollinger, 279 F.Supp. 92, 96 (E.D.La.1968) (Rubin, J.). See also Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 477-78, 42 S.Ct. 157, 159, 66 L.Ed.2d 321 (1922).
Under the Supreme Court's decisions in Perini and Scindia, supra, therefore, the Congressional intent of the 1972 amendments to the Longshoremen's Act, including that provided by Sec. 905(b), was to preserve within the federal admiralty jurisdiction the traditional maritime tort remedy of an Act-covered employee for injuries caused by the negligence of a vessel, broadly defined, while on the navigable waters. For purposes of federal admiralty jurisdiction, maritime connexity (Executive Jet 's requirement that the injury be in a "traditional maritime activity") was, in effect, Congressionally so determined through Congressional acceptance, in the 1972 revision of the Longshoremen's Act, of pre-1972 traditional judicial determinations of the maritime character of the activity involved in injuries to these amphibious workers. Thus, shipbuilding employees injured in constructing a vessel on navigable waters are regarded by Sec. 905(b) as no less injured in a maritime employment than they were, before the enactment of Sec. 905(b) in 1972, by the pre-1972 jurisprudence.
We therefore reject the defendants' contention that the present claims were not within the federal admiralty jurisdiction and should, therefore, be dismissed. Consequently, the showing made in each of the cases does not permit summary judgment excluding maritime tort recovery and federal admiralty jurisdiction as to their claims of negligent injury by a vessel under construction and upon the navigable waters.
III. Facts and issues peculiar to each of the three appeals.
We now set forth briefly the facts of each of the three appeals, construed as required most favorably to the opponents of the summary judgments granted, and dispose of any issues peculiar to that appeal.
A.
Hall v. HVIDE HULL NO. 3--No. 83-3471
Jose R. Duncan died from exposure to argon gas on April 29, 1981. At that time, Duncan was employed by Avondale Shipyards, Inc. ("Avondale") and was working aboard the Hvide Hull No. 3, an Avondale hull floating in a wet-dock at the Avondale Shipyards on the Mississippi. Duncan's widow and two minor children sue both the Hvide Hull No. 3 and Avondale in its capacity as owner of the hull.
In deciding the defendant's motion for summary judgment, the district court found that, at the time of Duncan's death, the Hvide Hull No. 3 was only 75-90% complete, had no assigned crew, and had never undergone sea trials. With these findings in mind, the district court ruled that, when Duncan died, the Hvide Hull No. 3 was not a vessel within the terms of section 905(b) of the Longshoremen's Act and that no basis for jurisdiction existed under the general maritime law.
As previously noted, Lundy requires reversal.
B.
Dang v. Avondale Shipyards, Inc.--83-3580
On or about July 12, 1978, Thanh H. Dang sustained injuries while working aboard the M/V El Paso Columbia, a tanker being constructed by Avondale pursuant to a contract with El Paso Columbia Tanker Company ("El Paso"). At the time of Dang's accident, the M/V El Paso Columbia was floating in the Mississippi River and was held in place by a number of mooring lines. Following the accident, Dang filed two timely negligence actions against Avondale and El Paso.
An issue as to whether Avondale was an owner of the vessel stems from a provision in the defendant's construction contract:
Title to the Vessel [The M/V EL PASO COLUMBIA], to the extent completed, and title to all work and material performed upon or installed in the Vessel shall vest in the Purchaser [El Paso].... The Contractor [Avondale] shall have an equity in such material and completed contract work in the Contractor's Shipyard and elsewhere to the extent that it has not been paid for by the Purchaser and to the extent that it is not incorporated in or installed on a delivered Vessel. (emphasis added).
The district court dismissed the two defendants for different reasons. It dismissed Avondale on the grounds that, according to the construction contract, Avondale was not a vessel owner and so could not be held liable for vessel-owner negligence in a tort action authorized by section 905(b). It dismissed El Paso on the grounds that, at the time of Dang's accident, the M/V El Paso Columbia was not a vessel within the terms of section 905(b), since at that time the tanker was only 70% complete, had no assigned crew, and had never had any sea trials.
Reversal of El Paso's dismissal is required by Lundy, see I above. Turning then to the dismissal of Avondale, we find that the district court erred in concluding that no material facts are in dispute regarding Avondale's alleged ownership interest in the M/V El Paso Columbia. In our view, the relevant provision in the contract is ambiguous and is subject to factual parol evidence as to its intended meaning with regard to ownership of the vessel. A potential meaning susceptive of parol explanation is that, in fact, El Paso had only a security interest in the vessel and that its paper evidence to title was merely a disguised security interest to be held until the "completed contract work" was "delivered", not until such time would title be vested in El Paso. Another potential meaning of the contract is that the two parties were co-owners.
Therefore, on the face of the summary judgment showing, we are unable to conclude on the naked basis of the contract provision that no material issue of fact as to ownership is disputed, so as to permit summary judgment.
For purposes of this appeal, then, under the showing made in support of the motion for summary judgment, both Avondale and El Paso may be either an owner or a co-owner of the M/V El Paso Columbia, a vessel on navigable waters within the meaning of Lundy, and thus subject to 905(b) liability. See I. supra. We reverse the summary judgments in favor of these two defendants. This does not preclude a contrary finding on the merits, or on later motion for summary judgment if the facts we have assumed are shown to be incorrect.
C.
Rosetti v. Avondale Shipyards, Inc.--83-3607
On or about March 2, 1981, Joe Rosetti, an employee of Universal Systems, Inc., sustained injuries while working aboard the Ogden 1, a hull floating in the Mississippi River and owned by Avondale. Following his accident, Rosetti filed this suit against Avondale as owner of the hull. Shortly thereafter, the defendant filed a motion for summary judgment.
In deciding the defendant's motion, the district court found that, at the time of Rosetti's accident, the Ogden 1 was still under construction: it was only 80-85% complete, was lacking most of its navigational equipment, had no operations crew, and had never undergone dock or sea trials. In light of these findings, the district court ruled that, at the relevant time, the Ogden 1 was not a vessel within the terms of section 905(b) of the Longshoremen's Act. Under Lundy, the district court erred.
Since the parties are diverse, federal jurisdiction has never been disputed. We therefore reverse.
IV.
In light of the foregoing, we VACATE the district court's dismissals by summary judgment in all three of these consolidated cases, and we REMAND for further proceedings consistent with the views expressed herein.
VACATED AND REMANDED.