O’Donnell v. McCausland, et al.

2005 DNH 158

• Court: District Court, D. New Hampshire
• Decided: November 17, 2005
• Docket: CV-04-175-PB
• Status: Published

Opinion

O’Donnell v. McCausland, et al. CV-04-175-PB 11/17/05

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sean O’Donnell

v. Case N o . 04-cv-175-PB Opinion N o . 2005 DNH 158 Jean McCausland, LLC et a l .

MEMORANDUM AND ORDER

Sean O’Donnell, a commercial fisherman and a crew member of

the F/V JEAN MCCAUSLAND, was injured while operating a defective

dock winch. He asserts that he is entitled to maintain an

unseaworthiness claim against the vessel’s owner, Jean

McCausland, LLC (“McCausland”), because the dock winch was an

appurtenance of the vessel on which he worked. McCausland has

filed a motion to dismiss challenging O’Donnell’s contention that

the dock winch was an appurtenance.

I. BACKGROUND1

The crew of the F/V JEAN MCCAUSLAND was unloading fish at a

dock in Newington, New Hampshire when the accident occurred.

O’Donnell Aff. at 1 . A small fishing boat approached the vessel

1 I construe the facts in the light most favorable to O’Donnell, the non-moving party. and requested some bait. Id. at 2 . O’Donnell and another crew

member filled a tote with about 80 pounds of bait and carried it

from the vessel to the dock. Id. They then dumped the bait into

the fisherman’s cooler and used a winch that was permanently

affixed to the dock to lower the cooler from the dock onto the

fishing boat. Id. O’Donnell was injured when his arm became

ensnared in the winch line. Id.

I I . STANDARD OF REVIEW

McCausland has moved alternatively for dismissal pursuant to

Fed. R. Civ. P. 12(b)(6) or summary judgment pursuant to Fed. R.

Civ. P. 5 6 . I treat its motion as a motion for summary judgment

because both parties have supported their arguments with matters

extraneous to the pleadings. See Fed. R. Civ. P. 12(b)(motion to

dismiss shall be treated as a motion for summary judgment when

“matters outside the pleading are presented to and not excluded

by the court”).

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

-2- 56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v . Liberty Lobby, Inc., 477

U.S. 2 4 2 , 250 (1986). A material fact is one “that might affect

the outcome of the suit.” Id. at 248.

In ruling on a motion for summary judgment, I construe the

evidence in the light most favorable to the nonmovant. See

Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001). The

party moving for summary judgment “bears the initial

responsibility of . . . identifying those portions of [the

record] which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v . Catrett, 477 U.S. 3 1 7 ,

323 (1986). Once the moving party has met its burden, the burden

shifts to the nonmovant to “produce evidence on which a

reasonable finder of fact, under the appropriate proof burden,

could base a verdict for i t ; if that party cannot produce such

evidence, the motion must be granted.” Ayala-Gerena v . Bristol

Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996) (citing Celotex,

477 U.S. at 323; Anderson, 477 U.S. at 2 4 9 ) . Neither conclusory

allegations, improbable inferences, nor unsupported speculation

are sufficient to defeat summary judgment. Carroll v . Xerox

Corp., 294 F.3d 2 3 1 , 236-37 (1st Cir. 2002).

-3- III. ANALYSIS

The warranty of seaworthiness unquestionably extends to

equipment that travels with a vessel from port to port and is

routinely used in accomplishing the vessel’s mission. See

generally Mahnich v . Southern S.S. Co., 321 U.S. 96 (1944). The

applicability of the warranty is less clear, however, with

respect to equipment that does not remain with the vessel and

that is used only sporadically by the vessel’s crew. A review of

the relevant case law suggests that the most important factors in

determining whether the warranty applies in close cases of this

type are whether the equipment is vital to the ship’s mission and

whether it is on or physically connected to the ship when the

seaman is injured. See, e.g., Victory Carriers, Inc. v . Law, 404

U.S. 2 0 2 , 210-11 (1971) (forklift used to transport cargo on dock

beside vessel is not an appurtenance); Romero Reyes v . Marine

Enters., Inc., 494 F.2d 866, 869-70 (1st Cir. 1974) (gangway

permanently affixed to pier-based tower and temporarily connected

to vessel is an appurtenance); Drachenberg v . Canal Barge Co.,

571 F.2d 9 1 2 , 921 (5th Cir. 1978) (pier-based marine loading arm

temporarily connected to vessel is an appurtenance); Scott v .

Trump Indiana, Inc., 337 F.3d 939, 944 (7th Cir. 2003) (dockside

-4- crane not connected to vessel is not an appurtenance). But c f .

Spann v . Lauritzen, 344 F.2d 2 0 4 , 208 (3d Cir. 1965) (pier-based

hopper is an appurtenance even though it is not connected to

vessel); Huff v . Matson Navigation Co., 338 F.2d 205, 211-12 (9th

Cir. 1964) (dock-based scraper used in unloading vessel is an

appurtenance even though it is not connected to vessel). 2

The facts that bear on the resolution of McCausland’s motion

establish that the equipment at issue in our case was not an

appurtenance of the vessel. The winch that injured O’Donnell was

permanently affixed to the dock. It thus did not travel with the

vessel and was neither owned nor controlled by McCausland.

Moreover, O’Donnell was injured while moving a cooler filled with

bait from the dock to the fishing boat rather than from the

vessel to the dock. Thus, the winch was not in contact with

O’Donnell’s vessel when he was injured and it was not being used

to perform a function that was important to the vessel’s

operation. Indeed, the evidence reveals that the vessel has its

2 Spann and Huff were decided prior to Victory Carriers. Both cases appear to turn on the fact that the equipment that caused the plaintiff’s injuries was being used during the process of unloading the vessel. The mere fact that equipment is used in loading and unloading a vessel, however, is not sufficient to bring the equipment within the warranty of seaworthiness after Victory Carriers. See Victory Carriers, 404 U.S. at 211. Thus, these cases are unpersuasive and I decline to follow them.

-5- own winch and does not regularly use the dock winch in loading or

unloading operations. Under these circumstances, I agree with

McCausland that O’Donnell’s unseaworthiness claim fails because

the dock winch does not qualify as an appurtenance of the vessel.

IV. CONCLUSION

McCausland’s Motion to Dismiss Count II of Plaintiff’s

Second Amended Complaint (Doc. N o . 74) is granted. O’Donnell’s

Request for Oral Argument (Doc. N o . 90) is denied.3

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

November 1 7 , 2005

cc: David B . Kaplan, Esq. Francis X . Quinn, Jr., Esq. Christine Friedman, Esq. William H . Welte, Esq.

3 O’Donnell’s request for oral argument (Doc. N o . 90) is denied because it will not assist in the resolution of the motion. See LR 7.1(d).

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