Susan E. Daughenbaugh, Cross-Appellee v. Bethlehem Steel Corp., Great Lakes Steamship Div., Cross-Appellant

891 F.2d 1199, 1990 A.M.C. 2049, 15 Fed. R. Serv. 3d 400, 1989 U.S. App. LEXIS 18918, 1989 WL 150217
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 14, 1989
Docket88-3774, 88-3787
StatusPublished
Cited by36 cases

This text of 891 F.2d 1199 (Susan E. Daughenbaugh, Cross-Appellee v. Bethlehem Steel Corp., Great Lakes Steamship Div., Cross-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Susan E. Daughenbaugh, Cross-Appellee v. Bethlehem Steel Corp., Great Lakes Steamship Div., Cross-Appellant, 891 F.2d 1199, 1990 A.M.C. 2049, 15 Fed. R. Serv. 3d 400, 1989 U.S. App. LEXIS 18918, 1989 WL 150217 (6th Cir. 1989).

Opinions

KEITH, Circuit Judge.

Plaintiff Susan E. Daughenbaugh (“plaintiff”), as Administrator of the Estate of Gregory J. Daughenbaugh (“Daughen-baugh”), initiated this action to recover compensation for the drowning death of her seaman husband. Proceeding under the Jones Act, 46 U.S.C.App. § 688, and the general laws of admiralty, plaintiff sued defendant Bethlehem Steel Corporation, Great Lakes Steamship Division (“defendant”), the shipowner that employed her husband at the time of his death. The district court granted defendant’s motion for summary judgment and found that defendant was not liable for Daughenbaugh’s death. For the reasons set forth below, we AFFIRM in part and REVERSE in part.

Because summary judgment was entered below, “we construe the material facts properly before the court most favorably to plaintiff.” Luckett v. Continental Engineering Co., 649 F.2d 441, 442 (6th Cir.1981) (summary judgment precluded where depositions of decedent’s fellow employees raised substantial questions of fact whether decedent was a “seaman” under the Jones Act).

I. FACTUAL AND PROCEDURAL BACKGROUND

From January 12, 1979 until his death, Daughenbaugh was an American seaman employed as a Conveyorman1 aboard the defendant’s ship, the M/V Lewis Wilson Foy (“the M/V Foy”), a 1,000 foot Great Lakes carrier. On April 24, 1985, at approximately 1:30 p.m., the M/V Foy arrived at Burlington Northern Ore Dock No. 5 (“the dock”) in Superior, Wisconsin. Shortly thereafter, the M/V Foy crew began to load a cargo of rust colored, iron ore pellets.

The dock and the finger of land on which it rests are owned by the Burlington Northern Dock Company, a wholly owned subsidiary of the Burlington Northern Railway Company. The dock occupies the northern 1,500 feet of a slip that is 3,150 feet in length. Although the dock was improved at the time of Daughenbaugh’s death with a dirt road running from its northern to southern end, the dock remained unlit and was covered with unimproved soil, iron ore pellets, weeds and trash.

Sailing the Great Lakes on voyages lasting four to five days, the M/V Foy transported iron ore and other bulk freight. Due to the nature of their work, the officers and crew of the M/V Foy were required to live and work aboard ship, 24 hours per day. Because of the restricted living and working conditions of the M/V Foy crew, the off-duty crew would normally request shore leave and “go up the street” for a few beers. When the M/V Foy docked, this activity was often the only available form of recreation. Thus, M/V Foy First Mate Alan Gintz (“Gintz”) and First Assistant Engineer Joseph Chirkun (“Chirkun”) both testified that after shore leave, it was not uncommon for crew members to return to the M/V Foy in an intoxicated condition. Gintz and Chirkun also testified that the M/V Foy had an unwritten policy that permitted an intoxicated seaman to board ship. To promote safety, however, the intoxicated seaman would be escorted to his room.

Since the officers and crew seldom knew other people in the various Great Lake ports, and because of the men’s shared [1201]*1201experience of living and working aboard ship, the M/V Foy officers and crew followed an unwritten rule and policy to look out for each other during shore leave. Gary Gnacinski (“Gnacinski”), an M/V Foy Oiler and Qualified Man in the Engine Department, as well as Gintz and Chirkun, all testified that if a seaman became intoxicated while on shore leave, the officers and crew looked out and cared for him to assure that he returned to the vessel on time and did not injure himself while returning.

On the afternoon of April 24, 1985, at approximately 2:00 p.m., Daughenbaugh finished work on the M/V Foy and received permission from his superior officer, Chir-kun, to go on shore leave and to get a haircut. After completing his personal business and errands, Daughenbaugh joined several of the officers and crew of the M/V Foy at the President’s Bar, which is located on the southwest corner of 39th Avenue East, and East 2nd Street, in Al-louez, Wisconsin. Daughenbaugh spent much of the afternoon and evening of April 24 at the President’s Bar, where Chirkun and other crew members purchased drinks for Daughenbaugh. M/V Foy Conveyor-man Helper John Wonderly testified that as the evening wore on, Daughenbaugh knocked over at least one drink, fell off his bar stool, and was “cut off” by the bartender.

On the same night, at about 11:00 p.m., M/V Foy Second Assistant Engineer Michael Beaudoin, Chirkun, Gintz and Dau-ghenbaugh were the only crew members remaining at the President’s Bar. Because Daughenbaugh was intoxicated and all three men were required to board ship before sailing time, Chirkun and Beaudoin decided to accompany and assist Daughen-baugh back to the M/V Foy. Initially, Beaudoin and Chirkun called a cab, but Daughenbaugh exchanged words with one of the cab’s prior passengers. To avoid an altercation, Beaudoin told the cab to leave. Chirkun testified that as the three men began to walk towards the dock, Beaudoin and Chirkun held Daughenbaugh by the arms to assist and encourage him to return to the M/V Foy before sailing time.

Taking a short-cut on a service road, the three men walked to the dock where the M/V Foy was berthed. Both Chirkun and Beaudoin testified that after the three men squeezed through the locked service gate of the dock and began to walk toward the conveyor house, Daughenbaugh ran ahead of them and over an ore pile south of the conveyor house, “like a young boy flying an airplane.” Daughenbaugh subsequently disappeared behind the conveyor house.

According to the testimony of Beaudoin, both he and Chirkun believed that Dau-ghenbaugh had gone behind the conveyor house to urinate or vomit. Beaudoin and Chirkun continued walking down the dock toward the conveyor house, but failed to see Daughenbaugh as they approached the building. Looking again for Daughen-baugh, Beaudoin and Chirkun walked ahead a short distance. Both men then became concerned that Daughenbaugh might have fallen down or otherwise injured himself. When Daughenbaugh did not appear, Chirkun waited while Beaudoin went back to look around the conveyor building. Beaudoin testified: “I looked around for him. I yelled for him. I looked towards the water. I didn’t go to the slip itself and look down into the water.” Deposition of Michael C. Beaudoin, Joint Appendix at 61 [hereinafter Appendix].

Beaudoin and Chirkun then began to walk towards the M/V Foy. En route, they met Gnacinski, who was headed into town. According to the testimony of Beau-doin and Chirkun, they told Gnacinski that they believed that Daughenbaugh had returned to town and asked Gnacinski to keep an eye out for Daughenbaugh. According to the testimony of Gnacinski, he did not recall Chirkun or Beaudoin ever mentioning that they thought Daughen-baugh had possibly returned to town. The district court found that Beaudoin and Chirkun “informed other members of the crew to watch for Daughenbaugh since they did not know where he went and suspected he returned to town.” Daughenbaugh v. Bethlehem Steel Corp., No. 86-2498, mem. op. at 5 (N.D.Ohio Aug. 3, 1988) [hereinafter Opinion].

[1202]*1202On his way into town, Gnacinski met Gintz, who had just left the President’s Bar and was on his way back to the M/V Foy. Gnacinski explained that Beaudoin and Chirkun had last seen Daughenbaugh on the dock. Gintz responded that he had not seen Daughenbaugh. Gintz then asked Gnacinski to keep an eye out for Daughen-baugh and to check the local bars for him.

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Bluebook (online)
891 F.2d 1199, 1990 A.M.C. 2049, 15 Fed. R. Serv. 3d 400, 1989 U.S. App. LEXIS 18918, 1989 WL 150217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/susan-e-daughenbaugh-cross-appellee-v-bethlehem-steel-corp-great-lakes-ca6-1989.