Campbell v. Delma Ann, LLC

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DANNY E. CAMPBELL, Case No. 6:20-cv-00591-MC Plaintiff, OPINION AND ORDER v. DELMA ANN, LLC, an Oregon Limited liability company; RICHARD W. WOOD; and PORT OF NEWPORT, Defendants.

MCSHANE, Judge: Plaintiff Danny Campbell brings three claims against Defendants Delma Ann, Richard Wood, and Port of Newport: (1) negligence under the Jones Act, 46 U.S.C.A. § 30104; (2) unseaworthiness under general maritime law; and (3) negligence under general maritime law.

Pl.’s Compl. {J 1, 10-20, ECF No. 1. Defendants Delma Ann and Richard Wood move to dismiss Plaintiffs second claim for failure to state a claim upon which relief can be granted.

Defs.’ Mot. 2, ECF No. 13. Because Plaintiff's unseaworthiness claim does not involve the vessel’s equipment or any appurtenance, Defendants’ Motion to Dismiss (ECF No. 13) is GRANTED.

STANDARDS To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations allow the court to infer the defendant’s liability based on the alleged conduct.

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the mere possibility of misconduct.” Id. at 678.

When considering a motion to dismiss, the court must accept all allegations of material fact as true and construe those facts in the light most favorable to the non-movant. Burget v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). However, the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555. If the complaint is dismissed, leave to amend should be granted unless “the pleading

1 At the motion to dismiss stage, this Court takes all of Plaintiffs’ allegations as true. See Burget v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000).

DISCUSSION Defendants argue that Plaintiff has failed to allege sufficient facts to establish that the vessel was unseaworthy or that its condition caused Plaintiff’s injury. Defs.’ Mot. 2. A plaintiff alleging unseaworthiness must show that: (1) the warranty of seaworthiness extended to him and his duties; (2) his injury was caused by a piece of the ship's equipment or an appurtenant appliance; (3) the equipment used was not reasonably fit for its intended use; and (4) the unseaworthy condition proximately caused his injuries.

Ribitzki v. Canmar Reading & Bates, Ltd. P'ship, 111 F.3d 658, 664–65 (9th Cir. 1997) (citing Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1310–12 (9th Cir. 1970); Faraola v. O'Neill, 576 F.2d 1364, 1366 (9th Cir. 1978)). The second element is at issue here.

The Supreme Court has long construed accidents on land as outside maritime jurisdiction.

Victory Carriers, Inc. v. Law, 404 U.S. 202, 206 (1971). Piers and docks are generally deemed extensions of land, therefore injuries sustained to or on them are not actionable under maritime law. Id. at 206–207 (citing The Plymouth, 3 Wall. 20, 36, 18 L.Ed. 125 (1866); Ex parte Phenix Insurance Co., 118 U.S. 610, 618–619 (1886); Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388, 397 (1886); Cleveland Terminal & Valley R. Co. v. Cleveland S.S. Co., 208 U.S. 316, 320 (1908)). The gangplank is the “rough dividing line” between state and maritime jurisdictions. Victory Carriers, 404 U.S. at 207.

An “appurtenance” is a “specifically identifiable” item that is “destined for use aboard a specifically identifiable vessel” and is “essential to the vessel’s navigation, operation, or mission.” Brown v. Carmeuse Lime & Stone, Inc., No. 1:14-CV-2037, 2016 WL 3878111, at *1 – OPINION AND ORDER (N.D. Ohio July 18, 2016) (quoting Gonzalez v. M/V Destiny Panama, 102 F.Supp.2d 1352, 1354–57 (S.D. Fla. 2000)). “[T]he fact that a seaman is sent to work on a dock does not make the dock a part of the vessel or an extension of the vessel.” Id. at *1. “[W]hen an injury is caused by cargo not yet loaded from the dock onto the vessel, or caused by equipment located solely on a dock, then the injury is not caused by an appurtenance of the vessel.” Id. at *2. Although Victory Carriers and Brown were decided on summary judgment, they are relevant here because both holdings discuss matters of law, not fact.

Here, Plaintiff alleges that an unmarked chain located solely on the floating dock caused him to fall. See Pl.’s Compl. ¶ 8. Plaintiff does not argue that the dock was an appurtenance.

Plaintiff argues that his injuries occurred “in an area where [he] was required to be in the performance of his duties in the service of the vessel.” Pl.’s Resp. 9, ECF No. 19. The fact that Plaintiff had to use the dock to take the garbage away from the vessel “does not make the dock a part of the vessel or an extension of the vessel.” See Brown, No. 1:14-CV-2037, 2016 WL 3878111, at *1. Moreover, Plaintiff alleges that the chain “had been placed across the walking and working surface . . . or was allowed by the Port to be placed there.” Pl.’s Compl. ¶ 8. The chain was not attached or essential to the vessel.

Plaintiff argues that “[t]he duty to provide a seaworthy vessel includes providing a method for safely boarding and departing the vessel.” Pl.’s Resp. 7. Plaintiff cites numerous ingress and egress cases, none of which are analogous here because they involve gangplanks and gangways (or lack thereof) connecting vessels to piers and docks, not walkways on the piers or docks themselves. See Pl.’s Resp. 7–9; see Superior Oil Co. v. Trahan, 322 F.2d 234, 236 (5th Cir. 1963); Hatfield v. Brown & Root, Inc., 245 F.Supp. 733, 734 (E.D. Texas 1965); Quiles v. City of

Ark. 1979). Moreover, Plaintiff concedes that a “vessel owner is not obligated to provide a seaworthy dock but it is obligated to provide a safe means of getting from the shore to the vessel.” Pl.’s Resp. 10 (citing Toddy, 470 F. Supp. at 694) (emphasis added). Plaintiff’s means of getting from the dock to the vessel and back is not at issue here.

Plaintiff fails to state a sufficient claim for unseaworthiness. Because amendment would be futile, Plaintiff’s unseaworthiness claim is dismissed with prejudice.

CONCLUSION Because Plaintiff fails to state a sufficient claim for unseaworthiness and amendment would be futile, Defendants’ Motion to Dismiss (ECF No. 13) is GRANTED and Plaintiff’s second claim is dismissed with prejudice.

IT IS SO ORDERED.

DATED this 31st day of July, 2020.

___s/Michael J. McShane_____ Michael J. McShane United States District Judge

5 – OPINION AND ORDER