Walters v. Dann Marine Towing, LC et al

Filing 34

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 4/10/13. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN A. WALTERS,

:

Plaintiff,

:

v.

:
Civil Action No. GLR-12-2310

DANN MARINE TOWING, LC.,
et al.,

:
:

Defendants.
:
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendants Dann Marine
Towing,

LC.

(“Dann

Marine”)

and

Constellation

Power

Source,

Inc.’s (“Constellation”) (collectively the “Defendants”) Motions
to

Dismiss

(“Walters”)

Counts
Amended

II

and

V

Complaint1

of

Plaintiff

for

failure

John

A.

to

state

pursuant to Federal Rule of Civil Procedure 12(b)(6).
16-17).

Walters’
claims

(ECF Nos.

This is a personal injury case under admiralty and

maritime law in which Walters alleges that Defendants are liable
for injuries he sustained within the course of his employment as
an able-bodied seaman in a coal transport operation.

1

Walters’ Amended Complaint asserts five counts: Count I—
Jones
Act
negligence
against
Dann
Marine;
Count
II—
unseaworthiness against Dann Marine; Count III—maintenance and
cure
against
Dann
Marine;
Count
IV—negligence
against
Constellation;
and
Count
V—unseaworthiness
against
Constellation.
The Motions to Dismiss are solely as to Counts
II and V, the unseaworthiness claims against the respective
Defendants.

The issues before the Court are (1) whether Walters fails
to state a claim for unseaworthiness against his employer, Dann
Marine, where he fails to allege ownership and control by Dann
Marine of the barge upon which he suffered his injury; and (2)
whether

Walters

fails

against

Constellation

to

state

where

he

a

claim

alleges

for
facts

unseaworthiness
to

permit

an

inference that he was a seaman in relation to his employer’s
tug, but not directly as to the barge, owned by Constellation,
upon which he suffered his injury.
briefed

and

no

hearing

is

The issues have been fully

necessary.

See

Local

Rule

105.6

(D.Md. 2011).
For the reasons that follow, Defendants’ Motions will be
granted.
Dismiss

First, the Court will grant Dann Marine’s Motion to
Count

constructive

II
owner

because
of

Dann

the

Marine

Barge

and

was

not

Dann

the

Marine

actual
did

or

not,

therefore, owe Walters a duty of seaworthiness as to the Barge.
Second, the Court will grant Constellation’s Motion to Dismiss
Count V because Walters was not a seaman as to Constellation’s
Barge and Constellation did not, therefore, owe Walters a duty
of seaworthiness.

2

BACKGROUND2

I.

This action arises from a slip-and-fall injury suffered by
Walters on the Barge BGE 02 (“BGE 02” or the “Barge”) on July
12,

2010.

Walters

alleges

that

Constellation

owned

and/or

operated the Barge, which it used to transport coal from various
ports,

including

Norfolk

Baltimore, Maryland.

and

Newport

News,

Virginia,

to

Dann Marine owned the Coral Coast (the

“Tug”), a tugboat used to tow coal barges, including BGE 02.
Dann Marine also employed Walters as an able-bodied seaman.
On July 12, 2012, Walters was aboard the Tug as it towed a
barge

loaded

with

coal.

The

coal

was

to

be

discharged

at

Constellation’s Brandon Shores facility in Baltimore, Maryland.
The facility could only accommodate the discharge of one barge
at a time, so tugs would often release one barge for discharge
at the facility and, during that discharge, engage an empty
barge for the return trip to Virginia.
Upon the Tug’s arrival on the day in question, the Barge
was in the final stages of discharge, and the Tug stood by ready
to engage it.

Per his duties as an able-bodied seaman, Walters

boarded the Barge’s deck to assist with the lines between the
Tug and the Barge.

While aboard the Barge, Walters slipped on

pellets of coal that had been spilled on the deck during the
2

Unless otherwise noted, the following facts are taken from
the Amended Complaint and viewed in the light most favorable to
Walters.
3

prior

discharge.

He

lost

his

balance

and

suffered

severe

injuries to his neck.
In

his

Amended

Complaint,3

Walters

alleges

that

Constellation had a duty to sweep and clean the deck as a matter
of practice and/or contract, which it failed to execute.

Such

failure resulted in an unseaworthy condition, as the presence of
coal on the deck of the Barge created the potential for harm to
Walters and similarly situated crewmembers.
slipping

on

the

deck

of

the

Barge,

As a result of

Walters

suffered

two

herniated discs, an injury that has since required surgery and
substantial medical attention.4
II.
A.

DISCUSSION

Standard of Review
A Federal Rule of Civil Procedure 12(b)(6) motion should be

granted

unless

an

adequately

stated

claim

is

“supported

by

showing any set of facts consistent with the allegations in the
complaint.”

Bell

Atl.

Corp.

v.

Twombly,

550

U.S.

544,

561

(2007) (internal citations omitted); see Fed.R.Civ.P. 12(b)(6).
“A pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.”
3

Walters filed the Amended Complaint because the original
Complaint incorrectly named Exelon instead of Constellation.
4
Walters also alleges numerous other damages—extreme bodily
pain and mental anguish, lost time from his usual work,
continued medical expenses, disability, inability to pursue his
vocation and other life pleasures—none of which are dispositive
in the matter currently before this Court.
4

Ashcroft v. Iqbal, 550 U.S. 662, 678 (2009); Twombly, 550 U.S.
at 555.
“naked

A complaint is also insufficient if it relies upon
assertions

devoid

of

further

factual

enhancement.”

Iqbal, 550 U.S. at 678 (internal citations omitted).
In order to survive a Rule 12(b)(6) motion to dismiss, a
complaint must set forth “a claim for relief that is plausible
on its face.”

Id.; Twombly, 550 U.S. at 570.

A claim is

facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Iqbal, 550

U.S. at 678; Twombly, 555 U.S. at 556.
In

considering

construe

the

a

Rule

complaint

in

12(b)(6)
the

light

motion,
most

the

Court

favorable

to

must
the

plaintiff, read the complaint as a whole, and take the facts
asserted therein as true.

Mylan Labs., Inc. v. Matkari, 7 F.3d

1130, 1134 (4th Cir. 1993).

“Conclusory allegations regarding

the legal effect of the facts alleged” need not be accepted.
Labram v. Havel, 43 F.3d 918, 921 (4th Cir. 1995).

Because the

central purpose of the complaint is to provide the defendant
“fair notice of what the plaintiff’s claim is and the grounds
upon which it rests,” the plaintiff’s legal allegations must be
supported

by

some

factual

basis

defendant to prepare a fair response.
n.3.
5

sufficient

to

allow

the

Twombly, 550 U.S. at 556

B.

Analysis
1.

Count II – Unseaworthiness Against Dann Marine

The Court will grant Dann Marine’s Motion to Dismiss Count
II because Dann Marine was not the actual or constructive owner
of the Barge and therefore owed Walters no duty of seaworthiness
as to the Barge.
The duty of seaworthiness is “an absolute and nondelegable
one which the owner of a vessel owes to the members of the crew
who man her.”

United N.Y. & N.J. Sandy Hook Pilots Ass'n. v.

Halecki, 358 U.S. 613, 616 (1959) (citation omitted).
ship

owner

is

generally

the

proper

While the

defendant

in

an

unseaworthiness claim, a non-owner party may assume a duty of
seaworthiness by becoming a demise charterer of the vessel.

See

Guzman v. Pichirilo, 369 U.S. 698, 700 (1962) (“[A] demise may
bring about a change in the respective legal obligations of the
owner and demisee . . . .”).
however,

“the

exclusively

owner

relinquish

of

To create a demise charter,

the

vessel

‘possession,

thereof to the demisee.”

must

command,

completely
and

and

navigation’

Id. at 699 (citing United States v.

Shea, 152 U.S. 178, 186 (1894)).

Under the fleet doctrine, an

individual who performs regular work on a fleet of vessels may
be

considered

fleet.

a

crewmember

as

to

select

vessels

within

the

See Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995)

(“[A] seaman must have a connection to a vessel in navigation
6

(or

to

an

identifiable

group

of

such

vessels)

that

is

substantial in terms of both its duration and its nature.”)
(emphasis added).
Walters’ Amended Complaint fails to allege that Dann Marine
was the owner of the vessel upon which he was injured.

To the

contrary, Walters explicitly alleges that Constellation was the
owner and/or operator of the vessel.
ECF No. 8).

(See Pl.’s Am. Compl. ¶ 7,

The allegation that Constellation was responsible

for sweeping the deck contradicts the existence of a demise
charter relationship between Dann Marine and the Barge as well,
as

such

responsibility

suggests

exclusive

relinquishment

navigation”

of

the

Barge.

of

less

than

a

“possession,

Shea,

152

U.S.

complete
command,

at

186.

and
and
Thus,

assuming Walters’ allegations to be true, he nevertheless fails
to

state

a

claim

for

relief

against

Dann

Marine

for

unseaworthiness.
Walters’ arguments in opposition to Dann Marine’s Motion to
Dismiss are not persuasive.

Walters contends that he should be

entitled to all three remedies available to a seaman: (1) Jones
Act negligence,5 (2) unseaworthiness, and (3) maintenance and
cure.

Such an entitlement, however, does not change the fact
5

The Jones Act provides a cause of action in negligence for
seamen injured during employment. Chandris, Inc. v. Latsis, 515
U.S. 347, 354 (1995); 46 U.S.C. § 30104 (2012).
Walters’
negligence counts are not currently before the Court and
therefore have not been briefed by the parties.
7

that

Dann

Marine

did

not

own

the

Barge,

which

renders

an

unseaworthiness claim against it tenuous at best.
Walters also seeks to invoke the fleet doctrine in order to
establish crewmember status as to the numerous vessels involved
in the coal transport operation between Newport News or Norfolk
and Baltimore.

Even if this Court generously gives Walters the

benefit of the fleet doctrine, such benefit simply establishes
Walters’ status as a seaman on the Barge.

The assumed fact that

Walters was constructively a crewmember on the Barge, however,
does not establish that his employer Dann Marine was an owner,
or even a demise charterer of the Barge.

Thus, the allegations,

even taken in the light most favorable to Walters, still fail to
satisfy the key ownership element of the claim against Dann
Marine.
Dann Marine’s alleged failure to demand the sweeping of the
Barge’s deck similarly does not impose upon Dann Marine a duty
of seaworthiness.

Whether Dann Marine had knowledge of the

hazardous condition on the Barge may be relevant in determining
whether Dann Marine was negligent as an employer; however, it
does

not

have

any

bearing

on

the

existence

of

a

duty

of

seaworthiness.6

6

Unseaworthiness
and
negligence
are
distinct
and
independent causes of action.
Thomas J. Schoenbaum, Admiralty
and Maritime Law § 6-25 (5th ed. 2012).
8

Accordingly, because Walters fails to allege ownership or
constructive

ownership

by

Dann

Marine

in

his

claim

for

unseaworthiness, the Court will grant Dann Marine’s Motion to
Dismiss Count II.
2.

Count V – Unseaworthiness Against Constellation

The Court also will grant Constellation’s Motion to Dismiss
Count V because Walters was not a seaman as to Constellation’s
Barge and therefore Constellation did not owe him a duty of
seaworthiness.
As

previously

stated,

the

duty

of

seaworthiness

is

“an

absolute and nondelegable one which the owner of a vessel owes
to the members of the crew who man her.”
613.

Halecki, 358 U.S. at

Courts have expanded the doctrine to cover non-crewmembers

who are injured as a result of hazardous conditions on a vessel.
See

Seas

Shipping

Co.

v.

Sieracki,

328

U.S.

85,

95

(1946)

(holding that the doctrine of seaworthiness is not limited to
seamen but extends to those who render services on a vessel at
the owner’s consent or arrangement, such as longshoremen).
1972,

Congress

amended

the

Longshoremen

and

Harbor

In

Workers

Compensation Act (LHWCA) to preclude seaworthiness actions by
longshoremen.7

See U.S. Lines, Inc. v. United States, 593 F.2d

7

LHWCA is codified as 33 U.S.C. §§ 901–950 (2012). Section
905(b) provides in relevant part that “[t]he liability of the
vessel under this subsection shall not be based upon the
warranty of seaworthiness or a breach thereof at the time the
9

570, 572 (4th Cir. 1979) (holding that Congress eliminated the
doctrine

of

unseaworthiness

as

it

applied

to

longshoremen).

While it is clear that longshoremen covered by the LHWCA can no
longer assert claims of unseaworthiness against ship owners, it
is less clear whether seamen, who are not covered by the LHWCA,
are prohibited from asserting such claims.
The United States Court of Appeals for the Fourth Circuit
has held that “Congress specifically overruled Sieracki with the
1972

amendments

to

the

LHWCA.”

Harwood

v.

Partredereit

15.5.81, 944 F.2d 1187, 1190 n.1 (4th Cir. 1991).

AF

In Harwood,

the plaintiff was a pilot who was injured while attempting to
board a ship.
was

covered

warranty

of

Id. at 1189.

by

the

LHWCA

seaworthiness.

The Court held that the plaintiff
and

therefore
Id.

at

not

entitled

1991–92.

The

to

the

question

remained, however, whether unseaworthiness was available as a
cause of action to those not covered by the LHWCA.
At least one court within this Circuit has determined that
the 1972 LHWCA amendments preclude the seaworthiness cause of
injury occurred.
The remedy provided in this subsection shall
be exclusive of all other remedies against the vessel except
remedies available under this chapter.”
33 U.S.C. § 905(b).
Courts have interpreted this statutory language as precluding
seaworthiness claims as to individuals covered under the LHWCA.
See, e.g., Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92,
97 (1994).
At least to some extent, § 905(b) abrogates Seas
Shipping Co. v. Sieracki, 328 U.S. 85, 95 (1946) (holding that
the doctrine of seaworthiness is not limited to seamen but
extends to those who render services on a vessel at the owner’s
consent or arrangement, such as longshoremen).
10

action for not only longshoremen, but also for seamen who are
not

employed

injured.

by

the

owner

of

the

ship

upon

which

they

are

See Babbitt v. Hanover Towing, Inc., 7 F.Supp.2d 650,

653 (E.D.N.C. 1998) (“Fourth Circuit law permits a seaman no
recovery under the doctrine of seaworthiness in the absence of
an

employment

relationship

between

the

parties.”).

The

plaintiff in Babbitt was a crew member of a tug who slipped
while trying to board a skiff that the defendant provided for
service of its oil barge.
interpreted

Harwood

“abolished”

the

unseaworthiness

as

Id. at 651.

holding

Sieracki

that

form

unavailable

in

the

The Babbitt court
1972

of

action

the

absence

relationship between the parties.

amendments

altogether,
of

an

had

making

employment

Id. at 653.

The United States Court of Appeals for the Fifth Circuit
has

not

completely

extinguished

the

Sieracki

doctrine,

but

notably has denied its application to non-employee seamen.

See

Smith v. Harbor Towing & Fleeting, Inc., 910 F.2d 312, 314 (5th.
Cir. 1990) (finding “no need for [the plaintiff] to join the
pocket of Sieracki seamen” based on the multiplicity of remedies
available to him); see also Bridges v. Penrod Drilling Co., 740
F.2d 361, 364 (5th Cir. 1984) (reasoning that “[the plaintiff]
was possessed of the full range of traditional seaman's rights
and

remedies”

and

thus

“it

was

11

not

necessary

that

[he]

be

characterized as a remnant Sieracki seaman of the [barge upon
which he was injured as a non-employee]”).
While the analyses in Babbitt and Smith have been subject
to criticism,8 and neither is binding on this Court, Walters
cites

neither

Supreme

Court

nor

Fourth

Circuit

authority

to

support his right of action under Sieracki following the 1972
amendments to the LHWCA.
Court

finds

Babbitt

In the absence of such authority, the

and

Smith

persuasive.

Applying

the

principle in Babbitt, Walters was not employed by Constellation,
and

therefore

seaworthiness.

Constellation

did

not

owe

him

a

duty

of

Moreover, as in Smith and Bridges, Walters has

other potential remedies at his disposal, including the other
counts in his Amended Complaint.9

Thus, there is no compelling

reason to treat him as a seaman on the Barge under Sieracki.
Accordingly, the Court finds that Walters fails to allege
seaman status as to the Barge, and therefore, Constellation did
not owe him a duty of seaworthiness.

For this reason, the Court

will grant Constellation’s Motion to Dismiss Count V.
III. CONCLUSION
For

the

foregoing

reasons,

the

Court

will,

by

separate

Order, GRANT Dann Marine’s Motion to Dismiss (ECF No. 16) as to
8

See Thomas J. Schoenbaum, Admiralty and Maritime Law § 627, n.22 (5th ed. 2012) (“[Bridges and Smith] erred in their
assumption that seamen cannot sue nonemployer shipowners for
unseaworthiness.”)
9
See supra note 1, at 1.
12

Count II, and Constellation’s Motion to Dismiss (ECF No. 17) as
to

Count

V.

Accordingly,

Walters’

surviving

claims

include

negligence against Dann Marine (Count I), maintenance and cure
against

Dann

Marine

(Count

III),

and

negligence

against

Constellation (Count (IV).
Entered this 10th day of April, 2013
/s/
_____________________________
George L. Russell, III
United States District Judge

13