Opinion
Civil Action No: 03-3559, Section: "A" (3).
June 3, 2004
Before this Court is defendant United States' Motion to Dismiss or For Summary Judgment (Rec. Doc. 7 14). This motion, set for hearing on May, 5, 2004, on the briefs, is opposed by the plaintiff. For the reasons that follow, defendant United States' motion is GRANTED.
BACKGROUND
Plaintiff's decedent, Melvin Charles, was employed by Northrop Grumman Ship Systems as a "rigger" onboard a vessel being built for the United States Navy, the USS BENEVIDEZ. Charles was fatally injured while operating a forklift, which allegedly had a braking mechanism malfunction. The plaintiff's complaint asserts that this Court has jurisdiction under 28 U.S.C. § 1331(1), generally, 46 U.S.C. app. § 781- 790 (Private Vessels Act), 46 U.S.C. app. § 741- 752 (Suits in Admiralty Act), 33 U.S.C. § 905(b) and 33 U.S.C. § 933(a) of the Longshore Harbor Worker's Compensation Act.
"The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
"A libel in personam in admiralty may be brought against the United States, or a petition impleading the United States, for damages caused by a public vessel of the United States." 46 U.S.C. app. § 781 (2003).
46 U.S.C. app § 742 states:
In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States or against any corporation mentioned in section 741 of this title. Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found.
33 U.S.C. § 905(b) reads as follows:
In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed to provide shipbuilding, repairing, or breaking services and such person's employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person's employer (in any capacity, including as the vessel's owner, owner pro hac vice, agent, operator, or charterer) or against the employees of the employer. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the 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. § 933(a) reads as follows:
If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.
The defendant United States asserts that this Court should dismiss the plaintiff's claims against the United States, the United States Navy, and the USS BENEVIDEZ for lack of subject matter jurisdiction. The defendant United States suggests that this Court may also consider this motion as a motion for summary judgment under Federal of Civil Procedure 56, as there is no genuine issue to any material fact and therefore the United States is entitled to judgment as a matter of law.
ANALYSIS
The United States may not be sued without its specific consent. Absent a waiver of sovereign immunity the district court should dismiss claims for lack of subject matter jurisdiction. Therefore, for this Court to have subject matter jurisdiction over the plaintiff's claims against the United States there must be an express waiver of sovereign immunity on the part of the government. The plaintiff asserts that this waiver exists under the Public Vessels Act and the Suits in Admiralty Act. However, for these statutes to apply there must be admiralty jurisdiction. In order for there to be admiralty jurisdiction there must be a vessel in navigation. Therefore, the only issue for this Court to determine concerning this motion is whether or not the USS BENEVIDEZ was a vessel, as a matter of law, at the time of Charles' fatal accident.
United States v. Sherwood, 311 U.S. 584 (1941); Ramming v. United States, 281 F.3d 158 (5th Cir. 2001); Houston v. United States Postal Service, 823 F.2d 896 (5th Cir. 1987).
46 U.S.C. app. § 781- 790.
46 U.S.C. app. § 741- 752.
"In order for a waterborne structure to qualify as a `vessel' under 33 U.S.C. § 905(b), it must be a vessel for purposes of maritime jurisdiction." Richendollar v. Diamond Drilling Company, Inc., 819 F.2d 124 (5th Cir. 1987). It is a matter of law that a ship under construction is not a vessel for maritime jurisdictional purposes.
See Williams v. Avondale Shipyards, Inc., 452 F.2d 955 (5th Cir. 1971) ( stating for there to be a seaman, there must first be a ship. And an incompleted vessel not yet delivered by the builder is not such a ship. Ship and seaman, ship and seaworthiness are mutual reflexes.) ( quoting Frankel v. Benthlehem-Fairfiled Shipyard, 132 F.2d 634 (4th Cir. 1942)) The Frankel court determined that:
since a contract for the building of a ship is non-maritime in character, a tort arising out of work on a launched but incompleted vessel also lacks maritime flavor, despite the fact that the vessel is lying in navigable waters. Furthermore, an incompleted vessel has yet to take her place in commerce and navigation; whereas a vessel which has been commissioned and taken into navigation and commerce remains in that status even when coming into a dock and undergoing certain repairs." Id at 635.
The USS BENEVIDEZ was under construction at the time of Charles' accident. It had not been turned over to the United States Navy. It was still undergoing repairs and sea trials in order to determine if it was fit for its intended use. The plaintiff's exhibit "b," states that the vessel had not been turned over to the Navy and that "final preparations" needed to take place before this transfer occurred. "A hull afloat on navigable waters does not create a vessel for jurisdictional purposes if the vessel itself is under construction and is not navigable, even if the vessel is nearly complete."
"A ship undergoing sea trials is not in navigation."Reynolds v. Ingalls Shipbuilding Dibsion, Ltton Systems, Inc., 788 F2. 264, 267 (5th Cir 1986) ( citing Williams, 452 F.2d at 958).
"A shipbuilder's worker, construction hand or engineer assisting in the building and ultimate commissioning of a launched but uncompleted vessel floating or maneuvering in navigable waters is not a seaman within the meaning of the Jones Act, because his vessel is not yet an instrumentality of commerce-private or public- and is therefore not `in navigation.'"Williams, 452 F.2d at 958.
Thomas v. Global Explorer, L.L.C., 2003 WL 943638 (E.D.La 2003) ( citing Rosettie v. Avondale Shipyards, Inc. 821 F.2d 1083 (5th Cir. 1987)).
Therefore, the USS BENEVIDEZ was not a vessel at the time of Charles' injury and thus this Court does not have subject matter jurisdiction over the plaintiff's claims against defendant United States because there is no admiralty jurisdiction over these claims, which would have allowed for the waiver of the United States' sovereign immunity under the Public Vessel Act and the Suits in Admiralty Act.
ACCORDINGLY:
IT IS ORDERED that defendant United States' Motion to Dismiss or For Summary Judgment (Rec. Doc. 7 14) should be and is hereby GRANTED.