Case Number: BC471249    Hearing Date: July 10, 2014    Dept: 91

Defendant’s motion for summary judgment, filed on 4/25/14 is DENIED. Defendant has not established it is entitled to judgment in its favor based on the material facts proffered, many of which remain unproved or are in dispute. Cal Code Civ Procedure § 437c(p)(2).

The court disregards the additional evidence proffered by Defendant with the Reply brief. Plaintiff has not had an opportunity to respond to the new evidence. All evidence is required to be submitted with the moving papers. San Diego Water Craft v. Wells Fargo 102 Cal. App. 4th 308, 313 (2002).

Defendant’s evidentiary objection is SUSTAINED on grounds of hearsay.

Both parties agree that federal maritime law applies to determine whether or not Plaintiff is entitled to “maintenance and cure” and damages for negligence under the Jones Act. Plaintiff essentially has to establish that he was injured in the course of employment. .” 46 USCS § 30104. Plaintiff is entitled to “maintenance and cure” while in the “service of the vessel.” Furthermore “in the service of the ship” means that the Plaintiff “must generally be answerable to its call to duty rather than actually in performance of routine tasks or specific orders.” Farrell v. United States, 336 U.S. 511, 516 (U.S. 1949)

The terms “in the course of employment” and “in the service of a ship” are equivalent. Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 132-133 (U.S. 1959)

Whether Plaintiff was a “commuter seaman” or a “bluewater seaman” cannot be established, because the material fact relevant to this issue is in dispute. The distinction is that a “commuter seaman” lives elsewhere; not aboard the vessel. Shaw v. Ohio River Co., 526 F.2d 193, 197 (3d Cir. Pa. 1975). Defendant contends Plaintiff did not live aboard the vessel. However, Plaintiff testified he kept his belongings onboard and that was where he went to sleep and woke up in the morning. Fact 7 is in dispute.

Plaintiff’s additional facts further controvert the issue of whether he was living on the vessel. Plaintiff testified that his living on the boat was a quid pro quo arrangement with the captain. Plaintiff’s AF 20. This is supported by Plaintiff’s deposition testimony.

The Captain also testified that he told the owner of the boat, who knew that Plaintiff was living aboard the vessel. AF 21.

Defendant has broader liability where Plaintiff is not a commuter seaman, so long as Plaintiff is “subject to the call of duty” including for injuries sustained while on shore leave. Aguilar v. Standard Oil Co., 318 U.S. 724, 732 and 735 (U.S. 1943)

The dispositive question is whether Plaintiff was “generally answerable to the call to duty,”
not answering to a particular call for boat duties at the time of the incident. As stated in Defendant’s cause authority, what Plaintiff was doing and why at the time of injury, or how he sustained injury does not affect his right to maintenance and cure. Farrell v. United States, 336 U.S. 511, 516 (U.S. 1949).

Defendant’s Fact 8 misstates the foregoing rule, by claiming that Plaintiff was not subject to being called in to work aboard the vessel on the day of the incident. Regardless, Plaintiff’s testimony affirms that he was called back to the vessel in the past on his days off and often on short notice, which supports the contention that Plaintiff was “generally answerable.” Fact 8 is in dispute. Whether he was called back specifically on the day of the incident is irrelevant.

Defendant’s Fact 12 and 17 are not proved. Defendant contends that the captain said he had called Plaintiff back in to work aboard the vessel at the time of the incident, and that was ultimately an admitted lie. However, the evidence shows that the captain testified that what he said was that Plaintiff was on his way back from picking up some tools. Fact 12 and 17 are not proved.

Additionally, Fact 12 is irrelevant, because under Farrell, the decisive issue is whether Plaintiff was “generally answerable to his call to duty,” not what he was doing at the time of the incident.

By the same token, Defendant relies on Plaintiff’s counsel’s admission in the Worker’s Compensation action that Plaintiff’s activities at the time of the accident had nothing to do with the vessel. Under Farrell, this is not relevant if Plaintiff was “generally answerable” to the call to duty. Fact 16 is in dispute.

Defendant’s Fact 13 is not proved because Defendant relies on its own responses to Interrogatories, which is impermissible. Cal Code Civ Proc § 2030.410.

Defendant has not established that Plaintiff was engaged in wilful misconduct at the time of the incident. There is no dispute that Defendant can be relieved of its obligations under the Jones Act if Plaintiff was engaged in “culpable misconduct.” Aguilar v. Standard Oil Co., 318 U.S. 724, 730-731 (U.S. 1943). Defendant relies on “reports” that Plaintiff had consumed alcohol, not that he actually was intoxicated at the time of the incident. Regardless, Plaintiff disputes that he was intoxicated at the time as he tested negative for alcohol. Fact 10 is in dispute.

Defendant has not established that Plaintiff would have been subject to disciplinary action if he had shown up for work under the influence of alcohol. Defendant cites Plaintiff’s deposition testimony, which states only that Plaintiff was told not to drink on the job. Fact 11 is not proved.

Defendant’s argument that it can only be liable for negligence if it played any part in producing the injury for which damages are sought is not supported by authority. Motion 10:5-9. This contention misstates the basis for liability for negligence and for maintenance and cure. Defendant cites a case that was based on the shipowner’s liability for unseaworthiness, which is absolute. Ward v. American Hawaii Cruises, Inc., 719 F. Supp. 915, 921 (D. Haw. 1988). In that particular context of determining “unseaworthiness,” a finding of negligence was warranted where the employer’s negligence “played any part, even in the slightest, in producing the injury.” Ward v. American Hawaii Cruises, Inc., 719 F. Supp. 915, 922 (D. Haw. 1988). Defendant turns this sentence into a requirement that Plaintiff must show that Defendant had something to do with the motorcycle collision. Under the authority previously cited, Plaintiff must show that he was “generally answerable to the call of duty.”

Accordingly, Defendant’s motion is denied.