Petition for Writ of Certiorari — Boyd v. Ford Motor Co.

Supreme Court, U.S.

P1258

No - FI't. ED

In The FEB 3 1992

Supreme Court of the Anited Bates gsc cuz

October Term, 199]

James Boyp and

ELIZABETH Boypb

Peti

\

ForD Moror Company

Rouce STEEL COMPAN)

THE Moror Vesse. M.S. HEeNrR’

On Appeal from the United States

Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ALVIN L. LEVINI

Levine, Benjamir

Bratt. Jerris & Steir

1411 South Woodward Av«

Bloomtield Hills, MI 48

January

QUESTIONS PRESENTED FOR REVIEW

In navigation

|. Whether the condition that a vessel be

1S irequisite factor in determining seaman status pursuant

to the Jones Act, 46 U.S.C S688. in light of this Court's

holding it) VUcDermott ! Wilande } [ 2 _

Ct. SO7T (199]

i] Whether the determinat yn that a vessel was “in may

( | tO} thie Purpose Ot

Jones Act \¢ il il Stilts ‘ 1 atiry\ question O17

TABLE OF CONTENTS

Questions Presented tor Review

Fable of Contents

Fable of Authoritie

Reference to Opinions Below

Jurisdiction

16 | S .¢( JOA Phe Jouve Act

Court of Appe has decided an imy

question of I leral laa hich ta

hut hould be decided | is iirt

( ned

Append 4 Phe 6th Car t Cpu

Append Ki f 1) ( Mie

(opi

Vi ] yi, roiotft

Vee 8

()/ ore

ytty Con

om ty % €

PABLI

L of

199]

Wilan (

SO7 (1990

Ro

1Q59

Ol

{l

PHORTTIES

jn The

Supreme Court of the Cnited States

October Term. 199]

James Boyp and

EniZABETH Boyp

Pe littoner:

korD Moror Company

Roucr STEEL. COMPANY

THE Moror Vessel. M.S. Henry Forp I]

Re spondents

On Appeal from the United States

Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

REFERENCE TO OPINIONS BELOW

Phi opinion of the Court of Appeals below (Appendix \

infra, p. A-| is reported in 948 F2d 283 Phe memorandum

opinion of the District Court below Appr ndix B. infra »

B-1) was not reported

JURISDICTION

The jurisdiction of this Court is invoked following thi

entry of an opinion of the United States Court of Appeals for

the Sixth Circuit on November 6, 1991, and pursuant to 25

U.S.C. $1254 (1), Petitioners seek this writ of certiorari

i

16 U.S.C. §688 — THE JONES ACT

S6SS. Recovery for Injury to or Death of Seaman

a) Application of Railway Employee Statutes:

Jurisdiction

]

Any seaman who shall suffer pe rsonal injut

thre course of his employment mav. at his election

mamta an action for damages it law. with thr

right of trial by jurv. andin such action all statute

of the United States moditving or the common

, ’

right or remedy in cases of personal MyuUury tO}

1] cy

Wal lovees sh all apply und in case of death of

I

. , iit . | |

iT} seaman as a result of any SUCT) Personal tyul

+ |

le pe rsonal re presentative ol such seaman n

unital i action for damages uu siaw Ww th t}

} 11

right of trial by yur and in such action. all statute

; ) . ] Pi

t the United States COnTerring rre¢gulating thre

|

right of ction tor ce ith, | thre Case OT TALTIW i\ CTLIP

1} 1 ! ]

( shall bse LP pil ity le | risc t t cl ict

, 1} } +} {4} } ; ; ;

i Le Lael ( urt ( i l I

1¢>T } Tt ¢ ] ) ? é

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+? ;

STATEMENT OF THE CASI

Petitioners JAMES and ELIZABETH BOYD apply for cer

tiorari following a decision by the United States Court of

Appeals for the Sixth Circuit

On March 28, 1990, Mr. and Mrs. BOYD filed a Com

plaint in the district court for the Eastern District of Mich

igan alleging personal injury to JAMES BOYD caused by

negligence on the part of the Respondents FORD MOTOR

COMPANY, ROUGE STEEL COMPANY. and THE MOTOR

VESSEL M.S. HENRY FORD I]

The BOYDS claimed remedies under the Jones Act, 46

Lo. » 688, contending that JAMES BOYD enjoved the

Jones Act’s requisite seaman status on February } 1]. |}9GS87

the date of his injury

Petitioners based their contention on these undispute d

facts: (1) that JAMES BOYD was well into his third decade as

i maritime employee of the Respondents, and (2) that for

thre past three years, Mr. BOYD had enjoved a permanent

issignment to the MOTOR VESSEI, MS HENRY FORD II

is “Chief Engineer AA” as well as “Chief Maintenance Enginee)

Both the district court and the Sixth ( ircuit court of Appe als

relied on the tollowing facts which are not 11) dispute

1) The [2-1] Sv] injury occurred during winter lay

Phare ship Was not sailis y and was in fact CCUTE(

vith special winter lines

The full crew w is not stationed aboard the ship

Only engineers and Persons engage din winter re pal

work were retained during the winter lay up

1) The plaintiff s classification had « hanged from Chiet

Engineer AA to Chief Maintenance Engineer. and his

normal sailing SC ASOT Classific ation had bye Cr) ¢ hanged

to temporary winter work classification

9) The pl untill was engaged in winter Lay Up me bean

] |

cal repair Work at the time of his injury, either prepal

ing the vessel for Winter o1 readying it for thr following

tSQOT)

6) The plaintiff did not sleep aboard the vessel during

the winter lay-up period

(7) The vessel's main engine had been completely “torn

down” and was not in operable condition at the time of

the incident

8S) The vessel had lost her classification with the U.S

Coast Guard, and could not regain it without an inspes

+

LlOT)

Boyd 1 Ford Motor Company, 945 2d 283, 286 (6th ¢

199]

On February 15, 1991, the district court granted sum

mary judgment tor the Defendants ruling that JAMES BOYD

was not a ‘seaman’ for Jones Act purposes

The lower court ruled that Respondent THE MOTOR VESSEI

M.S. HENRY FORD II was not “‘in navigation’ at the time of

Mr. BOYD’s injury, and therefore, he did not enjoy seaman

status. The lower court also ruled that respondent, THI

MOTOR VESSEL M.S. HENRY FORD II was not “in n

gation’ as a matter of law

i

On November 6. 1991. the United States Court of App

for the Sixth Circuit affirmed the lower court’s rulin

The court of appe als held that thre In tavigatiol

prong of the Seaman Status test was still oper ive i |

of its absence in McDermott v. Wilande US

111 S.Ct 807 (1990) and Offshore Co. v. Robison. 266 |

i

(69. 779 (5th Cir. 1959) and that (2) whether a vessel

navigation” mav be properly decided as tL question Of ta

Petitioners JAMES and ELIZABETH BOYD argue that Wilancd:s

ind Robison both do away with the Inaavigation require

ment of the lones Act seaman status test Responde rit

tend that the test still require >that a vessel be “in navigation

Petitioners argue that even if the In navigation require

ment is still a prong in the Wilander/Robison test tor

}

Status, it is purely a jury question ind in the instant «

question of fact remains as to whether the vessel in question

was “in navigation” when the cause of action arose. Respon

dents contend that the In navigation requirement is either

a question of law or a mixed question of law and fact

REASONS FOR ALLOWANCE OF THE WRIT

|. Courts of Appeals in conflict

The Sixth Circuit opinion below is inconsistent with the

Fitth Circuit's test for Jones Act “seaman status” in Offshore

Co v. Robison, 266 F.2d 769. 779 (5th Cir. 1959) which is

|) [I|f there is evidence that the injured workman was

assigned permanently to a vessel or performed a

substantial part of his work on the vessel: and (2) if the

capacity in which he was employed or the duties which

bie performed contributed to the function of the vesse]

or to the accomplishment of its mission, or to the ope!

ation or welfare of the vessel in terms of its mainte

nance during its movement or during anchorage for its

future trips. Robison, 266 F2d 769. 779 (35th Cir

os 1959

While the Fifth Circuit does not mention the “in naviga

tion requirement in the Robison test, the Sixth Circuit

11)

its Opinion below holds that this factor that a vessel be “in

navigation’ in order that an injured worker be a “‘seaman

1S dispositive and may be decided as a matter of law

Phe Sixth Cire uit notes that there IS little in Robison

to suggest an abandonment of the jin

|

navigation: require

ment

Hlowever. the facet that the Fifth Circuit did not include

the “in navigation prong af ll in its test strongly sugvvests

thacat sure I a requiremene ho longer eXISTS

| 1

Phe Jones Act, infamous for its lac

of clarity doe Ss hot

issistin getting at the definition of “seaman Plain logic and

Common sense do not provide ny further insight as to thre

relation hip ay tween vessel statu trict se urebcuny Stave

6

The conflict between the Fifth and the Sixth Circuit is

indicative of a lack of uniformity in understanding just what

seaman status entails.

2. Conflict with the U.S. Supreme Court in Wilander.

a) Is “in navigation” part of the seaman test?

In Wilander, this Court adopted the Fifth Circuit's test

for Jones Act “seaman status” as set forth in Robison, supra.

Wilander, US. 111 S.Ct. SO7, S17. The Sixth

Circuit, in its opinion below, reasoned that because this Court

in Wilander did not specifically handle the “in navigation”

issue, that the requirement is impliedly still a part of the

Jones Aci “seaman status” test. The Appeals Court reasoned,

The Supreme Court in Wilander considered only the

narrow question of whether a person must aid in the

navigation of a vessel of a vessel to be considered a

seaman under the Jones Act. It did not purport to define

a ‘vessel in navigation” or attempt any discussion of the

“in navigation” concept. However, its opinion implies

that the concept is still a viable component of the test

used to determine who is a seaman. Boyd v. Ford Motor

Company, 948 F.2d 283, 288 (6th Cir. 1991)

As noted above, this Court adopted the Robison test in

Wilander. That test for “seaman status” does not include an

“in navigation” prong, however, the Sixth Circuit holds in

the opinion below that Wilander implies such a require

ment.

b) Question of fact or law?

If the “in navigation” requirement does exist by implica-

tion in Wilander, as held by the lower Court of Appeals for

the 6th Circuit, the holdings of Wilander state that the fac-

tors going to determine “seaman status’ are mixed questions

of fact and law. Wilander, U.S. , VD S.Ct. S07,

SIS.

In the opinion from the court below, the “in navigation”

determination may be made as a question of law. The Sixth

Circuit Court of Appeals holds that in certain instances, the

Judge may grant Summary Judgment where no reasonable

jury could find the vessel to be “in navigation”. 948 F2d

283, 285 (6th Cir. 1991)

In the absence of a statutory definition of “in navigation’.

there is no clear way of determining Jones Act seaman status.

Is a worker precluded from such status and its benefits merely

because an engine is “torn down” in the winter? A trier of

fact would also be made aware that engines are routinely

“torn down” all year round.

Is a worker precluded from Jones Act remedies merely

because the vessel on which he worked had less than a full

crew and no Coast Guard classification? A trier of fact would

know that the Great Lakes are transitable during the winter

months and that for many motor vessels, “winter lay-up”

means “ready to sail with twenty-four hours notice.”

3. Court of Appeals has decided an important ques-

tion of federal law which has not been, but

should be, decided by this Court.

The Sixth Circuit Court of Appeals has ruled that in order

for a person to enjoy Jones Act “seaman status’, the vessel

on which the cause of action arose must be “in navigation .

Boyd v. Ford, 948 F.2d 283, 288. In essence, the lower court

of Appeals has added another formal prong to the Robison

test.

This Court in Wilander recognized the importance of estab-

lishing uniformity in the area of maritime litigation. specil-

ically in response to the question, “who are seamen?” Wilander.

at S17. It is this Court, then, which is solely able to deter-

mine when and ifa third, “in navigation” requirement should

be part of the test for “seaman status’’.

This Court, in Wilander, held that the requisites for “seaman

status” are questions of fact. Wilander, at _ If, as the

6th Circuit has held in the opinion below, the “in naviga-

tion” prong is still viable, does this Court's decision in Wilander

indicate that such a requirement be determined at law or by

a jury?

CONCLUSION

Is the “in navigation” requirement still viable in the test

for Jones Act “seaman status”? The Sixth Circuit answers.

“ves.” while the Fifth Circuit and this Court rely on a test

which does not include an “in navigation” requirement.

Moreover, would “in navigation” be a question of law or

fact? The Sixth Circuit indicate that it is a mixed question of

law and fact. This Court has held that the two prongs of the

Robison test are to be determined as questions of fact.

These questions are important to all areas of maritime

commerce. Both maritime workers and their employers rely

upon uniformity in this area of law and commerce, and there

fore, this Honorable Court should grant a Writ of Certiorari

in this case.

Respectfully submitted,

ALVIN L. LEVINE (P16610)

Levine, Benjamin, Tushman,

Bratt, Jerris & Stein, PC.

1411 South Woodward Avenue

Bloomfield Hills, MI 48302

Suite 200

(313) 334-1551

Counsel for Petitioners

Prepared by Alvin L. Levine & Adam G. Taub

January 30, 1992

A-1

RECOMMENDED FOR FULL TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

No. 91-1285

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

“«

JAMES BOYD and ELIZABETH

BoYD,

Plainsiffs-Appellants,

v. ON APPEAL from the

United States District

FORD MoTor ComPANyY; RouGe | Court for the Eastern

STEEL COMPANY; THE MOTOR District of Michigan

VesseL Ms. HENRY Foro II,

Defendants-Appeilees. |

Decided and Filed November 6, 1991

Before: MILBURN and SUHRHEINRICH, Circuit

Judges; and JORDAN, District Judge’.

MILBURN, Circuit Judge. Pursuant to a stipulation of

the parties which resulted in a voluntary dismissal of ail

remaining claims fotlowing the entry of a partial summary

judgment in favor of the defendants, the district court

entered a final judgment in the case below. Plaintiffs

James and Elizabeth Boyd appeal the partial summary

“Honorable Loon Jordan, United States District Judge for the

Eastern Disinict of Tennessee, sitting by desi gnatioa.

A-2

2 Boyd v. Ford Motor Company, et al. No. 91-1285

judgment in this personal injury action brought under 46

U.S.C. § 688 (“Jones Act") and general manitime law.

The pnincipal issue in this case is whether or not THE

MOTOR VESSEL MS. HENRY FORD II was a vessel in

navigation on February 11, 1987, thereby giving plaintiff

James Boyd the status of a seaman under the Jones Act

when he allegedly fell and injured himself aboard the

vessel. For the reasons that follow, we affirm.

I.

A.

On March 28, 1990, James Boyd and his wife,

a Boyd, filed a complaint in the district court

ing that James Boyd was injured on four occasions

ile employed as a seaman by the defendants, the Ford

saa Company, the Rouge Stee! Company, and THE

MOTOR VESSEL MS. HENRY FORD i n Count I of

their complaint, plaintiffs alleged negligence on the part

of the defendants and ~~. remedies under the Jones

Act. In Count II James Boyd asserted that his injuries

were caused by an unsafe dock and the unseaworthiness of

the defendant vessel. In Count III James Boyd asserted

claims for maintenance and cure with respect to each of

his injunes. Additionally, his wife, Elizabeth Boyd,

presented a claim for loss of consortium.

The first three of the four injures alleged by plaintiff

James Boyd occurred in 1982, 1984, and 1985. Because

these injuries occurred outside the applicable three-year

limitations period, the distnct court granted summary

judgment in favor of the defendants as to all the Jones Act

and unseaworthiness claims.

Plaintiff James Boyd's fourth injury was alleged to have

occurred on February 11, 1987, or within the three-year

limitations period for bringing claims under the Jones Act

and for unseaworthiness. However, upon determining

that the MS. HENRY FORD II was not “in navigation"

on February |1, 1987, the district court granted partial

ee

A-3

No. 91-1285 Boyd v. Ford Motor Company, et al. 3

summary judgment on all claims arising out of Mr.

Boyd's alleged injury on that date, including the claim for

maintenance and cure. With respect to the claims for

maintenance and cure based on the alleged injuries in

1982, 1984, and 1985, the district court denied

defendants’ motion for summary judgment but later

dismissed those claims, as earlier stated, on stipulation of

the parties and entered a final judgment.

Plainuffs have not chosen to raise a question concerning

the district court's ruling that the claims arising from

injuries allegedly sustained in 1982, 1984, and 1985 are

time-barred. Accordingly, any issues pertaining to that

ruling are considered abandoned on appeal and thus not

reviewable. See First State Bank v. City and County

Bank, 872 F.2d 707, 719 n.5 (6th Cir. 1989); McMurphy

v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir.

1986). The only tuling of the district court which the

plainuffs have appealed is the granting of partial summary

judgment to the defendants on all claims arising from the

injunes plaintiff Mr. Boyd allegedly sustained on

February 11, 1987.

B.

The underlying facts in this case are not disputed.

Within a few days of Christmas, 1986, and before January

|, 1987, THE MOTOR VESSEL MS. HENRY FORD II,

a ship in navigation on the Great Lakes, entered port at

Dearbom, Michigan, to conclude its sailing season by

entering a phase known as “winter lay-up.” The vessel

was moored to its dock with its normal lines and with

additional “winter lines” designed to insure a stronger and

more permanent attachment to the dock. Shortly after the

ship was moored, the sailing crew, with certain

exceptions, was paid off and dismissed.

Plainuff Boyd, however, with other members of the

ship's engineering crew, remained with the vessel to

supervise the winter lay-up activities. As of January 8,

1987, plaintiff's employment classification was changed

A-4

4 Boyd v. Ford Motor Company, et al. No. 91-1285

from Chief Engineer AA to Chief Maintenance Engineer

AA, and his monthly salary was reduced from $5,406 per

month to $3,460.78 per month, changes reflecting his

transfer to “temporary winterwork classification." Rather

than sleeping aboard the vessel, plaintiff supervised lay-up

work during the day and retumed to his home each night.

During the five-day winter work week, non-crew

personne! came aboard the ship to perform various jobs.

The ship itself had lost her classification with the United

States Coast Guard and was not permitted to sail again

before passing a fit-out inspection. Moreover, the vessel's

main engine was disassembled and was not operable at the

time of plaintiff's alleged injury. During the period of

winter lay-up, only one navigating officer was deaies the

ship, and he was almost entirely engaged in supervising

repair work.

II.

Summary judgment is appropriate where “there is no

genuine issue as to any material fact and .. . the moving

party is enuiled to a judgment as a matter of law." Fed.

R. Civ. P. 56. A district court's grant of summary

judgment is reviewed de novo. Pinney Dock and Transp.

Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.),

cert. denied, 488 U.S. 880 (1988). In its review, this

court views all facts and inferences drawn therefrom in

the light most favorable to the nonmoving party. 60 /vy

St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.

1987).

The moving party carries the burden in showing that no

genuine issue of material fact exists. /d. Yet, in the face

of a summary judgment motion, the nonmoving part

cannot rest on its pleadings, but must come forward with

some probative evidence to support its claim and make it

necessary to resolve the differences at trial. Celotex Corp

v. Catrett, 477 U.S. 317, 324 (1986). “By its very terms,

this standard provides that the mere existence of some

alleged factual dispute between the parties will not defeat

an otherwise properly supported motion for summary

a

A-5

No. 91-1285 Boyd v. Ford Motor Company, et al. 5

judgment; the requirement is that there be no genuine

issue of material fact." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986). The dispute must be

genuine, and the facts must be such that, if they were

proven at trial, a reasonable jury could retum a verdict for

the nonmoving party. 60 Ivy St. Corp., 822 F.2d at

1435. If the disputed evidence “is merely colorable, or is

not significantly probative, summary ey may be

granted.“ Anderson, 477 U.S. at 249-50 (citations

omitted).

The district court granted summary judgment in favor

of defendants because, based on the undisputed facts, it

found that “no reasonable jury could find that the SS

Henry Ford II (sic) was ‘in navigation’ on February 11,

1987." The “in navigation” requirement comes from this

court's definition of a seaman.

Although the [Jones] Act does not define the term

‘seaman’, the Sixth Circuit has stated that in

determining whether a particular employee is a

‘seaman’ the following test shall be applied: (1)

Is the vessel in navigation, (2) does the employee

have a more or less permanent connection with the

vessei, and (3) was the employee on board the

vessel primarily in aid of navigation?"

Searcy v. E.T. Slider, Inc., 679 F.2d 614, 616 (6th Cir.

1982). Under this court's test, a person must be more or

less permanently connected with a vessel in navigation in

order to fit the definition of a seaman within the Jones

Act.

As earlier indicated, the district court found the

following undisputed facts:

'The third element in the definition of a seaman was rejected in

McDermou Int'l, Inc. v. Wilander, U.S. , LLi S. Ct. 807

(1991). Seo infra.

A-6

6 Boyd v. Ford Motor Company, et al. No. 91-1285

(1) The [2-11-87] injury occurred during winter

lay-up;

(2) The ship was not sailing and was in fact

secured with special “winter lines";

(3) The full crew was not stationed aboard the

ship. Only engineers and persons engaged in

winter repair work were retained during the winter

lay-up;

(4) The plaintiff's classification had changed from

Chief Engineer AA to Chief Maintenance

Engineer, and his normal sailing season

classification had been changed to “temporary

winter work classification.”

(5) The plaintiff was engaged in winter lay-up

mechanical repair work at the time of his injury,

either preparing the vessel for winter or readying it

for the following season;

(6) The plaintiff did not sleep aboard the vessel

during the winter lay-up penod;

(7) The vessel's main engine had been completely

“tom down” and was not in operable condition at

the time of the incident;

(8) The vessel had lost her classification with the

U.S. Coast Guard, and could not regain it without

an inspection.

From these undisputed facts, the district court concluded

that there were no genuine issues of material fact in this

case, and it determined that the ship was not in navigation

at the time of plaintiff's alleged injury on February 11,

1987. Accordingly, it held that plainuff Boyd was not a

seaman within the meaning of the Jones Act.

The district court relied prmanly on Antus vy.

ae

A-7

No. 91-1285 Boyd v. Ford Motor Company, et al. 7

Interocean S.S. Co., 108 F.2d 185 (6th Cir. 1939), and

Nelson v. Greene Line Steamers, 255 F.2d 31 (6th Cir.),

cert. denied, 358 U.S. 867 (1958). In Antus, a case

factually similar to this case, the ship in question

had been withdrawn from navigation. All of the

navigating officers and deck crew of the vessel had

departed for the winter excepting certain members

of the engineer's department, including appellant.

All of these men had formerly been members of

the crew, but had been paid off after the last trip

and had remained on board, in accord with the

general practice on the lakes, for the purpose of

laying up the vessel. During the navigation season

they been paid on a monthly basis, but in the

laying-up work they were paid by the hour, the

rate of compensation, however being the same.

Antus, 108 F.2d at 186. The district court had dismissed

the plainuff’s action under the Jones Act, and this court

affirmed for the reason that,

{[wjhile the work done had direct relation to

Navigation, it neither was performed during the

navigasion season, nor was it even preparatory to

navigation. Appellant was laying up the engine

and packing the pumps and seacocks so that they

would not freeze. He was taking bolts out of the

piston-heads, an operation which was never done

during navigation. It would have taken from four

to eight hours to put the engines together again to

operate. The vessel, while not consigned to a

ship's graveyard, was tied up to the piles. Instead

of doing this work in preparation for navigation,

the men were preparing the vessel for winter

quarters. Appellant was not subjected to any

manume hazards.

Id. at 187 (emphasis added).

In Desper v. Starved Rock Ferry Co., 342 U.S. 187

A-8

8 Boyd v. Ford Motor Company, et al. No. 91-1285

(1952), the Supreme Court followed Antus and held that a

crew member, reemployed as a laborer for the winter to

perform seasonal repair work, was not a seaman within

the meaning of the Jones Act because all the vessels upon

which he had served had been “laid up for the winter” at

the time of his accident. /d., 342 U.S. at 191. The Court

cited Antus for the proposition that “one who had been a

member of a ship's crew and was injured while preparing

it for winter quarters could not maintain a Jones Act suit

for his injuries... ." Jd. Although neither Ansus nor

Desper concentrated on the “in navigation” requirement,

both courts emphasized the fact that no vessel was

engaged in navigation when the injumes occurred because

the vessels had been laid up for the winter. Thus,

although both cases actually focused on the kind of work

being performed by the plaintiff at the time of his injury

or death, Antus and Desper established that a crew

member who is specially reemployed to perform winter

lay-up services on a vessel is not a seaman for Jones Act

purposes.

This view was reenforced in Nelson v. Greene Line

Steamers, 255 F.2d 31 (6th Cir.), cert. denied, 358 U.S.

867 (1958), a case in which this court affirmed a distnct

court's findings that the Delta Queen had been tied up for

the winter at a wharf in Cincinnati, Ohio, and was not

engaged in navigation at the time of the plaintiff's

intestate's death. Plaintiff had been a crew member

during the preceding sailing season, but he was

rig during the winter as a laborer to make

SS a to the ship for the following season.

Surias this lay-up period, the full crew was not aboard,

and such crewmen as were working were not required to

sleep on the ship. This court refused to find clearly

erroneous the district court's findings that the Delta Queen

was not in navigation and that the plaintiff, therefore, was

not a seaman.

Together the foregoing cases we be considered to have

established a special status in which a vessel is laid up for

refitting durng the winter months. In Bodden vy.

A-9

No. 91-1285 Boyd v. Ford Motor Company, et al. 9

Coordinated Caribbean Transp., Inc., 369 F.2d 273, 275

(Sth Cir. 1966), the Fifth Circuit recognized winter

quarters as such a special status in which a ship would not

be considered to be in navigation.

On the other hand, where a vessel is laid up for the

winter, the crew having been discharged, and the

boat is being secured by workmen paid at an

hourly rate and living ashore, the ship is no longer

in navigation. The same is true where the vessel is

tied up for the winter with only a maintenance

crew, and claimant, a crew member during the

season, is retained as a laborer on an hourly basis

and is not required to live aboard the vessel.

Id. (citation omitted) (citing Nelson and Annus).

Although plaintiff James Boyd does not dispute the

underlying facts and, moreover, concedes in his brief that

the vessel, during winter lay-up, “did not have a pre-

scheduled itine of necessary sailing missions,” Brief

of Appellant at 10-11, he contends that the vessel was in

navigation at the time of his injury and that the district

court took too narrow a view of the “in navigation”

component of the definition of a seaman. He argues that

courts should give a liberal interpretation to remedial

legislation such as the Jones Act, Luckert v. Continental

— Co., 649 F.2d 441, 443-44 (6th Cir. 1981),

and contends that because our case, Noack v. American

Steamship Co., 491 F.2d 937, 939 (6th Cir. 1974), holds

that “the question of ‘in navigation’ is properly one of fact

... , the distnct court should not have granted

summary judgment.

The facts in Noack are similar to the facts in this case.

In Noack, the plaintiff had been a crewman of the vessel

in question for twenty-five years and during the sailing

seasons was employed as “a wiper”; i.¢., one who wipes

up grease and oi! from the decks of a vessel. He was

injured while helping to clean the bilges during winter

lay-up, and a jury awarded him a substantial verdict after

A-10

10 Boyd v. Ford Motor Company, et al. No. 91-1285

finding by special interrogatory that the vessel in question

was in navigation. This court upheld the jury verdict in

Noack stating:

It is of course true that in the strict sense the lay-

up of this Great Lakes vessel effectively took the

vessel out of navigation. However, it is also true

that the routine of lay-up had been established

because the vessels d not operate in the ice and

cold. Barring. such weather obstacles to a year-

round sailing season, it appears that many tasks

typically accomplished dumng the lay-up period

could well be accomplished at sea without

interruption to regular scheduling for major

irs. Thus under the circumstances it seems

clear that the lay-up and fit-out activities are

complete parts of the total Great Lakes sailing

season. Crew members perform the lay-up and fit-

Out tasks under the same labor contract that applies

during the sailing season. The same discipline and

functional management also applies. In view of

these facts, we cannot say that there was clear

error in the District Court's finding. . .

Id. at 940 (emphasis added).

In reaching this conclusion, this court found Busler v.

Whiteman, 356 U.S. 271 (1958), to be controlling. In

Butler, a brief per curiam, the Supreme Court reversed

and remanded a case after finding that the “evidence

presented an evidentiary basis for jury findings as to (1)

whether or not the tug G.W. Whiteman was in navigation

....”" Id. The majority did not mention the facts of the

case or explain its reasoning, but the dissent recited that

the tug on which the injury occurred was inoperable, that

it had been withdrawn from navigation, that it was

moored up, that it had neither captain nor crew, that it

was undergoing rehabilitation pale crear to a Coast

Guard inspection, and that the decedent in the case was

employed as a laborer doing odd jobs around the wharf

where the tug was moored. Busler thus seems to hold that

A-1]

No. 91-1285 Boyd v. Ford Motor Company, et al. II

there are virtually no circumstances under which a tnal

court would be justified in directing a verdict on the

question of whether or not a vessel was in navigation. It

is not surprising, therefore, that this court in Noack,

confronted with Butler and with a standing jury verdict

based on special interrogatories, held that there was no

Clear error in the trial despite the fact that “in the strict

sense the ... vessel [was] out of navigation.” Noack,

491 F.2d at 940.

In the present case we are not faced with the same

situation that was before this court in Noack. First, the

case comes to this court on appeal from the granting of

defendants’ motion for summary judgment, not from a

jury verdict in favor of the plaintiffs. Second, a recent

decision of the Supreme Court has weakened Butler, and

thus Noack, which followed Butler.

In McDermon Int'l, Inc. v. Wilander, ___ U.S.

, LIL S. Ct. 807 (1991), the Court reviewsd a

1 ircuit case and affirmed that circuit in its view that

one need not aid in the navigation of a vessel in order to

qualify as a seaman under the Jones Act. The Supreme

Court has thus rejected the third factor of the test used in

Searcy v. E.T. Slider, Inc., 679 F.2d 614, 616 (6th Cir.

1982), and has approved the Fifth Circuit's test from

Offshore Co. v. Robison, 266 F.2d 769, 779 (Sth Cir.

1959), a test which asks two questions:

(1) [I]f there is evidence that the injured workman

was assigned permanently to a vessel ... or

performed a substantial part of his work on the

vessel; and (2) if the capacity in which he was

employed or the duties which he performed

contnbuted to the function of the vessel or to the

accomplishment of its mission, or to the operation

or welfare of the vessel in terms of its maintenance

during iis movement or during anchorage for its

future trips.

(Emphasis added).

A-12

12 Boyd v. Ford Motor Company, et al. No. 91-1285

The Supreme Court in McDermott considered only the

narrow question of whether a person must aid in the

navigation of a vessel to be considered a seaman under the

Jones Act. It did not purport to define a “vessel in

navigation” or attempt any discussion of the “in

navigation” concept. However, its opinion implies that

the concept is still a viable component of the test used to

determine who is a seaman.

We believe the better rule is to define ‘master

or member of a crew’ under the LHWCA, and

therefore ‘seaman’ under the Jones Act, solely in

terms of the employee's connection to a vessel in

navigation.

The key to seaman status is employment-related

connecuion to a vessel in navigation.

McDermon, 111 S. Ct. at 817 (emphasis added).

Although the Supreme Court adopted the test set out by

the Fifth Circuit in Robdison, this does not aid the

ogee in obtaining a reversal in this court because, as

been pointed out, the Supreme Court did not abandon

the “in navigation" requirement. Moreover, there is little

in Robison to suggest abandonment of the requirement,

First, the “in navigation" requirement was not discussed

in the case. The language “during its movement or during

anchorage for its future trips” does not distinguish

between a vessel temporarily anchored while on a voyage

and a ship, such as the MS. HENRY FORD II, without

crew, without sailing certificates, without operable

engines, and without a sailing itinerary or current sailing

mission. Thus, neither Robison nor McDermoit supports

lainuiffs’ contentions that the “in navigation® requirement

been weakened or abandoned. Because the district

court's resolution of this case tumed only on the issue of

the ship's status at the time of plainuff's injury, and

because this issue is independent of the issues discussed in

A-13

No. 91-1285 Boyd v. Ford Motor Company, et al. 13

Robison and McDermout -- whether or not plaintiffs were

members of a crew -- this court need not decide in this

case whether to replace entirely Searcy's definition of

seaman under the Jones Act.

McDermott also provides important guidance for the

resolution of this case insofar as it specifically approves

the use of summary judgment in Jones Act cases and

therefore relaxes what seemed to be a rigid rule in Butler,

a case that had been read to hold that jury determinations

were required in all aspects of Jones Act cases. Noting

that some of its older cases had said that seaman status

under the Jones“Act was a question of fact for the jury,

the Court in McDermorr stated that the question of who is

a seaman is best characterized as a mixed question of law

and fact and that, because seaman is a statutory term, its

definition is a question of law. It went on to state:

The jury finds the facts and, in these cases, applies

the legal standard, but the court must not abdicate

its duty to determine if there is a reasonable basis

to support the jury's conclusion .... The inqui

into seaman status is of necessity fact-specific; it

will depend on the nature of the vessel, and the

employee's precise relation to it. Nonetheless,

summary judgment or a directed verdict is

mandated where the facts and the law will

reasonably support only one conclusion.

Id. at 818 (citations omitted) (emphasis added).

In this case, the facts pertinent to the determination of

whether the MS. HENRY FORD II was in navigation

were undisputed, and the question of whether the ship was

in navigation was therefore appropriate for summary

judgment, especially so after the Supreme Court's trilogy

in 1986 dealing with summary judgments. This court's

cases, as the district court correctly noted, have held that

a ship in winter lay-up without its regular crew, without

Coast Guard cortiietion to sail, and without its engines

in Operating condition, is not in navigation. The cases

A-1l4

14 Boyd v. Ford Motor Company, et al. No. 91-1285

cited by plaintiffs provide no reason for this court to

change its view that a winter lay-up of the kind described

in this case takes a vessel out of navigation and renders

those employed upon her ineligible as non-seamen to

proceed under the Jones Act.

Ul.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

RECEIVED JAN. 4, 199]

LEVINE, BENJAMIN

UNTEPFED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

James Boyp and

Biizanperun Boyp

Plaintiffs

Civil Action No

9O0-CV-7TOS47-D]

VS

Tre Forp Moron Company

Tur Roucr Sreet Company and

THe Moron Vesser. MS Henry

Forp I

Hox. Bernarp A. Freep:

Defendants

MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

This matter is presently before the court on defendants

motion for summary judgment, filed November |. 1990

Plaintiffs have filed a response and defendants have filed

reply. Pursuant to Local Rule 17(1)(2) of the United States

District Court for the Eastern District of Michigan. the court

shall decide this motion without an oral hearing. Accord

ingly, the January 31, 1991, hearing date indicated on defen

dants’ re-notice of hearing dated November 21. 1990. is

cancelled

Background

The complaint alleges that plaintiff James Bovd was injured

on four occasions while working for defendants. The first

B-2

injury allegedly occurred on June 16, 1982, when plaintiff

tell on pellets “which had been spilled on the dock ~ At

that time, plaintiff “was emploved by the defendants as a

first assistant engineer [and] was returning to the vessel”

when he fell. Plaintiffialleges that on this occasion he injured

his hip, knee and right hand. Complaint, para. 7. See also id

)

para. 233.

Plaintiff was injured a second time on December 16, 19S 4,

when he again fell on pellets on a dock. At that time, plain

tiff was “continuing his employment with the defendants.

and performing his duties leaving the vessel ~*~ On this

occasion plaintiff allegedly “re-injured his hip. back, neck.

both knees, and) right shoulder. Id. para. 9. See also

id. para. 24.

The third injury occurred on June 5, 1985, when plaintiff

“while working in the crankcase of the main engine of the

defendant, THE MOTOR VESSEL MS HENRY FORD II, fell

in the crankcase In this fall plaintiff “re-injurled] his

hip. shoulder, back, neck, both knees. and). right ear and

head “Id. para. 11. See also id. para. 25.

On February 11, 1987, plaintiff was injured a fourth time

when “while inspecting a cargo-hold, plaintiff. —— fell on fine

coal dust.” In this incident plaintiff “re-injured his hip, back.

neck, right knee and right shoulder “Td. para. 13. See

also para. 26.

Plaintiff James Bovd alleges that each of these injuries was

proximately caused by defendants negligent failure to prop

erly maintain the vessel and surrounding area. He seeks dam

ages for lost earnings, medical expenses, and pain and suffering

His wife. plaintiff Elizabeth Bovd, asserts a claim for loss of

consortium. The negligence claims presented in Court bare

brought under the Jones Act. 46 U.S.C.) 6SS. Count TI

asserts claims of cl nnsate dock and mnscaworthy vessel

County TH asserts a claim for failure to provide maintenance

ind Cua?

ae

Summary Judgment Standard

Under Fed. R. Civ. P56 (c). summary judgment is appro-

priate if

the pleadings, depositions, answers to interrogatories.

and admissions on file, together with the affidavits. if

any, Show that there is no genuine issue as to any mate-

rial fact and that the moving party is entitled to a judg-

ment as a matter of law.

The burden is on the party opposing summary judgment to

“set forth specific facts showing that there is a genuine issue

for trial.’ Fed. R. Civ. P. 56(e), [T]he mere existence of

same alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for sum-

mary judgment; the requirement is that there be no genuine

dispute as to any material fact.” Anderson v. Liberty Lobby.

Inc, ATT US. 242, 247-48 (1986) (emphasis in original).

Viewing the evidence “in the light most favorable to the

opposing party,” Adickes v. SH. Kress & Co., 398 U.S. 144.

lov (1970), summary judgment should be entered only if

the evidence is so one-sided that a reasonable fact-finder

could not find for the opposing party. See, e.g. Anderson tv

Liberty Lobby, Inc., ATT U.S. 242. 248-50 (1986). Street 1

J] © Bradford & Co.. 886 F2d 1472, 1478-80 (6th Cir.

1989).

Defendants’ Summary Judgment Motion

Mc

In their summary judgment motion, defendants first argue

that the statute of limitations has run with respect to the first

three incidents (6-16-82, 12-16-84 and 6-5-5). The Jones

Act claims are subject to a three-year limitations period. See

MeAllister v. Magnolia Petroleum Co.. 357 U.S. 22 1, 225 n.6

(1955) (noting that the Jones Act incorporates the three

vear limitations period of the Federal Employers Liability

Act, 45 U.S.C. 8 56): Albertson tv. T | Stevenson & Co.. Inc

749 F2d 223, 228 (Sth Cir. 1984). Unseaworthiness claims

are governed by the three-vear limitations period of 46 U.S.C.

Y 763a. See Cooper v. Diamond M Co., 799 F2d 176, 178

(5th Cir. 1986), cert. denied 107 S. Ct. 2177 ( ut (applying

the dae -vear limitations “i ‘riod of 46 U.S.C. § 763Ba to a

steward’s unseaworthiness claim): M. Norris, The tes of Sea

men § 27:22, p. 248 (1985).

Claims for maintenance and cure are not subject to the

three-year limitations period of the Jones Act or 46 U.S.C.

) 763a, but are limited by the doctrine of latches. See Clauson t

Smith, 8523 F.2d 660, 661 n.1 (1st Cir. 1987); Reed v Amer

ican Steamship Co., 682 F. Supp. 333, 335-38 (B.D. Mich.

19588); Norris, The Law of Seamen § 26:43, pp. 117-15.

The complaint in this matter was filed on March 28, 1990.

This filing took place four years, nine months after the 6-5-85

injury: five years, three months after the 12-16-54 injury:

and seven years, nine months after the 6-16-82 injury

substanti lly beyond the three-year limitations period in each

instance. Since plaintiffs have made no showing! as to why

the statute of limitations should be deemed tolled or other

wise inapplicable, the court shall grant summary judgment

for defendant on the Jones Act and unseaworthiness claims

arising from these incidents.

The court expresses no opinion as to whether the doctrine

of latches bars the maintenance and cure claims arising from

these first three incidents. In their summary judgment motion

defendants argue that maintenance and cure Claims are sub

ject to the three-year limitations period of the Jones Act or

16 U.S.C.) 763a. The court disagrees with defendants’ posi

tion and adopts, instead, the conclusion reached by Judge

Pe note ae FR Fed R. Cis. P56 (e) requires plaintiffs to “set forth

specific facts showing that there is a genuine issue for trial” Tn thei

response to defendants’ motion plaintiffs do not address the statute of

limitations arguments at all. Phamtiffs have therefore failed to meet thei

burden under Rule 36(e)

Freeman in Reed v. American Steamship Co.. supra, that main

tenance and cure claims are limited by the doctrine of latches.

not by a statutory limitations period.

Defendants have not argued. and the court mav not at this

point assume, that the doctrine of latches bars plaintiffs’

maintenance and cure claims. Accordingly, the court shall

deny defendants’ motion insofar as it seeks summary judg

ment as to these claims. Defendants are free. of course. to

file another motion (prior to the motion cutoff date) seeking

summary judgment based on latches.

B.

Defendants next argue that plaintiffs’ claims arising from

the February 11, 1987, incident are barred because at that

time the MS Henry Ford If was not “‘in navigation” and.

therefore, plaintiff James Boyd was not a “seaman.” Plaintif{

concedes that these claims are barred if at the time of his

injury he was not a “seaman” within the meaning of 46

US.C. 9 455° but he maintains that he so qualifies

The Sixth Circuit has stated:

In an action by an injured employee to recover dam

ages under the Jones Act, the test to be applied in deter

mining whether the emplovee is a “seaman” within the

meaning of the Act is (1) that the vessel be in haviga

tion, (2) that there be more or less permanent connec

tion with the vessel, and (3) that the worker be aboard

primarily to aid in navigation.

Nelson v. Greene Line Steamers, 255 F.2d 31. 33-34 (6th Cir

1958), cert. denied 358 U.S. 867 (1958). This three part test

was reaffirmed in Noack v. American Steamship Co.. 491 F.2d

937, 938-39 (6th Cir. 1974). and, more recently, in Searcy

t_ EF. T Slider, Inc., 679 F2d 614, 616 (6th Cir. 1982)

Phe Jones Act. 465 US CG. § 68S permits “lalny seaman who shall sutter

personal injury in the course of his employe nt ito Panta an action

for damages it bans Einphasis idded

B-6

Defendants argue that the ship on which plaintiff was

working, the MS Henry Ford II, was not “in navigation” on

February 11, 1987. Defendants’ recitation of the following

facts is not disputed by plaintiff:

1) The [2-11-87] injury occurred during winter lay-up;

2) The ship was not sailing and was in fact secured with

special “winter lines”:

3) The full crew was not stationed aboard the ship.

Only engineers and persons engaged in winter repair work

were retained during the winter lay-up:

1) The plaintiff's classification had changed from Chief

Engineer AA to Chief Maintenance Engineer, and his nor-

mal sailing season classification had been changed to “‘tem-

porary winter work classification.” . . .

5) The plaintiff was engaged in winter lay-up mechan-

ical repair work at the time of his injury, either preparing

the vessel for winter or readying it for the following season:

6) The plaintiff did not sleep aboard the vessel during

the winter lay-up period:

7) The vessel's main engine had been completely “torn

down” and was not in operable condition at the time of

the incident; }

8) The vessel had lost her classification with the U.S.

Coast Guard, and could not regain it without an inspection.

Defendants’ Brief, pp. 18-19. As plaintiffs do not dispute

these facts, the court may take them as established.

Similar circumstances were present in Antus v. Interocean

S. S. Co., 108 F2d 185 (6th Cir. 1939). In Antus, plaintiff

At page 19 of this deposition, plaintiff testified that he did not know

whether the main engine was operable on February LL. LOST. At pages

>] 29

however, he indicated that the Coast Guard would not have per

mitted the ship to sail on that date because, among other things. the

‘Imlain engine would not run

B-7

was injured while cleaning the bilges ofa Great Lakes steame

At the time of the injury, the ship was in winter layup.

—

All of the navigating officers and deck crew of the ves-

sel had departed for the winter excepting certain mem-

bers of the engineer's department, including appellant.

° o °

At the time of the accident appellant's work consisted

of overhauling the engines, removing bolts from cylinder-

heads and chests, cleaning bilges, and performing sim-

ilar operations, all of which the District Court held had

a direct relation to navigation and commerce.

105 F2d at 156. The district court found that plaintiff was

not a “seanvan” and dismissed his Jones Act complaint. Id. In

affirming, the Sixth Circuit stated:

[T]he question is whether at the time of the accident he

was engaged in maritime work, and the test is the nature

of his employment at the time. While the work done

had direct relation to navigation, it neither was per-

formed during the navigation season. nor was it even

preparatory to navigation. Appellant was laying up the

engine and packing the pumps and seacocks so that

they would not freeze. He was taking bolts out of the

piston-heads, an operation which was never done dur-

ing navigation. Tt would have taken from four to eight

hours to put the engines together again to operate. |

The vessel, while not consigned to a ship's graveyard

was tied up to the piles. Instead of doing this work in

preparation for navigation, the men were preparing the

vessel for winter quarters. Appellant was not subjected

to any maritime hazards. The fact that he had been, o1

expected in the future to be, a seaman does not render

' At pages 1S—19 of his deposition, plaintiff testified that the main engine

Which had been “torn down” could be made operational within 12 to 24

hours after being reassembled

maritime work which was not maritime in its nature

The finding of the District Court upon this point was

correct, and appellant was not at the time of his injury

ad SC anal.

LOS F2d at 187

The same result was reached in Nelson vo Greene Line

Steamers, Inc., 255 F.2d 31 (6th Cir. 1958. In Nelson, plain

tiffs decedent was a deck hand on a Mississippi excursion

steamer. The vessel made its last excursion of the vear in

early November, following which “it was tied up for the

winter "255 F2d at 32. Plaintiff's decedent, who lived

onthe vessel during the sailing season, was employed during

the winter as a “‘laborer| | for the purpose of making neces

sary repairs to the vessel and getting her ready for the fol

lowing season.” Id. at 33 Additionally

After the boat was tied up the appellee only had on the

bout such persons AS could be used to ready thre ship for

the use the following spring. The full crew was not

retained. The pilots were not on board, nor the stew

ard’s crew or maids, nor all of the deck hands, cooks

chefs or pantry men. The engineers and their helpers

Were On board making repairs On the Pri hinery ana

boilers

Id. Plaintiff’?s decedent fell overboard while working on the

paddle wheel and drowned. The Sixth Circuit affirmed the

district court’s determination, on a motion to dismiss. that

the vessel was notin navigation and that plaintiff 's decedent

was not a seaman withip the meaning of the Jones Act. LOS

F2d at 35

Antus was later cited with ippro al boy thre Supreme Court in De

purt

Starved Rock kerry Co it ae | S ik, | | O54 Ii De per thre care

suggested that a hips is not imnmavigation bits do winter bay up la

also \1 irtin Thi Lau of Seamen \ » » ! oe | let) Citing Cases for thy

proposition that iship i notin mavigation when she bra been laid up tor

+}

e Winter

B-Y

The question of seaman status within the meaning of the

Jones Act is generally a question of fact to be decided by the

jury. Searcy v. BE. T Slider, Inc. 679 F.2d 614. 616 (6th Ci

1982). citing Luckett v. ( ontinental kngineering Co..649 F2d

Hl, 443 (6th Cir. 1951). Where. however. the material

facts are not disputed, the court may make this determina

tion on summary judgment. See. eg. Antiust Interocean SS

Co and Nelson v Greene Line Steamers. Inc supra

Based on the undisputed facts in this case the court believes

no reasonable jury could find that the SS Henry Ford IL was

In navigation on February 11. 19ST. As noted above. the

parties agree that the vessel was in winter lay up at threat

time. At pages 7—S of his deposition, plaintiff testified that

the ship had been in this state since approximately Chirist

mas 1L9OS6. Although the ship was inthe water. it was secured

to the dock with winter lines. Id) at 14. Phaintiff testified

that the main engine was completely torn down” during

the lay up period. Id) at 1S. Plaintiff also testified that he

was not living on thre ship during the winter lay up. but

commuted to work from Trenton. Mic higan. Id) at 15-16

Plaintiff indicated that the vessel could not have sailed on

February 11, 1987, because there was no crew aboard. th

lite Sav Ing equipment was not out and thre man engine would

not run. Id at 21-22

Plaintiff has not cited a single case from this circuit whict

would permit a jury to find that a vessel in this condition is

Ih navigation within thie meaning of thre Jouve Ss Act. Based

on the cases cited above the court believes th it no reason

thle jury could make such a finding. Ac ordingly. the court

Shall grant Summary judgment for def ndants with re spect

to the February Ll. L9S7 iyur

Conclusion

Kor the re asons Stated above

Ml IS ORDERED that defendants motion for Stummary

jidgment is granted as to thre Jones Act and unseaworthines

Claims arising from the injuries plaintiff fares Bovd sustaines

B-10

on June 16, 1982: December 16, 1954 and June 5, 1985

Defendants’ motion is denied without prejudice as to the

; “a '

maintenance and cure claims arising from these injuries

IT IS FURTHER ORDERED that defendants’ motion for

summary judgment is granted as to all claims arising from

the injuries plaintiff James Boyd sustained on February 11

LOST

SO ORDERED

BeRNARD A. FRIEDMAN

Bernard A. Friedman

United States District Judge

Dated Jan. O03, 199]

Detroit Michigan