MEMORANDUM OF OPINION AND ORDER OF THE COURT
GIGNOUX, Chief Judge.
Plaintiffs in these three actions have brought suit against various manufacturers
One of the defendants, Raybestos-Manhattan, Inc. (R-M), has filed in each action a third-party complaint against BIW seeking contribution and indemnity. Presently before the Court is a motion for summary judgment filed by BIW pursuant to Fed.R. Civ.P. 56, in support of which BIW asserts that the third-party action is barred by the exclusive liability provision of Section 5(a), 33 U.S.C. § 905(a), of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq.
Each of the third-party complaints, which are identical, contains six counts. The theories of recovery against BIW asserted by R-M in the first five counts have previously been rejected by this Court. See Austin v. Johns-Manville Sales Corporation, 508 F.Supp. 313 (D.Me.1981). Undaunted by the Court's prior ruling, R-M in Count VI of the present third-party complaint seeks contribution and indemnity by BIW on the theory that BIW was the owner pro hac vice of the vessels under construction or undergoing repair in its yard on which plaintiffs worked, and is therefore subject to liability for negligence under Section 5(b) of the LWHCA, 33 U.S.C. § 905(b).
For the reasons to be stated, the Court has concluded that BIW was not during the relevant periods the owner pro hac vice of vessels being constructed or repaired in its yard and that the cause of action asserted in Count VI of R-M's third-party complaints is therefore barred by Section 5(a) of the LHWCA.
The record presently before the Court discloses that plaintiff Roland Bernier, now deceased, worked for BIW as a boiler assembler from 1942 to 1945; plaintiff Ellis Moore worked as a pipe coverer from 1942 to 1945 and from 1956 to 1973; plaintiff Raymond Jones has worked as a pipe coverer from 1955 to the present time. The record does not indicate specifically on which vessels these employees worked. Generally, during the period of their employment, however, BIW constructed new vessels and repaired or overhauled additional vessels for the United States Navy and for commercial shipowners. The record shows the following with respect to the control assumed by BIW over vessels being constructed or overhauled in its yard.
A. U.S. Navy Vessels
When BIW undertakes to construct or overhaul a ship for the U. S. Navy, the parties enter into a detailed contract which sets forth procedures and schedules to be followed during all phases of the work, and which defines the rights and duties of both parties. Generally, the contracts provide that BIW is responsible for adopting and enforcing adequate health and safety regulations (at a minimum meeting OSHA regulations) and that Navy personnel have access to the vessels undergoing construction or repair.
To oversee and administer the contract, the Navy maintains a permanent office at BIW. The Supervisor of Shipbuilding with a staff of over 200 closely monitors the work under the contracts. The Supervisor may unilaterally order changes in the contracts, or stop work.
1. New Construction
Construction of a new vessel begins in the BIW yard with fabrication of the hull, laying of the keel, and installation of the propulsion machinery.
If any ship must be moved from berth to berth within the yard during the course of construction, BIW must notify the Supervisor and obtain his permission. Tugs hired by BIW, sometimes assisted by a small BIW boat, do the principal moving.
Subsequent phases of construction specified in the contract call for testing of the vessel, which requires that it be operated. Two types of builder's trials are performed: "dock" trials and "sea" trials.
Dock trials involve testing the ship's systems while it is secured to the dock. BIW draws up a proposed agenda and submits it to the Supervisor for his approval. The proposed agenda outlines in detail the specific tests to be performed, and the manner and schedule of implementation.
Sea trials involve taking the new vessel to sea for several days to determine whether the contract specifications have been met. Again, BIW draws up a proposed trial agenda and submits it to the Supervisor for comment and approval.
Upon successful completion of the builder's trials, the contracts call for a "preliminary acceptance" trial. This trial essentially repeats the sea trial and serves as the final trial run before delivery of the vessel to the Navy. BIW submits a proposed trial agenda to both the Supervisor and to the Navy Board of Inspection and Survey (INSURV) in advance of the trial. INSURV determines whether a trial is appropriate; makes desired modifications in the agenda; and finally approves the trial.
Delivery is the final stage of BIW responsibility under a contract. Although at the present time, the Navy accepts vessels at BIW's facility, prior to 1969 BIW delivered the vessels to the Boston Naval Shipyard. Again, approved BIW employees comprised the crew and Rich was the captain; representatives of the Supervisor and other naval personnel, including some of the vessel's prospective officers were aboard during the trips to Boston.
2. Repair and Overhaul
Navy ships that are brought to Bath for repair and overhaul fall into one of two categories. Some vessels remain commissioned during the repair period. The officers and crew of these vessels stay with the ship during the period. The Navy crew controls access to the ship and is responsible for security. Regular watches are maintained, as are the ship logs. The Navy crew mans the vessel during all trials, and may assist in some of the repair work. R-M concedes that BIW is not the owner pro hac vice of Navy vessels which remain commissioned.
Vessels which require more extensive overhaul customarily are "decommissioned" shortly after arrival at the yard. When the vessels arrive, they are delivered over to the custody of the Navy Supervisor. The crew is gradually dismissed in phases and reassigned to duty on other ships. The logs are removed. When the contract work is ready to proceed, the Supervisor turns the vessel over to BIW in accordance with the contract. Six months before completion of the contract work, a nucleus crew of officers returns to the shipyard; one month before completion, a skeleton enlisted crew arrives. The ship is recommissioned after completion of the contract work and delivery to the Navy.
The contracts require that BIW make adequate provisions for security and for the health and safety of workers during the repair period, and that Navy personnel at all times have access to vessels undergoing repair. Once the overhaul and repair work nears the appropriate stage, the same dock, sea and preliminary acceptance trials described above with respect to newly constructed vessels are performed on the overhauled vessels.
B. Commercial Vessels
The procedure for construction and overhaul of commercial vessels parallels closely that for naval vessels. BIW negotiates a contract with the owner that prescribes in similar detail the work to be done, the manner in which it is to be done, and the schedule for completing the various stages of the work. The owner maintains a representative at the shipyard during all phases of the contract work. This so-called owner's representative and his assistants monitor BIW's performance under the contract
Dock and sea trials are conducted in the same manner for newly constructed commercial vessels as for naval vessels.
Upon completion of the new construction or overhaul, the vessel is delivered to the owner at the BIW shipyard. BIW does not hold legal title to any newly constructed or overhauled commercial vessel at any time.
Under Section 5(b) of the LHWCA, an employee may sue a "vessel" for its negligence.
Although the LHWCA does not define "owner pro hac vice," the governing
It is clear on the instant record that BIW did not assume the kind of exclusive control over vessels being constructed or repaired in its yard to have made it the pro hac vice owner thereof. BIW's dominion over these vessels was confined to the narrow sphere of carrying out its obligations under its construction or repair contracts. Control of the vessel clearly remained with the United States Navy or the private ship-owner. BIW could not, for example, use a vessel for its own commercial ventures or for any other purpose normally within the prerogative of an owner. Compare Olsen v. Todd Shipyards Corp., supra, 435 F.Supp. at 571, with Griffith v. Wheeling Pittsburgh Steel Corp., supra, 521 F.2d 31 and Blair v. United States Steel Corp., 444 F.2d 1390 (3rd Cir. 1971) (per curiam), cert. denied, 404 U.S. 1018, 92 S.Ct. 681, 30 L.Ed.2d 666 (1972). BIW's control over the vessels was tightly circumscribed by the contracts and was subject to the owner's ultimate authority. BIW could not move vessels within the yard without first obtaining approval from either the United States Navy Supervisor or the private owner's representative. Although BIW crews manned the vessels during the dock, sea and acceptance trials, operation of the vessels during these trials was mandated by contract and was strictly in accordance with agendas approved by the Supervisor or the owner's representative. In short, the full-time presence of the Navy Supervisor or private owner's representative; the constant inspection and supervision of the work by the Supervisor or owner's representative; and the authority of the Supervisor or owner's representative to order changes in the work or to stop work entirely plainly establish that BIW did not have the type of exclusive "control" over these vessels which is required for pro hac vice ownership. Accord, Bossard v. Port Allen Marine Service, Inc., 624 F.2d 671, 672-73 (5th Cir. 1980) (per curiam); Hess v. Port Allen Marine Service, Inc., 624 F.2d 673, 674 (5th Cir. 1980) (per curiam); Rao v. Hillman Barge & Construction Co., 467 F.2d 1276, 1277 (3rd Cir. 1972) (per curiam); Bailey v. Johns-Manville Sales Corp., Civ. No. 76-155-NN, slip op. at 5 (E.D.Va. Feb. 12, 1982); Olsen v. Todd Shipyards Corp., supra, 435 F.Supp. at 571-72, 572 n.15. But see Simko v. C & C Marine Maintenance Co., 484 F.Supp. 401, 403-04 (W.D.Pa.), aff'd, 639 F.2d 772, 775 (3rd Cir. 1980).
The Court holds that BIW was not the owner pro hac vice of vessels being constructed or repaired in its yard during the periods of time these plaintiffs were employed by BIW; that BIW was not a "vessel" within the meaning of Section 2(21) of the LHWCA; and that therefore BIW is not subject to liability to R-M for contribution and indemnity under Section 5(b) of the Act.
The Court being persuaded that the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that BIW is entitled to a judgment as a matter of law, Fed.R.Civ.P. 56(c), BIW's motion for summary judgment dismissing R-M's third-party complaints in the above-entitled actions is granted and the Clerk of this Court is directed to enter judgment forthwith dismissing said third-party complaints with prejudice.
IT IS SO ORDERED.
33 U.S.C. § 905(b) (emphasis added).
33 U.S.C. § 902(21) (emphasis added).