United States District Court, E.D. Wisconsin
DECISION AND ORDER
WILLIAM C. GRIESBACH, U.S. DISTRICT JUDGE
Rodney White filed this action against Defendants Fincantieri
Bay Shipbuilding, Fincantieri Marine Group LLC, Keystone
Shipping Co., Chas Kurz & Co., Inc., and Wawa, Inc.,
seeking damages for injuries he sustained while working as a
technician aboard a towing motor vessel as it underwent sea
trials on Lake Michigan. The complaint asserts claims under
the Longshore and Harbor Workers' Compensation Act (the
Longshore Act), the Jones Act, and general maritime tort law,
which fall within the court's admiralty jurisdiction. 28
U.S.C. § 1333. The complaint also asserts claims for
common law negligence, respondeat superior, and punitive
damages under Wisconsin law, over which the court has
supplemental jurisdiction. 28 U.S.C. § 1367. Presently
before the court is a motion filed by Defendants Fincantieri
Bay Shipbuilding and Fincantieri Marine Group LLC to dismiss
the Jones Act claim and the state law claims for negligence
and punitive damages pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the reasons that follow, the motion
to dismiss, Dkt. No. 9, will be granted but only in part.
considering a motion to dismiss, the court construes all
allegations in the complaint in the light most favorable to
the plaintiff, accepts all well-pleaded facts as true, and
draws all inferences in favor of the non-moving party.
Estate of Davis v. Wells Fargo Bank, 633 F.3d 529,
533 (7th Cir. 2011). To state a cognizable claim under the
federal notice pleading system, the plaintiff is required to
provide a “short and plain statement of the claim
showing that he is entitled to relief.” Fed.R.Civ.P.
8(a)(2). A complaint must “give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
. . . a plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do . . . .” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotations omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). The
complaint's allegations “must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
“[T]he plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678.
CONTAINED IN THE COMPLAINT
suffered traumatic brain injury and a herniated cervical disc
while he was working aboard a registered towing motor vessel
referred to as the M/V Millville (with official number
1281260) as it underwent sea trials. Plaintiff was working on
the Millville in his capacity as a technician employed by
Engine Motor, Inc. (EMI), a company that manufactures,
installs, and services navigation and steering systems for
motor vessels. The Millville was constructed by Defendant
Fincantieri Bay Shipbuilding, Inc. (FBS) for Defendant Wawa,
Inc. (Wawa); Defendant Keystone Shipping, Co. (Keystone) was
to operate the Millville.
about November 10, 2017, Plaintiff boarded the Millville
(with the knowledge and permission of Defendants, including
the ship's crew and master) as it left FBS's shipyard
in Sturgeon Bay, Wisconsin, to conduct sea trials. Plaintiff
was on the Millville to observe the operation of the EMI
equipment that had been installed. As a technician, Plaintiff
was tasked with installing and testing the steering equipment
on the Millville and ensuring that it functioned properly.
was in the galley of the Millville when the sea trials began
and the vessel started “hardover test maneuvers.”
Plaintiff alleges that he had no prior warning of the test
maneuvers, which caused him and others to be physically
thrown about. During these maneuvers, Plaintiff was
“violently thrown, ” first against the starboard
wall of the Millville and then against its port side.
Plaintiff alleges that these maneuvers caused the serious
injuries described above.
alleges six causes of action in his complaint: (1) a claim
for damages under § 905(b) of the Longshore Act; (2) an
“unseaworthiness” claim under the Jones Act, 46
U.S.C. § 30104; (3) a negligence claim under general
maritime tort law; (4) a claim for vicarious liability for
error and omissions of Defendants' agents and employees
(including the ship's crew and master) under the doctrine
of respondeat superior; (5) a negligence claim under
Wisconsin common law; and (6) a claim for punitive damages
under Wis Stat. § 895.043.
Fincantieri Marine Group, LLC (FMG) and Defendant FBS
(collectively referred to herein as Fincantieri) filed a
motion to dismiss three of the causes of action in
Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6).
Fincantieri has moved to dismiss the claims of
unseaworthiness (Count 2), common law negligence (Count 5),
and punitive damages (Count 6).
Unseaworthiness (Count 2)
of Plaintiff's complaint alleges that Defendants are
liable for the “unseaworthiness” of the Millville
that resulted in Plaintiff's injuries. Admiralty law
establishes that shipowners must provide a seaworthy vessel
to their crew (comprised of seamen), but this duty does not
extend to longshoremen who are covered by the Longshore Act.
See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199, 208 n.6 (1996); Edward E. Gillen Co. v.
Grenier, No. 09-CV-114-JPS, 2011 WL 3924818, at *1 (E.D.
Wis. Sept. 7, 2011); The Law of Seamen § 27:2 (5th ed.)
(“The person to whom the duty is owed to furnish a
seaworthy ship in personal injury matters, is the
seaman.”). While the Supreme Court attempted to extend
the warranty of a seaworthy ship to longshoremen in Seas
Shipping Co. v. Sieracki, 328 U.S. 85 (1946), Congress
subsequently overruled the extension of this duty in its
amendments to the Longshore Act in 1972. Id. The
amendment to § 905(b) of the Longshore Act-providing
grounds for a longshoreman's general claim of negligence
against a vessel owner-states that 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.” 33 U.S.C. § 905(b). In other
words, a claim for unseaworthiness under general maritime law
is available to a seaman, but not to a longshoreman covered
under the Longshore Act. See id.; Yamaha,
516 U.S. at 208 n.6; Dir., Office of
Workers' Comp. Programs, U.S. Dep't of Labor
v. Perini N. River Assocs., 459 U.S. 297, 321 (1983);
Clemons v. Mitsui O.S.K. Lines, Ltd., 596 F.2d 746,
749 (7th Cir. 1979); Edward E. Gillen Co., 2011 WL
3924818, at *1. Instead, Congress amended the Longshore Act,
which provided longshoremen with a separate cause of action
for negligence and “made clear that it was abolishing
the Sieracki unseaworthiness claim for plaintiffs
covered” by the Longshore Act. Edward E. Gillen
Co., 2011 WL 3924818, at *1; 33 U.S.C. § 905(b).
on language discussed by the Supreme Court in McDermott
International, Inc. v. Wilander, 498 U.S. 337 (1991),
Plaintiff insists that his status as a seaman is a jury
question. But while Wilander noted that in many
cases this may be a jury question, it did not hold that
whether a person qualifies as a seaman should be reserved for
the jury in all cases. Id. at 356. The Court
explained that “where the facts and the law will
reasonably support only one conclusion” summary
judgment or a directed verdict is required. Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986)). Similarly, at the pleading stage, a
complaint, or portion thereof, should be dismissed for
failure to state a claim upon which relief may be granted if
it does not “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
To hold otherwise would ...