A seaman or fisherman may recover for injuries that occur while repairing an unseaworthy condition

Failure of a vessel’s equipment under normal use constitutes unseaworthiness under the general maritime law. Havens v. F/T Polar Mist, 996 F.2d 215 (9^th Cir. 1993); Lee v. Pacific Far East Line, Inc., 566 F.2d 65 (9^th Cir. 1977); Marshall v. Ove Skou Redari A/S, 378 F.2d 193 (5^th Cir. 1967), cert. den. 389 U.S. 828, 88 S. Ct. 86, 19 L. Ed. 2d. 84 (1967). “[T]hings about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or the cargo containers, must be reasonably fit for the purpose for which they are to be used.” Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 213, 83 S.Ct. 1185, 10 L. Ed. 2d 297 (1963). “The shipowner’s liability arising from an unseaworthy condition continues until it can be corrected and embraces the means employed to alleviate the dangerous condition.” Benedict on Admiralty, 1B at § 3-43-44 (7^th ed. 1997) (emphasis added); see also Alaska Steamship Company v. Garcia, 378 F.2d 153 (9^th Cir. 1967). In Garcia, a longshore worker was called upon to remedy an improperly rigged boom and was injured in the process lowering the boom. Holding in favor of the injured worker, the Ninth Circuit opined:

“The liability of the shipowner arising from this unseaworthy condition therefore continued until such correction could be made and, in our opinion, embraced any method or act employed in correcting the dangerous condition. Garcia was injured because the risk that the boom might fall materialized. This being the case, it is without legal significance that the unseaworthy condition might have been corrected in a manner which would have prevented the boom from falling.”

Id. at 155. Similarly, in Hudson Waterways Corporation v. Schneider, 365 F.2d 1012 (9^th Cir. 1966), the Ninth Circuit posed the issue as “whether the doctrine of unseaworthiness protects a seaman injured while repairing a defective appliance.” Id. at 1013-14. The court held that the plaintiff was protected by the doctrine of unseaworthiness when he was shocked by a defective manual control switch box attached to an air compressor he was sent to repair. Ruling that the vessel owner was not exonerated because the seaman was sent to repair the defective air compressor, the Ninth Circuit held:

“Appellant contends that since Schneider was told that the air compressor was defective and he was ordered to find out what was wrong with it and to repair it, he should not be allowed to recover for an injury received in the discharge of this duty. This contention has no merit. Assumption of risk is not a defense against an action brought under the unseaworthiness doctrine. Palermo v. Luckenbach S.S. Co., Inc, 355 U.S. 20, 78 S.Ct. 1, 2 L.Ed. 2d 3. (Emphasis supplied.) “Whether [Plaintiff] knew of the defective condition of the rope does not appear, but in any case the seaman, in the performance of his duties, is not deemed to assume the risk of unseaworthy appliances.’ Mahnich v. Southern S.S. Co., supra, 321 U.S. at p. 103, 64 S.Ct. at p. 459.”

Hudson, supra, at 1015. In ruling in favor of the plaintiff, the Ninth Circuit emphasized the non-delegable nature of the warranty of seaworthiness:

“The position taken here by appellant that the duty in respect to seaworthiness does not apply to Schneider, under the facts here present, is in essence an attempt to have us hold that this duty was in substance passed over to Schneider. Such a holding cannot be reconciled with the oft-stated proposition that the shipowners’ duty ‘is one he cannot delegate.'”

Id. at 1016.

In another case, McCoy v. United States of America, 689 F.2d 1196 (4^th Cir. 1982), the court held that a seaman who slipped on oil and was injured while in the process of repairing a burst fuel oil line was entitled to liability under the doctrine of unseaworthiness. The court found no reason to distinguish the case of an injury that occurs in the process of repairing an unseaworthy condition from the case where a seaman is injured while surmounting an unseaworthy condition:

“We see no principled distinction in the fact that on that occasion McCoy was ordered to repair an unseaworthy condition. Whether faced with repairing an unseaworthy condition (as in October), or being forced to surmount an unseaworthy condition (as in August), he cannot be held to fault for attempting to carry out his orders. Nor is the ship made immune because part of McCoy’s duties include cleaning oil spills.”

Id. at 1198 (emphasis added).

Like the workers in Schneider, Garcia, and McCoy who were injured in the process of repairing an unseaworthy condition, a seaman or fisherman injured while repairing defective gear that was not fit for its ordinary and intended purpose is entitled to a finding of liability. See also Connorton v. Harbor Towing Corporation, 237 F. Supp. 63 (D. Md. 1964), aff’d 352 F.2d 517 (4^th Cir. 1965) (tug engineer injured when walking to repair a unseaworthy parted tow cable); Joia v. Jo-Ja Serv. Corp., 817 F.2d 908 (1^st Cir. 1987), cert. den. 484 U.S. 1008, 108 S. Ct. 703, 98 L. Ed. 2d. 654 (1988) (engineer slipped on oily floor he was ordered to clean); Williams v. United States, 712 F. Supp. 1132 (S.D.N.Y. 1989) (ship unseaworthy where a wrench was required to open a valve which should have been hand operable). There is no principled distinction between these cases and the case at bar and Mr. Misic is entitled to a liability finding.