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Ahmed v. Port City Marine Services Inc.

United States District Court, E.D. Michigan, Southern Division

January 16, 2018

SALEH AHMED, Plaintiff,


          HON. DENISE PAGE HOOD, Judge


         On June 21, 2017, Defendant filed a Motion for Summary Judgment. [Dkt. No. 29] The Motion has been fully briefed. The Court, having concluded that the decision process would not be significantly aided by oral argument, previously ordered that the motion be resolved on the motion and briefs submitted by the parties. E.D. Mich. L.R. 7.1(f)(2). [Dkt. No. 38] For the reasons that follow, the Court grants Defendant's Motion for Summary Judgment.


         Plaintiff was hired by Defendant on or about June 14, 2014. He was certified as fit for duty though September 24, 2015, as evidenced by a “Seafarers Health & Benefits Plan Fitness for Duty Certification. Dkt. No. 33, Ex. 3. On March 30, 2015, Plaintiff signed aboard the ITB Bradshaw/St. Mary's Conquest as a deckhand and supplied a “Crewmember Declaration” attesting to his fit for duty status. Dkt. No. 33, Ex. 5.

         In early April 2015, the hydraulic arms that activated gate numbers 11 and 12 in hold 6 experienced breakdowns, and they were not working on April 11, 2015. Dkt. No. 33, Ex. 6 & 7. As a result of those breakdowns, there was cargo overload on the conveyor belt and massive spillage of cement onto the tunnel deck of the St. Mary's Conquest on April 11, 2015. On that day, Plaintiff was responsible for shoveling cement off of and then back onto the conveyor belt for over 6 hours straight. Plaintiff states that he was forced to shovel in cramped and ergonomically hazardous conditions, which caused pain in his back and fatigue. Plaintiff represents that the shoveling he had to do as a result of the cargo overload and spillage was not part of his normal job duties but the result of a breakdown and malfunction of the vessel's cargo gates. After shoveling the cement cargo for 6 hours, Plaintiff had to pound the vessel's cargo holds with a 10 pound sledgehammer, all the while bent over due to the cramped and ergonomically hazardous conditions.

         Plaintiff states that his duties on April 11, 2015 caused him to sustain injuries to his right shoulder, neck, and back, which he reported to his immediate supervisor (Courtney King) and the on watch mate (Talaat Abdelmaguid). In his “Personal Injury Report To Be Completed By Injured Employee, ” he indicated that he injured his right shoulder and back “when use the big hammer to get the rest of the cement of cargo number 6 and number 3 cargo more than 4 times per side.” Dkt. No. 33, Ex. 13. According to several witnesses, “beating” the cargo holds with a sledgehammer to knock cargo loose was not standard procedure, though using one to pound or tap the cargo hold was not unusual. See, e.g., Dkt. No. 33, Ex. 1 at 50 (“It's more of a tapping for an indicating [sic] that would be the first thing. The pounding to knock cargo loose, it's not standard to beat on it, it's bang on it and see if you can get it to move. It's not beating on it to make it move that way.”). Plaintiff and his fellow deckhand testified that the pounding had to be in a bent-over, cramped position and that it could hurt a lot. Dkt. No. 33, Ex. 10 at 18.

         Plaintiff signed off the vessel on April 20, 2015, and he has not returned to employment with Defendant or undertaken any other gainful employment since suffering the injuries aboard the St. Mary's Conquest in April 2015. In May 2015, Plaintiff was diagnosed with rotator cuff tendinopathy with associated posterior superior glenoid labral tear in his right shoulder, as well as cervical and lumbar pain with radiculopathy in his neck and back. In October 2015, Plaintiff had an invasive operative procedure, including extensive debridement of the shoulder, complete synovectomy, AC joint re-section, acromialplasty, arthroscopic rotator cuff repair, and SLAP repair. On April 20, 2016, Plaintiff underwent an invasive surgical procedure on his cervical spine that involved anterior cervical decompression infusion, C4-C6, and anterior cervical instrumentation, C4-C6 using Medtronic Zevo anterior cervical plate.


         A. Standard of Review

         Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Although the Court must view the motion in light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenth Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Caterett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material face, ” since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look at the substantive law to identify which facts are material. Anderson, 477 U.S. at 248.

         B. Analysis

         Plaintiff's claims are brought under the Jones Act and general maritime law based on a direct physical injury he contends was caused by the negligence of Defendant and the unseaworthiness of the ITB Bradshaw McKee/St. Mary's Conquest. The Sixth Circuit has stated:

Our application of the Jones Act must follow the judicially developed doctrine of liability granted to railroad workers by the Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51 et seq. The Jones Act is modeled after, and specifically incorporates, FELA, which provides for liability when an injury results “in whole or in part” from the negligence of the employer. See 45 U.S.C. § 51. See also O'Donnell, 318 U.S. at 38, 63 S.Ct. at 489. In Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), the Supreme Court held under FELA, and by reference the Jones Act, that “the test of a jury case is simply whether the proofs justify with ...

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