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October 17, 2005.

DANIEL MAXIE, Plaintiff,

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

Before the Court is third-party defendant U.S. Ship Management, Inc.'s ("USSM") motion for summary adjudication, filed September 2, 2005. Defendant and third-party plaintiff Horizon Lines, LLC ("Horizon") and defendant Matson Navigation Company ("Matson") have filed separate oppositions to the motion, to which USSM has filed a single reply. Plaintiff Daniel Maxie ("Maxie") has not filed a response to USSM's motion. Having read and considered the papers filed in support of and in opposition to the motion, the Court finds the matter appropriate for resolution without oral argument, see Civil L.R. 71-(b), and hereby VACATES the October 28, 2005 hearing. For the reasons set forth below, USSM's motion is GRANTED in part and DENIED in part.


  Maxie filed the instant action against Horizon and Matson on June 8, 2004. Maxie alleges that he was employed as Chief Cook on a vessel owned by Horizon, the M/V Horizon Expedition ("Expedition"). (See Compl. ¶¶ 3-4.) On or about March 3, 2003, in the course of preparing a meal for the crew of the Expedition, Maxie alleges, he suffered a herniated disc in his lower back while carrying a heavy pot of prime ribs and vegetables. (See id. ¶ 7.) Maxie further alleges that, at the time of his injury, he had been fatigued and sleep-deprived due to his having been required to work numerous 14-15 hour days, seven days per week, for the previous five months aboard the Expedition. (See id. ¶ 6.)

  Thereafter, on January 7, 2004, Maxie was employed by Matson as Chief Cook on Matson's vessel, the S.S. Maui ("Maui"). (See Compl. ¶¶ 16-19.) On that date, while the Maui was en route to Seattle, Washington from Honolulu, Hawaii, the vessel, according to Maxie, "was taking very heavy seas, and experiencing periodic extreme rolls." (See id. ¶ 19.) Maxie alleges that, at approximately 10:30 a.m., he was working in the galley when the vessel took several hard rolls, causing the soup warmer and rice cooker to slide along the counter towards Maxie. (See id.) Maxie further alleges that, in order to avoid being struck, he attempted to jump out of the way, but slipped on water on the galley deck and "slam[med] into the steam table on the next roll of the vessel, sustaining further injuries to his low back." (See id.) Maxie contends that said injury aggravated the lower back injury he suffered onboard the Expedition on March 3, 2003. (See id. ¶ 21.)

  Maxie asserts causes of action against Horizon and Matson for unseaworthiness, maritime negligence in violation of the Jones Act, and for maintenance and cure. In particular, Maxie alleges that Horizon failed (1) to furnish him with a safe and seaworthy vessel; (2) to furnish an adequate number of crew to perform "steward's department duties" without requiring Maxie to work excessive overtime; (3) to provide a seaworthy ventilation system for the galley and mess "as the one available emitted dust and dirt onto galley and mess room surfaces, and required daily lengthy additional effort to maintain cleanliness of galley and mess surfaces"; (4) to furnish him with "fit, proper, adequate, and sufficient equipment, including but not limited to back brace, corset or support, aid and assistance to perform his duties"; and (5) to identify, assess, and manage crew fatigue in the stewards' department, caused by excessive overtime and sleep deprivation during Maxie's service aboard the Expedition. (See id. ¶¶ 8, 14.) Maxie alleges that Matson failed (1) to furnish him with a safe and seaworthy vessel; (2) to furnish him with "fit, proper, adequate, and sufficient equipment, including but not limited to adequate back brace, corset or support, aid and assistance in connection with his assigned tasks"; (3) to provide for a bracket or other appurtenance to secure the soup warmer and rice cooker; (4) to provide a reasonably fit and non-skid deck or non-skid surface in the galley; and (5) to provide the galley with a warning that the vessel was about to encounter sea conditions which would produce extreme rolling. (See id. ¶ 20.)

  On February 11, 2005, Horizon filed a third-party complaint against USSM. Horizon alleges that on July 17, 2003, after Maxie's March 3, 2003 injury onboard the Expedition, Maxie was found fit for duty by his treating physician and returned to work as a merchant seaman for USSM. (See Third Party Complaint ("TPC") ¶ 7.) According to Horizon, Maxie, on August 16, 2003, while employed as a merchant seaman on USSM's vessel Sealand Endurance, suffered "another injury to the same part of his body involved in his claim against Horizon." (See id. ¶ 8.) Horizon further alleges that if Maxie "sustained any injury or damages by reason of matters alleged in his complaint against Horizon Lines, . . . said injury or damages were not caused by or contributed to by any negligence, unseaworthiness, or fault of Horizon Lines . . . but resulted from or [were] enhanced by the negligence, unseaworthiness, and fault of US Ship." (See id. ¶ 9.) Horizon seeks "judgment in favor of plaintiff and against [USSM] pursuant to Rule 14(c) [of the Federal Rules of Civil Procedure] for all damages sought by him against Horizon Lines, if he is found to be entitled to recover any damages, and not against Horizon Lines."*fn1 (See id., Prayer for Relief ¶ 1.)

  USSM now seeks summary adjudication of the claims asserted against it for negligence and unseaworthiness, and that "USSM cannot be held responsible for any share of continuing maintenance and cure payments unless it is eventually determined that neither Horizon Lines nor Matson Navigation is liable on the claims that Maxie has asserted against them." (See USSM's Motion at 1.)


  A. Summary Judgment/Adjudication

  Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment as to "all or any part" of a claim "shall be rendered forthwith 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 material fact and that the moving party is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(b), (c). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. The Court may not weigh the evidence. See id. at 255. Rather, the nonmoving party's evidence must be believed and "all justifiable inferences must be drawn in [the nonmovant's] favor." See United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc) (citing Liberty Lobby, 477 U.S. at 255).

  The moving party bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, interrogatory answers, admissions and affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving party's burden is discharged when it shows the court that there is an absence of evidence to support the nonmoving party's case. See id. at 325.

  Where the moving party "bears the burden of proof at trial, he must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial." See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992) (citations omitted); see also Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir. 1986) (holding when plaintiff moves for summary judgment on an issue upon which he bears the burden of proof, "he must establish beyond peradventure all of the essential elements of the claim . . . to warrant judgment in his favor.") (emphasis in original).

  A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of [that] party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." See Fed.R.Civ.P. 56(e); see also Liberty Lobby, 477 U.S. at 250. The opposing party need not show that the issue will be resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-49. All that is necessary is submission of sufficient evidence to create a ...

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