The opinion of the court was delivered by: LINDBERG
LINDBERG, District Judge.
On August 1, 1972 this Court entered the following amended judgment in the above entitled matter:
This cause came on to be heard on defendant's motion to set aside the jury verdict and judgment for plaintiff, and to order judgment for defendant, and in the alternative for a new trial, and the court having considered the evidence and the arguments of counsel and being fully advised, it is now ORDERED, ADJUDGED and DECREED that the jury's verdict of February 24, 1972, in favor of plaintiff, and the judgment dated March 16, 1972, entered upon said verdict be, and hereby is, set aside and that judgment be, and hereby is, entered in favor of defendant, dismissing plaintiff's Complaint with prejudice and awarding defendant its taxable costs in the amount of $387.30 and denying motion for new trial.
The following memorandum opinion briefly outlines the pertinent facts, which I believe are undisputed, and sets forth the reasons for the entry of the amended judgment granting defendant's motion for judgment notwithstanding the verdict.
The jury in this admiralty case returned a verdict of $85,500 for personal injuries suffered by plaintiff while employed as a seaman in the service of defendant's vessel, the SS SANTA REGINA. The accident giving rise to the suit occurred on August 8, 1970, while the vessel was moored to a pier in the Port of Antofagasta, Chile. Plaintiff left the vessel during daylight on that date and proceeded across the pier with the intention of going into town on a personal errand. After he had traveled some 400 to 600 feet and while he was hurrying to overtake several other seamen, including the captain, he stepped into a hole in the pier, thereby receiving the injuries for which he sought compensation in this Court. At the time of the accident, the pier was owned, operated and controlled by the Chilean government.
Defendant has moved for judgment notwithstanding the verdict and in the alternative for a new trial.
Plaintiff's claim originally was predicated on both negligence and unseaworthiness. The Court, however, submitted the case to the jury only on the basis of the alleged negligence under the Jones Act
and, more specifically, on the alleged failure of defendant to exercise reasonable care to provide plaintiff with a reasonably safe place to work.
Though the jury was not so instructed, such a duty in this case, where defendant had no control over the pier, could require at most inspection of the pier and a warning to the crew. Defendant's principal assertion in support of its motion for judgment is that this duty does not extend to a seaman while he is beyond the gangway for personal reasons and in an area neither owned nor controlled by the vessel owner.
The question presented is not one of first impression in this Circuit. As defendant points out, the Ninth Circuit held in Todahl v. Sudden & Christenson, 5 F.2d 462 (9th Cir. 1925), that similar factual allegations were insufficient to withstand a demurrer by the owners of the vessel. In that case, the seaman alleged that he was returning to his ship at night after having made a trip into town for personal reasons when he fell into a space between the wharf and bumpers which protected the wharf from the ships. The wharf was neither owned nor controlled by the owners of the vessel. The sustaining of the demurrer was upheld on two grounds: first, admiralty jurisdiction under the Jones Act did not extend to torts committed on land;
and second, the substantive duty of a vessel owner to provide a seaman with a safe place to work did not "extend to his protection when going beyond the premises of his employment for purposes of his own and over premises of which his employers had no dominion or control." Todahl at 464.
The Ninth Circuit has given no indication whether it would follow Todahl today. Other circuits which have addressed the same issue, however, have followed Todahl without exception. In Paul v. United States, 205 F.2d 38 (3d Cir. 1953), cert. denied, 346 U.S. 888, 74 S. Ct. 140, 98 L. Ed. 392, the Third Circuit posed the question "whether there was a duty on the part of the shipowner to inspect the dock area owned and controlled by a third party before granting shore leave to crew members and to give warning of any hazards." Paul, at p. 41. It analogized the question to that arising in nonmaritime master-servant law where an employer sends his employee onto the property of a third person to perform work. Finding no duty of inspection in such nonmaritime situations, the Court found none where a seaman voluntarily leaves his vessel on shore leave and is subsequently injured by some defect in the dock. This conclusion was reaffirmed in Hagans v. Ellerman & Bucknall Steamship Company, 318 F.2d 563, 579 (3d Cir. 1963).
This Second Circuit also has followed the general rule of Todahl. In Wheeler v. West India SS Co., 205 F.2d 354 (2d Cir. 1953), the Court of Appeals in a per curiam opinion adopted the opinion of the District Court for the Southern District of New York which noted:
Though the defendant was duty-bound to provide reasonably safe means of immediate access to the vessel (citing authority), shipowners have generally been held not liable for unsafe conditions in places beyond the gangway not under their control when the seaman is there for his own purposes and not in the performance of his duties.
The Southern District of New York again cited Todahl favorably in both Dangovich v. Isthmian Lines, Inc., 218 F. Supp. 235, 237 (S.D.N.Y. 1963), aff'd 327 F.2d 355 (2d Cir. 1964), and D'Costa v. United States Lines Company, 227 F. Supp. 180 (S.D.N.Y. 1964). Both cases are factually distinguishable but do support the continued validity of Todahl.
District courts in the Fourth and Fifth Circuits have cited Todahl and denied recovery for seamen under even more compelling circumstances than are present in the case now before this Court. In both Lemon v. United States, 68 F. Supp. 793 (D. Md. 1946), and Miles v. States Marine Lines, Inc., 325 F. Supp. 1370 (E.D. Tex. 1971), seamen were killed while attempting to return by small boat to their ships which were anchored off shore. The courts found that the shipowners had no duty to provide a means of transportation between ship and shore for seamen granted shore leave. It followed that the shipowners ...