the exercise of its duties, because Federal Marine had the
opportunity, and in fact the duty, to correct the open
condition of the deep tank but failed to do so. Consequently
Burnside argues that no genuine issues of material fact
remain, and it is entitled to summary judgment.
We cannot agree. At this juncture, crucial facts remain
uncovered with respect to the activities of Federal Marine's
employees in the area of the deep tank. Indeed, we do not yet
know if the longshoremen had knowledge of the open hatch
covers prior to the accident. This issue of fact is vigorously
contested. Although McNeill was present when the deep hatch
covers were "winged out" prior to June 2, it is suggested that
the ship's personnel had from 4:00 p.m. of June 1 until the
time of the accident to correct the dangerous condition.
Defendant argues that McNeill may well have assumed that the
hatch covers were so replaced, and went into the area merely
to check it for safety. In any event, substantial dispute
remains respecting the happenings prior to the accident.
Furthermore, no stipulation could be achieved as to the
relative duties of inspection imposed upon the parties.
Whether defendant should have been aware of the defect, if in
fact it was not, depends upon the circumstances surrounding
the accident. Although various legal principles have been
evolved with respect to duties of inspection*fn1, where
issues of negligence are disputed, as here, it seems apparent
that crucial factual matters remain to be resolved.
The waters are muddled at this time. The proper place to
clear them by filling in the factual discrepancies and
resolving the remaining factual disputes is at trial.
Many gaps in the Court's knowledge exist at this time with
respect to the precise circumstances of and preceding the
accident. After establishing these facts, the Court would be
in a position to assign the various duties of the parties.
A motion for summary judgment may be granted only when no
genuine issue of material fact exists. On the present state of
the record the salient facts are far from clear. The motion of
Burnside Shipping is denied.
Plaintiff's Motion to Dismiss the Counterclaim
The counterclaim is a direct suit by Federal Marine against
Burnside for indemnification to recover all payments made by
the former, or its insurer, to McNeill's widow and/or her
children, pursuant to the Longshoremen's and Harbor Workers'
Compensation Act. Federal Marine's liability under the Act is
imposed without regard to fault.
Plaintiff's motion to dismiss is premised upon the belief
that defendant may not maintain a direct action against
plaintiff, even assuming the latter to be solely or
contributorily responsible for the accident. Plaintiff
maintains that any rights enjoyed by Federal Marine are
derived by subrogation or assignment to the rights of its
The death of McNeill vested a cause of action for wrongful
death in his personal representative. Plaintiff asserts that
Illinois law is controlling on this derived claim, and that
under the Illinois Wrongful Death Statute (Ill.Rev.Stat. c. 70
Sec. 2), liability is limited to $30,000.
The dispute then, is whether Federal Marine may sue in its
own right in a direct action for the full amount of the
compensation to be paid under the Act,
approximately $70,000, or must maintain a wrongful death
action as subrogee of McNeill's personal representative. If
the latter theory is upheld, a further question may arise
— are the recoverable damages limited by the Illinois Wrongful
Death Act, or may the employer, as subrogee, recover the entire
amount to be paid in compensation.
Defendant concedes that a direct action is a novel theory,
but suggests some situations which allegedly are similar or
analogous, and which support its theory.
The theory relied upon by defendant is summarized in Section
96 of the Restatement of Restitution, as follows:
"A person who, without personal fault, has become
subject to tort liability for the unauthorized
and wrongful death of another, is entitled to
indemnity from the other for expenditures
properly made in the discharge of such
The existence of such a direct right over is well
established in certain situations, as the cases cited by
defendant show. See e.g. Sleek v. Butler Bros., 53 Ill. App.2d 7,
202 N.E.2d 64 (1964); Jones v. Waterman S.S. Corp.,
155 F.2d 992 (3d Cir. 1946); Gore v. Maritime Overseas
Corporation, 256 F. Supp. 104 (E.D.Pa. 1966).
However, in the instant case unlike the ones cited above, we
must be governed by the provisions of the Longshoremen's and
Harbor Workers' Compensation Act, which provides in section
33(b) (33 U.S.C. § 933(b)):
"Acceptance of such compensation under an award
in a compensation order filed by the deputy
commissioner, shall operate as an assignment to the
employer of all right of the person entitled to
compensation to recover damages against such third
person, unless such person shall commence an action
against such third person within six months after
such award." (emphasis added)
The Supreme Court has interpreted section 933(b) to mean
that the employer may sue in his own name, Aetna Life Ins. Co.