Prеdicating its decision upon the pleadings, affidavits and pre-trial discovery and relying primarily upon this court’s opinion in Union Carbide Corp. v. Goett,
The instant case does indeed bear a marked factual resemblance to Goett. In each, an employee of a ship repair yard was allegedly injured while laboring aboard а barge, moored and lying afloat on navigable water and awaiting extensive drydock repairs. More particularly here, Bobby Van Horn, plaintiff, was pulling along the barge’s deck a heavy pump to be used in removing water from the holds when he allegedly slipped on a residue of soy beans and/or wheat and ruptured an intervertebral disc. He contends that the slippery conditiоn resulted from the defendant barge owner’s negligent failure to clean the deck after the completion of the barge’s prior voyage, and breached the warranty of seaworthinеss owing Van Horn.
After delivering its cargo of grain to a Chesapeake, Virginia warehouse, the barge Bimbo, owned by defendant Gulf Atlantic Towing Corporation (Gateo), was transported to the yаrd of Van Horn’s employer, Colonna Shipyard, Inc., on February 10, 1966, for extensive repairs and renewals in preparation for its biennial Coast Guard inspection. Afloat on the Elizabeth River, moоred to the eastern side of Colonna’s #1 hauling dock, the barge was left without any Gateo employee on board or in attendance. The defendant contends and the District Court decidеd that the barge was in the exclusive custody and control of Colonna on February 11, 1966 when Van Horn was allegedly injured.
Among the contemplated repairs, totaling $17,891.82, were the renewal of steel bilge turn plates on both starboard and port sides, the renewal of transition and transverse plates, sandwashing and painting bottom sides to light load line. This work necessitated the hauling of the barge uрon marine railways; the hauling in turn necessitated pumping to lighten the load. In fact, the second item on the work sheet prepared by Gateo instructs Colonna to “pump water from all void сompartments preparatory to hauling.”
Preparing to perform this task on the morning of February 11, Colonna’s foreman ordered several employees, including Van Horn, to board the barge and begin pumping. Van Horn admits that he observed the slippery residue shortly after boarding the barge and before the accident. While pulling a pump from one hold to another, Van Horn slipped and fell backwards, the pump landing on him. As a result, he spent nearly a month in the hospital where he underwent a spinal fusion.
On the motion for summary judgment, the District Court correctly drew all possible infеrences favorable to the plaintiff. Accordingly, the court assumed for purposes of the motion, that the grain residue made the deck slippery and was the proximate cause of the accident. We make the same assumptions for purposes of this appeal.
*638 The District Court correctly interpreted Goett, which held that there is no warranty of seaworthiness, even assuming a dock worker is .doing traditional seаman’s duty, when the vessel has been withdrawn from navigation and placed in the custody and control of a drydock company. Goett also held that in these circumstances, the only duty a shipowner owеs shipyard employees is to warn of hidden dangers or latent defects. In the absence of a breach of that duty, Goett maintains, there can be no cause of action for negligence.
Since it is admitted here that Van Horn observed the grain residue before slipрing, there can be no contention that the condition of the deck constituted a hidden or latent defect. Nor can it be denied that this barge had been temporarily withdrawn from navigation. Thеrefore, if both propositions for which
Goett
stands are still valid in light of later Supreme Court decisions, the judgment of the District Court in this ease must be affirmed. However, we find that while the seaworthiness aspect of
Goett
has been confirmed by West v. United States,
No citation follows the statement in Goett that the shipowner’s only duty is to warn of hidden defects, but the invocation, at the end of the paragraph containing that language, of treatise sections dealing with land law indicates that thе proposition finds its source in the common law’s treatment of visitors upon land and the obligations owed them by owners or occupiers. The rule to be culled from the cited sources is that аn owner or occupier of land is liable in negligence to an invitee only when he fails to warn of dangers of which he is aware but the invitee is ignorant.
Kermarec v. Compagnie Generale Transatlantique,
Even more on point is United Nеw York and New Jersey Sandy Hook Pilots Association v. Halecki,
On the basis of
Kermarec
and
Haleclci,
we hold that federal maritime law, which of course governs this tort action that arose on navigable waters, requires that a shipowner who delivers his vessel to drydock exercise due care under all the circumstances to provide a reasonably safe place to work for those who foreseeably will come aboard to service the vessel. Seе Olah v. The S. S. Juladurga,
*639 Gatco’s contention that this rule does not apply in the present case because it no longer had control over the vessel is specious. While it is true that Gateo had surrendered control of the barge before the time of the injury, that fact is not decisive of the issue before us because it did have control at the crucial time — the creation of the dangerous condition. Gateo knew in advance of delivery that Colonna’s employees would be coming aboard the Bimbo to рump its holds and should have foreseen that a slippery surface might prove hazardous to these persons. It was at or before delivery that Gateo had the duty of either having the deck сleaned or at least warning Colonna’s employees. In the absence of any steps to avert harm, a cause of action for negligence arises.
Taken in context, the language dealing with negligence in West,
Whether due care under all the circumstances was observed by the present shipowner at the relevant times and to what propоrtionate extent, if any, Van Horn was at fault are clearly questions for jury determination after a full trial. See Pope & Talbot v. Hawn,
We therefore remand the case for trial on the negligence and contributory negligence issues, while affirming the District Court’s action on the unseaworthiness claim.
Affirmed as to the unseaworthiness issue; judgment vacated and case remanded for trial on issue of negligence.
Notes
. Vacated and remanded on other grounds,