The Estate of Kenneth Wenzel by Its Special Administrator Winston Mirikitani, Edward Wenzel and Anna M. Steinberg v. Seaward Marine Services, Inc.

Wenzel’s estate appeals from the district court’s order granting summary judgment in favor of Seaward Marine Services, Inc. (Seaward).

Summary judgment is proper if, when viewing the evidence in the light most favorable to the party opposing the motion, the movant is clearly entitled to judgment as a matter of law. Ferguson v. Flying Tiger Line, Inc., 688 F.2d 1320, 1322 (9th Cir.1982). The record before the district court discloses the following facts which we interpret in favor of the Estate of Wenzel as required by Ferguson .

Seaward is a corporation engaged in the business of underwater ship maintenance and repair. During the period 1979-1982 Seaward had a contract with the United States Navy to clean the hulls of various ships, including the USS Rathburne. The cleaning process is accomplished by underwater divers, utilizing hand-held scrapers, brushes, and a device known as the SCAMP.

On October 3, 1980, Kenneth Wenzel, a diver/tender employed by Seaward, was assigned to scrape the USS Rathburne’s “sea chest” (underwater openings that pump salt water into the ship). These sea chests are cleaned manually by the use of a hand-held scraper or hydroblaster, but not by the…