NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANNY E. CAMPBELL, 

Plaintiff-Appellant, 

 v. 

DELMA ANN, LLC, an Oregon Limited 

Liability Company; RICHARD W. WOOD, 

Defendants-Appellees.

No. 23-35088 

D.C. No. 6:20-cv-00591-MC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael J. McShane, District Judge, Presiding

Argued and Submitted December 5, 2023

Portland, Oregon

Before: NGUYEN and MILLER, Circuit Judges, and MONTALVO,** District 

Judge.

Danny Campbell appeals from the district court’s order granting summary 

judgment to the defendants, Richard Wood and Delma Ann, LLC (together, Delma 

Ann), on his claim under the Jones Act. We have jurisdiction under 28 U.S.C. 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Frank Montalvo, United States District Judge for the 

Western District of Texas, sitting by designation.

FILED

JAN 17 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

§ 1291, and we affirm. 

We review de novo the district court’s grant of summary judgment. See 

Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). “Summary 

judgment is appropriate only if, taking the evidence and all reasonable inferences 

drawn therefrom in the light most favorable to the non-moving party, there are no 

genuine issues of material fact and the moving party is entitled to judgment as a 

matter of law.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).

Campbell was employed as a deckhand and crew member of the fishing 

vessel Delma Ann. He was injured when, while taking out garbage from the ship, 

he tripped over a chain on a floating dock walkway at the Port of Newport.

To recover under the Jones Act, a plaintiff must establish (1) that he is a 

seaman, (2) that he suffered an injury in the course of his employment, (3) that his 

employer or an agent of his employer was negligent, and (4) that the employer’s 

negligence at least in part caused the injury. See Ribitzki v. Canmar Reading & 

Bates, Ltd. P’ship, 111 F.3d 658, 662 (9th Cir. 1997); 46 U.S.C. § 30104. At issue 

here is whether Delma Ann was negligent, and, in particular, whether it breached 

any duty to Campbell.

1. Delma Ann’s duties to provide Campbell a safe place to work and warn of 

hazards did not extend to the floating dock walkway. In Todahl v. Sudden & 

Christenson, we held that such duties “d[o] not extend to [a seaman’s] protection 
3 

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.” 5 F.2d 462, 

464 (9th Cir. 1925). Under Todahl, a Jones Act employer is not liable for injuries 

occurring on premises over which it has no dominion or control. See Bates v. 

Prudential-Grace Lines, Inc., 375 F. Supp. 774, 775, 777 (W.D. Wash. 1972), 

aff’d, 497 F.2d 900 (9th Cir. 1974). Here, the Port exclusively owned and operated 

the floating dock walkway. Delma Ann had no responsibility for the maintenance 

of the slip or authority to remove the chain or alter its placement.

As Campbell notes, we held in Ribitzki that the duty to provide a safe place 

to work “extends to . . . the ship of a third party over whom the employer has no 

control, if that is where the seaman’s employer sends him to work.” 111 F.3d at 

662 (emphasis added). But the “ship of a third party” in Ribitzki was the “place to 

work” relevant to the employer’s duty, since the employer was an independent 

contractor. See 111 F.3d at 663. Thus, Ribitzki simply stands for the proposition 

that a lack of control alone cannot eliminate a “place to work” altogether, which 

would render meaningless the duty to provide a “safe place to work.” The Delma 

Ann was Campbell’s “place to work,” and Todahl continues to govern here.

Campbell argues that Todahl’s “dominion or control” holding was 

superseded by O’Donnell v. Great Lakes Dredge & Dock Company, in which the 

Supreme Court held that “the admiralty jurisdiction over the suit depends not on 
4 

the place where the injury is inflicted but on the nature of the service and its 

relationship to the operation of the vessel.” 318 U.S. 36, 42–43 (1943). Campbell 

reads that language as establishing a nondelegable duty to provide seamen a safe 

place to work even on premises owned and operated by a third party. But

O’Donnell overruled only Todahl’s first holding, which limited the scope of 

maritime tort jurisdiction to injuries occurring at sea. See Todahl, 5 F.2d at 464. It 

left undisturbed Todahl’s “dominion or control” holding, which applies regardless 

of the situs of the injury. See id.; Bates, 375 F. Supp. at 775.

Campbell further argues that even if Todahl is good law, it is distinguishable 

because the seaman in Todahl was injured while engaged in personal activities on 

shore leave, whereas Campbell was performing his duties as a deckhand by

removing garbage from the vessel. The Supreme Court explained in Aguilar v. 

Standard Oil Company of New Jersey, however, that lack of dominion or control 

can absolve an employer of Jones Act liability even when the seaman acts for 

purposes of his employer. 318 U.S. 724, 736–37 (1943). That Campbell was 

injured while performing his employer’s duties does not make Todahl inapplicable

here.

2. Campbell argues for the first time on appeal that Delma Ann is liable for 

the Port’s negligence in installing and maintaining the chain. Because Campbell 

did not raise that argument before the district court, it is forfeited. See Momox-
5 

Caselis v. Donohue, 987 F.3d 835, 841 (9th Cir. 2021). In any event, the argument 

fails on the merits. For the negligence of a third party to be imputed to an 

employer, the party must “perform[], under contract, operational activities of [the] 

employer,” or, in other words, activities that constitute “a vital part of the ship’s 

total operations.” Hopson v. Texaco, Inc., 383 U.S. 262, 264 (1966) (quoting 

Sinkler v. Missouri Pac. R.R. Co., 356 U.S. 326, 331–32 (1958)). Delma Ann did 

not delegate any activities, much less vital operational activities, to the Port. The 

slip rental agreement with the Port expressly precluded the Port from performing 

any duties on Delma Ann’s behalf. Merely allowing the Delma Ann to be moored 

at the Port does not constitute the performance of a vital operational activity. 

AFFIRMED.