In the Matter of the Complaint
OPINION, the judgment of the district court is affirmed in part and vacated in part and remanded in part, by ALK, JAC, DC, FILED. [16-1092]
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In re Complaint of Buchanan Marine, L.P.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2016
May 22, 2017
October 27, 2017)
Docket No. 16‐1092‐cv
IN THE MATTER OF THE COMPLAINT OF BUCHANAN MARINE, L.P., AS BAREBOAT
CHARTERER OF THE BARGE B‐252, IN THE MATTER OF THE COMPLAINT OF A.P.
FRANZ, JR., TRUSTEE, AS OWNER,
TILCON NEW YORK, INC.,
WAYNE VOLK, KAREN VOLK,
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
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KEARSE, CABRANES, AND CHIN, Circuit Judges.
Appeal from a judgment of the United States District Court for the
Northern District of New York (Sharpe, J.), dismissing a barge workerʹs claims
under the Jones Act, 46 U.S.C. §§ 30101‐30106, the Longshore and Harbor
Workersʹ Compensation Act, 33 U.S.C. §§ 901‐950, general maritime law, and
New York state law for personal injuries sustained while working on a barge,
and granting a complaint for exoneration from liability pursuant to the
Limitation of Liability Act of 1851, 46 U.S.C. §§ 30501‐30512. We conclude that
the district court correctly held that the barge worker, who inspected and
maintained moored barges used to transport rock from a quarried rock
processing facility down the Hudson River, was not a ʺseamanʺ for purposes of
the Jones Act, but that the district court erred in dismissing certain claims against
the owner of the barge and the operator of the rock processing facility.
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
EDWARD P. FLOOD, LYONS & FLOOD, LLP, New
York, New York, for Petitioners‐Counter‐
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ERIC M. KURTZ, COOK, NETTER, CLOONAN,
KURTZ, & MURPHY P.C., Kingston, New
York, for Claimant‐Counter‐Claimant‐
STEVEN M. MELLEY (Richard Nardone, on the
brief), STEVEN M. MELLEY, P.L.L.C.,
Rhinebeck, New York, for Claimants‐
CHIN, Circuit Judge:
In this case, claimant‐appellant Wayne Volk worked at a quarried
rock processing facility on the Hudson River, inspecting and maintaining barges
used to transport rock down the river. In the accident that led to these
proceedings, Volk was inspecting a moored barge when he slipped on some
loose stone and fell, injuring himself. He asserted claims against the barge
company as his employer, the owner of the barge, and the operator of the rock
processing facility, under the Jones Act, 46 U.S.C. §§ 30101‐30106, the Longshore
and Harbor Workersʹ Compensation Act (the ʺLHWCAʺ), 33 U.S.C. §§ 901‐950,
general maritime law, and New York state law.
The principal question presented is whether Volk was a ʺseamanʺ
within the meaning of the Jones Act. The district court (Sharpe, J.) held that Volk
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page4 of 28
was not a seaman and dismissed his claims under the Jones Act. It also
dismissed Volkʹs remaining claims.
We affirm the dismissal of Volkʹs Jones Act claims because we agree
with the district court that Volk does not qualify as a ʺseamanʺ within the
meaning of the Jones Act. We hold, however, that the district court erred in
dismissing certain of Volkʹs remaining claims against the owner of the barge and
the operator of the rock processing facility. We therefore affirm in part and
vacate in part and remand for the district court to conduct further proceedings
consistent with our rulings below.
The facts are largely undisputed and are summarized in the light
most favorable to Volk, against whom summary judgment was granted.
Volk worked for petitioner‐counter‐defendant‐appellee Buchanan
Marine, L.P. (ʺBuchananʺ) at the Clinton Point quarried rock processing facility
on the Hudson River, in Dutchess County, New York, as a ʺbarge maintainerʺ
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page5 of 28
from 1999 until his accident on May 19, 2011.1 At the Clinton Point facility,
claimant‐counter‐claimant‐appellee Tilcon New York, Inc. (ʺTilconʺ) processes
quarried rock for use in, e.g., construction work, and loads the rock onto barges
supplied by Buchanan. Buchanan then transports the loaded barges, using its
tugboats, down the Hudson River to Tilconʹs customers.2
The loading process has three steps. First, before an empty barge is
loaded, and while it is tied to the dock, it is inspected by a Buchanan barge
maintainer. The barge maintainer checks the barge for damage and excess water
and repairs any damage so that the barge is in acceptable condition for loading.
Second, the barge is moved to the loading facility by Tilcon, where it is loaded
with quarried rock. Third, after the barge is loaded, it is moved back to the dock
by Tilcon, where a Buchanan barge maintainer conducts a final inspection.
During the first and third steps of the loading process, the barge is in the water
and secured to the dock, either tied directly to the dock or to barges already tied
to the dock. Moored barges may be three or four barges deep, with the closest
Volk also used other phrases throughout the proceedings to describe his
position, such as ʺ[w]elder, pumper, [and] boat checker.ʺ Appʹx 982.
Buchananʹs barges are ʺdumbʺ barges, meaning they have no independent means
of propulsion and, therefore, a tugboat is required to transport them.
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page6 of 28
barge tied to the dock and the outward barges tied to one another. When a barge
was tied to other barges ‐‐ rather than tied directly to the dock ‐‐ barge
maintainers would climb over the barges to get to the one they needed to inspect.
When Volk was inspecting a barge, he would walk along the
perimeter of the barge on the ʺmargin decks,ʺ which ran the length of the barge.
Appʹx at 185. The margin decks were ʺso narrow [that] they were difficult to
walk on or stand on,ʺ id., lacked guard or hand rails, and were often wet and
soiled with excess gravel that spilt over from the loading process. When a barge
required repairs, Volk would sometimes stand on a pontoon work boat ‐‐ a flat
floatable device powered by a motor ‐‐ on the bargeʹs water side to do the work.
Volk was not assigned to any specific barge; rather, he worked on all
Buchanan barges that arrived for loading at the Tilcon facility. Volk was not a
crewmember of any of Buchananʹs tugboats that transported the barges down
the Hudson River. He worked an hourly shift, went home at the end of each
work day, and did not take meals or sleep on any barge. He was a member of
the International Union of Operating Engineers, which represents equipment
operators. He did not belong to a maritime union or hold a maritime license.
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page7 of 28
On May 19, 2011, Volk was walking along the margin decks of Barge
B‐252 (the ʺBargeʺ), which had been loaded with stone, when he slipped on
excess wet stone and injured his right arm and shoulder on the side of the Barge.
He filled out an incident report with his dock supervisor, Timothy Conn, the
same day. The next day, Conn drove Volk to the local medical clinic, where Volk
was diagnosed with a sprained arm and prescribed pain medication. Later that
day, Volk saw a chiropractor, who advised him that he could not work. Volk has
not worked since the accident and has been receiving workersʹ compensation
benefits under the LHWCA.
The Proceedings Below
On October 16, 2012, Volk and his wife Karen Volk commenced a
personal injury action against Buchanan and Tilcon in New York State Supreme
Court, Ulster County. On April 15, 2013, A.P. Franz, Jr., the owner of the Barge,
and Buchanan, as bareboat charterer of the Barge,3 commenced this action in the
A ʺbareboat charterʺ is a ʺcharter under which the shipowner surrenders
possession and control of the vessel to the charterer, who then succeeds to many of the
shipownerʹs rights and obligations,ʺ typically including the provision of ʺpersonnel,
insurance, and other materials necessary to operate the vessel.ʺ Blackʹs Law Dictionary
284 (10th ed. 2009). Thus, the ʺbareboat chartererʺ ‐‐ also called a ʺbareboat
charterparty,ʺ among other things, see id. ‐‐ is the non‐owner operator of a vessel. Here,
Franz had bareboat chartered the Barge along with his fleet of other barges and
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page8 of 28
district court pursuant to the Limitation of Liability Act of 1851, 46 U.S.C.
§§ 30501‐30512, seeking exoneration from or limitation of liability.4 In
accordance with Rule F of the Supplemental Rules for Admiralty or Maritime
Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure, the
court approved a $47,420.77 security bond, representing Franz and Buchananʹs
interest in the Barge, directed issuance of notice to all persons asserting claims
affected by the limitation proceeding, ordered that any claim related to the
incident be filed with the court within a specified time period, and enjoined the
filing or prosecution of any suits related to the incident.5
Tilcon and the Volks answered the complaint and asserted
counterclaims. Tilcon asserted claims against Franz and Buchanan for
tugboats to Buchanan. Pursuant to the bareboat charter, Franz transferred exclusive
control to Buchanan to use, operate, command, and navigate his fleet of barges and
The Limitation of Liability Act limits the owner of a vesselʹs liability for maritime
accidents to ʺthe value of the vessel and pending freight.ʺ 46 U.S.C. § 30505(b). The
statute thus alters the usual rules of vicarious liability. See In re City of N.Y., 522 F.3d
279, 283 (2d Cir. 2008).
ʺTypically, ʹonce the [vessel] owner files a petition for limitation, all other claims
and proceedings against the owner related to the matter in question shall cease.ʹʺ In re
Petition of Germain, 824 F.3d 258, 264 (2d Cir. 2016) (quoting Tandon v. Captainʹs Cove
Marina of Bridgeport, Inc., 752 F.3d 239, 244 (2d Cir. 2014)) (alterations omitted).
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page9 of 28
indemnification or contribution. The Volks asserted claims against Franz,
Buchanan, and Tilcon under the Jones Act, the LHWCA, general maritime law,
and New York state law.
The Volks filed a motion to dismiss on August 16, 2013. The district
court denied the motion on March 28, 2014. The parties thereafter cross‐moved
for summary judgment. On March 10, 2016, the district court granted the
motions of Franz, Buchanan, and Tilcon, denied the Volksʹ cross‐motion, and
granted Franz and Buchananʹs complaint for exoneration from liability. The
court exonerated Franz, Buchanan, and Tilcon from liability for Volkʹs injury,
except for Buchananʹs liability for workersʹ compensation. The court concluded
that Volkʹs Jones Act claims fail because he is not a ʺseamanʺ under the Jones Act.
The court also concluded that all of Volksʹ remaining claims under the LHWCA,
general maritime law, and state law fail.
This appeal followed.
ʺWe review de novo a district courtʹs grant of summary judgment to
determine whether the district court properly concluded that there was no
genuine dispute as to any material fact, such that the moving party was entitled
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page10 of 28
to judgment as a matter of law.ʺ Myers v. Patterson, 819 F.3d 625, 632 (2d Cir.
Maritime workers injured in the course of their employment may
proceed, depending on their status and the status of the responsible party, on
four possible theories or sets of theories: the Jones Act, the LHWCA, general
maritime law, and state law. See generally OʹHara v. Weeks Marine, Inc., 294 F.3d
55, 61‐62 (2d Cir. 2012).
The Jones Act confers a cause of action in negligence to any ʺseaman
injured in the course of employment.ʺ 46 U.S.C. § 30104. Prior to the passage of
the Jones Act, general maritime law entitled seamen only to ʺmaintenance and
cureʺ from their employer, and to damages ʺfrom the vesselʹs owner for [any]
injuries received . . . in consequence of the unseaworthiness of the ship.ʺ
Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995) (internal quotation marks omitted).
Suits to recover for injuries caused by their employersʹ negligence, however,
were barred. Id. The Jones Act changed this by creating ʺan express right of
action in tort.ʺ OʹHara, 294 F.3d at 61‐62.
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The LHWCA is a workersʹ compensation system, which provides
scheduled compensation for injury to a broad range of land‐based maritime
workers. Chandris, 515 U.S. at 355. It covers ʺany person engaged in maritime
employment, including any longshoreman or other person engaged in
longshoring operations, and any harbor‐worker including a ship repairman,
shipbuilder, and ship‐breaker,ʺ 33 U.S.C. § 902(3), but does not include ʺa master
or member of a crew of any vessel,ʺ id. § 902(3)(G).6 The scheduled no‐fault
compensation structure is the exclusive remedy for injured workers against their
employers. Id. § 905(a).
The LHWCA does not, however, affect an employeeʹs right to sue
the owner or charterer of the vessel on which he or she was injured for
negligence. Id. § 933(a); see also Gravatt v. City of N.Y., 226 F.3d 108, 115 (2d Cir.
2000) (noting that, under LHWCA, employee ʺmay sue negligent third parties in
tort, notwithstanding his entitlement to no‐fault compensation provided by the
employerʺ). Pursuant to § 905(b), a claimant retains the right to bring an action
for damages ʺcaused by the negligence of a vessel, . . . against such vessel as a
A longshoreman is ʺ[a] maritime laborer who works on the wharves in a port;
esp., a person who loads and unloads ships.ʺ Blackʹs Law Dictionary 1085 (10th ed.
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page12 of 28
third party.ʺ 33 U.S.C. § 905(b). A claimant is not required to elect between
statutory compensation from the employer and an action for damages against
another, as he ʺcan both accept compensation and file a civil action against a
third party tortfeasor.ʺ Thomas J. Schoenbaum, 1 Adm. & Mar. Law § 7‐10 (5th
ed. 2016). A cause of action under § 905(b) against the vessel owner is for
negligence in maritime tort, id., and ʺ[t]he remedy provided in this subsection
shall be exclusive of all other remedies against the vessel except remedies
available under this chapter,ʺ 33 U.S.C. § 905(b).
In some cases, the vessel owner is also the employer, and a different
analysis will be required. Gravatt, 226 F.3d at 118‐20; 33 U.S.C. § 905(b). In these
dual‐capacity situations, ʺ[i]nsofar as the employer‐vessel is negligent in its
stevedore‐employer capacity, it is immune from suit under section 905(a), [but,]
insofar as it is negligent in its vessel capacity, it will be liable under section 905(b)
in the same manner as a third party.ʺ Gravatt, 226 F.3d at 120.7 See generally
Schoenbaum § 7‐10.
In short, ʺ[t]he Jones Act allows seamen to recover for negligence
against their employers; the LHWCA authorizes maritime workers other than
A ʺstevedoreʺ is a ʺperson or company that hires longshore and harbor workers
to load and unload ships.ʺ Blackʹs Law Dictionary 1640 (10th ed. 2009).
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page13 of 28
seamen to recover for negligence, but only against parties other than their
employers.ʺ OʹHara, 294 F.3d at 62. The two remedies are mutually exclusive.
Chandris, 515 U.S. at 355‐56 (ʺ[T]he Jones Act and the LHWCA are mutually
exclusive compensation regimes.ʺ).
The Jones Act does not define ʺseaman,ʺ but, as noted above, the
LHWCA excludes from coverage ʺa master or member of a crew of any vessel.ʺ
33 U.S.C. § 902(3)(G). Thus, courts have recognized that a worker is a seaman if
he or she is ʺa master or member of a crew of any vessel.ʺ Id.; see OʹHara, 294
F.3d at 62 (ʺIt is . . . ʹodd but true that the key requirement for Jones Act coverage
now appears in another statute.ʹʺ (quoting Chandris, 515 U.S. at 356)). We discuss
the elements of ʺseamanʺ status more fully below.
Maritime workers may also have common law remedies available to
them, including, as noted, general maritime remedies for ʺmaintenance and cureʺ
and ʺunseaworthiness.ʺ Chandris, 515 U.S. at 354 (internal quotation marks
omitted). The Jones Act ‐‐ unlike the LHWCA ‐‐ does not eliminate pre‐existing
common law causes of action. See Miles v. Apex Marine Corp., 498 U.S. 19, 29
(1990) (ʺThe Jones Act evinces no general hostility to recovery under maritime
law.ʺ); see also Atl. Sounding Co. v. Townsend, 557 U.S. 404, 429 (2009) (Alito, J.,
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page14 of 28
dissenting). And while the LHWCA eliminates common law claims against the
employer, it permits harbor workers to sue third‐party vessel owners for
negligence under federal common law standards that establish certain duties of
care. See OʹHara, 294 F.3d at 64‐65.
In Scindia Steam Navigation Company v. De Los Santos, 451 U.S. 156
(1981), the Supreme Court set forth standards to guide judicial determinations of
liability under the LHWCA and general maritime law. It identified three duties
of care. First, as we have noted, the ʺturnover dutyʺ imposes on the vessel
owner a duty to ʺexercise ordinary care under the circumstances to have the ship
. . . in such condition that an . . . experienced stevedore will be able by the
exercise of reasonable care to carry on its cargo operations with reasonable
safetyʺ and ʺa duty to warn stevedores . . . of hazards of which the [owner]
know[s] or should know and which are unknown or would not be obvious to the
stevedore.ʺ OʹHara, 294 F.3d at 65 (citing Scindia, 451 U.S. at 167). Second, the
active control duty imposes liability on an owner ʺif it actively involves itself in
[the vesselʹs] operations and negligently injuresʺ the employee. Id. (internal
quotation marks omitted). Third, the duty to intervene requires the vessel owner
to ʺintervene if it acquires actual knowledge that (1) a condition of the vessel or
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its equipment poses an unreasonable risk of harm and (2) the stevedore . . . is not
exercising reasonable care to protect its employees from that risk.ʺ Id. (internal
quotation marks omitted).
Finally, in some circumstances, maritime workers may assert claims
under state law. Id. at 68 (discussing claims under New York Labor Law §§ 200
Jones Act Claims
The district court dismissed Volkʹs Jones Act claims because it
concluded that Volk did not qualify as a ʺseamanʺ within the meaning of the
Jones Act. We agree.
Congress enacted the Jones Act in 1920 to provide ʺheightened legal
protections to seamen because of their exposure to the perils of the sea.ʺ OʹHara,
294 F.3d at 61 (internal quotation marks and alterations omitted). It ʺgives
seamen an express right of action in tort because of their status as ʹwards of the
admiraltyʹ who ʹare by the peculiarity of their lives liable to sudden sickness from
change of climate, exposure to perils, and exhausting labour.ʹʺ Id. at 61‐62
(quoting Chandris, 515 U.S. at 354‐55). ʺ[T]o qualify as a seaman under the Jones
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Act, a maritime employee must have a substantial employment‐related
connection to a vessel in navigation,ʺ Chandris, 515 U.S. at 373 (emphasis
omitted), or ʺto an identifiable group of such vessels,ʺ id. at 368.
To have an ʺemployment‐related connectionʺ to a vessel, ʺthe
workerʹs duties must contribute to the function of the vessel or to the
accomplishment of its mission.ʺ OʹHara, 294 F.3d at 63 (internal quotation marks
omitted). This standard is liberal: ʺ[t]he putative seaman need not aid in the
navigation or contribute to the transportation of the vessel, but a seaman must be
doing the shipʹs work.ʺ Id. (internal quotation marks omitted); see also Harbor Tug
& Barge Co. v. Papai, 520 U.S. 548, 554 (1997) (noting this prong focuses on
whether the worker ʺcontributed to the function of the vessel or the
accomplishment of its missionʺ). Moreover, ʺthe workerʹs connection to the
vessel must be ʹsubstantial in both its duration and its nature.ʹʺ OʹHara, 294 F.3d
at 63 (quoting Tonnesen v. Yonkers Contracting Co., 82 F.3d 30, 32 n.2 (2d Cir.
1996)). This inquiry ʺfocuses on whether the [worker] derives his livelihood from
sea‐based activities.ʺ Id. (internal quotation marks omitted). ʺLand‐based
maritime workers do not become seamen because they happen to be working on
board a vessel when they are injured, and seamen do not lose Jones Act
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page17 of 28
protection when the course of their service to a vessel takes them ashore.ʺ
Chandris, 515 U.S. at 361.
Nevertheless, the ʺrecognized  distinction between land‐based and
sea‐based maritime workersʺ does not mean ʺthat a maritime employee must
work only on board a vessel to qualify as a seaman under the Jones Act.ʺ Id. at
363. Rather, ʺthe ultimate inquiryʺ is whether, in light of the totality of the
circumstances, ʺthe worker in question is a member of the vesselʹs crew or simply
a land‐based employee who happens to be working on the vessel at a given
time.ʺ Id. at 370; see also Harbor Tug & Barge Co., 520 U.S. at 555 (ʺFor the
substantial connection requirement to serve its purpose, the inquiry into the
nature of the employeeʹs connection to the vessel must concentrate on whether
the employeeʹs duties take him to sea.ʺ). ʺWhether [a worker] qualifies as a
seaman ʹis a mixed question of law and fact.ʹʺ OʹHara, 294 F.3d at 63‐64 (quoting
Harbor Tug & Barge Co., 520 U.S. at 554).
The Supreme Court has emphasized that it is important ʺto focus
upon the essence of what it means to be a seaman and to eschew the temptation
to create detailed tests to effectuate the congressional purpose.ʺ Chandris, 515
U.S. at 369. ʺThe Jones Act remedy is reserved for sea‐based maritime employees
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page18 of 28
whose work regularly exposes them to ʹthe special hazards and disadvantages to
which they who go down to sea in ships are subjected.ʹʺ Id. at 370 (quoting Seas
Shipping Co. v. Sieracki, 328 U.S. 85, 104 (1946) (Stone, C.J., dissenting)). The key is
whether the individual ʺʹhad a sufficient relation to the navigation of vessels and
the perils attendant thereon.ʹʺ Id. (quoting Wallace v. Oceaneering Intʹl, 727 F.2d
427, 435 (5th Cir. 1984)).
In weighing ʺthe total circumstancesʺ of Volkʹs employment, we
conclude as a matter of law that Volk does not qualify as a seaman under the
Jones Act. See id. As a reasonable factfinder could only conclude, his work on
the barges did not regularly expose him to the special hazards and disadvantages
of the sea. See id. at 369‐70.
Volk did not ʺderive his livelihood from sea‐based activities.ʺ
OʹHara, 294 F.3d at 64 (internal quotation marks omitted). Volk never operated a
barge and only worked aboard the barges when they were secured to the dock.
See Harbor Tug & Barge Co., 520 U.S. at 555 (ʺFor the substantial connection
requirement to serve its purpose, the inquiry into the nature of the employeeʹs
connection to the vessel must concentrate on whether the employeeʹs duties take
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page19 of 28
him to sea.ʺ). The barges Volk worked on were moved to the loading dock by
Tilcon workboats and Tilcon employees, and transported down the Hudson
River by Buchanan tugboats.8 Volk was not a crew member of and did not serve
on the Buchanan tugboats.9 Indeed, Volk reported to the dock foreman, not a
shipʹs officer, and it was the dock foreman who brought him to the medical clinic
after his accident. Volk belonged to a union that represents equipment
operators. He did not belong to a maritime union and did not hold a maritime
license or other ʺseamanʹs papers.ʺ OʹHara, 294 F.3d at 64. Finally, Volk never
spent the night aboard a barge; he worked an hourly shift and went home every
night after his shift ended. In contrast, a traditional Jones Act seaman normally
Volk would occasionally ride on the Tilcon workboats from the pier, where he
performed his work on the barges, to the loading dock. The distance was ʺ[p]robablyʺ a
ʺcouple hundred yards,ʺ Appʹx 1012, and Volk did not perform any inspection or repair
work while on the Tilcon workboats. See Casser v. McAllister Towing & Transp. Co., 10
Civ. 1554 (JSR), 2010 WL 5065424, at *3 (S.D.N.Y. Dec. 7, 2010) (rejecting argument that
once a person steps onto a vessel he is a seaman because ʺif this argument were
accepted, then there would be no distinction between a longshoreman and a seamanʺ).
Volk argues for the first time on appeal that he was a crew member of the small
pontoon work boat that he used to approach a moored barge from the water side to
make repairs to the barge. Even if this argument were not waived, see Green v. United
States, 13 F.3d 577, 586 (2d Cir. 1994) (ʺ[I]t is a well‐established general rule that an
appellate court will not consider an issue raised for the first time on appeal.ʺ), it does
not change our analysis as the pontoon work boat, like the Buchanan barges, was
unmanned, had no crew members, and was only used, on occasion, as a work platform
by Volk and his fellow workers.
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page20 of 28
serves for voyages or tours of duty. See, e.g., Aguilar v. Standard Oil Co., 318 U.S.
724, 731‐32 (1943) (voyages); Sellers v. Dixilyn Corp., 433 F.2d 446, 447‐48 (5th Cir.
1970) (tours of duty).
In OʹHara, we concluded that a dock worker who was injured while
repairing the Staten Island pier aboard a barge was not a ʺseamanʺ as a matter of
law because he had, at most, ʺa transitory or sporadic connectionʺ to the barges
ʺin their capacity as vessels in navigation.ʺ 294 F.3d at 64 (emphasis omitted).
Key to our holding was that the dock worker (1) belonged to a dock workers
union rather than a maritime union, (2) lacked a maritime license, (3) never spent
the night aboard a barge, and (4) never operated a barge or assisted in its
navigation and only worked aboard the barges when they were fully secured to
the pier that the dock worker was employed to repair. Id. We emphasized that,
although the worker ʺspent more than half his working hours . . . aboard the
barges, . . . he spent all of that time performing tasks related to the repair of the
Staten Island pier while the barges were secured to the pier.ʺ Id. This case is not
substantially different from OʹHara.
Volk seeks to rely on the Fifth Circuitʹs decision in Naquin v.
Elevating Boats, LLC, 744 F.3d 927 (5th Cir. 2014), cert. denied 135 S. Ct. 1397 (2015).
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page21 of 28
There, a shipyard worker ʺspent approximately 70 percent of his total time
working aboardʺ so‐called ʺlift‐boatsʺ that ʺwere moored, jacked up or docked in
[the] shipyard canal.ʺ Id. at 930. His duties included ʺinspecting [the lift‐boats]
for repairs, cleaning them, painting them, replacing defective or damaged parts,
performing engine repairs, going on test runs, securing equipment, and
operating the vesselsʹ marine cranes and jack‐up legs.ʺ Id. The worker was
occasionally ʺdispatched . . . to repair a vessel or fill in as a vessel crane operator
while the vessel was operating in open water.ʺ Id. at 931. The Fifth Circuit
affirmed the jury verdict in favor of the shipyard worker awarding Jones Act
damages, finding that the shipyard worker was exposed to the perils of a
maritime work environment such that he was a seaman. Id. at 935.
The Fifth Circuitʹs decision is not controlling on us, and it is in any
event distinguishable. The shipyard worker there clearly had a more substantial
connection to seafaring vessels than Volk does. For example, the shipyard
worker operated ʺthe vesselsʹ marine cranes and jack‐up legsʺ and worked
aboard the vessels in open water, even if only ʺoccasionally.ʺ Id. at 930. Volk did
none of these things; Volk worked on barges that were moored, directly or
indirectly, to the Tilcon dock and did not operate the Tilcon workboats or
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page22 of 28
Buchanan tugboats that transported the barges. See Schultz v. Louisiana Dock Co.,
94 F. Supp. 2d 746, 750 (E.D. La. 2000) (ʺPlaintiffʹs duties were limited to
inspecting and repairing barges moored at the facility. He did not go to sea or
face the perils of the sea in the manner associated with seaman status. Plaintiff
ate meals ashore and went home every night. He admitted that with respect to
the vessels used to transport him around the facility he did not serve as a
In sum, none of Volkʹs work was of a seagoing nature. Volkʹs duties
were limited to inspecting and repairing barges that were secured to the dock at
the Clinton Point facility. Volk did not go to sea and he was not exposed to the
ʺperils of the seaʺ in the manner associated with seaman status. See Denson v.
Ingram Barge Co., 5:07‐cv‐00084‐R, 2009 WL 1033817, at *3 (W.D. Ky. Apr. 16,
2009) (ʺThe hazards Denson states he faced do not rise to the level of the special
hazards and disadvantages faced by seamen; they are hazards that
longshoremen commonly encounter. Therefore, Denson was an intended
beneficiary of the LHWCA.ʺ). Accordingly, considering the total circumstances
of Volkʹs employment, we conclude as a matter of law that Volk does not qualify
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page23 of 28
as a ʺseamanʺ within the meaning of the Jones Act, and we affirm the dismissal
of his Jones Act claims.
Volk also asserted claims under the LHWCA, general maritime law,
and New York law against all three appellees: Buchanan, Franz, and Tilcon. The
district court dismissed all these claims. We conclude that the district court
should have permitted certain of these claims to proceed.
The district court correctly dismissed all the remaining claims
against Buchanan. Buchanan is Volkʹs employer and ordinarily would be
immune from suit under 33 U.S.C. § 905(a). As bareboat charterer of the Barge,
however, Buchanan is a dual capacity employer‐vessel owner. See Reed v. S.S.
Yaka, 373 U.S. 410, 412 (1963) (ʺIt has long been recognized in the law of
admiralty that for many, if not most, purposes the bareboat charterer is to be
treated as the owner.ʺ). Therefore, if Buchanan were negligent in its vessel
capacity in relation to Volkʹs injury, Buchanan would be liable under 33 U.S.C.
§ 905(b) in the same manner as a third party. Gravatt, 226 F.3d at 119. The
district court ruled that Buchanan was not acting in a capacity as vessel owner in
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page24 of 28
relation to Volkʹs injury, and therefore is liable exclusively for Volkʹs workersʹ
compensation payments under the LHWCA. See 33 U.S.C. § 905(a) (stating that
employer is liable exclusively for scheduled no‐fault compensation). Volk does
not challenge that ruling on appeal. Because the statutory, no‐fault
compensation payments under the LHWCA are Volkʹs exclusive remedy as to
Buchanan, his general maritime law and state law claims against Buchanan were
properly dismissed. See id.
As vessel owner, Franz was subject to suit for negligence under the
LHWCA. 33 U.S.C. § 905(b). Although the district court correctly noted that
Franz was not an employer or bareboat charterer of the Barge and therefore was
only responsible for his ʺturnover duty,ʺ see Oʹhara, 294 F.3d at 65, the district
court did not properly analyze the LHWCA claims. While he could not be
responsible for the presence of excess stone, Franz arguably had a duty, as
owner, to address the condition of the Barge before turning it over to Buchanan.
As the district court itself recognized, Volkʹs negligence claim could
have been based on the condition of the vessel, not just the presence of excess
stone on the margin deck. See Special Appʹx at 27 (ʺThe alleged negligence which
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page25 of 28
caused W. Volkʹs injury could plausibly originate from one of two sources. The
first is where the stones reached the margin deck of the B‐252 from a barge weeper, which
is a drainage hole on the side of a barge. The second is where the stones could have
been overloaded by Tilcon and spilled onto the margin deck.ʺ (citation omitted
and emphasis added)). On remand, the district court shall consider whether
there is a viable claim under § 905(b) of the LHWCA against Franz as owner
based on the condition of the vessel. See Gravatt, 226 F.3d at 115 (ʺ[T]he
employee may sue negligent third parties in tort.ʺ); see also Pellegrino v. A.H. Bull
S.S. Co., 309 F. Supp. 839, 842 (S.D.N.Y. 1969) (ʺThe shipowner owes an absolute
and non‐delegable duty to . . . longshoremen properly aboard its vessel to
provide a seaworthy ship.ʺ). As that statute is the sole basis under which Volk
can recover against Franz, 33 U.S.C. § 905(b), the general maritime and state law
claims otherwise must be dismissed. See Norfolk Shipbuilding & Drydock Corp. v.
Garris, 532 U.S. 811, 818 (2001) (noting that the LHWCA preempts all other
claims against a vessel owner).
The district court correctly held that Tilcon, the operator of the rock
processing facility, has no LHWCA liability because it did not employ Volk or
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page26 of 28
own the Barge. See 33 U.S.C. § 905. The district court also correctly held that the
general maritime claims asserted against Tilcon fail because Tilcon is not an
owner of the Barge and because Volk is not a seaman. Tilcon had no duty to
provide a seaworthy vessel or to provide maintenance and cure because it did
not own the Barge. See Oxley v. City of New York, 923 F.2d 22, 24‐25 (2d Cir. 1991)
(noting that a vessel owner has a duty to supply a seaworthy vessel); Lewis v.
Lewis & Clark Marine, Inc., 531 U.S. 438, 441 (2001) (ʺA claim for maintenance and
cure concerns the vessel ownerʹs obligation to provide food, lodging, and
medical services to a seaman injured while serving the ship.ʺ). Further, Volk is
not entitled to maintenance and cure because he is not a seaman. See 1B‐IV
Benedict on Admiralty § 44 (2015) (ʺLongshoremen, of course, have never been
entitled to maintenance and cure.ʺ).
The district court erred, however, in dismissing Volkʹs New York
state law claims against Tilcon for negligence, gross negligence, and violations of
N.Y. Labor Law § 200. The district court determined that these claims failed
because the alleged hazard ‐‐ the presence of excess stone on the margin deck of
the Barge ‐‐ was open and obvious. The district courtʹs holding in this regard
was based on an error of law. New York law utilizes a comparative negligence
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page27 of 28
scheme, meaning the doctrines of contributory negligence and assumption of risk
are not complete defenses as a matter of law. See Integrated Waste Servs., Inc. v.
Akzo Nobel Salt, Inc., 113 F.3d 296, 300 (2d Cir. 1997) (ʺ[W]hen New York, by
statute, adopted comparative negligence, it abolished not only contributory
negligence as a complete defense, but also assumption of risk. Under the statute,
liability is split between plaintiﬀs and defendants based on the relative
culpability and causal signiﬁcance of their conduct.ʺ (citing N.Y. C.P.L.R. §
1411)); see also Payne v. United States, 359 F.3d 132, 138 (2d Cir. 2004) (ʺ[U]nder
New York law the open and obvious nature of a dangerous condition . . . does
not absolve the landowner of its general duty of care.ʺ). Even assuming the
condition was open and obvious, a factual question exists as to the relative fault
of the parties.
Accordingly, the district courtʹs grant of summary judgment to
Tilcon on these state law claims was error.
To summarize, we conclude as follows:
The district court correctly dismissed: (a) the Jones Act claims
against all three appellees; (b) the LHWCA, general maritime law, and state law
Case 16-1092, Document 109-1, 10/27/2017, 2158150, Page28 of 28
claims against Buchanan; and (c) the LHWCA and general maritime claims
against Tilcon; and
The district court erred in dismissing: (a) the LHWCA claim
against Franz to the extent it is based on the alleged breach of Franzʹs duty, as
owner, to turn over a reasonably safe vessel; and (b) the state law claims against
Tilcon for negligence, gross negligence, and violation of N.Y. Labor Law § 200.
Accordingly, the case is AFFIRMED IN PART, VACATED IN
PART, and REMANDED for such further proceedings as may be appropriate.
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