GREENE v. ATLANTIC CAPES FISHERIES, INC. et al

Filing 22

OPINION FILED. Signed by Judge Noel L. Hillman on 2/23/18. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WAYNE GREENE,
1:17-cv-04104-NLH-JS
Plaintiff,
OPINION
v.
SEA HARVEST, INC. and FV
PONTOS LLC,
Defendants.

APPEARANCES:
BRIAN A. WALL, JR.
FRANCESCA ANN IACOVANGELO
MCCANN & WALL, LLC
TWO PENN CENTER PLAZA
1500 JOHN F. KENNEDY BLVD
SUITE 1110
PHILADELPHIA, PA 19102
JONATHAN E. GILZEAN, ESQ.
LATTI & ANDERSON LLP
30-31 UNION WHARF
BOSTON, MA 02109
On behalf of Plaintiff
BRIAN MCEWING
REEVES MCEWING LLP
681 TOWNBANK ROAD
CAPE MAY, NJ 08204
MARY ELISA REEVES
REEVES MCEWING LLP
1004 S. FRONT STREET
PHILADELPHIA, PA 19147
On behalf of Defendants
HILLMAN, District Judge
This matter concerns claims by a seaman for injuries he

sustained on a fishing boat.

Defendants have moved to dismiss

Plaintiff’s claims, or in the alternative Defendants have moved
for summary judgment in their favor, based on a purported
agreement between the parties where Plaintiff released all of
his claims against Defendants arising out of his work injury.
For the reasons expressed below, Defendants’ motion will be
denied.
BACKGROUND
In his complaint, Plaintiff, Wayne Greene, claims he was
working on the fishing boat F/V PONTOS when he was injured.
Based on his injury, Plaintiff has asserted claims against his
employers, FV PONTOS, LLC and Atlantic Capes Fisheries, Inc., 1
for maritime negligence, unseaworthiness, and failure to provide
proper maintenance and cure. 2

Plaintiff’s complaint contains no

1

Since the filing of Plaintiff’s complaint, Sea Harvest Inc. has
been substituted for Atlantic Cape Fisheries, Inc. (Docket No.
21.)
2

The U.S. Supreme Court has described the "ancient duty of a
vessel and her owner to provide maintenance and cure for seamen
injured or falling ill while in service":
The duty, which arises from the contract of employment,
does not rest upon negligence or culpability on the part
of the owner or master, nor is it restricted to those
cases where the seaman's employment is the cause of the
injury or illness. It is not an award of compensation
for the disability suffered, although breach of the duty
may render the owner liable for the consequential
damages suffered by the seaman. The maintenance exacted
is comparable to that to which the seaman is entitled
while at sea, and ‘cure’ is care, including nursing and
2

other details about his injury or Defendants’ actions relative
to his injury.
Defendants have moved to dismiss Plaintiff’s claims, or
seek summary judgment on Plaintiff’s claims, based on a release
that Defendants contend Plaintiff signed when he was cleared to
return to work by his doctor.

The parties’ submissions in

support of and in opposition to Defendants’ motion provide more
information on the circumstances of Plaintiff’s injury and the
subsequent events relating to the purported release. 3
Plaintiff relates that he has been a commercial fisherman
for 31 years and has a 10th grade education.

On September 22,

medical attention during such period as the duty
continues.
Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 527–28 (1938)
(internal citations omitted), cited in Lewis v. Lewis & Clark
Marine, Inc., 531 U.S. 438, 441 (2001) (“A claim for maintenance
and cure concerns the vessel owner's obligation to provide food,
lodging, and medical services to a seaman injured while serving
the ship.”).
3

Because Defendants’ motion is supported by documents and other
submissions that are well outside of the allegations contained
in Plaintiff’s complaint, Defendants’ motion can only be
construed as one for summary judgment under Fed. R. Civ. P. 56.
See S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp.
Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (explaining that a court
in reviewing a Rule 12(b)(6) motion must only consider the facts
alleged in the pleadings, the documents attached thereto as
exhibits, and matters of judicial notice); Fed. R. Civ. P. 12(b)
(providing that if any other matters outside the pleadings are
presented to the court, and the court does not exclude those
matters, a Rule 12(b)(6) motion will be treated as a summary
judgment motion pursuant to Rule 56).
3

2014, 4 while working on the F/V PONTOS, Plaintiff suffered a
rupture of his right distal bicep tendon.

Despite his injury,

Plaintiff remained on the vessel and worked the rest of the trip
until it returned to port a day or two later.
Once back on shore, an Atlantic Cape Fisheries’ employee
referred Plaintiff to an orthopedic surgeon, Dr. Thomas Barrett,
who recommended an immediate surgical repair, which he performed
on September 29, 2014.

Plaintiff was unable to work until he

was cleared by Dr. Barrett on March 20, 2015.
Defendants contend that on March 20, 2015, Plaintiff came
to the Atlantic Cape Fisheries’ office and met with Sam Martin,
the vice-president of operations, along with another employee
who was a notary, to sign a fit-for-duty form and formal release
of his claims.

Martin claims that he read each line of the

four-page release to Plaintiff, and asked whether Plaintiff
wanted to review it with a lawyer or his family.

Martin claims

that Plaintiff declined, and after understanding that he was
giving up all of his rights relating to his injury, Plaintiff
signed the release.

Defendants further relate that Plaintiff

was paid $16,800 in advance during his period out of work,
$9,000 for maintenance, $25,000 for cure, and $5,000 in “new

4

Plaintiff’s complaint states that the date of injury was
September 28, 2014. It appears from the parties’ submissions
that the date of injury is September 22, 2014.
4

money” when he signed the release.

Defendants argue that

Plaintiff’s claims against them are barred by this valid
release, which was supported by proper consideration and was
knowingly agreed to by Plaintiff.
Plaintiff has opposed Defendants’ motion and disputes
Defendants’ characterization of the release and the
circumstances of his meeting with Martin and the payments he
received while on medical leave.

Plaintiff relates that the $50

per day in maintenance, which was insufficient under the law,
left him in a dire financial condition, and when he met with
Martin, he was desperate to return to work to regain his regular
income.

Plaintiff claims that Martin knew of his financial

plight, and laughed at Plaintiff’s initial request for $20,000
when Martin asked him what it would take the settle the matter,
and said he would only pay $5,000.

Plaintiff further claims

that Martin said that Plaintiff would never work for Atlantic
Cape Fisheries again if Plaintiff did not sign the release or
took the release to an attorney.

Plaintiff relates that Martin

never explained the legal consequences of the provisions in the
release.
Plaintiff claims that Martin showed him a one-page release,
on which Plaintiff wrote his name and filled out some other
information, and a copy of only that page was provided to him.
The purported release that Defendants have provided in support
5

of their motion contains four pages, however, and Plaintiff’s
name is misspelled on the remaining pages, including in his
alleged signature.
After the meeting, Plaintiff cashed the $5,000 check to pay
some outstanding debts, and returned to fishing on the F/V
PONTOS for two trips.

According to Plaintiff, when he returned

from the tips, Atlantic Cape Fisheries deducted $3,000 - $4,000
from his fishing shares to recover the “advances” it paid
Plaintiff.

Plaintiff claims that because Atlantic Cape

Fisheries refused to refund his wages, he quit.

Plaintiff

relates that he successfully returned to commercial fishing with
another company, but he continues to suffer pain, tingling,
weakness, and stiffness in his bicep.
Based on the foregoing disputed facts, Plaintiff argues
that Defendants’ motion must be denied.
DISCUSSION
A.

Subject matter jurisdiction

This Court has subject matter jurisdiction over this matter
pursuant to The Merchant Marine Act of 1920, commonly called the
Jones Act, 46 U.S.C. § 30104 et seq.

This Court has subject

matter jurisdiction over this matter pursuant to 28 U.S.C. §
1331 and 28 U.S.C. § 1333.
B.

Standard for Summary Judgment

Summary judgment is appropriate where the Court is
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satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.

Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp.

Once the moving party has

met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a
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genuine issue for trial.

Id.

Thus, to withstand a properly

supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence that contradict
those offered by the moving party.
57.

Anderson, 477 U.S. at 256-

A party opposing summary judgment must do more than just

rest upon mere allegations, general denials, or vague
statements.

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

2001).
C.

Analysis

The factors to consider in assessing the validity of a
seaman’s release of his claims for an injury sustained in his
course of duties were established 75 years ago and remain
controlling to this day.

Succinctly stated:

[S]eaman are entitled to special protection in legal
matters, and accordingly, there is a two-part test to
determine the enforceability of a seaman's release. First,
a court must determine whether the release was executed
freely, without deception or coercion. Second, a court
must examine whether the seaman entered the settlement with
a full understanding of his rights. The adequacy of
consideration and the nature of the medical and legal
advice available to the seaman are key issues in the
analysis of this understanding.
Jackson v. Delaware River and Bay Authority, 334 F. Supp. 2d
615, 617–18 (D.N.J. 2004) (citing Garrett v. Moore-McCormack
Co., 317 U.S. 239, 248 (1942)); see also In re Oil Spill by the
Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20,
2010, 2017 WL 4764365, at *8 (E.D. La. 2017) (discussing the

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Garrett standard for assessing a seaman’s release, and noting
that seamen are considered as “wards of the court” needing
special protections from potentially overreaching ship owners);
cf. Rabenstein v. Sealift, Inc., 18 F. Supp. 3d 343, 355
(E.D.N.Y. 2014) (quoting McKelvey v. Am. Seafoods, No. 99–CV–
2108, 2000 WL 33179292, at *1 (W.D. Wash. Apr. 7, 2000))
(“‘Despite the fact that plaintiff is a seaman and therefore
entitled to significant legal protections, seamen are no less
bound by their voluntary and knowing agreements than are other
individuals.’”).
Moreover, on a motion for summary judgment based on a
seaman’s release, the shipowner has heavy “‘burden to shoulder,
for he must conclusively demonstrate the absence of genuine
issues of material fact.’”

Irons v. Matthews, 2010 WL 2540347,

at *4 (D.N.J. 2010) (quoting Halliburton v. Ocean Drilling &
Exploration Co., 620 F.2d 444, 445 (5th Cir. 1980)).

As a

result, “[i]n the context of admiralty jurisdiction, summary
judgment is often considered an inappropriate procedure to
determine the validity of a seaman's release.”

Id. (citing

Complaint of Bankers Trust Co. v. Chatterjee, 636 F.2d 37, 39
(3d Cir. 1980)).
In this case, Plaintiff has presented disputed issues of
material fact relating to the validity and enforceability of the
release Defendants contend Plaintiff understood and signed.
9

Plaintiff has challenged the actual document itself, arguing
that he only saw the first page, and did not see, and therefore
did not complete, sign, or understand the additional pages
presented by Defendants.

This disputed fact is supported by

Plaintiff’s testimony - the credibility of which this Court
cannot assess at summary judgment - and by the significance of
the consistent misspelling of Plaintiff’s last name in the three
pages that comprise the release, 5 where the first page completed
by Plaintiff records his name as “Wayne Greene,” but the
remaining pages show “Wayne Green.”

Even though the first page

contains the basic summary of the payments to Plaintiff and the
agreement to release his claims, it is the third page which
contains Plaintiff’s purported signature which, if authentic,
would evidence his agreement to the terms of the entire fourpage release.

Thus, the factual dispute as to the authenticity

of the full release alone defeats summary judgment.
Other disputed facts further support the denial of summary
judgment, including the dispute over: the maintenance and cure
payments, the purported consideration paid to Plaintiff to
execute the release, the content of the meeting between
Plaintiff and Martin, and the extent of what Plaintiff
understood regarding the legal ramifications of signing a

5

The fourth page is the acknowledgement by the notary public.
10

release.

See, e.g., Double J. Marine, LLC v. Nuber, 2013 WL

6502866, at *3 (E.D. La. 2013) (discussing the Garrett factors
and denying summary judgment on a defendant’s argument that the
seaman validly released his claims, noting that the seaman only
had a 10th grade education, and the disputed facts relating to
the content of the meeting between the insurance adjuster and
the seaman where the seaman purportedly understood the
ramifications of the release warranted the denial of summary
judgment on that issue alone).
It is clear that Defendants have not met their heavy burden
on the current record to establish that: (1) the release was
executed freely, without deception or coercion, and (2)
Plaintiff entered the settlement with a full understanding of
his rights.

Consequently, Defendants are not entitled to

judgment in their favor at this time.
CONCLUSION
For the reasons expressed above, Defendants’ motion for
summary judgment must be denied, and case may proceed in due
course.

An appropriate Order will be entered.

Date: February 23, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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