Maldonado et al v. Hapag-Lloyd Ships, Ltd. et al

Filing 39

ORDER granting 26 Motion for Summary Judgment. For the reasons set forth herein, the stevedore defendants' motion for summary judgment is granted. Accordingly, the claims of plaintiffs Francisco Maldonado and Bridgette Maldonado, the cross cl aims of Hapag-Lloyd Ships, Ltd., Hapag-Lloyd A.G. and Hapag-Lloyd Container Line GMBH against New York Container Terminal, Inc. and Howland Hook Container Terminal Inc. and the cross claims of New York Container Terminal, Inc. and Howland Hook Container Terminal against Hapag-Lloyd Ships, Ltd., Hapag-Lloyd A.G., and Hapag-Lloyd Container Line GMBH are hereby dismissed. Ordered by Magistrate Judge Marilyn D. Go on 3/31/2015. (Moo-Young, Jillian)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FRANCISCO MALDONADO and BRIDGETTE
MALDONADO
Plaintiffs,
- against -

ORDER

HAPAG-LLOYD SHIPS, LTD., HAPAG-LLOYD
A.G., HAPAG-LLOYD CONTAINER LINE GMBH,
NEW YORK CONTAINER TERMINAL, INC.,
HOWLAND HOOK CONTAINER TERMINAL, INC.,
M/V NEW ORLEANS EXPRESS,

CV 2009-0018 (MDG)

Defendants.
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Plaintiffs Francisco and Bridgette Maldonado bring this action
against defendants New York Container Terminal, Inc. ("NYCT") and
Howland Hook Container Terminal, Inc., who will collectively be
called the "stevedore defendants;" against Hapag-Lloyd Ships, Ltd.,
Hapag-Lloyd A.G. and Hapag-Lloyd Container Line GMBH, who will
collectively be called the "vessel defendants;" and, in rem,
against M/V New Orleans Express.

Asserting claims under the

Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C.
§ 901 et seq., the general maritime law and New York state law,
Compl. (ct. doc. 1) at ¶ 10, plaintiffs seek damages arising from
injuries allegedly sustained by Mr. Maldonado while working as a
lasher aboard the vessel New Orleans Express, which is owned by the
vessel defendants.
Both sets of defendants disclaim liability for any injuries
incurred by Mr. Maldonado and have asserted cross-claims against

each other for contribution or indemnification.

See Vessel

Defs.' Ans. (ct. doc. 9), ¶¶ 59-60, 77-78; Stevedore Defs.' Ans.
(ct. doc. 13), ¶¶ 51-53.

After all parties consented to trial

before me, see Consent to Jurisdiction (ct. doc. 25), both sets
of defendants moved for summary judgment as to plaintiffs'
complaint and the counterclaims asserted against them.

See

Stevedore Defs.' Summ. J. Mot. (ct. doc. 26); Vessel Defs.' Summ.
J. Mot. (ct. doc. 27).
This order addresses the motion of the stevedore defendants,
which is unopposed.

BACKGROUND
The facts set forth in this order are undisputed.

On

February 6, 2007, Mr. Maldonado was employed by the stevedore
defendants as a lasher, a longshoreman who assists in the loading
and unloading of cargo from ships.

See Stevedore Defs.' Rule

56.1 Statement (ct. doc. 26, Ex. 2) at ¶ 1; Decl. of John Atkins
("Atkins Decl.") (ct. doc. 26-8) at ¶ 10.

Mr. Maldonado arrived

for work around midnight to assist in loading the New Orleans
Express, which was docked at a marine terminal in Staten Island,
New York.
07.

See Maldonado Depo. Tr. (ct. doc. 26, Ex. E) at 206-

Several hours into his shift, Mr. Maldonado was directed to

Bay 38 to lash a refrigerated container (called a "reefer") with
another lasher, Daniel Wisniewaki.

See id. at 33-34, 134-37.

While Mr. Maldonado was working in Bay 38, the cranes that
provided lighting for the ship moved from that bay to a different

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part of the ship, so he was relying on his helmet light to see.
See id. at 154-55, 157.

Mr. Maldonado claims that when he

reached for a turnbuckle,1 he was shocked by a torn electrical
cable that was tangled around the turnbuckle.
170.

See id. at 157-58,

He briefly lost consciousness and has since suffered

lasting pain, physical impairments and emotional distress.

See

id. at 170-71, 184-86, 227-28, 230-34, 236-39.
After completion of discovery, the vessel defendants moved
for summary judgment.

Plaintiffs have not filed a response to

the stevedore defendants' summary judgment motion but have moved
for sanctions against the vessel defendants for spoliation of
evidence based on the loss of the broken electrical cable.

See

Pl's Mot. for Sanctions (ct. doc. 30).
For the reasons that follow, the stevedore defendants'
motion for summary judgment is granted.

DISCUSSION
Summary judgment is appropriate pursuant to Fed. R. Civ. P.
56 when "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show 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."

Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d

Cir. 1991) (citations omitted); see Anderson v. Liberty Lobby,

1

A turnbuckle is a piece of equipment that is used to lash
or stow cargo containers on a ship. See ct. doc. 26, ex. E at
20-21, 24-25.
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Inc., 477 U.S. 242, 248 (1986); Golden Pacific Bancorp v.
F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004).

The moving party

bears the initial burden of demonstrating an absence of material
facts and once it has done so, the burden shifts to the nonmoving party.
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

In determining whether there is a genuine issue of

material fact, the court must resolve ambiguities and draw
inferences in favor of the non-moving party.

Id.; Zalaski v.

City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir.
2010); Gallo v. Prudential Residential Servs., Ltd. Partnership,
22 F.3d 1219, 1223 (2d Cir. 1994).

Once the moving party has met

its burden, the opposing party "must do more than simply show
that there is some metaphysical doubt as to the material
facts . . . [T]he nonmoving party must come forward with
'specific facts showing that there is a genuine issue for
trial.'"

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P.
56(e)).
The Second Circuit has held that "[e]ven when a motion for
summary judgment is unopposed, the district court is not relieved
of its duty to decide whether the movant is entitled to judgment
as a matter of law."

Vermont Teddy Bear Co. v. 1-800 Beargram

Co., 373 F.3d 241, 242 (2d Cir. 2004); see also LeSane v. Hall's
Sec. Analyst, Inc., 239 F.3d 206, 210-11 (2d Cir. 2001).

The

district court must "ensure that each statement of material fact
is supported by record evidence sufficient to satisfy the
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movant's burden of production even if the statement is
unopposed," but a party failing to respond "runs the risk" that a
movant's statement of undisputed facts supported by the record
will be deemed admitted.

Jackson v. Federal Exp., 766 F.3d 189,

194 (2d Cir. 2014) (citations omitted).
This Court agrees with the stevedore defendants that the
LHWCA exclusively governs their liability and that they have
satisfied their obligation as employers under the statute.

See

Stevedore Defs.' Ans. at ¶¶ 49-50; Stevedore Defs.' Summ. J. Mem
(ct. doc. 26-4) at 2-4.

LHWCA enables a maritime worker or

longshoreman injured on the job to receive compensation from an
employer, owner or pro hac vice owner of a vessel.
33 U.S.C. § 901, et seq.

However, the statute limits the

liability of an employer to the compensation plan described in
§ 904, which requires an employer to compensate an eligible
employee for accidental injury, disability, occupational disease
or death, regardless of fault.
905(a), 907(a).

Id. at §§ 902(2), 904(a), 904(b),

An eligible person is permitted to bring an

action for negligence against a vessel, but he may not recover
for injury caused by the stevedore's negligence or for injury
caused by alleged unseaworthiness of the vessel.

Id. at § 905.

In describing the legislative history of LHWCA, the Supreme Court
noted that one major goal of the 1972 statutory reform was to
reduce the amount of liability faced by stevedores from vessel
owners following an award of damages to an employee for an injury
sustained aboard a ship.

See Scindia Steam Nav. Co., Ltd. v. De
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Los Santos, 451 U.S. 156, 164-65 (1981).
The Second Circuit has identified several tests, depending
on the circumstances, for determining who should be considered an
employer under the LHWCA and similar labor statutes: the relative
nature of the work, the right to control details of the work, the
Second Restatement of Agency § 220(2), and the borrowed employee
test.

See American Stevedoring Ltd. v. Marinelli, 248 F.3d 54,

61 (2d Cir. 2001).
The "relative nature" test looks at two factors: 1) the
nature of the claimant's work, which is analyzed according to the
skill required for the work, the degree to which the work
constitutes a separate enterprise and the extent to which a
worker is expected to carry his own accident burden; and 2) the
relation of the claimant's work to the employer's business, which
is determined according to whether the work is a regular part of
the employer's enterprise, whether the work is intermittent or
continuous and whether the duration of the work makes the
engagement analogous to hiring as opposed to contracting.

See

id. at 62-63.
Under the second test, courts focus on whether the master
has the right to control the details of the employees' work.

The

elements of this test are: the right to control the details of
the work, the method of payment, the furnishing of equipment, and
the right to fire.

See id. at 62 n.10.

The third test, which is

derived from the Second Restatement on Agency, similarly requires
consideration of "the extent of control which . . . the master
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may exercise over the details of the work."

See id. at 62 n.11.

Finally, under the borrowed servant test, while courts may
consider "a variety of factors," the "primary inquiry [is]
whether the borrowing employer has authoritative direction and
control over a worker."

See id. at 64 (internal citations

omitted).
As a preliminary matter, it is undisputed that the moving
defendants are in the stevedoring business and operate a marine
terminal in Staten Island known as the New York Container
Terminal.2

See Atkins Decl. at ¶ 7.

By conducting longshoring

operations, they are engaged in maritime employment, as defined
in the LHWCA as maritime employment.

See 33 U.S.C. § 902(3);

see also Health and Safety Regulations for Longshoring, 29 C.F.R.
§ 1918.2; Stevedoring and Terminal Services Agreement (ct. doc.
29, Ex. I) at 3, 8-9.

Furthermore, the Second Circuit has held

that "any employment that is an integral or essential part of
loading or unloading a vessel" shall be considered maritime
employment.

American Stevedoring, 248 F.3d at 58.

Lashers are

responsible for securing and releasing containers in a ship's
cargo for the purpose of loading or unloading them and therefore
are essential to this process.

See Maldonado Depo. Tr. at 20-21.

Thus Mr. Maldonado, who was employed as a lasher and was
performing work as a lasher at the time of the accident, is also

2

Between 1995 and 2005, the New York Container Terminal was
known as Howland Hook Marine Terminal, Inc. Ct. doc. 26,-3 at
¶ 4.
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subject to the LHWCA.

Maldonado Depo. Tr. at 19-23; 35-39.

Having filed no opposition, plaintiffs and the vessel
defendants do not directly dispute the contention of the
stevedore defendants that plaintiff Francisco Maldonado was
employed by NYCT.

However, plaintiffs allege in the complaint

and in their memorandum in opposition to the motion of the vessel
defendants that Mr. Maldonado's employer was Island Securing and
Maintenance, Inc. ("ISM").

Compl. at ¶ 17; ct. doc. 33 at 2; see

Maldonado Depo. Tr. at 20-21.

After review of the submissions,

this Court finds that the stevedore defendants clearly qualify as
Mr. Maldonado's employer, fitting the definition of employers as
described in the LHWCA and generally under maritime law.

As they

explain, although Mr. Maldonado was paid from an account
belonging to an entity called ISM, ISM is an alter-ego of the
stevedore defendants that was created solely for the purpose of
managing the payroll of employee longshoremen and lashers who
belong to the International Longshoreman Association ("ILA")
Local 1814.

See Atkins Decl. at ¶¶ 10, 18.

After generating the

payroll for ILA Local 1814 employees, NYCT transferred funds to
ISM to cover that payroll.

Id. at ¶ 34.

ISM is wholly owned by

NYCT, and has the same directors and officers as its parent.

Id.

at ¶¶ 15-17.
In contrast to the limited role of ISM, the stevedore
defendants establish without dispute that NYCT directed and
controlled the lashing worked performed at its terminal, while
ISM never engaged in any activity at the NYCT's terminal.
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Id.

¶¶ 10, 19.

In fact, ISM did not engage in any activity other

than issuing paychecks to ILA Local 1814 employees, having
neither its own assets, bank account or office.
22-24, 26, 34-35.

Id. at ¶¶ 5, 8,

In short, ISM is nothing more than a vehicle

for paying employees belonging to ILA Local 1814, including
lashers such as Mr. Maldonado.

Atkins Decl. at ¶ 11.

Since the

undisputed facts show that ISM merely pays wages, and the
stevedore defendants controlled work at the terminal, I find that
the stevedore defendants have established they were the employers
of Mr. Maldonado.

See Marinelli, 248 F.3d at 62 (role in payment

not, in itself, sufficient to show control).
The stevedore defendants argue in the alternative that even
if Mr. Maldonado were considered an employee of ISM, he was a
special employee or "borrowed servant" of the stevedore
defendants and therefore barred from pursuing a lawsuit against
them because he has received compensation as mandated by LHWCA.
See Defs.' Mem. at 20-23.

Again, neither Mr. Maldonado nor the

vessel defendants have offered any argument to the contrary.
Notably, Mr. Maldonado filed for, and received, workers
compensation benefits as an eligible maritime employee under the
LHWCA.

Ct. doc. 26, Ex. 3 at 4.

The stevedore defendants not

only provided the funds for Mr. Maldonado's wages and benefits
under a collective bargaining agreement, they furnished him with
equipment for his work and storage facilities, directed when and
where he worked, employed about two dozen other lashers,
coordinated cargo operations at the terminal, provided longshore
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workers to vessels as part of their regular services, and
disciplined workers such as Mr. Maldonado.

See Depo. Tr. of

Anabel Pitre dated June 29, 2009 (ct. doc. 29, Ex. G at 16-17).
Under such circumstances, there can be no doubt that Mr.
Maldonado was employed by the stevedore defendants directly or,
at the very least, as a special employee.
Because the stevedore defendants are engaged in maritime
employment, were Mr. Maldonado's employer, and have compensated
him according to the compensatory plan set out in the LHWCA, Mr.
Maldonado is barred from pursuing any claims against them.

The

vessel defendants are likewise barred from recovering against the
stevedore defendants by the terms of the LHWCA, which states
that, if a plaintiff succeeds in proving a defendant vessel's
negligence and establishing damages, a stevedore defendant as
plaintiff's employer "shall not be liable to the vessel for such
damages directly or indirectly."

33 U.S.C. § 905(b).

Finally, because Ms. Maldonado's claims are derivative of
Mr. Maldonado's, they cannot survive after his are dismissed. See
Griffin v. Garratt-Callahan Co., 74 F.3d 36, 40 (2d Cir. 1996).
CONCLUSION
For the foregoing reasons, the stevedore defendants' motion
for summary judgment is granted.

Accordingly, the claims of

plaintiffs Francisco Maldonado and Bridgette Maldonado, the cross
claims of Hapag-Lloyd Ships, Ltd., Hapag-Lloyd A.G. and
Hapag-Lloyd Container Line GMBH against New York Container

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Terminal, Inc. and Howland Hook Container Terminal Inc. and the
cross claims of New York Container Terminal, Inc. and Howland
Hook Container Terminal against Hapag-Lloyd Ships, Ltd., HapagLloyd A.G., and Hapag-Lloyd Container Line GMBH are hereby
dismissed.
The Clerk of the Court is respectfully requested to enter
judgment accordingly.
SO ORDERED.
Dated:

Brooklyn, New York
March 31, 2015
__/s/_______________________
MARILYN DOLAN GO
UNITED STATES MAGISTRATE JUDGE

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