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

Filing 42

ORDER granting in part and denying in part 27 Motion for Summary Judgment. Ordered by Magistrate Judge Marilyn D. Go on 5/1/2015. (Proujansky, Josh)

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

ORDER
CV 2009-0018 (MDG)

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,
Defendants.
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Plaintiffs Francisco and Bridgette Maldonado bring this
action 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 seeking to recover damages for injuries
sustained by Mr. Maldonado while working as a lasher aboard M/V
New Orleans Express, a container ship.
¶ 10.

Compl. (ct. doc. 1),

Plaintiffs sued the owners of the vessel, defendants

Hapag-Lloyd Ships, Ltd., Hapag-Lloyd A.G. and Hapag-Lloyd
Container Line GmbH ("vessel defendants"); the vessel M/V New
Orleans Express (in rem); and New York Container Terminal, Inc.
("NYCT") and Howland Hook Container Terminal, Inc. (collectively
called "stevedore defendants"), which operated the terminal where
the vessel was docked for unloading.

After all parties consented

to trial before me, see Consent to Jurisdiction (ct. doc. 25),

both sets of defendants moved for summary judgment to dismiss
plaintiffs' complaint and the stevedore defendants also moved to
dismiss counterclaims asserted against them by the vessel
defendants.

See Stevedore Defs.' Summ. J. Mot. (ct. doc. 26);

Vessel Defs.' Summ. J. Mot. (ct. doc. 27).
This Court granted the motion for summary judgment of the
stevedore defendants in an order filed on March 31, 2015 ("Prior
Order").

Ct. doc. 39.

As indicated at oral argument, the motion

of the vessel defendants is denied.

This order further sets

forth the reasons for the decision.
PERTINENT FACTS
Except as otherwise indicated, the following facts are
undisputed and if disputed, are resolved in favor of plaintiffs
for purposes of this motion.
As discussed in the Prior Order, Mr. Maldonado was employed
by the stevedore defendants as a lasher, whose duties included
securing and unsecuring containers for loading and discharge from
ships.

In the late evening of February 5, 2007, he was called by

NYCT to join a crew of lashers and other NYCT workers to assist
in loading and unloading of containers on and off the New Orleans
Express.

The vessel had traveled from Southampton to New York,

beginning its journey on January 27, 2007 and pulling into a
berth at a NYCT terminal in Staten Island around 6:25 p.m. on
February 5, 2007.

NYCT was scheduled to discharge 475 containers

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and load 423 containers before the vessel departed the next
morning at 7:00 a.m.

Ct. doc. 29, Exh. E (NYCT Vessel Recap

Rept.); Ct. doc. 36, Exh. F (Report of Charles Cushing at 3).
During the voyage of the New Orleans Express to New York,
the vessel's Electrical Officer Trilok Nath Bhardwaj conducted a
daily inspection of refrigerated containers, which are commonly
called "reefers," ordinarily inspecting the reefers twice a day
to check that they were operating and maintaining correct
temperatures.

Bhardwaj Dep. 58-59.

He would conduct the first

inspection at around 9:00 a.m. and the second inspection in the
afternoon between 4:00 p.m. and 5:00 p.m., after which he
recorded results in his Daily Work Book.

Id.

Officer Bhardwaj

also conducted inspections of socket boxes every three months on
a quarterly basis in December, March and June.

Id. at 109.

On

February 5, 2007, Officer Bhardwaj inspected all reefers on board
once at approximately 9:00 a.m., including the containers stowed
on deck at Bay 38.

He found them all to be in normal operating

condition and so noted his observations in his Daily Work Book.
Id. 15, 58-61.
NYCT employees commenced cargo operations around 7:00 p.m.
See Vessel Recap Rept.

Assistant Lasher Foreman, Anibal Pitre,

of the NYCT, acted as foreman and directed operations following
an NYCT plan for the loading and offloading of both dry and
refrigerated containers.

Pitre Dep. at 17-18.

Refrigerated

containers are connected to an electrical power supply on a
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vessel by means of an electrical cable hard wired to each
container.

Fallon Dep. 112.

The refrigerated containers on the

M/V New Orleans required a 440 volt power supply and each had an
attached three phase electrical cable with a standard 32 amp plug
that was approximately 50 to 60 feet long.
Cushing Rept.

Bhardway Dep. at 102;

"Reefer technicians," who were part of the NYCT

crew, had the responsibility of disconnecting reefers cables.
Trivedi Dep. at 5, 7-8.

They would board to unscrew plugs from

the sockets, and, upon completion of that task, would leave the
vessel to await a later call to plug in loaded reefers.

Trivedi

Dep. at 57-58; Fallon Dep. at 90, 120; Mustari Dep. at 34.
After loading and unloading operations had begun, Mr.
Maldonado was called to work and reported for duty around
midnight.

Maldonado Dep. at 206-07.

He continued working

through the early hours of February 6, 2007 until he was injured
in an accident around 4:40 a.m.

Approximately 20 minutes before

the accident, Mr. Maldonado and another lasher, Daniel
Wisniewski, were directed to Bay 38 to lash a reefer.

Maldonado

Dep. at 33-34, 134-37.
Earlier in operations, there had been three refrigerated
containers that had been unlashed and removed from Bay 38
sometime between 7:00 p.m. and 7:24 p.m. on February 5, 2007.
Fallon Dep. at 53.

Prior to unloading, there were 21 containers

in bay 38, 13 of them occupying the entire first tier of that
bay, with the remaining eight containers stacked at various
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positions on the second tier.

Cushing Rep. at 9.

A total of 15

containers were removed from bay 38, leaving six dry containers
in bay 38 stacked two high next to each other.

Id. at 8-9.

Around 4:06 to 4:24 a.m., fourteen containers were stowed in the
bay, including three reefers, that were stacked two high, leaving
positions 3, 4 and 6 unoccupied.

Id. at 9-10.

Approximately ten minutes after Mr. Maldonado started
working in Bay 38, cranes that provided lighting over that bay
moved to a different part of the ship and he relied on his helmet
light to see.1

See Maldonado Dep. at 154-55, 157.

At about 4:40

a.m., he went to lash containers at position 5 of bay 38 and
reached to pick up a turnbuckle2 lying on a hatch cover.
137-38, 141.

Id. at

As he grabbed the turnbuckle, he was shocked by a

torn black cable that he had not seen earlier3 that was touching

1

The parties dispute the amount of lighting in bay 38.
However, as discussed below, this dispute is not material to
disposition of the issues here.
2

A turnbuckle is a piece of equipment that is used to lash,
or stow, cargo containers on a ship. See Maldonado Dep. at 2021, 24-25. As defendants explain, lashing bars are used to
secure containers and are held in place by turnbuckles that are
tightened by lashers manually using a rebar. The only tools that
Mr. Maldonado used as a lasher were "poles, two high or three
high bar, and rebar to loosen the turnbuckle," items which are
already on the ship. Id. at 21.
3

For purposes of this motion, this Court credits Mr.
Maldonado's testimony that he did not see the cable before
touching the turnbuckle. Maldonado Dep. 157, 170, 210, 212. The
Court is not persuaded, in light of Mr. Maldonado's other
statments, by defendants' effort to construe the statement that
he saw the cable as he grabbed the turnbuckle to mean that Mr.
Maldonado had seen the cable before touching the turnbuckle.
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or tangled around the turnbuckle.

See id. at 157-58, 170.

was a very bright flash or spark and then a second spark.

There
Id. at

173; Wisniewski Dep. at 122-25, 137.
Michael Govenara, also a longshoreman, quickly went to bay
38 after hearing that someone had been injured.
43.

Govenara Dep. at

When he arrived, he saw Mr. Maldonado lying on the ground.

Id. at 45.

He subsequently took pictures of the area, including

pictures of the broken electrical cable submitted in connection
with the instant motion.
(photographs).

Id. at 102-104; see ct. doc. 36, Exh. N

Robert Mustari, Assistant Reefer Foreman at NYCT,

who arrived at the ship approximately half an hour after the
accident, did not see any frayed or broken cables.

Mustari Dep.

at 19-20.
For the reasons that follow, the motion for summary judgment
of the vessel defendants is denied.
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,
Inc., 477 U.S. 242, 248 (1986); Golden Pacific Bancorp v.
F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004).
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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, 58687 (1986) (quoting Fed. R. Civ. P.

56(e)).

As both sides agree, the issues in this case are governed by
the LHWCA and Mr. Maldonado, who was working as a stevedore
aboard the New Orleans Express, is a "covered person" under this
Act.

Section 905(b) provides in pertinent part that:
In the event of injury to a person covered under this
chapter caused by the negligence of a vessel, then such
person ... may bring an action against such vessel as a
third party .... If such person was employed by the
vessel to provide stevedoring services, no such action
shall be permitted if the injury was caused by the
negligence of persons engaged in providing stevedoring
services to the vessel.... The liability of the vessel
under this subsection shall not be based upon the
warranty of seaworthiness or a breach thereof at the
time the injury occurred. The remedy provided in this
subsection shall be exclusive of all other remedies
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against the vessel except remedies available under this
Act.
Although the LHWCA does not define "negligence" for the purpose
of actions against third-party vessel owners under § 905(b),
courts have applied the federal common law standards articulated
by the Supreme Court in Scindia Steam Navigation Co. v. De Los
Santos, 451 U.S. 156 (1981) to "guide judicial determinations of
liability under this subsection."

O'Hara v. Weeks Marine, Inc.,

294 F.3d 55, 64-65 (2d Cir. 2002) (citing Scindia, 451 U.S. at
165–78).

In Scindia, the Supreme Court articulated three duties

owed by a shipowner to a longshoremen, which it later refined in
Howlett v. Birkdale Shipping Co., 512 U.S. 92, 97 (1994).

See

Giganti v. Polsteam Shipping Co., 997 F. Supp. 2d 182, 191
(E.D.N.Y. 2013).

The three Scindia duties are (1) the “turnover

duty;" (2) the “active control duty;" and (3) the “duty to
intervene.”

O'Hara,

294 F.3d at 64.

The turnover duty has two components: "a primary duty to
take ordinary care’ and a corollary ‘duty to warn.’"
997 F. Supp. 2d at 192 (citations omitted).

Gigante,

The primary duty of

the vessel owner is the duty to turn the ship over to the
stevedoring company “in such condition that an expert and
experienced stevedoring contractor, mindful of the dangers he
should reasonably expect to encounter ... will be able by the
exercise of ordinary care” to carry out his operations with
reasonable safety.

Id.

(citing Howlett, 512 U.S. at 98).

The

vessel owner is also charged with the corollary duty to warn the
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stevedore of any hazardous conditions on the ship that are “known
to the vessel or should be known to it in the exercise of
reasonable care, that would be likely encountered by the
stevedore in the course of his cargo operations and that are not
known by the stevedore and would not be obvious to or anticipated
by him if reasonably competent in the performance of his work.”
Howlett, 512 U.S. at 99.

Although the vessel owner is required

to turn the ship over to the stevedoring company in a reasonably
safe condition, the vessel owner is not charged with turning over
to the stevedore an “absolutely safe vessel.”

Sinagra v. Atl.

Ocean Shipping, 182 F. Supp. 2d 294, 300 (E.D.N.Y. 2001).

Nor

does the duty to warn of latent hazards obligate the vessel owner
to inspect the ship and cargo before turning the ship over to the
stevedore for cargo operations “because any defect obvious enough
for the vessel owner to detect would be discovered by a competent
stevedore.”

Verga v. Rotterdam Exp, 2009 WL 4363444, at *4

(E.D.N.Y. 2009) (citing Fernandez v. China Ocean Shipping,
(Group) Co., 312 F. Supp. 2d 369, 375 (E.D.N.Y. 2003)).
Second, once stevedoring operations have begun, a vessel
owner may be liable "if it actively involves itself in cargo
operations and negligently injures a longshoreman.”
U.S. at 157.

Scindia, 451

Although a vessel owner has no ongoing duty to

supervise or inspect the stevedore's work - absent contractual,
regulatory or customary obligations to the contrary, ... it may
be liable 'if it fails to exercise due care to avoid exposing
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longshoremen to harm from hazards they may encounter in areas, or
from equipment, under the active control of the vessel during the
stevedoring operation.'"

Gravatt v. City of New York, 226 F.3d

108, 121 (2d Cir. 2000) (citing Scindia, 451 U.S. at 167)
(emphasis added).

"Therefore, the vessel must take care to

prevent unreasonable hazards in areas of the vessel under its
direct control."

Id.

Notwithstanding the limited duty imposed on vessel owners
after operations begin, a third duty to intervene arises "[w]ith
respect to obvious dangers in areas under the principal control
of the stevedore," if the owner "acquires actual knowledge that
(1) a condition of the vessel or its equipment poses an
unreasonable risk of harm and (2) the stevedore [or other
contractor] is not exercising reasonable care to protect its
employees from that risk.

Id.

(citing Scindia, 451 U.S. at

175–76).
Defendants argue that the plaintiffs cannot show a breach of
their "turnover duty" since the accident occurred over nine and a
half hours after the turnover at 7:00 p.m. on February 5, 2007
and that the conditions leading to the accident had existed for a
sufficiently long time for defendants to discover.

Specifically,

they contend there is no evidence of any defective or broken
electrical cable at the time of turnover.

Besides noting the

absence of any testimony from someone who had observed a broken
cable on the vessel that day, they also point to the fact that
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Officer Bhardwaj had found at his inspection at 9:00 a.m. that
all reefer containers on the vessel were operating properly.
They argue that had any cable been cut or torn, there would have
been an indication of power problems to a reefer.

They further

argue that the most likely cause of the broken cable was the
failure of the reefer technicians to unplug a reefer container in
bay 38 prior to discharge from the vessel and the cable broke as
the container was lifted from bay 38.
However, on the record presented and drawing all inferences
in favor of the plaintiffs, this Court cannot agree entirely with
the defendants' reasoning.

The crux of the dispute here is how

and when a live cable ended up at the location where Mr.
Maldonado received a shock in bay 38.

While defendants' theory

that the broken cable was the remaining fragment of a reefer
cable that had not been unplugged certainly provides a plausible
explanation for what happened, their attempt to rule out other
explanations rest on disputed or insufficient facts and are
insufficient to establish as a matter of law that they did not
breach their turnover duty.
As a preliminary matter, it is clear that the electrical
cables attached to reefer containers do get damaged and broken
under circumstances not stemming from a failure to unplug a
cable.

As Thomas Fallon, Vice President of Maintenance and

Repair of NYCT testified, he was aware of instances when reefer
technicians would encounter torn cables after first boarding a
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vessel, and, presumably, prior to the unloading of a reefer
container.

Fallon Dep. at 50.

Also, reefer technicians would

sometimes find, in the course of unplugging containers, broken
and frayed cables and, in such instances, actually make repairs
to the cable.

Mustari Dep. at 36-37.

On the other hand, there

were no work orders indicating that a reefer technician had found
any defective reefer cable and made repairs on board the New
Orleans Express on February 5 or 6, 2007.

Id. at 38.

Nor has

there been any evidence presented that anyone on the New Orleans
Express had reported, let alone observed, any broken or frayed
cable prior to Mr. Maldonado's accident.

Fallon Dep. at 50-51.

However, the evidence presented is sufficient to raise an issue
whether there was a broken cable before the three reefer
containers and other containers were removed from bay 38.

While

not itself a basis to find breach of the turnover duty, a number
of people testified to the poor housekeeping practices on the
vessel, increasing the likelihood that a live electrical cord
could be hidden around a metallic piece of equipment prior to
turnover.
Moreover, there are issues of fact whether the broken live
cable was caused by the removal of a reefer container without
having first been unplugged.

Mr. Mustari testified that all the

reefer technicians working that day were experienced and were not
likely to forget to unplug a reefer container from the socket.
Mustari Dep. at 40-41.

In addition, Mr. Pitre testified that in
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his experience, when a reefer container that was not unplugged is
lifted off a vessel, the plug would either be pulled out of the
socket or the entire socket would be lifted up with the cable.
Pitre Dep. at 47.
Defendants support their theory with the report of their
expert, Charles Cushner, that the broken cable was a reefer cable
that was still plugged into the socket when the container to
which it was attached was lifted off the vessel.

Mr. Cushner

based this opinion, in part, on the picture of the torn cable
which showed that the conductors in the insulated cable were of
uneven lengths resulting from the cable breaking at different
parts because the components were materials of different tensile
strength.

However, this opinion is disputed.

Mr. Pitre stated

that the cable in the photographs appeared to be a torn extension
cord which was probably left over from a prior voyage.
Dep. at 196-97, 210.

Pitre

Mr. Fallon testified that the wires appear

to have been the result of a "burn back."

Fallon Dep. at 121-22.

Although Mr. Cushing criticizes Mr. Fallon for basing his opinion
on photographs that are not clear and detailed, he, too, relies
on the photographs to support his opinion.
Defendants attempt to buttress their theory by pointing to
NYCT invoices evidencing that the vessel had been billed for
repairs to three cables.

However, as Mr. Fallon explained, the

invoices did not indicate that any of the work involved the
replacement of missing plugs nor was there any mention of a
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broken reefer cable.

Fallon Dep. at 110-115.

Had such work been

performed, the invoice would have indicated that a plug had been
installed.

Id. at 115.

Plaintiff's expert, Arthur Archibald, opines that had the
cable been broken when the container was lifted while still
plugged in the socket, the cable most likely would have struck a
metal object that should have resulted in a short circuit that
would trip a circuit breaker.4

Ct. doc. 33-3.

Setting aside

defendants' criticism of Mr. Archibald's further opinion that the
vessel must have had defective "no fuse breakers" because the
cable remained live, Mr. Archibald's underlying opinion that the
falling broken cable was likely to have contacted a metal object
is not unreasonable, particularly in the context of a summary
judgment motion.

If the defendants are correct that the "no fuse

breakers" were not defective, then a reasonable jury could
conclude in light of the evidence that the live cable was not the
remnant of torn cable from a removed container that had not been
unplugged, given the likelihood that any falling cable should
have tripped the circuit breaker.
Given the conflicting expert and lay expert opinions and
defendants' reliance on their expert without raising a Daubert
challenge to any of plaintiffs' evidence, summary judgment is not
4

In contrast, Officer Bhardwaj testified that a broken
line that remains plugged into the socket would not likely trip a
circuit breaker because there would be no shorting between lines.
Bhardwaj Dep. at 48-49. Nor would there be any signal or alarm
to indicate that a line had been cut. Id. at 49.
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appropriate here.

See Quiles v. City of New York, 978 F. Supp.

2d 374, 385 (S.D.N.Y. 2013) (plaintiff's testimony and expert
report "plainly suffice to create a material factual issue as to
whether the City negligently created a situation in which Quiles
had to disembark" under the conditions present); see also Thomas
v. Newton Int'l Entrps., 42 F.3d 1266, 1270 (9th Cir. 1994)
(relying on expert opinion in finding genuine issue of material
fact on whether unguarded hatch created unreasonably dangerous
condition).

Suffice to say, had the broken cable been present

prior to unloading of bay 38 and laid hidden until discharge of
the 21 containers in the bay, a jury could find that it was not
an obvious hazard given defendants's housekeeping practices and
the fact the cord was black, instead of yellow, and not easily
seen in dark conditions, and the placement of the cord vis a vis
the turnbuckle.
Relatedly, the parties hotly contest whether the cable at
issue was a reefer cable or an extension cord.

To be sure, if

plaintiffs could definitively establish that the cable was an
extension cord, defendants' positions would be seriously
compromised.

As Officer Bhardwaj testified, extension cords were

normally used.

Bhardwaj Dep. at 92.

While this Court agrees

with defendants that Mr. Maldonado clearly called the cable a
reefer cord and may have impermissibly attempted to contradict
his prior testimony by presenting his affidavit, this decision
does not rest on acceptance of his affidavit.
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From review of the

testimony of witnesses and some of the incident reports, this
Court notes that the testifying witnesses and persons writing
reports sometimes were not precise or consistent in referring to
the electrical cables.
On the other hand, this Court finds meritless plaintiffs'
contention that poor lighting conditions of the vessel
constituted a breach of the turnover duty.

Plaintiffs argue that

the lighting conditions impeded his ability to see the broken
cord, which was particularly hard to see in the dark because the
cord was black rather yellow, the typical color for reefer cords.
However, it is undisputed that the cranes providing lighting were
operated by the NYCT.

Vitacco Dep. 71.

Also, this Court agrees

with defendants that Mr. Maldonado's belated attempt to argue in
his opposing affidavit that he could not see the cord because of
poor lighting contradicts his prior testimony and should be
rejected.

See Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619

(2d Cir. 1996) (rejecting a party's effort to create an issue of
fact by presenting an affidavit contradicting his own prior
testimony).

Finally, setting aside any dispute over the extent

of lighting provided, virtually every NYCT worker testified to
working under different lighting conditions, including the
conditions on the New Orleans Express on February 6, 2015.

See

Rios Dep. at 52 (did not use helmet light in bay 38); Vitacco
Dep. at 53 (sufficient lighting); Governara Dep. at 103-04 (did
not use helmet light); Pitre Dep. at 213 (lighting from pier).
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The lighting conditions, whatever they may have been, were
apparent to the workers and did not constitute a “hazard[] that
would be neither obvious to nor anticipated by a competent
stevedore in the ordinary course of cargo operations.”
512 U.S. at 99.

Howlette,

Thus, this Court grants defendants summary

judgment as to this aspect of the turnover duty.
Defendants also argue that they did not breach the duty of
active involvement since control over the work area had turned
over to the stevedore.

This Court agrees and grants defendants

summary judgment on this issue as well.

There is absolutely no

evidence that there were any vessel employees actively involved
in any aspect of cargo operations prior to the accident.

See

Mustari Dep. at 147 (did not see any person other than lashers in
the vicinity of bay 38 prior to the accident).
For similar reasons, this Court finds no duty to intervene.
Under Scindia, a vessel has the duty to intervene "if it acquires
actual knowledge that (1) a condition of the vessel or its
equipment poses an unreasonable risk of harm and (2) the
stevedore is not exercising reasonable care to protect its
employees from that risk."

Gravatt, 226 F.3d at 121.

"'Should-

have-known' constructive knowledge is insufficient to meet the
actual knowledge requirement."

Id. at 127 n.17; see DeBiase v.

Cat Island Shipping, Ltd., 2009 WL 3077193, at *10-*11 (E.D.N.Y.
2009) (granting summary judgment on duty to intervene for lack of
evidence that defendants were aware of malfunctioning twist
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lock); Sinagra v. Atl. Ocean Shipping, Ltd., 182 F. Supp. 2d 294,
305 (E.D.N.Y. 2001) (granting summary judgment where no evidence
to attribute actual knowledge of danger).
Plaintiffs argue that the vessel defendants "must have
known" of the dangerous condition created by the live wires
because of testimony that the vessel's watch officer and his deck
officers were present on the deck monitoring the cargo
operations.

See Pl.'s Mem. at 14-16.

However, there is no

evidence of the vessel's actual knowledge of the danger posed by
the live wires

or even evidence upon which the Court could infer

actual knowledge despite the vessel's officers' presence on the
deck.

See Verga, 2009 WL 4363444, at *4-*5 (granting defendants'

motion for summary judgment because no evidence of actual
knowledge of grease condition even though vessel's crew was
onboard and walking around deck); see also Casaceli v. Martech
Int'l, Inc., 774 F.2d 1322, 1330 (5th Cir. 1985) ("mere presence
of the vessel's crew on the ship . . . does not prove knowledge
of the hazardous condition").

Until the accident, no NYCT

employee was aware of any defective cable during the operation
nor was any problem reported to the defendants.

See Mustari Dep.

at 38 (not aware of reefer technician needing to fix any cable);
Pitre Dep. at 95 (no notice during the unloading of cargo of
frayed wires); Fallen Dep. at 50.

Second Officer Nitin

Kulshrestha's testimony that crew members were walking through
the catwalk areas and "propping between the bays," (see
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Kulshrestha Dep. 24, 26), does not establish that crew members
actually walked near the site of Mr. Maldonado's accident or
observed the live wire.

Likewise, there is no evidence that the

vessel had actual knowledge that the stevedoring company was not
exercising reasonable care to protect its own employees from
risk.

Absent actual knowledge of the dangerous condition, the

vessel defendants did not have a duty to intervene.

Plaintiffs

have not carried their burden of demonstrating sufficient facts
to warrant a trial on this issue.

Accordingly, the vessel

defendants are entitled to summary judgment on the duty to
intervene.
CONCLUSION
For the foregoing reasons, the vessel defendants' motion for
summary judgment is denied in part and granted in part.
SO ORDERED.
Dated:

Brooklyn, New York
May 1, 2015
_/s/__________________________
MARILYN DOLAN GO
UNITED STATES MAGISTRATE JUDGE

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