In the Matter of the Complaint of A.P. Franz, Jr., TRUSTEE, as owner, et al.

Filing 57

MEMORANDUM-DECISION and ORDER - That Franz and Buchanan's 45 Motion for Summary Judgment is GRANTED. That the complaint for exoneration (Dkt. No. 2) is GRANTED. That Tilcon's 51 Motion for Summary Judgment is GRANTED. That Tilcon&# 039;s claims for contribution or indemnification (Dkt. No. 6 16-19) are DISMISSED. That the Volk's 53 Cross-Motion for Summary Judgment to dismiss the limitation proceeding is DENIED. That the Volk's cross-claims against Tilcon are DISMISSED. Signed by Senior Judge Gary L. Sharpe on 3/10/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
IN THE MATTER OF THE
COMPLAINT OF A.P. FRANZ, JR.,
TRUSTEE, as owner, and
BUCHANAN MARINE, L.P., as
bareboat charterer of the Barge
1:13-cv-411
B-252 FOR EXONERATION FROM
(GLS/DJS)
OR LIMITATION OF LIABILITY.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PETITIONERS:
Lyons & Flood, LLP
65 West 36th Street, 7th Floor
New York, NY 10018
FOR THE CLAIMANTS:
Wayne & Karen Volk
Melley, Platania Law Firm
24 Closs Drive
Rhinebeck, NY 12572
Tilcon New York, Inc.
Cook, Netter Law Firm
P.O. Box 3939
85 Main Street
Kingston, NY 12402

EDWARD P. FLOOD, ESQ.

STEVEN M. MELLEY, ESQ.

ERIC M. KURTZ, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Petitioners A.P. Franz, Jr., Trustee, as owner, and Buchanan Marine,

L.P., as bareboat charterer, of the barge B-252 commenced this action
pursuant to the Limitation of Liability Act of 18511 (hereinafter “Limitation
Act”) seeking exoneration from or limitation of liability. (Compl., Dkt.
No. 1.) Pending are Franz and Buchanan’s motion for summary judgment,
(Dkt. Nos. 45-50), and the summary judgment motion of claimant Tilcon
New York, Inc., (Dkt. No. 51). Claimants Wayne and Karen Volk crossmoved for summary judgment, seeking dismissal of the limitation
proceeding. (Dkt. No. 53.) For the reasons that follow, the court grants
the motions of Franz, Buchanan, and Tilcon, denies the Volks’ crossmotion, and grants Franz and Buchanan’s complaint for exoneration from
liability.
II. Background
A.

Facts2

1

See 46 U.S.C. §§ 30501-30512.

2

Unless otherwise noted, the facts are not in dispute. Also, the failure of the Volks to
comply with Local Rule 7.1(a)(3) by admitting or denying each of the numbered paragraphs in
Franz and Buchanan’s and Tilcon’s statements of material facts is not without consequences.
The Volks’ “Statement of Relevant and Material Facts” contained within their memorandum of
law in opposition to the summary judgment motions is not properly responsive. (Dkt. No. 53 at
3-13); see N.D.N.Y. L.R. 7.1(a)(3). It is riddled with legal conclusions, cites scant record
support, and contains lengthy paragraphs which fail to admit or deny the numerical paragraphs
of Franz and Buchanan’s and Tilcon’s statements of material facts. (Dkt. No. 53 at 3-13.)
Consequently, Franz and Buchanan’s and Tilcon’s properly supported and uncontroverted
facts are deemed admitted.

2

Claimant Wayne Volk (hereinafter “W. Volk”) worked as a barge
checker for Buchanan at the Clinton Point quarried rock processing facility
operated by Tilcon on the Hudson River. (Pets.’ Statement of Material
Facts (SMF) ¶¶ 1, 7, Dkt. No. 49.) At the facility, Tilcon processes quarried
rock and loads the rock onto barges supplied by Buchanan. (Tilcon’s SMF
¶ 8, Dkt. No. 51, Attach. 1.) Using its tug boats, Buchanan then transports
the barges down river to Tilcon’s customers. (Id. ¶¶ 8, 35.)
On May 19, 2011, W. Volk fell and injured his right arm and shoulder
while inspecting a barge after it was loaded with wet stone. (Pets.’ SMF
¶ 13; Tilcon’s SMF ¶¶ 42-45; Dkt. No. 53, Attach. 3 at 110; Dkt. No. 53,
Attach. 12.) W. Volk slipped on loose, excess stones on the side or margin
deck on the northern, port end of the barge’s stern. (Dkt. No. 12 ¶ 5; Dkt.
No. 53, Attach. 3 at 90-91.) Nobody witnessed his fall. (Pets.’ SMF ¶ 13.)
Before the barge was loaded, W. Volk inspected it and noted that its deck
was clear of all stones. (Id. ¶ 14.) The stones that he tripped over came
onto the deck during Tilcon’s loading process. (Id.) W. Volk notified
Timothy Conn, his supervisor and foreman, who was also employed by
Buchanan, about his injury, and, the following day, Conn drove W. Volk to
a clinic to receive medical treatment for the injury. (Id. ¶ 15; Tilcon’s SMF
3

¶ 2.)
W. Volk has not worked since the accident and has been receiving
workers’ compensation under the Longshore and Harbor Workers’
Compensation Act3 (LHWCA). (Pets.’ SMF ¶¶ 17, 21; Dkt. No. 47 ¶¶ 7, 9.)
He also applied for New York State workers’ compensation benefits,
however, the board denied his claim because he was already receiving
LHWCA benefits. (Pets.’ SMF ¶ 17; Dkt. No. 47 ¶ 8.)
W. Volk’s injury occurred aboard the barge B-252. (Pets.’ SMF
¶ 13.) The B-252 was a “‘dumb’ barge” that required a tugboat to ferry it
from place to place. (Id. ¶ 6; Dkt. No. 53, Attach. 3 at 22-24.) Franz
owned the B-252 as a trustee, and, in July 1993, Franz bareboat chartered
that barge along with his fleet of other barges and tug boats to Buchanan
for a period set to expire in December 2018.4 (Pets.’ SMF ¶¶ 2-4; Dkt.
No. 47, Attach. 1.) Pursuant to the bareboat charter, Franz transferred
exclusive control to Buchanan to use, operate, command, and navigate his
fleet of barges and tug boats. (Pets.’ SMF ¶ 4; Dkt. No. 47, Attach. 1

3

See 33 U.S.C. §§ 901-950.

4

Prior to this litigation, the B-252 was scrapped “in the normal course of business.”
(Pets.’ SMF ¶ 5.)

4

§ 8(b).)
Buchanan used the B-252 and the other barges to transport
suppliers’, like Tilcon’s, products down the Hudson River to their
customers. (Tilcon’s SMF ¶¶ 7-13, 35, 38-41.) Although Buchanan
docked its barges at Tilcon’s Clinton Point facility, Buchanan retained
responsibility for their inspection and maintenance. (Id. ¶¶ 15-16.) After
the barges arrived at the facility, Buchanan employees would inspect them
and report their findings to Conn, their supervisor, who then discussed with
Alex Perlman, his supervisor, whether or not the barge was “loadable.” (Id.
¶¶ 19, 21.) If the barges required maintenance, Conn would direct
Buchanan employees to repair them before they were deemed suitable to
be loaded and transported. (Id. ¶ 25.)
Once a barge was declared loadable, Tilcon’s employees would load
the quarried rock onto it. (Id. ¶ 28.) After the rock was loaded, the barge
would be moved to another dock for Buchanan employees to conduct a
final inspection before the barge would be transported by a tug boat down
river to Tilcon’s customers. (Id. ¶¶ 35-36, 38.)
As a barge checker, W. Volk was paid hourly. (Pets.’s SMF ¶ 11.)
His employment duties involved inspecting Buchanan’s barges that came
5

into the Clinton Point facility both before and after loading along with
performing necessary repairs and maintenance to the barges. (Id. ¶¶ 7, 9,
11.) When W. Volk boarded the barges to perform inspections and
maintenance they were berthed to the dock, but could be as many as three
or four barges deep from the dock at one time. (Id. ¶ 8.) He was not
assigned to work on a particular barge, did not eat meals on any barge,
and never slept overnight on the barges. (Id. ¶¶ 10-11.) Additionally, W.
Volk is a member of the International Union of Operating Engineers, which
is a union for equipment operators. (Id. ¶ 20.) W. Volk does not belong to
a maritime union and does not have maritime licences such as a seaman’s
work card, also known as a “ZCard.” (Id. ¶ 19.) Accordingly, he never
worked on one of Buchanan’s tug boats. (Id. ¶ 18.)
B.

Procedural History
On October 16, 2012, the Volks filed a complaint to recover for

personal injury against Buchanan and Tilcon in New York State Supreme
Court in Ulster County. (Compl., Attach. 2.) In response, on April 15,
2013, Franz and Buchanan commenced this federal court action pursuant
to the Limitation Act seeking exoneration from or limitation of liability.
(Compl.) Pursuant to Supplemental Rule F(1) of the Federal Rules of Civil
6

Procedure, Franz and Buchanan offered a security bond of $47,420.77,
representing the value of their interest in the B-252. (Compl. ¶ 11; Dkt.
No. 1, Attach. 4.) The court thereafter granted Franz and Buchanan’s
motion to approve security, enjoin suits, and direct the issuance of notice.
(Dkt. No. 4.)
Both the Volks and Tilcon answered and asserted counterclaims.
(Dkt. Nos. 6, 12, 15.) Specifically, the Volks alleged both direct and
derivative claims under the Jones Act,5 LHWCA, general maritime law, and
New York state law. (Dkt. No. 15.) The Volks then filed a motion to
dismiss, (Dkt. No. 16), which the court subsequently denied, (Dkt. No. 21).
The court directed Franz and Buchanan to increase their security by
$10,000. (Id.) The parties completed discovery, and the motions
referenced above were filed. For the reasons that follow, the court grants
the motions of Franz, Buchanan, and Tilcon, denies the Volks’ crossmotion, and grants Franz and Buchanan’s complaint for exoneration from
liability.
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
5

See 46 U.S.C. §§ 30101-30106.

7

established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

Limitation Act
In the court’s earlier decision, it held that Franz and Buchanan’s

allegation that negligence occurred without their privity or knowledge
sufficiently stated their entitlement to limit their liability under the Limitation
Act on a motion to dismiss. (Dkt. No. 21 at 8-9.) The Volks now renew
their argument on summary judgment. (Dkt. No. 53 at 19.) Specifically,
the Volks contend that Franz or Buchanan cannot show that they did not
have privity or knowledge of negligence because: (1) photos reveal unsafe
conditions around the B-252; (2) there were stones on the deck of the port,
stern side of the B-252 at the time of W. Volk’s accident that Franz or
Buchanan should have known about; (3) the Volks’ expert confirmed that
the presence of such stones violates Occupation Safety and Health
Administration (OSHA) regulations; and (4) affidavits from former
Buchanan employees state that stones regularly covered the barge decks.
8

(Id.; Dkt. No. 16, Attach. 1 at 8-12.) In reply, Franz and Buchanan maintain
that there is a factual dispute about the condition of the barge because its
expert opined that the B-252 was “‘fit for its intended purpose and
seaworthy’” on the day of the accident. (Dkt. No. 54 at 8 (quoting Dkt.
No. 55, Attach. 3 at 8).)
A proceeding commenced pursuant to the Limitation Act “protects the
right of vessel owners [and bareboat charterers] to limit their liability to the
value of the vessel [and its frieght].” Lewis v. Lewis & Clark Marine, Inc.,
531 U.S. 438, 453 (2001); see 46 U.S.C. §§ 30501, 30505(a). In fact, “[i]t
is well established that a vessel owner may seek both limitation of liability
and a total exoneration from liability in the same limitation action.” In re
Bridge Constr. Servs. of Florida, Inc., 39 F. Supp. 3d 373, 381 (S.D.N.Y.
2014). The test of whether a vessel owner may be absolved from or can
limit his liability requires two inquires. See Otal Invs. Ltd. v. M/V Clary, 673
F.3d 108, 115 (2d Cir. 2012). First, a claimant bears the initial burden to
show what, if any, negligence caused the accident. See id. If a claimant
does not demonstrate that actionable conduct occurred, “there is no liability
to be limited and the owner would then be entitled to exoneration.”
Messina v. Murray (In re Messina), 574 F.3d 119, 126 (2d Cir. 2009)
9

(internal quotation marks and citation omitted). Only after a claimant
demonstrates negligence, a vessel owner bears the burden to prove that
he lacked knowledge or privity of such conduct. See id. at 127; see also
46 U.S.C. § 30505(b).
Franz and Buchanan move for summary judgment granting their
complaint, arguing that they were not negligent or otherwise committed
actionable conduct and, therefore, are entitled to exoneration. (Dkt.
No. 50.) The Volks contend that Franz, Buchanan, and their co-claimant
Tilcon are liable on a number of theories.6 (Dkt. No. 15.) Specifically, the
Volks allege claims under the Jones Act and the LHWCA as well as
common law maritime claims including unseaworthiness, maintenance and
cure, and general maritime claims. (Id. ¶¶ 26-42.) Additionally, the Volks
allege violations of New York Labor Law § 200 along with ordinary
negligence, nuisance, and gross negligence. (Id. ¶¶ 11-25, 43-52.) Tilcon
asserts claims against Franz and Buchanan for indemnification or
contribution. (Dkt. No. 6 ¶¶ 16-19.)

6

The Volks may pursue claims against Tilcon because cross-claims are permissible in
a limitation proceeding under the Limitation Act. See British Transp. Comm’n v. United States,
354 U.S. 129, 138 (1957); see also Stissi v. Interstate & Ocean Transp. Co. of Philadelphia,
765 F.2d 370, 377 (2d Cir. 1985).

10

1.

Jones Act

The Volks contend that they are entitled to relief under the Jones Act
because W. Volk was a seaman who suffered a personal injury. (Dkt.
No. 53 at 13-17.) Franz and Buchanan oppose and assert that W. Volk
does not meet the standard to be a Jones Act seaman. (Dkt. No. 50 at 411.) Tilcon argues that it is not liable under the Jones Act because it was
not W. Volk’s employer. (Dkt. No. 51, Attach. 3 at 10-11.)
Under the Jones Act, a seaman may recover from personal injury in
the course of his employment against his or her employer. See 46 U.S.C.
§ 30104. To achieve seaman status the claimant must demonstrate an
“employment-related connection to a vessel in navigation.” McDermott
Int’l, Inc. v. Wilander, 498 U.S. 337, 355 (1991); accord Tonnesen v.
Yonkers Contracting Co., Inc., 82 F.3d 30, 32 (2d Cir. 1996), abrogated on
other grounds by Stewart v. Dutra Constr. Co., 543 U.S. 481 (2005). A
putative seaman has an employment-related connection if (1) his duties
contribute to the function of the vessel, and (2) the connection is
substantial in duration and nature. See Chandris, Inc. v. Latsis, 515 U.S.
347, 368 (1995); accord O’Hara v. Weeks Marine, Inc., 294 F.3d 55, 63 (2d
Cir. 2002). This status-based inquiry is a mixed question of law and fact,
11

and summary judgment will be awarded “where the facts and the law
. . . reasonably support only one conclusion.” O’Hara, 294 F.3d at 63-64
(internal quotation marks and citations omitted).
The Second Circuit, in O’Hara, held that the claimant was not a
Jones Act seaman because he had at most “a transitory or sporadic
connection” to the barges “in their capacity as vessels in navigation.” Id. at
64 (internal quotation marks omitted). Specifically, the claimant lacked
maritime licenses, spent no nights aboard the barges, and did not operate
the vessels. Id. Rather, the claimant belonged to a dockbuilders union
and only worked aboard the barges when they were fully secured to the
pier that he was employed to repair. Id.
Assuming without deciding that W. Volk meets the first criteria, see
id. at 63 (“This standard is liberal. . . . All who work at sea in the service of
a ship are eligible for seaman status.” (internal quotation marks and
citation omitted)), his connection to the B-252 is far from substantial in
either duration or nature. On the contrary, W. Volk is square on all fours
with the claimant in O’Hara. He never slept on the vessel, held no
maritime licenses, and never worked on a Buchanan tug boat. (Pets.’ SMF
¶¶ 10-11, 18-19.) Instead, W. Volk was a member of Local 825, a union
12

for equipment operators, and only performed inspection and repair work
when the barges were secure to the docks at the Clinton Point facility. (Id.
¶¶ 7-8, 20.) Finally, W. Volk was not assigned to a particular vessel, but
instead serviced all barges that came through the facility. (Id. ¶ 9.) As a
result, he does not qualify for seaman status, and petitioners and Tilcon7
are awarded summary judgment on the Volks’ Jones Act claims.
2.

Longshore and Harbor Worker’s Compensation Act (LHWCA)

The LHWCA is a no-fault workers’ compensation scheme that
supplies benefits to longshoremen and harbor-workers who are injured in
the course of their employment. See generally 33 U.S.C. §§ 901-950.
“Like most state workers’ compensation schemes, the LHWCA provides
that the statutory, no-fault compensation payments are the employer’s
exclusive liability to its employees when they are injured in the course of
their employment.” Gravatt v. City of New York, 226 F.3d 108, 115 (2d Cir.
2000). Consequently, employers are insulated from injured employees’ tort
claims. See id.; 33 U.S.C. § 905(a).
At the same time, injured employees may pursue tort claims against

7

Additionally, W. Volk does not qualify for relief under the Jones Act against Tilcon
because Tilcon is not his employer. (Pets.’ SMF ¶ 7); see 46 U.S.C. § 30104.

13

third parties and still receive LHWCA workers’ compensation payments.
See 33 U.S.C. § 933(a). In particular and unique to the LHWCA, the
statute explicitly allows injured employees to recover against the vessel for
its negligence. See id. § 905(b); Gravatt, 226 F.3d at 115. However, to
guarantee the exclusivity of the statute’s no-fault remedy against
employers, the LHWCA bars third parties from impleading employers for
contribution or indemnification. See 33 U.S.C. § 905(b) (“[T]he employer
shall not be liable to the vessel for such damages directly or indirectly and
any agreements or warranties to the contrary shall be void.”).
A vessel’s negligence is governed by uniform federal law and “the
contours of the action for vessel negligence under 905(b) [is] to be worked
out by federal courts.” Gravatt, 226 F.3d at 117-18 (citing H.R. Rep. No.
92-1441 (1972), reprinted in 1972 U.S.C.C.A.N. at 4704-05). The
Supreme Court in its seminal opinion Scindia Steam Navigation Co., Ltd v.
De Los Santos, 451 U.S. 156, 165 (1981), acknowledged that Congress
“did not specify the acts or omissions of the vessel that would constitute
negligence” and defined a vessel’s three duties of care. A vessel’s three
actionable obligations would later become known as the Scindia duties.
See, e.g., Gravatt, 226 F.3d at 120-21.
14

First, a vessel has a turnover duty. See Scindia, 451 U.S. at 167;
Howlett v. Birkdale Shipping Co. S.A., 512 U.S. 92, 98 (1994). This duty
requires a vessel owner to exercise “ordinary care under the circumstances
to have the ship and its equipment in such condition that an expert and
experienced stevedore will be able by the exercise of reasonable care to
carry on its cargo operations with reasonable safety.” Scindia, 451 U.S. at
167. Additionally, a vessel owner must notify the stevedore8 of “hidden
danger which would have been known to him in the exercise of reasonable
care.” Id.
Second, a vessel has an active control duty. See id.; see also
Howlett, 512 U.S. at 98. Accordingly, “once stevedoring operations have
begun, the vessel will be liable ‘if it actively involves itself in the cargo
operations and negligently injures a longshoreman.’” Gravatt, 226 F.3d at
121 (quoting Scindia, 451 U.S. at 167). Moreover, “the vessel must take
care to prevent unreasonable hazards in areas of the vessel under its
direct control.” Id.
Finally, a vessel has a duty to intervene. See Scindia, 451 U.S. at

8

Generally, stevedores are contractors who perform services including moving
waterborne freight or working on piers or vessels when the vessels are moored. See, e.g.,
N.Y. Waterfront & Airport Comm’n Act § 9806.

15

175-76. This duty requires a vessel owner to intervene if he actually knows
that a condition on the vessel or its equipment poses an unreasonable risk
of harm and the stevedore is not exercising reasonable care to protect his
employees. See id.; see also Gravatt, 226 F.3d at 121.

a.

Tilco
n

Tilcon asserts that it has no LHWCA liability because it did not
employ W. Volk nor did it own the B-252. (Dkt. No. 51, Attach. 3 at 13.)
Because LHWCA liability only attaches to employers or vessels, see 33
U.S.C. § 905, Tilcon’s motion on this ground is granted. However, the
Volks are not precluded from pursuing other third party tort claims against
Tilcon. See 33 U.S.C. § 933(a); see also Gravatt, 226 F.3d at 115.
b.

Franz

Franz maintains that it is not liable because it was not the owner of
the B-252 as it bareboat chartered the B-252 to Buchanan. (Dkt. No. 50 at
14-17.) A bareboat charter, or demise, is “tantamount to, though just short
of, an outright transfer of ownership.” Guzman v. Pichirilo, 369 U.S. 698,
700 (1962); accord Am. Petroleum & Transp., Inc. v. City of New York, 737
F.3d 185, 187 n.1 (2d Cir. 2013). To have an effective bareboat charter,
“the owner of the vessel must completely and exclusively relinquish [its]
16

possession, command, and navigation” over the vessel. Guzman, 369
U.S. at 699 (internal quotation marks and citations omitted). The charterer
then becomes owner pro hac vice “of the vessel for the period of the
charter and is responsible for the vessel’s operation.” Agrico Chem. Co. v.
M/V Ben W. Martin, 664 F.2d 85, 91 (5th Cir. 1981). To that end, the
charterer is liable for all damages arising from the vessel’s operation. See
id. “The charter may describe the duties of [the vessel owner and the
charterer] and provide for the shifting of risks between them, but, in
general, control entails responsibility for fault.” Id. Thus, because the
charterer ordinarily retains full control, it is ultimately liable for damages
arising from the vessel’s operations. See id.
Regarding LHWCA liability under a bareboat charter, the original
vessel owner is only responsible for its “turnover duty.” Gravatt, 226 F.3d
at 120-21; see Miller v. AGS Chartering Co., 1993 WL 232063, at *3 (E.D.
La. June 21, 1993) (citing Scindia, 451 U.S. at 167). As noted above, this
duty requires a vessel owner to warn a stevedore about:
the condition of the [vessel’s] gear, equipment, tools,
and work space to be used in the stevedoring
operations; and if [it] fails at least to warn the
stevedore of hidden danger which would have been
known to [it] in the exercise of reasonable care, [the
17

vessel owner] has breached [its] duty and is liable if
[its] negligence causes injury to the longshoreman.
Scindia, 451 U.S. at 167. This same duty to warn of latent defects applies
between vessel owners and bareboat charterers. See Miller, 1993 WL
232063 at *3.
Here, Franz bareboat chartered the B-252 along with its fleet of other
barges and tug boats to Buchanan. In July 1993, Franz and Buchanan
executed a charter, which was in effect at the time of W. Volk’s injury on
May 19, 2012. (Pets.’ SMF ¶¶ 3-4; Dkt. No. 47 ¶¶ 5-6; Dkt. No. 47,
Attach. 1.) Pursuant to the charter, “the possession, use, operation and
maintenance of the [v]essels [was] at the sole risk, cost and expense of
[Buchanan].” (Dkt. No. 47, Attach. 1 § 8(b), at 5.) Notably, the charter
explained that Buchanan would “defend, indemnify and save harmless
[Franz] from and against . . . any claim, cause of action, damage, liability or
expense.”9 (Id.) Because Franz relinquished control of its barges including
the B-252, it duly bareboat chartered the B-252 to Buchanan. See
Guzman, 369 U.S. at 699.
Equally important, the negligence that the Volks complain of does not
9

The charter, however, carved out Buchanan’s liability for gross negligence or willful
misconduct on the part of Franz. (Dkt. No. 47, Attach. 1 § 8(b), at 5.)

18

relate to Franz’s turnover duties to warn Buchanan of hidden dangers.
See Scindia, 451 U.S. at 167. To be sure, W. Volk testified that he slipped
on loose rocks on the B-252, but those loose rocks were not present on
the barge before it was loaded. (Dkt. No. 53, Attach. 3 at 90-91.)
Accordingly, the loose rocks were not a hidden danger that Franz could
have informed Buchanan about. The Volks also allege that Franz
breached its turnover duty because it failed to warn Buchanan about the
absence of hand grips and hand rails and that the margin decks were
narrow. (Dkt. No. 53 at 17-18.) Franz, however, only has a duty to warn of
defects “that are not known by the [bareboat charterer] and would not be
obvious to or anticipated by him if reasonably competent in the
performance of his work.” Scindia, 451 U.S. at 167. Narrow margin decks
and lacking hand grips and hand rails are examples of obvious features
that are exempt from notice. See, e.g., Toups v. Marine Transp. Servs.,
Inc., No. CIV. A. 99-2481, 2000 WL 1159392, at *3 (E.D. La. Aug. 15,
2000) (holding that potential hazards posed from the absence of a ladder
or gangway was noticeable to a reasonably competent stevedore).
Accordingly, the Volks do not have a LHWCA claim against Franz, and
petitioners’ motion on this ground is granted.
19

c.

Buchanan

Buchanan acknowledges it is liable under the LHWCA, however,
asserts that W. Volk’s remedy is limited to LHWCA workers’ compensation
payments under the statute’s no-fault insurance scheme. (Dkt. No. 50 at
17-22.) The court agrees.
As noted above, workers’ compensation payments are the exclusive
remedy for an injured employee against his employer. See 33 U.S.C.
§ 905(a). However, a unique problem arises when the employer is also the
vessel owner, see Gravatt, 226 F.3d at 118-20, or in this case, the owner
pro hac vice. In this situation, courts refer to the employer as a dualcapacity employer-owner. See, e.g., id. at 115-16; Daza v. Pile Found.
Const. Co., Inc., 983 F. Supp. 2d 399, 411 (S.D.N.Y. 2013). Reasoning
that an injured employee has a third party claim against a negligent vessel,
the Supreme Court held that an injured employee may also allege tort
claims against a dual-capacity employer-owner. See Jones & Laughlin
Steel Corp. v. Pfeifer, 462 U.S. 523, 528-32 (1983); Gravatt, 226 F.3d at
119. To be sure, “Congress intended a general principle that the rights
and liabilities of employee and employer should not turn on whether the
employer acted in a dual-capacity as vessel owner.” Gravatt, 226 F.3d at
20

119. That said, “it [is] clear that a vessel owner acting as its own stevedore
is liable only for negligence in its ‘owner’ capacity, not for negligence in its
‘stevedore’ capacity.” Pfeifer, 465 U.S. at 531 n.6 (citing 33 U.S.C.
§ 905(b) (1972), amended by 33 U.S.C. § 905(b) (1984)).
The Second Circuit in Gravatt analyzed how a vessel’s Scindia duties
apply to a dual-capacity employer-owner. See Gravatt, 226 F.3d at 12025. With respect to the turnover duty, Gravatt held that this duty clearly
aligned with a dual-capacity owner-employer’s capacity in vessel
operations. See id. at 122. As a result, a dual-capacity employer-owner is
liable as a vessel if it violates its turnover duties. See id. By contrast, the
court explained that determining whether a vessel acted in its capacity as a
vessel or employer under the second and third duties presented courts
with a greater challenge. See id. at 122-23. Relying on precedent from
the First and Fifth Circuits, the court held that “[l]iability in vessel
negligence under section 905(b) will only lie where the dual-capacity
defendant breached its duties of care while acting in its capacity as vessel
owner.” Id. at 124. Accordingly, “the court’s task is to analyze . . . whether
[the allegedly negligent] conduct was performed in the course of the
operation of the owner’s vessel as a vessel or whether the conduct was
21

performed in furtherance of the employer’s harbor-working operations.” Id.
at 125.
Applying this rule, Gravatt held that the dual-capacity vesselemployer was negligent in its role as employer and not in its capacity as a
vessel. See id. The dockbuilder in that case was injured by debris that
slipped from a crane’s teeth, which knocked him into the Harlem River.
See id. at 113. The undisputed negligence was attributed to the
dockbuilder’s supervisor for failing to properly oversee materials handling
and to the crane’s hoisting procedure and use of timber tongs, which
violated industry standards and state and federal regulations. See id. at
113-14 nn.3-4. The court determined that the negligence of the supervisor
and the construction procedure related to the dual-capacity vesselemployer’s role as an employer because the vessel was acting in its
“capacity as contractor performing bridge repairs not in its capacity as
vessel owner.” See id. at 126. Consequently, the dockbuilder’s exclusive
remedy was LHWCA workers’ compensation. See id. (citing 33 U.S.C.
§ 905(a)).
Here, the Volks allege that Buchanan was negligent because it
committed “multiple OSHA violations as to the configuration of the margin
22

decks, . . . the lack of hand grips or hand rails,” and that the B-252 was
“covered with stones when [W. Volk] slipped and fell.” (Dkt. No. 53 at 1718.) Buchanan has not violated its turnover duties for the same reasons as
Franz. See supra Part IV.A.2.b. Namely, the alleged dangers were
apparent and would be anticipated by longshoreman inspecting the barge.
Id.
Nor was Buchanan engaged in vessel duties at the time of the
accident. When functioning as a vessel, Buchanan would send its empty
barges to the Clinton Point facility, and then, after Tilcon loaded its
quarried rock, Buchanan would send its barges down the Hudson River to
deliver the quarried rock to Tilcon’s customers. (Tilcon’s SMF ¶¶ 7-8, 35,
38-39.) When functioning as a stevedore, Buchanan employees inspected
and repaired the barges at the Clinton Point facility while Tilcon loaded its
product. (Id. ¶¶ 10-15, 19-29, 35-38.) In short, “[t]he performance of
[inspection and repair] work was separate and apart from the vessel’s
work.” Gravatt, 226 F.3d at 125. W. Volk’s injury occurred because of
alleged negligence that happened during the time that Buchanan was
operating as a stevedore. See Daza, 983 F. Supp. 2d at 411 (finding no
vessel negligence when “the injury was [the vessel’s] responsibility as
23

employer and not vessel owner”). As W. Volk’s injury is attributable to
conduct related to Buchanan’s capacity as his employer, LHWCA workers’
compensation benefits are his exclusive remedy.
B.

General Maritime & State Law Claims
The Volks also assert numerous general maritime and state law

claims against Franz, Buchanan, and Tilcon. (Dkt. No. 15 ¶¶ 11-25, 30-39,
43-49.) As an initial matter, the claims against Franz and Buchanan must
fail because the LHWCA preempts all other claims against a claimant’s
employer and vessel. See Norfolk Shipbuilding & Drydock Corp. v. Garris,
532 U.S. 811, 818 (2001) (citing 33 U.S.C. §§ 904(b), 905(b)).10
The Volks may still pursue claims against Tilcon as an alleged third
party tortfeasor. See 33 U.S.C. § 933(a). Specifically, the Volks allege
maritime claims of unseaworthiness and maintenance and cure as well as
other general maritime claims. (Dkt. No. 15 ¶¶ 30-39.) The Volks also
allege claims of ordinary negligence, N.Y. Labor Law § 200, nuisance, and
gross negligence. (Id. ¶¶ 11-25, 43-49.) Tilcon opposes and maintains

10

For that reason, K. Volk’s derivative claims for loss of consortium must also fail.
See Izaguirre v. Ugland Marine Mgmt. AS, Civil Action No. H-11-04195, 2013 WL 820501, at
*5 (S.D. Tx. Mar. 5, 2013); see also Wright v. City of Ithaca, No. 5:12-cv-378, 2012 WL
1717259, at *5 (N.D.N.Y. May 15, 2012).

24

that it does not owe a duty to the Volks. (Dkt. No. 51, Attach. 3 at 5-9, 1112, 14-15.) The court agrees with Tilcon.
1.

Maritime Claims Against Tilcon

The Volks assert three maritime claims arising under federal
common law against Tilcon. For the reasons that follow, all claims are
meritless.
First, the Volks allege that Tilcon breached its duty to provide a
seaworthy vessel. (Dkt. No. 15 ¶¶ 30-32.) Tilcon, however, was not the
owner of B-252 and, as a result, bore no such duty. See Oxley v. City of
New York, 923 F.2d 22, 24-25 (2d Cir. 1991); Lisowski v. Reinauer Transp.
Co, Inc., No. 03-CV-5396, 2009 WL 763602, at *13 (E.D.N.Y. Mar. 23,
2009). What is more is that W. Volk does not have a cognizable
unseaworthiness claim against any alleged tortfeasor because, as
discussed above, he is not a seaman. See Scindia, 451 U.S. at 165
(explaining that the 1972 amendments to the LHWCA abolished “the
longshoreman’s right to recover for unseaworthiness”); accord Gravatt, 226
F.3d at 116.
Second, the Volks allege that Tilcon breached its duty to provide
maintenance and cure to W. Volk. (Dkt. No. 15 ¶¶ 33-35.) This claim fails
25

on similar grounds because Tilcon is not the owner of B-252. See Lewis,
531 U.S. at 441 (“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.”). Again, this action is only
available to seaman, and W. Volk does not qualify. See Mahramas v. Am.
Export Isbrandtsen Lines, Inc., 475 F.2d 165, 170 (2d Cir. 1973); see also
1B-IV Benedict on Admiralty § 44 (2015) (“Longshoremen, of course, have
never been entitled to maintenance and cure.”).
Finally, the Volks assert general maritime claims against Tilcon.
(Dkt. No. 15 ¶¶ 36-39.) Such claims are based on a vessel owner’s duty to
those aboard his ship, and, thus, are inapplicable to Tilcon. See Kermarec
v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959); see also
Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 171-72 (2d Cir. 1983); In re
Treanor, No. 13-CV-5489, 2015 WL 7016954, at *6 (E.D.N.Y. Nov. 6,
2015).
2.

State Law Claims Against Tilcon

The Volks also allege state law claims against Tilcon including
negligence, gross negligence, and violations of N.Y. Labor Law § 200.
(Dkt. No. 15 ¶¶ 11-25, 46-49.) N.Y. Labor Law § 200(1) codifies the
26

common law duty requiring landowners, general contractors, and
employers to maintain a safe workplace.11 See N.Y. Labor Law § 200(1);
Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505 (1993). Such
parties may be liable if the employee’s injury is caused by the negligent
means or manner that the work is performed. See Ross, 81 N.Y.2d at 505.
Landowners, like Tilcon, violate this duty if they have supervisory control
over the operation which leads to the injury. See Barreto v. Metro. Transp.
Auth., 25 N.Y.3d 426, 434-35 (2015); Ross, 81 N.Y.2d at 505.
W. Volk was injured after he tripped over loose stones on the margin
deck of the B-252. (Pets.’ SMF ¶ 13.) The alleged negligence which
caused W. Volk’s 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. (Tilcon’s
SMF ¶¶ 30-34; Dkt. No. 53, Attach. 3 at 91-93.) The second is where the
stones could have been overloaded by Tilcon and spilled onto the margin
deck. (Pets.’ SMF ¶ 14; Dkt. No. 53, Attach. 3 at 93.)
Because the weepers are a component of the barges, they are within

11

Courts consistently evaluate ordinary negligence and N.Y. Labor Law § 200 claims
in tandem. See, e.g., Barreto v. Metro. Transp. Auth., 25 N.Y.3d 426, 434-35 (2015).

27

the control of Buchanan — not Tilcon. (Pets.’ SMF ¶¶ 2-4.) Even
assuming the weepers were defective, W. Volk may only recover against
Buchanan under the LHWCA because it is his exclusive remedy as
Buchanan is his employer or vessel owner. See 33 U.S.C. § 905(a)-(b).
Nevertheless, the Volks may still recover against Tilcon as a third
party. See 33 U.S.C. § 933(a). Despite Tilcon’s disagreement, the record
reveals that it supervised and controlled loading the wet stone onto the B252. (Tilcon’s SMF ¶¶ 28-29.) Therefore, a reasonable jury could infer
that Tilcon’s alleged negligent overloading was a substantial factor in W.
Volk’s injury. See Dos Santos v. Terrace Place Realty, Inc., 433 F. Supp.
2d 326, 334 (S.D.N.Y. 2006).
Tilcon, however, asserts that the alleged hazard was open and
obvious obviating any liability. (Dkt. No. 51, Attach. 3 at 7.) The court
agrees. “The duty of an employer or owner to provide workers with a safe
place to work does not extend to . . . hazards that may be readily observed
by reasonable use of the senses in light of the worker’s age, intelligence
and experience.” Bodtman v. Living Manor Love, Inc., 105 A.D.3d 434,
434-35 (1st Dep’t 2013) (internal quotations and citations omitted); see
also Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 506-07 (2012). W.
28

Volk testified that, before he tripped, he saw “a large amount of . . . stone”
and chose not to walk around it because there was “[n]o way to get around
it.” (Dkt. No. 53, Attach. 3 at 101.) W. Volk was an experienced barge
checker who regularly inspected barges for defects. (Tilcon’s SMF ¶ 19;
Dkt. No. 53, Attach. 3 at 5.) To be sure, W. Volk suggested that the origin
of the loose stone could be from the weeper or “probably bounced over the
side [of the barge] being overloaded.” (Dkt. No. 53, Attach. 3 at 91-93.)
As a result, Tilcon established that it is entitled to judgment, and the Volks
failed to raise a question of fact regarding Tilcon’s alleged negligence.12
See Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP,
26 N.Y.3d 40, 49 (2015).
Finally, the Volks allege that they were endangered by a public or
private nuisance that Tilcon permitted on its property. (Dkt. No. 15 ¶¶ 4345.) At the outset, the Volks do not have a cognizable action for public
nuisance because they are not a state agency authorized to seek redress
for a wrong committed against the public. See Copart Indus., Inc. v.

12

Because the Volks fail to establish claims for ordinary negligence, their claim for
gross negligence necessarily fails. See generally Colnaghi, U.S.A., LTD. v. Jewelers Prot.
Servs., LTD., 81 N.Y.2d 821, 823-24 (1993); see also Lubell v. Samson Moving & Storage,
Inc., 307 A.D.2d 215, 217 (1st Dep’t 2003).

29

Consol. Edison Co. of N.Y., Inc., 41 N.Y.2d 564, 568 (1977) (“A public
. . . nuisance is an offense against the State and is subject to abatement or
prosecution on application of the proper governmental agency.”) (internal
citations omitted); see also City of New York v. Smokes-Spirits.Com, Inc.,
12 N.Y.3d 616, 626-27 (2009); but see Wakeman v. Wilbur, 147 N.Y. 657,
663-64 (1895) (holding an individual may recover in a public nuisance
action if he suffered special damages resulting from a “private and peculiar
injury”). Even if W. Volk had standing to bring an action on this ground, his
injury is not the result of “conduct or omissions which offend . . . the public
in the exercise of rights common to all, in a manner such as to offend
public morals.” Copart Indus., Inc., 12 N.Y.3d at 568 (internal citation
omitted).
The Volks are no more successful on their theory of private nuisance.
A private nuisance is negligent or intentional conduct where the defendant
substantially and unreasonably interfers with the plaintiff’s right to use and
enjoy his property. See id. at 570; see also Berenger v. 261 W. LLC, 93
A.D.3d 175, 182 (1st Dep’t 2012). In short, “[n]uisance is characterized by
a pattern of continuity or recurrence of objectionable conduct.” Berenger,
93 A.D.3d at 182. Nothing in the record suggests that Tilcon could have
30

interfered with the Volks’ right to use and enjoyment, particularly, because
the Volks did not own the Clinton Point facility where the injury occurred.
(Pets.’ SMF ¶¶ 1, 7); see generally Domen Holding Co. v. Aranovich, 1
N.Y.3d 117, 123-24 (2003).
In sum, because the Volks have not established negligence or other
actionable conduct against Franz and Buchanan under any alleged theory,
the complaint for exoneration from liability is granted. See Messina, 574
F.3d at 126; see also The 84-H, 296 F. 427, 432 (2d Cir. 1923).
Consequently, Tilcon’s claims for contribution or indemnification are
dismissed. Furthermore, for the reasons stated above, the Volks’ crossclaims against Tilcon are dismissed.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Franz and Buchanan’s motion for summary judgment
(Dkt. No. 45) is GRANTED; and it is further
ORDERED that the complaint for exoneration (Dkt. No. 1) is
GRANTED; and it is further
ORDERED that Tilcon’s motion for summary judgment (Dkt. No. 51)
is GRANTED; and it is further
31

ORDERED that Tilcon’s claims for contribution or indemnification
(Dkt. No. 6 ¶¶ 16-19) are DISMISSED; and it is further
ORDERED that the Volks’ cross-motion for summary judgment to
dismiss the limitation proceeding (Dkt. No. 53) is DENIED; and it is further
ORDERED that the Volks’ cross-claims against Tilcon are
DISMISSED.
IT IS SO ORDERED.
March 10, 2016
Albany, New York

32