Bridge Construction Services of Florida, Inc. v. Ayala et al
Filing
114
OPINION AND ORDER: re: (37 in 1:12-cv-06285-JGK) MOTION for Summary Judgment filed by Hughes Bros., Inc., (60 in 1:12-cv-03536-JGK) MOTION for Summary Judgment filed by Hughes Brothers, Inc., Tutor Perini Corporation, (59 in 1:12-cv-0353 6-JGK) MOTION for Summary Judgment filed by Bridge Construction Services of Florida, Inc., (29 in 1:13-cv 03123-JGK) MOTION for Summary Judgment filed by In the Matter of Tutor Perini Corporation, (34 in 1:13-cv-03123-JGK) MOTION for Sum mary Judgment filed by In the Matter of Tutor Perini Corporation. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reaso ns, the motions for summary judgment of the petitioner Bridge is granted in part and denied in part; the motions for summary judgment of petitioners Hughes and Tutor Perini are denied. In addition, the NYLL claims of the Ayalas against Tri-State are dismissed without prejudice, and the motion for summary judgment of Tri-State is denied without prejudice as moot. The Clerk is directed to close all pending motions in cases Nos. 12cv3536, 12cv6285, and 13cv3123. SO ORDERED. (Signed by Judge John G. Koeltl on 8/09/2014) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
In re
12cv3536 (JGK)
12cv6285 (JGK)
13cv3123 (JGK)
Bridge Construction Services of
Florida, Inc., Hughes Bros., Inc.,
and Tutor Perini Corp.,
OPINION AND ORDER
Petitioners.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
These actions in admiralty arose out of injuries that
claimant Jose Ayala sustained after falling off a barge named
“Hughes 660” on the Hudson River.
Ayala contends that he fell
off the barge because the barge was jolted by a tugboat.
The
petitioners, Bridge Construction Services of Florida, Inc.
(“Bridge”), Hughes Brothers, Inc. (“Hughes”), and Tutor Perini
Corp. (“Tutor Perini”), are purported owners or bareboat
charterers of the vessels involved in the incident.
Claimant Jose Ayala and his wife, claimant Teresa Ayala,
(collectively, “the Ayalas”) have previously commenced actions
in the New York State Supreme Court against the petitioners and
against Tri-State Electric Contracting, Inc. (“Tri-State”), a
contractor also working on Hughes 660 at the time the incident
occurred.
Each of the petitioners subsequently filed a separate
petition in this Court seeking exoneration or limitation of
liability in connection with the incident under the Limitation
of Liability Act, 46 U.S.C. § 30501 et seq.
Claimants Jose
Ayala and Teresa Ayala filed claims against Bridge, Hughes, and
Tri-State for negligence and violation of the New York Labor Law
(NYLL).1
The Ayalas have also asserted claims against Tutor
Perini for negligence under general maritime law and the
Merchant Marine Act of 1920, also known as the Jones Act, 46
U.S.C. § 30104 et seq.
Tutor Perini has also asserted an
indemnification claim against Bridge based on a Subcontract
Agreement between the two parties.
This Court has subject matter jurisdiction under 28 U.S.C.
§ 1333(1) and 46 U.S.C. § 30511(a) over the exoneration and
limitation of liability claims.
The Court has supplemental
jurisdiction under 28 U.S.C. § 1367(a) over any state law claims
asserted in this action.
The petitioners and Tri-State now move
for summary judgment seeking exoneration, limitation of
liability, or dismissal of the Ayalas’ claims against the
movants pursuant to Federal Rule of Civil Procedure 56.
Tutor
Perini also moves under Rule 56 for summary judgment on its
indemnification claim against Bridge.
1
The Ayalas subsequently made clear that the only state law
claims they have ever asserted are the NYLL claims against TriState, but have since withdrawn those claims. See infra Part
VII.
2
I.
The standard for granting summary judgment is well
established.
“The [C]ourt shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986); Gallo v. Prudential Residential Servs.
L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
“[T]he trial court’s
task at the summary judgment motion stage of the litigation is
carefully limited to discerning whether there are genuine issues
of material fact to be tried, not to deciding them. Its duty, in
short, is confined at this point to issue-finding; it does not
extend to issue-resolution.”
Gallo, 22 F.3d at 1224.
The
moving party bears the initial burden of “informing the district
court of the basis for its motion” and identifying the matter
that “it believes demonstrate[s] the absence of a genuine issue
of material fact.”
Celotex, 477 U.S. at 323.
The substantive
law governing the case will identify those facts that are
material and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
3
inferences against the moving party.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)); see also Gallo, 22 F.3d at 1223.
Summary judgment is
improper if there is any evidence in the record from any source
from which a reasonable inference could be drawn in favor of the
nonmoving party.
See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d
29, 37 (2d Cir. 1994).
If the moving party meets its burden,
the nonmoving party must produce evidence in the record and “may
not rely simply on conclusory statements or on contentions that
the affidavits supporting the motion are not credible . . . .”
Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.
1993).
II.
The following facts are undisputed for purposes of this
motion, unless otherwise indicated.
In December 2010, the Tappan Zee Bridge on the Hudson River
in New York was undergoing renovations; petitioner Tutor Perini
was the general contractor of the renovation project.
In
connection with the project, Tutor Perini entered into a
bareboat charter with petitioner Hughes and leased from Hughes
several barges including Hughes 660, the barge that was later
involved in the incident in this case; Hughes was the owner of
4
these barges.
(See generally McDermott Decl. Ex. 5.)
The
barges were used as working platforms from which various
contractors, including Tri-State, performed work on the Tappan
Zee Bridge.
Tutor Perini also hired petitioner Bridge, which
supplied and operated two tugboats that would move the barges
when needed.
One of these tugboats, the “Bruce Russell,” was
involved in the incident in this case.
The Bruce Russell was
owned by non-party Workboat Services, Inc., (Sweet Dep. at 78),
and was operated by Kenny Kling, an employee of Bridge.
(Kling
Dep. at 22, 24-27.)
Claimant Jose Ayala was hired as a laborer by Tutor Perini
to work on the project.
(Ayala Dep. 18, 22-23.)
Mr. Ayala was
hired to replace another laborer named Carlos, who taught Ayala
his duties.
(Chakides Dep. at 25, 28-29.)
Mr. Ayala’s duties
involved tying and untying the tugboat and the barges.
Ayala
would assist the tugboat captain Kling in moving the barges with
the tugboat and tying the barges to dolphins, which are clusters
of piles situated in front of bridge supports, so that Tri-State
could install electrical conduits on the side of the Tappan Zee
Bridge.
Kling directed Ayala’s work and made decisions on site
regarding the operation of the tugboat.
210.)
(Kling Dep. at 123,
Kling was not licensed to operate a tugboat, even though
he was required to have such a license.
5
(Kling Dep. at 27,
120.)
In December, 2010, Bruce Sweet, the owner and president
of Bridge, found out that Kling was not licensed but continued
to allow him to operate the tugboat because he had no one else
to fill that job.
(Kling Dep. at 120; Sweet Dep. at 6, 23-26.)
Ayala had fallen into the river the day before the incident
at issue in this case.
Consequentially, Kling expressed
concerns to Sweet and to Chakides, the foreman of Tutor Perini,
that Ayala was not made for the job, but both Chakides and Sweet
urged Kling to continue to work with Ayala.
(Ayala Dep. at 47,
50; Kling Dep. at 154, 158-59, 207, 219-21.)
On the morning of December 15, 2010, Ayala and Tri-State
electricians boarded the tugboat to be ferried to work barges.
After the tugboat moved Hughes 660 to a new location, Ayala
began the process of tying up the barge.
He fell into the water
during the process and was injured as a result.
(Ayala Dep. at
64-69, 75, 81, 130.)
The parties dispute the events and conditions surrounding
the accident.
Ayala testified that he fell from the barge after
the barge experienced an impact that caused him to lose his
footing.
(Ayala Dep. at 123, 130.)
Andrew Reeves, a Tri-State
electrician onboard the barge at the time, testified that he
felt a “bump” hard enough that it could possibly make someone
standing on the edge of the barge lose footing.
30-31.)
6
(Reeves Dep. at
Ayala testified that he had no direct line of sight with
the tugboat and could not see the tugboat at the time.
Dep. at 78).
(Ayala
However, he described that the accident occurred
while the tugboat was pushing the barge. He explained that his
testimony about the collision between the two vessels was based
on his observation that the water waves were pushing in the
direction opposite from the direction in which the tugboat was
pushing the barge.
(Ayala Dep. at 123.)
He also testified
that, prior to the impact, Kling, who was operating the tugboat,
was trying to push the barge to the bridge but could not succeed
at first because the waves were tall, and that the tugboat had
to come back with more speed to push the barge.
Ayala testified
that he was not expecting that impact and that was when he fell.
(Ayala Dep. at 81.)
Kling wrote a written statement two days
after the incident, confirming that “[a]s I was pushing barge
back to the bridge, [Ayala] fell off the north side of the barge
into the water.”
(Chinigo Decl. Ex. 2.)
There is testimony suggesting that Ayala was standing on a
slippery surface of ice and wet steel, immediately before
falling off the barge.
(Ayala Dep. at 82.)
Tutor Perini’s
post-accident report also indicated that slippery conditions
were a cause of the incident.
(Chinigo Decl. Ex. 15 at 2.)
Brian Hughes, a representative of Hughes, testified that it was
common practice to paint barges using non-skid paint.
7
(Hughes
Dep. at 43.)
However, according to the on-hire survey of the
barge dated November 24, 2010, the paint coatings on the barge
were “well worn with rust grit.”
(McDermott Decl. Ex. 6, at 2.)
A superintendent of Tutor Perini, David Daoust, testified that
the deck of the barge had dents in which water tended to pool
and freeze in puddles during winter time.
39.)
(Daoust Dep. at 38-
The parties also dispute whose responsibility it was to
remove the ice: some evidence suggests that Tri-State
electricians performed the duty on the day of the incident as
well as on other days and that Ayala never performed such
duties, (Reeves Dep. at 24-25), while other evidence suggests
that it was Tutor Perini’s responsibility to maintain the safety
of the work environment, (Milner Dep. at 23; Chakides Dep. at
17).
The Ayalas commenced an action against Bridge, Hughes, and
Tri-State in the New York State Supreme Court, New York County
on April 9, 2012.
The Ayalas commenced another action against
Tutor Perini in the New York State Supreme Court, Bronx Country
on April 8, 2013.
Bridge, Hughes, and Tutor Perini each filed a
petition for exoneration or limitation of liability on May 3,
2012, August 16, 2012, and May 9, 2013, respectively.
8
III.
Under the Limitation of Liability Act, which was originally
enacted in 1851 and was last amended in 2006, see Pub. L. 109304, § 6, Oct. 6, 2006, 120 Stat. 1485, 1514, “the liability of
the owner of a vessel for any claim, debt, or liability . . .
shall not exceed the value of the vessel and pending freight,”
46 U.S.C. § 30505(a), provided that such claims, debts, or
liabilities “aris[e] from any embezzlement, loss, or destruction
of any property, goods, or merchandise shipped or put on board
the vessel, any loss, damage, or injury by collision, or any
act, matter, or thing, loss, damage, or forfeiture, done,
occasioned, or incurred, without the privity or knowledge of the
owner,” except otherwise excluded by law, id. § 30505(b).
“The
Act thus protects the owner of a vessel from unlimited vicarious
liability for damages caused by the negligence of his captain or
crew.”
Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752
F.3d 239, 244 (2d Cir. 2014).
For purposes of the limitation of
liabilities, “the term ‘owner’ includes a charterer that mans,
supplies, and navigates a vessel at the charterer’s own expense
or by the charterer’s own procurement.”
46 U.S.C. § 30501.
To take advantage of the protection of the statute, “[t]he
owner of a vessel may bring a civil action in a district court
of the United States for limitation of liability . . . within 6
months after a claimant gives the owner written notice of a
9
claim.”
46 U.S.C. § 30511(a).
After the owner posts the
security required under 46 U.S.C. § 30511(b), the district court
then “issue[s] a notice to all persons asserting claims with
respect to which the [petition] seeks limitation,” instructing
the claimants to file their claims in the limitation proceeding
before a specified deadline.
Supplemental Rules for Admiralty
or Maritime Claims and Asset Forfeiture Actions (“Supplemental
Rules”), Fed. R. Civ. P., Supp. R. F(4).
Thus, “[t]he
proceeding partakes in a way of the features of a bill to enjoin
the multipicity of suits, a bill in the nature of an
interpleader, and a creditor’s bill,” which “looks to a complete
and just disposition of a many-cornered controversy, and is
applicable to proceedings in rem against the ship, as well as to
proceedings in personam against the owner; the limitation
extending to the owner’s property as well as to his person.”
Hartford Acc. & Indem. Co. of Hartford v. S. Pac. Co., 273 U.S.
207, 216 (1927).
It is well established that a vessel owner may seek both
limitation of liability and a total exoneration from liability
in the same limitation action.
See, e.g. Tandon, 752 F.3d at
244; In re Rationis Enterprises, Inc. of Pananma, 210 F. Supp.
2d 421, 424 n.4 (S.D.N.Y. 2002); Supplemental Rules, Fed. R.
Civ. P., Supp. R. F(2).
Nevertheless, the Act and the
Supplemental Rules “do not create a freestanding right to
10
exoneration from liability in circumstances where limitation of
liability is not at issue.”
Lewis v. Lewis & Clark Marine,
Inc., 531 U.S. 438, 453 (2001).
In other words, a vessel owner
has no right to seek exoneration if the owner’s right to
limitation of liability in the federal court is adequately
protected--for example, by stipulations that the total claim for
damages would not exceed the value of the vessel and that any
claim of res judicata bearing on the limitation of liability
before the federal court is waived.
Id.
In a limitation proceeding, also known as a concursus, the
federal district court, sitting in admiralty without a jury,
engages in a two-step inquiry.
(2d Cir. 1988).
In re Dammers, 836 F.2d 750, 755
First, the Court must determine “what acts of
negligence or unseaworthiness caused the casualty.”
In re Moran
Towing Corp., 984 F. Supp. 2d 150, 180 (S.D.N.Y. 2013).
“[T]he
court must determine whether the accident was caused by conduct
that is actionable, for if there was no fault or negligence for
the shipowner to be privy to or have knowledge of within the
meaning of the statute, there is no liability to be limited, and
the owner would then be entitled to exoneration.”
In re
Messina, 574 F.3d 119, 126 (2d Cir. 2009) (quoting The 84-H, 296
F. 427, 432 (2d Cir. 1923)) (internal quotation marks omitted).2
2
In a limitation of liability proceeding, the Court can consider
state law claims against the owner or charterer along with the
11
Second, if the court finds that acts of negligence or
unseaworthiness caused the casualty, the court must determine
“whether the shipowner had knowledge or privity of these acts.”
In re Moran Towing Corp., 984 F. Supp. 2d at 180 (internal
citations omitted).
The owner is entitled to limitation of
liability if the acts occurred “without the privity or knowledge
of the owner.”
46 U.S.C. § 30505(b).
The claimants bear the
initial burden of establishing liability, after which the vessel
owner bears the burden of establishing the lack of privity or
knowledge.
Otal Investments Ltd. v. M/V CLARY, 673 F.3d 108,
115 (2d Cir. 2012) (citations omitted); accord Beiswenger
Enterprises Corp. v. Carletta, 86 F.3d 1032, 1036 (11th Cir.
1996).
maritime and other federal law claims against the owner or
charterer, because the issue in such a proceeding is whether the
total liability against the owner or charterer is limited to the
value of the vessel and her cargo. 46 U.S.C. § 30505(a); Van
Schaeffer v. Tsakos Shipping & Trading, S.A., No. 05cv4486, 2006
WL 1192939, at *1 (E.D. Pa. May 2, 2006) (“The . . . state
common-law claims must be litigated as part of the Limitation
Action. The Limitation Act permits a vessel owner to compel all
suits to be filed in a single action limited to the value of the
vessel and its freight.” (Internal citation omitted)). Of
course, if the owner is found not entitled to either exoneration
or limitation of liability, a separate proceeding may be
initiated to pursue the claims against the owner. See In re
Arntz, 380 F. Supp. 2d 1156, 1158 (C.D. Cal. 2005); see also
Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583, 595 (2d
Cir. 1961).
12
IV.
Petitioner Bridge, the alleged charterer of the tugboat,
moves for summary judgment granting its petition, arguing that
it was not negligent and is therefore entitled to exoneration.3
In a limitation of liability proceeding, “[t]he elements to
establish a claim of negligence under maritime law are the same
as the elements of negligence under common law.”
In re Re, No.
07cv0223, 2008 WL 4069747, at *3 (E.D.N.Y. Aug. 27, 2008)
(citing, inter alia, In re Kinsman Transit Co., 338 F.2d 708,
721 (2d Cir. 1964)); accord Cornfield v. Cornfield, 156 F. App’x
343, 344 (2d Cir. 2005) (unpublished opinion).
These elements
include duty, breach of duty, causation, and damages.
Cornfield, 156 F. App’x at 344.
Essentially, to determine
3
Because the Limitation of Liability Act allows for limitation
of liability or exoneration of only owners or bareboat
charterers, 46 U.S.C. § 30501, 30505(a), a preliminary issue is
whether Bridge is an owner or bareboat charterer of the tugboat,
the Bruce Russell. It appears that the Bruce Russell was owned
by non-party Workboat Services, Inc., (Sweet Dep. at 78; Chinigo
Decl. Ex. 1), and Bridge failed to produce any evidence in its
opening papers to establish that Bridge was the owner or
bareboat charterer of the tugboat. Along with its reply papers,
Bridge submitted an affidavit of Bruce Sweet swearing that
Bridge was the bareboat charterer of the Tugboat. Arguments and
evidence submitted for the first time on reply need not be
considered, see, e.g., Wolters Kluwer Fin. Servs. Inc. v.
Scivantage, No. 07cv2352, 2007 WL 1098714, at *1 (S.D.N.Y. Apr.
12, 2007), but they can be considered if responsive to arguments
raised in the responsive papers, see Mattera v. Clear Channel
Commc’ns, Inc., 239 F.R.D. 70, 74 n.4 (S.D.N.Y. 2006). For the
sake of completeness, this Court assumes, for purposes of these
motions, that Bridge was indeed a bareboat charterer of the
tugboat.
13
whether there was actionable conduct that constitutes
negligence, “[t]he test is, could the collision have been
prevented by the exercise of ordinary care, caution and maritime
skill?”
The Jumna, 149 F. 171, 173 (2d Cir. 1906).
In this case, Ayala argues that Bridge was negligent
because the tugboat captain, Kling, operated the tugboat in a
way that rammed the barge and created an impact that caused the
plaintiff to fall off the barge.
In response, Bridge argues
that there is no evidence that the tugboat actually rammed the
barge.
Ayala testified that the impact from the barge’s hitting
the tugboat caused him to fall off the barge, but also admitted
that he had no direct line of sight with the tugboat and could
not see the tugboat at the time.
Bridge argues that, because
neither Ayala nor any other witnesses actually saw the tugboat
ramming into the barge, Ayala’s assertion is just speculation.
It is true that “mere speculation and conjecture is
insufficient to preclude the granting of the motion [for summary
judgment].”
Harlen Associates v. Inc. Vill. of Mineola, 273
F.3d 494, 499 (2d Cir. 2001).
In addition, “where a party
relies on affidavits or deposition testimony to establish facts,
the statements ‘must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.’”
DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012)
14
(quoting Fed. R. Civ. P. 56(c)(4)).
Nevertheless, “personal
knowledge” includes basic, commonsensical inferences, so long as
they are “grounded in observation or other first-hand personal
experience” and are not “flights of fancy, speculations,
hunches, intuitions, or rumors about matters remote from that
experience.”
Visser v. Packer Eng’g Associates, Inc., 924 F.2d
655, 659 (7th Cir. 1991) (citations omitted); accord Davis v.
Peake, No. 08cv3570, 2011 WL 4407551, at *4 n.2 (S.D.N.Y. Sept.
22, 2011), aff’d, 505 F. App’x 67 (2d Cir. 2012).
In this case, Ayala’s testimony about the impact caused by
a collision was not mere speculation remote from his personal
experience of the incident.
He described the circumstances
surrounding the impact that he felt.
Ayala’s testimony about
the impact is corroborated by the testimony of Andrew Reeves, a
Tri-State electrician also onboard the barge at the time, who
testified that he also felt a “bump” hard enough that it could
possibly make someone standing on the edge of the barge lose
footing.
Ayala testified that his testimony about the collision
between the two vessels was based on his observation that the
water waves were pushing in the direction opposite from the
direction in which the tugboat was pushing the barge.
He
further testified that, prior to the impact, the tugboat was
trying to push the barge to the bridge but could not succeed at
first because the waves were tall, and that the tugboat had to
15
come back with more speed to push the barge.
His testimony is
corroborated by Kling’s written statement two days after the
incident that “[a]s I was pushing barge back to the bridge,
[Ayala] fell off the north side of the barge into the water.”
(Chinigo Decl. Ex. 2.)
Moreover, there is also an issue of fact
about whether Kling, an unlicensed captain, exercised “ordinary
care, caution and maritime skill,” The Jumna, 149 F. at 173,
when he pushed the barge with the tugboat in the absence of any
means of communication and coordination with Ayala, who was
attempting to tie the barge to the dolphins at the bridge.
(Ayala Decl. at 53; Kling Dep. at 53.)
Taken together, there is sufficient evidence in the record
to raise genuine issues of material fact as to whether the
tugboat, operated by Kling, rammed the barge with an unusually
strong force, causing the plaintiff to fall off the barge while
he was standing on a slippery surface, and whether Kling
otherwise acted negligently.
See Crowley v. Costa, No.
09cv1991, 2011 WL 5593112, at *4-5 (D. Conn. Nov. 17, 2011)
(denying summary judgment because triable issues of fact existed
as to “whether the allision could have been prevented by
16
ordinary skill and caution”).4
Therefore, the Court cannot find,
on this motion, that Bridge is entitled to exoneration.5
In response to Bridge’s petition, claimant Teresa Ayala
additionally asserted a claim for loss of consortium due to Mr.
Ayala’s injuries.
(Claim of Jose and Teresa Ayala ¶¶ 61-63,
Bridge Construction Services of Florida, Inc. v. Ayala et al.
(“Bridge Petition”), No. 12cv3536 (S.D.N.Y. July 16, 2012), ECF
No. 16.)
Bridge argues that Mrs. Ayala’s loss of consortium
claim must be dismissed because such a claim is not recognized
under maritime tort law.
At oral argument, counsel for Mrs.
Ayala conceded that Mrs. Ayala has no such claim against Bridge.
(Tr. of Oral Argument on July 7, 2014 (“Tr.”) at 10.)
In any
event, the Ayalas’ papers have failed to address this argument
in any way; therefore, the loss of consortium claim against
Bridge is deemed abandoned and must be dismissed.
See Rockland
Exposition, Inc. v. Alliance of Auto. Serv. Providers of N.J.,
894 F. Supp. 2d 288, 331-32 (S.D.N.Y. 2012) (collecting cases).
4
In maritime law, an allision is the ramming of one vessel into
another vessel that is stationary. See Superior Const. Co.,
Inc. v. Brock, 445 F.3d 1334, 1336 (11th Cir. 2006).
5
Normally, in a limitation of liability proceeding, if the Court
finds acts of fault or negligence and concludes that a vessel
owner is not entitled to exoneration, the Court analyzes next
“whether the shipowner had knowledge or privity of these acts”
to determine whether the owner is entitled to limitation of
liability. In re Moran Towing Corp., 984 F. Supp. 2d at 180.
However, Bridge explicitly argues only that it is entitled to
exoneration and made clear at oral argument that it does not
seek limitation of liability. (Tr. at 2-3.)
17
Accordingly, Bridge’s motion for summary judgment is denied
to the extent that it seeks exoneration from all liability, but
granted to the extent that Mrs. Ayala’s loss of consortium claim
against Bridge is dismissed.
V.
Petitioner Hughes, the owner of the barge involved in the
incident, moves for summary judgment granting its petition for
exoneration or limitation of liability.
Ayala and Bridge oppose
the motion on the grounds that the barge was unseaworthy because
of the existence of potentially dangerous conditions and the
lack of adequate safety features and that Hughes had knowledge
or privity with respect to the unseaworthiness of the vessel.
A.
At the first step in a limitation of liability proceeding,
the Court determines whether the vessel owner is entitled to
exoneration by inquiring into whether there are any “acts of
negligence or unseaworthiness [that] caused the casualty.”
re Moran Towing Corp., 984 F. Supp. 2d at 180.
In
A vessel is
“seaworthy” if it is “reasonably fit for the voyage.”
Joseph F. Clinton, 250 F. 977, 980 (2d Cir. 1918).
The
In cases in
which a vessel is used as a working platform, the vessel must be
“reasonably fit to permit a seaman to do his work with safety.”
18
See Morton v. Berman Enterprises, Inc., 669 F.2d 89, 90, 92 (2d
Cir. 1982) (citations omitted).
However, “although
unseaworthiness is a broader form of liability than negligence
and has been characterized as ‘a form of absolute liability,’ it
does not impose a duty of perfection on shipowners.”
(internal citation omitted).
Id. at 92
The standard of seaworthiness
is not to suggest that the owner is
obligated to furnish an accident-free ship.
The duty is absolute, but it is a duty only
to
furnish
a
vessel
and
appurtenances
reasonably fit for their intended use. The
standard is not perfection, but reasonable
fitness; not a ship that will weather every
conceivable
storm
or
withstand
every
imaginable peril of the sea, but a vessel
reasonably
suitable
for
her
intended
service.
Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960)
(citation omitted).
A vessel may be rendered unseaworthy because of improperly
maintained surfaces that are slippery and are prone to cause
injuries.
Compare Nicroli v. Den Norske Afrika-Og
Australielinie Wilhelmsens Dampskibs-Aktieselskab, 332 F.2d 651,
654 (2d Cir. 1964) (affirming finding of unseaworthiness where
wet and melted sugar had made the deck slippery), Troupe v.
Chicago, D. & G. Bay Transit Co., 234 F.2d 253, 258 (2d Cir.
1956) (holding that triable issues of fact existed as to whether
the vessel was unseaworthy because certain steps “were so
painted and maintained as to be excessively slippery, especially
19
when covered with water from a rain”), Courville v. Cardinal
Wireline Specialists, Inc., 775 F. Supp. 929, 936 (W.D. La.
1991) (finding unseaworthiness “because of the absence of nonskid tape or some other appropriate skid resistent surface on
the steep steps”), Jiminez v. United States, 321 F. Supp. 232,
233 (S.D.N.Y. 1970) (finding unseaworthiness where de-greaser
solvent created a slippery condition and was allowed to remain
unwiped while the workers lunched elsewhere without roping off
the ladder or putting up any warning), and In re Sirret Offshore
Towing Co., No. 96cv1228, 1997 WL 539923, at *4 (E.D. La. Sept.
2, 1997) (finding that the vessel was unseaworthy in part
because of the lack of anti-skid paint or mats), with Santamaria
v. The SS Othem, 272 F.2d 280, 281 (2d Cir. 1959) (holding that
“a deck made slippery [only] by rainwater does not constitute an
unseaworthy condition”).
In this case, the Ayalas, as claimants, argue that the
barge from which Mr. Ayala fell was unseaworthy because its
anti-skid paint was worn off and because the deck had
indentations in which ice could easily accumulate.
Brian Hughes
testified that it was common practice to paint barges using nonskid paint.
However, according to a survey dated November 24,
2010 commissioned by Hughes, even though the deck was equipped
with diamond pattern plating, the paint coatings were “well worn
with rust grit.”
A superintendent for Tutor Perini, David
20
Daoust, testified that the deck had dents in which water tended
to pool and freeze in puddles during winter time.
In response, Hughes introduced in its reply a services
statement and an expert report to support its claim for
seaworthiness.
(See Hughes Reply Exs. 1 and 2.)
Arguments and
evidence submitted for the first time in reply need not be
considered, see, e.g., Wolters Kluwer Fin. Servs. Inc. v.
Scivantage, No. 07cv2352, 2007 WL 1098714, at *1 (S.D.N.Y. Apr.
12, 2007), although they may be considered if they are truly
responsive materials.
See Mattera v. Clear Channel Commc’ns,
Inc., 239 F.R.D. 70, 74 n.4 (S.D.N.Y. 2006).
Even if the Court considers the reply evidence submitted by
Hughes, the Court cannot conclude that summary judgment is
warranted.
Hughes first points to the services statement for
work done on the barge, which indicated that “1 touch-up coat of
epoxy and 1 full coat of paint” was applied to the barge.
(Hughes Reply Ex. 1.)
It is not clear whether the paint applied
was non-skid paint; even if it was, the dates on the services
statement indicate that the work was done in July 2008, while
the survey report indicating the paint coatings being “well
worn” was dated November 24, 2010, which was much closer
temporally to the incident on December 15, 2010.
In any event,
there is at the very least a dispute of fact in light of the
21
conflicting evidence, which cannot be resolved on summary
judgment.
Hughes also relies on the report of a liability expert, Mr.
Claudio Crivici, who opined that the diamond plating offered
sufficient anti-skid protection and that “the quality of the
barge deck anti-skid [features] was not contributory to the
alleged incident.”
(Hughes Reply Ex. 2 at 4.)
However, the
expert opinion merely stated a conclusion and offered no
reliable basis for that conclusion.
4.)
(See Hughes Reply Ex. 2 at
Therefore, the Court cannot rely on Mr. Crivici’s report on
this motion.
See Colon v. Abbott Labs., 397 F. Supp. 2d 405,
414-15 (E.D.N.Y. 2005) (declining to consider on a motion for
summary judgment an expert’s testimony which supplied no support
for the expert’s opinion except an incomplete study).
Moreover, with respect to the ice on the deck, Mr. Crivici
acknowledged that “water puddles could form in ice on the deck.”
(Hughes Reply Ex. 2 at 4.)
Nevertheless, he concluded, based on
his review of the depositions, that the ice on the deck did not
cause the incident because de-icing chemicals “were available”
and that either Mr. Ayala or the Tri-State electricians either
had the duty to--or “would have”--cleaned up any ice that had
accumulated due to previous precipitation, (Hughes Reply Ex. 2
at 4-5).
Not only are these conclusions speculative, but they
are also not based on any “scientific, technical, or other
22
specialized knowledge.”
Fed. R. Evid. 702(a); see also Ho Myung
Moolsan, Co. v. Manitou Mineral Water, Inc., No. 07cv07483, 2010
WL 4892646, at *7 (S.D.N.Y. Dec. 2, 2010) (“The opinion was
based entirely on examinations of plaintiffs[’] sales and
marketing plans and of deposition testimony.
Reaching it
required no specialized knowledge and usurped the jury[’]s role
as fact-finder.”), aff’d, 501 F. App’x 85 (2d Cir. 2012).
Accordingly, the expert report cannot support granting summary
judgment in favor of Hughes.
Hughes also argues that the incident was caused by the
impact from the tugboat hitting the barge, not by the
unseaworthiness of the barge.
However, a claimant need not show
that the unseaworthiness was the sole cause of incident; the
vessel owner is not entitled to exoneration if the unseaworthy
condition contributorily caused the incident.
See Am. Dredging
Co. v. Lambert, 81 F.3d 127, 129 (11th Cir. 1996) (“A shipowner
is entitled to exoneration from all liability for a maritime
collision only when it demonstrates that it is free from any
contributory fault.”); The Commerce, 46 F. Supp. 360, 363
(S.D.N.Y. 1941), aff’d sub nom. New England S S Co. v. Howard,
130 F.2d 354 (2d Cir. 1942).
In this case, Ayala testified that the surface was slippery
and that he slipped and fell after the impact.
A factual issue
exists as to whether the allegedly slippery condition of the
23
deck caused by an accumulation of ice in a dented deck without a
sufficient non-skid surface contributed to his fall, thus
precluding exoneration for the barge owner.
See Juliussen v.
Buchanan Marine, L.P., No. 08cv1463, 2010 WL 86936, at *12
(S.D.N.Y. Jan. 7, 2010).6
B.
At the second step of the limitation of liability
proceeding, the Court determines whether the vessel owner who is
not entitled to exoneration because of acts of fault is
nevertheless entitled to limitation of liability.
Towing Corp., 984 F. Supp. 2d at 180.
In re Moran
The owner is entitled to
limit its liability to the value of the vessel and her cargo if
the negligence or unseaworthiness causing the injuries was
outside the “privity or knowledge” of the owner.
46 U.S.C.
§ 30505(b).
The owner bears the burden of showing lack of privity or
knowledge.
Otal Investments Ltd, 673 F.3d at 115.
6
To meet its
Hughes also argues that it is entitled to exoneration because
it chartered the boat to Tutor Perini and that the charter
agreement implied seaworthiness. This argument is unpersuasive.
The implied warranty of seaworthiness in a charter agreement is
simply a contractual obligation owed by the owner to the
charterer, which allows the charterer to recover from the owner
damages caused by unseaworthiness that has existed before the
vessel is delivered to the charterer. It does not preclude
issues of fact raised by a non-party, such as Ayala, that the
vessel was not in fact seaworthy.
24
burden, the owner “must show how the loss occurred, together
with its lack of privity to or knowledge of the asserted cause.
If it cannot show how the loss occurred, a defendant must
exhaust all the possibilities, and show that as to each it was
without the requisite privity or knowledge.”
Terracciano v.
McAlinden Const. Co., 485 F.2d 304, 308 (2d Cir. 1973).
Moreover, the owner “need not have had actual knowledge of the
unseaworthiness or negligence; it is sufficient that [the owner]
‘should have known’ of the breach.”
In re Moran Towing Corp.,
984 F. Supp. 2d at 180 (citation omitted).
In this case, Hughes argues that it had no privity or
knowledge with respect to the unseaworthy condition because the
barge was chartered to Tutor Perini under a bareboat charter
agreement.
Hughes claims to have no involvement with the Tappan
Zee Bridge project and had no employees on site.
However,
“[d]espite the existence of a bareboat charter, the owner of the
vessel can be liable to third persons if the vessel was not
seaworthy at the inception of the charter.”
Torch, Inc. v.
Alesich, 148 F.3d 424, 427 (5th Cir. 1998).
Thus, Hughes’s
argument is without merit.
Hughes has made no additional argument regarding its lack
of privity or knowledge.
Indeed, evidence in the record raises
a factual issue as to the seaworthiness of the vessel when it
was delivered to Tutor Perini.
The bareboat charter agreement
25
between Hughes and Tutor Perini, which was entered into on
November 22, 2010, specified that the charter would commence
“upon completion of the On-Hire Survey . . . or when the vessel
leaves the delivery location, . . . which ever shall first
occur.”
(McDermott Decl. Ex. 5 at 1-2.)
The “delivery
location” was specified to be in the Erie Basin in Brooklyn, New
York.
(McDermott Decl. Ex. 5 at 1.)
The on-hire survey was
conducted by a surveyor hired by Hughes on November 23, 2010,
when the barge was still in the Erie Basin and thus had not left
the delivery location; the on-hire survey report, dated November
24, 2010, indicated that the paint coatings were “well worn with
rust grit.”
(McDermott Decl. Ex. 6, at 1-2.)
Thus, there is a
factual issue as to whether, upon commencement of the charter,
Hughes either knew or “should have known” of the condition
alleged to constitute unseaworthiness.
See Drejerwski v. C.G.
Willis, Inc., 587 F. Supp. 1515, 1517 (E.D. Pa. 1984) (holding
that the jury could properly have found the barge owner
negligent because the barge owner should have known that the
epoxy paint used on the barge would be “dangerously slippery in
inclement weather” and “should have chosen a non-skid paint
instead”).
Therefore, Hughes has failed to carry its burden of
demonstrating the lack of privity or knowledge with respect to
the unseaworthiness of the vessel, and is therefore not entitled
26
to limitation of liability on this motion.
Accordingly,
Hughes’s motion for summary judgment seeking exoneration or
limitation of liability is denied.
VI.
Tutor Perini, the general contractor of the Tappan Zee
Bridge renovation project and Ayala’s employer, moves for
summary judgment seeking exoneration or limitation of liability.
Tutor Perini chartered the barge from Hughes under a bareboat
charter agreement.
(McDermott Decl. Ex. 5.)
Therefore, Tutor
Perini is an “owner” of the barge for purposes of the Limitation
of Liability Act, which defines “owner” as including a bareboat
charterer.
46 U.S.C. § 30501; Mediterranean Shipping Co. S.A.
Geneva v. POL-Atl., 229 F.3d 397, 400 (2d Cir. 2000).
Ayala
brings claims under general maritime law as well as the Jones
Act7 against Tutor Perini.
The Court applies the same limitation
analysis as explained above, determining first the question of
exoneration based on the owner’s fault or negligence and second
the limitation of liability based on the privity or knowledge of
the owner.
7
The Jones Act does not abrogate the proceedings under the
Limitation of Liability Act--that is, a Jones Act claim asserted
against the owner of a vessel is also subject to the limitation
of liability. In re E. River Towing Co., 266 U.S. 355, 367
(1924).
27
A.
1.
a.
Tutor Perini seeks exoneration from the Jones Act claim.
The Jones Act provides that “[a] seaman injured in the course of
employment or, if the seaman dies from the injury, the personal
representative of the seaman may elect to bring a civil action
at law, with the right of trial by jury, against the employer.”
46 U.S.C. § 30104(a).
Tutor Perini argues, as a threshold
matter, that Ayala was not a “seaman” within the meaning of the
Jones Act.
Under the Supreme Court’s decision in Chandris, Inc. v.
Latsis, 515 U.S. 347, 368 (1995), determining the “seaman”
status of an employee entails a two-fold inquiry:
First,
. . . “an employee’s duties must
‘contribut[e] to the function of the vessel
or to the accomplishment of its mission.’”
Second,
. . .
a
seaman
must
have
a
connection to a vessel in navigation (or to
an identifiable group of such vessels) that
is substantial in terms of both its duration
and its nature.
515 U.S. 347, 368 (internal citations omitted).
Therefore, the
inquiry is necessarily fact-intensive and is usually reserved
for the fact-finder.
See O’Hara v. Weeks Marine, Inc., 928 F.
Supp. 257, 259 (E.D.N.Y. 1996).
28
In this case, Ayala’s duties were tying and untying the
tugboat and the barges, so that the barges could be moved to and
fixed at appropriate locations, allowing work to be done from
the barges.
The tugboat, operated by Kling, was used to move
these barges.
Ayala would be aboard the tugboat; he would
disembark onto the barge to tie up a barge, climb back to the
tugboat, and be ready to move on to tie up the next barge.
Therefore, a reasonable fact-finder could find that Ayala
contributed to the functions of the vessels and the
accomplishment of their mission and that he had a sufficient
connection with the vessels.
Tutor Perini cites Frazier v. Core Indus., Inc., 39 So. 3d
140 (Ala. 2009), in which the court found that a land-based
worker who only spent time on the barge “when the barge was
being moved short distances along the shoreline by a crane” was
not a “seaman” for purposes of the Jones Act.
Id. at 154.
However, the worker in that case was “not a sea-based maritime
employee whose duties regularly took him to sea.”
Id.
As the
court noted, “[he] was not a member of the crews that regularly
offloaded the barges and was not paid like them.
He regularly
did welding work on items that were on the land while he was on
land.
His base of operation was a mechanic shop on land.”
Id.
By contrast, Ayala’s work was almost entirely on the waters, and
29
he regularly moved between the tugboat and the barge to perform
his job functions.8
Chandris also requires that “a seaman must have a
[sufficient] connection to a vessel in navigation.” 515 U.S.
347, 368 (emphasis added).
“[T]he underlying inquiry whether a
vessel is or is not ‘in navigation’ for Jones Act purposes is a
fact-intensive question that is normally for the jury and not
the court to decide.”
Id. at 373.
Here, Tutor Perini argues
that Ayala was not a seaman because the barge on which he worked
was not a vessel “in navigation” at the time he fell off.
Tutor
Perini cites DiGiovanni v. Traylor Brothers, Inc., 959 F.2d 1119
(1st Cir. 1992) (en banc), where the court held that “[a] worker
becomes a seaman not by reason of the physical characteristics
of the structure to which he is attached, but because its being
operational ‘in navigation’ exposes him to ‘a seaman’s
hazards,’” id. at 1123, and that a barge positioned at a bridge
was not a vessel “in navigation,” id. at 1121, 1123-24.
However, that holding in DiGiovanni was overruled by the
Supreme Court in Stewart v. Dutra Const. Co., 543 U.S. 481
(2005).
In Stewart, the Supreme Court held that,
8
Tutor Perini also cites Harbor Tug & Barge Co. v. Papai, 520
U.S. 548 (1997). However, Papai is even further removed from
the facts of this case. In Papai, the worker “was hired for one
day to paint the vessel at dockside and he was not going to sail
with the vessel after he finished painting it.” Id. at 559.
30
[a] ship and its crew do not move in and out
of Jones Act coverage depending on whether
the ship is at anchor, docked for loading or
unloading, or berthed for minor repairs, in
the same way that ships taken permanently
out of the water as a practical matter do
not remain vessels merely because of the
remote possibility that they may one day
sail again.
Id. at 494.9
The Supreme Court observed that:
Just as a worker does not “oscillate back
and forth between Jones Act coverage and
other remedies depending on the activity in
which the worker was engaged while injured,”
Chandris, 515 U.S. at 363, neither does a
watercraft pass in and out of Jones Act
coverage depending on whether it was moving
at the time of the accident.
9
Even though Stewart was a case about the test for determining
whether a watercraft is a “vessel” for purposes of the Longshore
and Harbor Workers’ Compensation Act (LHWCA), 543 U.S. at 484,
its holding on the scope the Jones Act governs analyses under
the Jones Act because of the complimentary relationship between
the Jones Act and the LHWCA. Stewart, 543 U.S. at 488. The
Jones Act covers “seam[e]n,” 46 U.S.C. § 30104, which, as
discussed above, are those who “contribute to the function of
the vessel or to the accomplishment of its mission” and had
substantial connection with a vessel in navigation or an
identifiable group of such vessels. Chandris, 515 U.S. at 368
(internal quotation marks and citations omitted). The LHWCA was
passed after the Jones Act and exempts from its coverage “a
master or member of a crew of any vessel.” 33 U.S.C. §
902(3)(G). The Supreme Court has held that “the Jones Act and
the LHWCA are complementary regimes that work in tandem.”
Stewart, 543 U.S. at 488. Thus, by making it clear that a
“vessel” does not fall outside of the scope of the Jones Act and
into the scope of the LHWCA simply because the vessel is not
actually “in navigation” at a given time, the Supreme Court
draws a fixed boundary between two complimentary statutory
regimes; thus, its holding necessarily applies to both statutes.
See Stewart v. Dutra Const. Co., 418 F.3d 32, 34 (1st Cir.
2005).
31
Id. at 495-96.
Therefore, the “in navigation” requirement is
not about the locomotion of a vessel at a given time; instead,
the only relevant inquiry is
whether the craft is “used, or capable of
being used” for maritime transportation.
A
ship long lodged in a drydock or shipyard
can again be put to sea, no less than one
permanently moored to shore or the ocean
floor can be cut loose and made to sail.
The question remains in all cases whether
the
watercraft’s
use
“as
a
means
of
transportation on water” is a practical
possibility or merely a theoretical one.
Id. at 496 (citations omitted).
In this case, a reasonable fact-finder can certainly find
that the barge, Hughes 660, was a “vessel in navigation” because
the barge was used to carry personnel and machinery to perform
work on the Tappan Zee Bridge.
This was clearly a “practical”
and not “theoretical” use: Ayala’s job involved tying and
untying the barges so that they could be moved and fixed as
needed to allow work on the bridge.
Tutor Perini does not
dispute that the barge would be a “vessel in navigation” when it
was being towed by the tugboat, (Tr. at 28), and, as Stewart has
made clear, the locomotion of the vessel at a particular moment
has no bearing on whether or not a vessel is a “vessel in
navigation.”
Accordingly, Tutor Perini’s argument that the
barge was not a “vessel in navigation” simply because it was
32
positioned against the bridge at any given time is without
merit.
Moreover, Tutor Perini does not and cannot dispute that the
tugboat was a “vessel in navigation” for Jones Act purposes.
(Tr. at 27-28.)
Thus, a fact-finder may find, in the
alternative that Ayala was a seaman based on his connection with
the tugboat.
The fact-finder could find, for example, that
Ayala was associated with the tugboat and went onto the barges
to perform his job functions of tying and untying the barges,
which contributed to the intended function of the tugboat,
namely, to manipulate the barges.
It would then be irrelevant
that Ayala was performing his job duties on the barge at the
time he fell off, because “maritime workers who obtain seaman
status do not lose that protection automatically when on shore
and may recover under the Jones Act whenever they are injured in
the service of a vessel, regardless of whether the injury occurs
on or off the ship.”
Chandris, 515 U.S. at 360.
Finally, Tutor Perini also appears to argue that Ayala
cannot claim seaman status because he has received benefits
under the Longshore and Harbor Workers’ Compensation Act
(LHWCA).
The LHWCA and the Jones Act are “complimentary”
regimes, Stewart, 543 U.S. at 488, and the remedy under each is
mutually exclusive of the remedy under the other, Chandris, 515
U.S. at 355-56, because the two Acts cover different groups of
33
employees: “the Jones Act provides tort remedies to sea-based
maritime workers, while the LHWCA provides workers’ compensation
to land-based maritime employees.”
Stewart, 543 U.S. at 488.
Hence, the receipt of a formal award under the LHWCA would be
inconsistent with a claim under the Jones Act.
However, as the
Supreme Court has explained, “[i]t is by now ‘universally
accepted’ that an employee who receives voluntary payments under
the LHWCA without a formal award is not barred from subsequently
seeking relief under the Jones Act.”
Sw. Marine, Inc. v.
Gizoni, 502 U.S. 81, 91 (1991) (citation omitted); see also
Mooney v. City of New York, 219 F.3d 123, 129 (2d Cir. 2000)
(even “an interim award of workers compensation benefits that
are analogous to maintenance and cure does not establish waiver,
even if incorporated in a formal award”).
In this case, Tutor
Perini concedes that no formal award has been made.
Perini Mem. at 3 n.2.)
(Tutor
Therefore, Ayala is not precluded from
asserting seaman status in this litigation.
Accordingly, because sufficient evidence exists to allow a
reasonable fact-finder to find that Ayala was a seaman for Jones
Act purposes, summary judgment cannot be granted on the ground
that Mr. Ayala was not a seaman.
34
b.
Tutor Perini next argues that Ayala has failed to establish
that Tutor Perini was negligent and that summary judgment
dismissing the Jones Act claim should be granted on the merits.
The Jones Act incorporates by reference the Federal
Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., and
extends to seamen the same legal remedies that injured railroad
employees have under the FELA.
See 46 U.S.C. § 30104; Miles v.
Apex Marine Corp., 498 U.S. 19, 32 (1990); Wills v. Amerada Hess
Corp., 379 F.3d 32, 47 n.8 (2d Cir. 2004); U.S. Lines, Inc. v.
U.S. Lines Reorganization Trust, 262 B.R. 223, 240 n.12
(S.D.N.Y. 2001).
A plaintiff’s burden of showing causation and
negligence is lighter under the FELA than it would be at common
law because “the theory of the FELA is that where the employer’s
conduct falls short of the high standard required of him by the
Act and his fault, in whole or in part, causes injury, liability
ensues.”
Tufariello v. Long Island R. Co., 458 F.3d 80, 87 (2d
Cir. 2006) (citing and quoting Kernan v. Am. Dredging Co., 355
U.S. 426, 438-39 (1958)); see also Williams v. Long Island R.R.
Co., 196 F.3d 402 (2d Cir. 1999).
The same standard applies to
a Jones Act claim because the Act incorporates the FELA.
Hopson
v. Texaco, Inc., 383 U.S. 262, 263-64 (1966); Wills, 379 F.3d at
47 n.8.
Thus, on summary judgment, “[a] plaintiff is entitled
to go to the jury [on a Jones Act or FELA claim] if the proofs
35
justify with reason the conclusion that employer negligence
played any part, even the slightest, in producing the injury for
which damages are sought.”
Diebold v. Moore McCormack Bulk
Transp. Lines, Inc., 805 F.2d 55, 57 (2d Cir. 1986) (internal
quotation marks and citations omitted).
In this case, Ayala’s testimony supported a conclusion that
ice on the deck contributed to his fall and injury.
Tutor
Perini’s post-accident report also suggested that the icy
condition was the cause of the incident.
Nevertheless, Tutor
Perini now argues that it was not negligent in any way because
it had supplied adequate de-icing means and had trained Ayala
properly.
Tutor Perini contends that it supplied chemicals such
as calcium chloride for ice removal and that it communicated to
the workers various safety issues including the need to de-ice
the surface. (Milner Dep. at 38, 43.)
In response, Ayala argues
that he was not trained to de-ice the surface of the barge and
that Tutor Perini’s failure to train him properly constituted
negligence.
The only training that Ayala received included an
orientation video and on-the-job training by his predecessor,
Carlos.
(Chakides Dep. at 25, 27.)
Tutor Perini conceded that
it has not put forth any evidence showing that either the
orientation video or Carlos taught Mr. Ayala about de-icing the
surface of the deck.
(See Milner Dep. at 26-27 (testifying
about the contents of the orientation video); Chakides Dep. at
36
25; Tr. at 22.)
Indeed, Ayala testified that he did not believe
that removing ice with sand or salt was his job; he believed at
that time that using such chemicals on the barge was illegal
because the chemicals would contaminate the river.
(Ayala Dep.
at 57, 117.)
Therefore, there are genuine disputes as to material facts
concerning whether Ayala was properly trained to remove the ice
precluding a finding on summary judgment that Tutor Perini was
not negligent.
See Alvarado v. Diamond Offshore Mgmt. Co.,
No.11cv25, 2011 WL 4915543, at *2 (E.D. La. Oct. 17, 2011)
(denying summary judgment because the employer allegedly failed
either to provide a safer alternative method of performing the
work or “to properly train Plaintiff in proper lifting
techniques that would have prevented Plaintiff’s injury”); cf.
Harrington v. Atl. Sounding Co., 916 F. Supp. 2d 313, 323-24
(E.D.N.Y. 2013) (finding, after trial, negligence of the
employer based in part on the lack of instruction and training
of the crew including the plaintiff), aff’d in part, vacated in
part on other grounds sub nom. Marasa v. Atl. Sounding Co.,
Inc., 557 F. App’x 14, 18 (2d Cir. 2014), as amended (Jan. 29,
2014).
Accordingly, the Court cannot conclude, on this motion,
that Tutor Perini is entitled to exoneration from the Jones Act
claim.
37
2.
Ayala also asserts that the barge, bareboat-chartered by
Tutor Perini from Hughes, was unseaworthy because Tutor Perini
failed to provide a competent crew.
As a matter of general
maritime law, an owner or bareboat charterer has “an absolute
duty . . . to provide a seaworthy vessel.”
Kerr v. Compagnie De
Ultramar, 250 F.2d 860, 863 (2d Cir. 1958).
Unseaworthiness may
arise from the fact that the vessel is operated by an
incompetent or unfit crew.
Usner v. Luckenbach Overseas Corp.,
400 U.S. 494, 499 (1971); In re Guglielmo, 897 F.2d 58, 61 (2d
Cir. 1990); accord Marasa, 557 F. App’x at 18.
Crew members may
be found unfit based on lack of training or lack of physical
ability or skill.
See id.; Thompson v. Vane Lines Bunkering,
2001 A.M.C. 291, 303 (E.D. Va. 2000).
In this case, Ayala argues that Tutor Perini failed to
train him properly for his job and permitted the ice to
accumulate on the barge.
In response, Tutor Perini maintains
that Mr. Ayala was in fact adequately trained and instructed
regarding safety procedures.10
These are essentially the same
10
Tutor Perini, represented by same counsel as Hughes, also
repeats the same arguments as those made by Hughes and argues
that the barge was free of defects and was adequately equipped
with non-skid features. The Court has rejected the arguments of
Hughes previously because of evidence in the record raising an
issue of fact as to whether the non-skid features existed and
were adequate. See supra Part V.A. Thus, to the extent that
Tutor Perini’s argument of seaworthiness is based on the
38
arguments as those raised by the parties with respect to the
Jones Act claim, which the Court has already found to be
unpersuasive.11
Thus, for similar reasons as those stated above,
see supra Part VI.A.1.b, namely, because the evidence on these
motions raises a factual issue as to whether Tutor Perini failed
to train its crew properly and thus rendered the barge
unseaworthy because of the incompetence of the crew, the Court
cannot find, on this motion, that Tutor Perini is entitled to
exoneration from the claim of unseaworthiness.
condition of the vessel, the Court concludes, for the same
reasons as those stated previously, that Tutor Perini is not
entitled, on this motion, to exoneration on the claim of
unseaworthiness based on the defects in the vessel. While a
bareboat charterer is generally not liable for the
unseaworthiness of the vessel when a plaintiff’s “injury results
from unseaworthiness or negligence which existed prior to the
delivery of the vessel to the [bareboat] charterer,” In re
Marine Sulphur Queen, 460 F.2d 89, 100 (2d Cir. 1972), Tutor
Perini, represented by the same counsel as Hughes, has not
raised this argument, and has not attempted to distinguish
between defects that existed before and after the charter began.
11
A Jones Act claim and a claim for unseaworthiness may overlap
completely when “they derive from the same accident and look
toward the same recovery.” Saleh v. United States, 849 F. Supp.
886, 893 (S.D.N.Y. 1994) (citing and quoting Gilmore & C. Black,
The Law of Admiralty § 6-1, at 272 (2d ed. 1975)). The claims
differ in one important respect: “[a] claim of unseaworthiness
under general maritime law, unlike Jones Act liability, does not
require a showing of negligence but is rather a species of
liability without fault.” Id. (internal citations and quotation
marks omitted).
39
B.
The second step of the limitation analysis involves a
determination of whether the alleged fault or negligence
occurred with the “privity or knowledge” of the vessel owner.
In re Moran Towing Corp., 984 F. Supp. 2d at 180.
A claimant
does not have the burden of showing that the owner has privity
or knowledge; rather, it is the owner that bears the burden of
showing its lack of privity or knowledge.
673 F.3d at 115.
Otal Investments Ltd,
Moreover, the owner “need not have had actual
knowledge of the unseaworthiness or negligence; it is sufficient
that [the owner] ‘should have known’ of the breach” in order to
be found that the owner has had privity or knowledge.
In re
Moran Towing Corp., 984 F. Supp. 2d at 180 (citation omitted).
For limitation of liability purposes,
[w]here a vessel is held in corporate
ownership, the imputation of “privity or
knowledge” to the corporate owner will be
made if a corporate officer sufficiently
high in the hierarchy of management is
chargeable with the requisite knowledge or
is himself responsible on a negligence
rationale. How high is “sufficiently high”
will depend on the facts of particular
cases.
In re Kinsman Transit Co., 338 F.2d 708, 715 (2d Cir. 1964)
(quoting Gilmore & Black, Admiralty at 701 (1st ed. 1957));
accord Cupit v. McClanahan Contractors, Inc., 1 F.3d 346, 348
(5th Cir. 1993).
A “corporation is not entitled to limit its
40
liability ‘where the negligence is that of an executive officer,
manager or superintendent whose scope of authority includes
supervision over the phase of the business out of which the loss
or injury occurred.’”
In re City of New York, 522 F.3d 279, 283
(2d Cir. 2008) (quoting Coryell v. Phipps, 317 U.S. 406, 410
(1943)).
Tutor Perini argues that any negligence of Mr. Ayala’s
supervisor, Chakides, cannot be imputed to Tutor Perini because
Chakides was not high enough in the corporate hierarchy.
However, Tutor Perini bears the affirmative burden to establish
at trial that negligence occurred without the privity or
knowledge of the corporation.
115.
Otal Investments Ltd, 673 F.3d at
In cases where the party moving for summary judgment also
bears the burden of persuasion at trial, the party’s initial
summary judgment burden is higher in that “it must show that the
record contains evidence satisfying the burden of persuasion and
that the evidence is so powerful that no reasonable [factfinder] would be free to disbelieve it.”
Surles v. Andison, 678
F.3d 452, 455-56 (6th Cir. 2012) (citation and internal
quotation marks omitted); accord Shakur v. Schriro, 514 F.3d
878, 890 (9th Cir. 2008).
This is the opposite from the case
where the burden of proof at trial is on the nonmoving party--in
which case “it ordinarily is sufficient for the movant to point
to a lack of evidence to go to the trier of fact on an essential
41
element of the nonmovant’s claim.”
Jaramillo v. Weyerhaeuser
Co., 536 F.3d 140, 145 (2d Cir. 2008) (citations omitted)
(emphases added); see Celotex, 477 U.S. at 322-23.
Therefore, on summary judgment, a ship owner or bareboat
charterer cannot be deemed to have satisfied its initial burden
by simply pointing to one employee and arguing that the
claimant’s inability to impute privity or knowledge of this one
employee to the corporation conclusively establishes the lack of
privity or knowledge of the corporation.
To the contrary, the
ship owner or bareboat charterer must either “show how the loss
occurred, together with its lack of privity to or knowledge of
the asserted cause,” or “exhaust all the possibilities, and show
that as to each it was without the requisite privity or
knowledge.”
Terracciano, 485 F.2d at 308.
failed to do either.
(Tr. at 32).
Tutor Perini has
Accordingly, Tutor Perini’s
motion for summary judgment seeking exoneration or limitation of
liability from the Ayalas’ claims is denied.
C.
Tutor Perini also seeks contractual indemnification from
Bridge in the event that the Court finds that Tutor Perini is
not entitled to exoneration.
Tutor Perini moves for summary
judgment on that claim, arguing that the evidence clearly
establishes that Tutor Perini is entitled to indemnification
42
from Bridge.
Bridge opposes the motion on the ground that Tutor
Perini cannot show that there was any negligence on the part of
Bridge and that Bridge is not liable for any negligence of Tutor
Perini.
Tutor Perini’s indemnification claim is based on its
Subcontract Agreement with Bridge (the “Agreement”).
Decl. Ex. 8.)
The Agreement provides that it is governed by and
to be construed under New York law.
24.)
(McDermott
(McDermott Decl. Ex. 8 at
Under New York law, “[t]he right to contractual
indemnification depends upon the specific language of the
contract.
In the absence of a legal duty to indemnify, a
contractual indemnification provision must be strictly construed
to avoid reading into it a duty which the parties did not intend
to be assumed.”
Alfaro v. 65 W. 13th Acquisition, LLC, 904
N.Y.S.2d 205, 207 (App. Div. 2010) (citations omitted).
In this case, the indemnity clause of the Agreement
provides that:
To the
full extent permitted by law,
Subcontractor
[Bridge]
shall
indemnify,
defend, and hold harmless Contractor [Tutor
Perini]
.
.
.
from
and
against
all
liability, claims, damages, losses, costs,
fines and expenses, (including attorney’s
fees and disbursements) caused by, arising
out of or resulting from the performance of
the Work or the acts or omissions of the
Subcontractor, . . . provided that any such
liability, claim, damage, loss, cost, or
expense is caused, in whole or in part, by
the negligent act or omission of the
43
Subcontractor,
its
sub-subcontractors
or
anyone directly or indirectly employed by
any of them or for whose acts any of them
may be liable when the loss, injury or
damages arises out of, relates to, is
connected
to,
or
results
from
the
Subcontractor’s
work.
This
required
Subcontractor indemnity specifically does
not
include
indemnification
for
the
Contractor’s own negligence, except to the
extent permitted by law.
(McDermott Ex. 8 at 20.)
Thus, while Bridge is required by the Agreement to
indemnify Tutor Perini for any liability caused by, arising out
of, or resulting from Bridge’s negligence, Bridge is also not
required to indemnify Tutor Perini for any of Tutor Perini’s own
negligence.
The Court has previously held that factual issues
exist as to the negligence of both Bridge and Tutor Perini,
which preclude summary judgment in favor of Bridge or Tutor
Perini on their exoneration or limitation of liability claims.
Thus, for the same reason, because triable issues of fact exist
with respect to the respective negligence of Tutor Perini and
Bridge, Tutor Perini’s motion for summary judgment on the
indemnification claim is also denied.
See McLean v. 405 Webster
Ave. Associates, 951 N.Y.S.2d 185, 189 (App. Div. 2012).
VII.
Tri-State moves for summary judgment dismissing the Ayalas’
claims under Sections 200, 240(1)-(3), and 241(6) of the New
44
York Labor Law (NYLL).
It is not disputed that Tri-State is
neither a ship owner nor a bareboat charterer and is not seeking
exoneration or limitation of liability, nor would it be entitled
to seek such relief.
At the oral argument, the Ayalas agreed to
dismissal without prejudice of its NYLL claims against Tri-State
in these proceedings.
(Tr. at 37.)12
Accordingly, the NYLL
claims of the Ayalas against Tri-State are dismissed without
prejudice, and Tri-State’s motion for summary judgment is denied
without prejudice as moot.
CONCLUSION
The Court has considered all of the arguments raised by the
parties.
To the extent not specifically addressed, the
arguments are either moot or without merit.
For the foregoing
reasons, the motions for summary judgment of the petitioner
Bridge is granted in part and denied in part; the motions for
12
In a letter submitted to the Court after the oral argument,
the Ayalas concede that the Court would have jurisdiction over
any state law claims asserted by the Ayalas. (See Letter to the
Ct. on July 11, 2014, Bridge Petition, No. 12cv3536 (S.D.N.Y.
July 11, 2014), ECF No. 113.) However, the letter does not
address the withdrawal of the NYLL claims against Tri-State, and
any jurisdictional arguments with respect to these claims are
moot when no such claims are pending before this Court. The
Ayalas clarified at the argument of these motions that they had
not asserted any NYLL claims against any party other than TriState. (Tr. 9.) Tri-State also claimed that it moved for
summary judgment dismissing a cross claim by Bridge against it,
but it is unclear that such a cross claim was actually made and,
in any event, the motion was not completely briefed. (Tr. 4445.) Any such motion is therefore denied without prejudice.
45
summary judgment of petitioners Hughes and Tutor Perini are
denied.
In addition, the NYLL claims of the Ayalas against TriState are dismissed without prejudice, and the motion for
summary judgment of Tri-State is denied without prejudice as
moot.
The Clerk is directed to close all pending motions in
cases Nos. 12cv3536, 12cv6285, and 13cv3123.
SO ORDERED.
Dated:
New York, New York
August 9, 2014
____________/s/________________
John G. Koeltl
United States District Judge
46
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