Bridge Construction Services of Florida, Inc. v. Ayala et al

Filing 248

OPINION AND ORDER: Bridge is required to pay $62,779.59 in damages to Tutor Perini. The Clerk is directed to close all open motions. Tutor Perini is directed to submit a proposed Judgment by May 18, 2016. Bridge may submit any responsive papers by May 20, 2016. (As further set forth in this Opinion and Order.) (Signed by Judge John G. Koeltl on 5/12/2016) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
──────────────────────────────
In re
Bridge Construction Services of
Florida, Inc., Hughes Bros, Inc.,
and Tutor Perini Corp.,

12-cv-3536 (JGK)
12-cv-6285 (JGK)
13-cv-3123 (JGK)

Petitioners.

OPINION AND ORDER

──────────────────────────────
JOHN G. KOELTL, District Judge:
This case concerns an incident that occurred on December
15, 2010 when Jose Ayala (“Ayala”) fell off a barge at the
Tappan Zee Bridge into the Hudson River.

At that time, Tutor

Perini Corporation (“Tutor Perini”) was the general contractor
on a project to rehabilitate the bridge.

In order to perform

the work, Tutor Perini chartered various barges from Hughes
Bros., Inc. (“Hughes”) that were used as floating work
platforms. Various workers, including electricians, worked on
the barges on which their tools, equipment, and supplies were
also stored.

See generally Bridge Construction Services of

Florida Trial Exhibits (“Bridge Trial Ex.”) 4, 5, 8, and 9.

One

of the barges that Tutor Perini chartered from Hughes was the
HUGHES 660.
Tutor Perini entered into several subcontracts with various
entities to perform work on the project.

Tutor Perini entered

into a subcontract with Bridge Construction Services of Florida,

Inc. (“Bridge”) to provide, among other things, a tug and other
boats needed for the project.

Tutor Perini also entered into a

subcontract with Tri-State Electrical (“Tri-State”) to provide
electricians and materials that were needed on the project.
Pursuant to its subcontract with Tutor Perini (the “Tutor
Perini-Bridge Subcontract”), Bridge provided a tug, the BRUCE
RUSSELL, to be used in connection with work on the Tappan Zee
Bridge project.

On December 15, 2010, electricians from Tri-

State were installing an electrical conduit along the Bridge and
were working from the HUGHES 660 barge.

The tug BRUCE RUSSELL

was used to ferry the Tri-State electricians to the HUGHES 660
and then to move the HUGHES 660 beside the bridge so that the
electricians could continue to install the electrical conduit
along the bridge.
Ayala, a worker employed by Tutor Perini, was the sole
deckhand on the HUGHES 660. At some point in the process of
moving the HUGHES 660 along the Tappan Zee Bridge to a new
position, Ayala fell into the river.

Both Tutor Perini and

Bridge claim that Ayala’s fall was due to the fault of the other
party.

Bridge claims that Tutor Perini was responsible for the

fall because, among other reasons, Ayala slipped on the icy
surface of the barge, Tutor Perini failed to keep the barge
clear of ice, Ayala should have cleared the ice, and Ayala
- 2 -

ignored his training and was not properly trained.

Tutor Perini

claims that Bridge is responsible for Ayala’s fall because the
tug was under the command of an unlicensed captain who failed to
maintain sufficient communication with Ayala and who was
responsible for bumping the barge and causing Ayala’s fall.
Both Bridge and Tutor Perini have settled with Ayala and
now seek indemnification from the other party.

The Court held a

non-jury trial from January 6, 2016 through January 12, 2016.
Having reviewed the evidence and assessed the credibility of the
witnesses, the Court makes the following Findings of Fact and
reaches the following Conclusions of Law.
FINDINGS OF FACT
Background
1.

In December 2010, the Tappan Zee Bridge which spans the

Hudson River was undergoing renovations, and Tutor Perini was
the general contractor responsible for the renovation project.
See Joint Pre-Trial Order dated November 16, 2015, ECF Document
No. 180, (“JPTO”), at 6.
2.

In connection with the project, Tutor Perini entered into a

bareboat charter with Hughes and leased from Hughes several
barges including the HUGHES 660, the barge that was later
involved in the incident in this case.

See JPTO at 6.

signing the bareboat charter party agreement and taking
- 3 -

Upon

possession of the barge, Tutor Perini became the de-facto owner
of the barge and took over responsibility for the barge from
Hughes.

See Trial Transcript (“Tr.”) at 414-16; see also Hughes

Bros./Tutor Perini’s Final Exhibit List (“Tutor Perini Trial
Ex.”) B.
3.

The barges were used as working platforms from which

various contractors, including Tri-State electricians, performed
work on the Tappan Zee Bridge.
4.

See JPTO at 6.

Perini also hired Bridge, which supplied and operated a

tugboat that would move the barges when needed.

The tugboat,

the BRUCE RUSSELL, was involved in the incident in this case.
See JPTO at 6; see also Tutor Perini Trial Ex. C.
5.

The BRUCE RUSSELL was owned by non-party Workboat Services,

Inc., and was operated by Kenny Kling (“Kling”), a Bridge
employee.
6.

See JPTO at 6.

On December 15, 2010, while working on the Tappan Zee

Bridge project, Ayala fell off the HUGHES 660 barge into the
Hudson River.

Ayala contends that he lost his footing when the

barge was jolted by the BRUCE RUSSELL.

See In re Bridge Const.

Servs. of Florida, Inc., No. 12cv3536 (JGK), 2015 WL 6437562, at
*1 (S.D.N.Y. Oct. 24, 2015) (“Bridge II”).

Tutor Perini

contends that Bridge was responsible for the fall because the
tug was operated by Kling, an unlicensed captain who failed to
- 4 -

exercise reasonable care, including maintaining proper
communications with Ayala when the tug was moving the barge.
Bridge contends that Ayala’s fall was caused by the icy
conditions on the barge and that Ayala, an employee of Tutor
Perini, had the obligation to clear the ice but failed to do so.
7.

Prior to the trial, Tutor Perini and Hughes settled Ayala’s

claims against them for the total amount of $539,448.97.

See

Tutor Perini Trial Ex. F.
8.

Prior to the trial, Bridge settled Ayala’s claims against

it for the total amount of $225,000.00.

See Bridge Trial Ex.

28.
9.

The total settlement amount that Ayala received for his

claims against Hughes, Tutor Perini, and Bridge was $794,448.97.
10.

These consolidated cases began with separate petitions for

exoneration or limitation of liability by Bridge, Hughes, and
Tutor Perini pursuant to 46 U.S.C. §§ 30501, et seq. The
extensive procedural history of this case is detailed in the
prior opinions of this Court, familiarity with which is assumed.
See Bridge II, 2015 WL 6437562, at *1-2; In re Bridge Const.
Servs. of Florida, Inc., 39 F. Supp. 3d 373, 378-80 (S.D.N.Y.
2014) (“Bridge I”).

Now that all of the claims by Ayala have

been settled, the remaining claims that were tried and remain to
be decided are as follows: (1) Tutor Perini’s contractual
- 5 -

indemnification claim against Bridge pursuant to Section 11.1 of
the Tutor Perini-Bridge Subcontract; (2) Bridge’s common law
indemnification claim against Tutor Perini and Hughes; and (3)
Bridge’s contractual indemnification claim against Tutor Perini
based on Change Order No. 001 to the Tutor Perini-Bridge
subcontract.
Tutor Perini-Bridge Subcontract
11.

Tutor Perini and Bridge were parties to a Subcontract

Agreement dated August 5, 2010.

Tutor Perini Trial Ex. C.

Under the Tutor Perini-Bridge subcontract, Bridge was required
to provide a crew boat and a twin diesel tug and licensed
captains to work on the Tappan Zee Bridge project.

See Tutor

Perini Trial Ex. C (Schedule of Payments); Tr. at 329.

Bridge

contracted to provide vessels to shift barges and/or equipment
at the Tappan Zee Bridge project.

See Tutor Perini Trial Ex. C;

Tr. at 544. Under the terms of the Tutor Perini-Bridge
subcontract, if required by Tutor Perini, Bridge was also
required to supply a barge deckhand.

See Tutor Perini Trial Ex.

C (Schedule of Payments).
12.

The tug’s primary function was to shift barges according to

Tutor Perini’s instructions at the Tappan Zee Bridge project.
See Tutor Perini Trial Ex. C; Tr. at 544.

- 6 -

13.

The Tutor Perini-Bridge subcontract contains a broad

indemnification clause in which Bridge agreed to indemnify Tutor
Perini for any liability arising from Bridge’s negligence, but
excluding any indemnification for Tutor Perini’s own negligence.
More specifically, Section 11.1 of the Subcontract provided:
To
the
fullest
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, its sub-subcontractors
or anyone directly or indirectly employed by the
Subcontractor or any of its sub-subcontractors or for
whose acts the Subcontractor or any of its subsubcontractors may be liable; 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 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. Such obligation shall not be
construed to negate or otherwise reduce any other
right
or
obligation
or
indemnity,
which
would
otherwise exist.
Tutor Perini Trial Ex. C at 20.
14.

Under the terms of the Subcontract, Tutor Perini had the

right to terminate unilaterally the barge deckhand employed by
Bridge.

See Tutor Perini Trial Ex. C (Schedule of Payments).

- 7 -

In August 2010, Tutor Perini discontinued the practice of using
a deckhand provided by Bridge and instead supplied its own
employee to work as a deckhand on the barges.
46.

See Tr. at 245-

Bridge did not have any input into whom Tutor Perini

selected to be a deckhand on the barges.

Tr. at 548.

The new

deckhand was an employee of Tutor Perini, was not provided with
any training by Bridge, and was not provided with any equipment
from Bridge.

Tr. at 548.

Tutor Perini did not ask Bridge to

train the deckhand or provide the deckhand with any equipment.
Tr. at 599-600.

In light of Tutor Perini’s decision to use its

own deckhand, Bridge sought indemnification for any negligence
or damage occurring as a result of any act or omission of Tutor
Perini’s employees.

Tr. at 546, 596-97.

On September 3, 2010,

Change Order No. 1 to the Tutor Perini-Bridge subcontract was
executed setting forth the terms of Tutor Perini’s obligation to
indemnify Bridge.

See Tutor Perini Trial Ex. C (Change Order).

The Change Order provides:
Tutor
Perini
Corporation
will
indemnify
Bridge
Construction Services, Inc. for claims arising solely
out of negligent acts or omissions of its personnel or
invitees in connection with the use of Bridge
Construction Services, Inc. vessel “Bruce Russell”
Tutor Perini Trial Ex. C at 3.
15.

Bridge and Tutor Perini understood that the indemnity

language in Change Order No. 1 to the Subcontract meant that, in
- 8 -

order for Tutor Perini to indemnify Bridge, Tutor Perini would
have to be solely responsible for any negligent acts or
omissions.
16.

See Tr. at 597, 598, 633.

While both Tutor Perini and Bridge point to the

responsibility of the other party for providing for Ayala’s
safety on the date of the incident, it is plain that both bore
responsibility for different aspects of his safety.

Tutor

Perini was particularly responsible for training Ayala and
providing that he followed safety measures to make his workplace
safe and free of ice, and Bridge bore responsibility for
providing that its captain operated the tug in a safe fashion
and that the captain provided sufficient oversight of Ayala
while Ayala was working on the barge that the tug was moving.
17.

It is undisputed that Ayala was hired by Tutor Perini to

work as a barge deckhand and that all the training he received
was provided by Tutor Perini supervisors and employees.

Kling,

who was operating the tug neither could, nor did, provide any
training to Ayala when Ayala began to work as a deckhand.
Instead, Ayala received all his instructions from his
predecessor, Carlos Valdovinos (“Valdovinos”), over one and-ahalf days.

Tr. at 123-24; Tr. at 33.

Ayala testified that he

was hired by Tutor Perini and trained by their personnel.
at 25-27.
- 9 -

Tr.

18.

On or about December 10, 2010, Ayala was called by his

union and told to report to Tutor Perini’s offices to work for
Tutor Perini.

When he got to the offices, he was shown a safety

video, which he watched.

Tr. at 25.

The video covered general

safety at the work site and did not address working on a barge
or on the water.

Tr. at 25-26.

Ayala met Mark Chakides

(“Chakides”), Tutor Perini’s supervisor.

Chakides took Ayala to

the barge where he met Valdovinos, whom Ayala would be
replacing.

Tr. at 26.

Chakides instructed Ayala that he should

work with Valdovinos to learn how to handle shifting barges and
tying them up.

Tr. at 303-04, 318.

Ayala’s native language is

Spanish, and he speaks only broken English.

Tr. at 334.

Valdovinos then showed Ayala the procedure for untying barges
that needed to be shifted and how to retie them once they were
moved to a new location.

Ayala and Valdovinos communicated in

Spanish when Valdovinos taught him the job.

Tr. at 27.

Ayala

was taught to do this work by first watching Valdovinos and then
doing the work himself.
19.

Tr. at 27.

David Ackerman (“Ackerman”), the Tutor Perini Assistant

Superintendent, was familiar with the duties of a barge deckhand
and in particular was aware that a barge deckhand should not
approach the edge of the barge while that barge was in motion
and not resting against wooden pilings, also known as
- 10 -

“dolphins.” 1

Ackerman stated that a barge deckhand should not

approach the edge of a moving barge and only go to the edge
after the barge was resting against the dolphins.
20.

Tr. 342-43.

After Ayala watched the safety video when he arrived at the

Tappan Zee Bridge, he was given a “site specific safety plan”
briefing from Shane McCullen, the Safety Superintendent, about
working on the water, on a bridge, and at heights.
60.

Tr. at 359-

Laborers, such as Ayala, were told to be very careful

working on the edge of the barge and were told not to stand on
ice while working.

Tr. at 360-61.

Valdovinos should have

instructed Ayala that it was his duty to remove ice if there was
any on the decks of the barges.
21.

Tr. at 362-363.

David Milner (“Milner”), a Tutor Perini employee and safety

representative, also testified that he regularly told laborers
like Ayala that they should not stand at the edge of the barge
while it is in motion and should stand, instead, at the center
of the barge until the barge is up against the dolphins.
Tr. at 516-517.

See

Milner testified that he heard Kling give

1

In this context, a “dolphin” is a wooden structure that abuts
the concrete pillars that support the bridge. It is composed of
numerous wood pilings that look like telephone poles rising out
of the water that were driven into the river bed and wrapped
with thick cable. A dolphin is meant to protect the bridge
pillars from ice and from vessels that may collide with the
bridge pillars. Each dolphin was spaced approximately thirty
feet apart on the section of the bridge where there is a low
roadway. See Tr. at 4-5; Bridge Trial Exs. 4, 6-7, 10.
- 11 -

similar instructions to individuals working with him.
515-16.

Tr. at

It is unclear from the testimony if Milner gave those

instructions to Ayala specifically.
22.

Bruce Sweet (“Sweet”), Bridge’s owner, who resides in

Florida, only visited the Tappan Zee Bridge project once in five
or six years.

Tr. at 576-77. Sweet acknowledged that Kling was

Bridge’s “man on the job” during the incident in December 2010.
Tr. at 577.

Sweet gave Kling authority to make decisions on a

daily basis for Bridge pertaining to the project.

Prior to

giving Kling that authority, Sweet never asked Kling if he was a
licensed tugboat captain.

Tr. at 210, 577, 578.

In fact, Kling

was not licensed by the Coast Guard to operate the BRUCE
RUSSELL.
23.

Tr. at 112.

Bridge was responsible for the safe navigation of the tug

and the barge when the vessels were underway, which included the
movement of the barge that the tug was pushing until the barge
was completely tied to moorings and was stationary. Tr. at 59192.

King was responsible for the safety of the crew and guests

during navigation, including Ayala. Tr. at 593; see also Tr. at
174-75.
24.

The captain is also responsible for ensuring gear needed

for the safety of the crew and passengers is present aboard the
vessel and in good working order. Tr. at 176.
- 12 -

25.

Kling began working as a tugboat captain on the Tappan Zee

Bridge project in the middle of November 2010, roughly three
weeks before the incident at issue here. Tr. at 171.

Kling’s

last training on the operation of tugs was in the early 1990s
when he was Sweet’s deckhand.
26.

Tr. at 169-70.

Although Kling knew he needed a license to captain the

tugboat, Tr. at 180, on December 15, 2010, Kling did not hold a
United States Coast Guard license.
27.

Tr. at 112.

One of the prerequisites for taking the test to become a

licensed captain was completing a ten-day course, in which
general seamanship rules were taught.

Tr. at 174.

Kling had

not yet taken the prerequisite ten-day course in general
seamanship.
28.

Tr. at 174.

In sum, at the time of the incident, the BRUCE RUSSELL was

registered with the United States Coast Guard under the name of
Workboat Services, Inc., a defunct entity, and it was being
operated by an unlicensed captain.
29.

Tr. at 576.

Kling was Ayala’s supervisor from the minute Ayala got on

the tug until he got off, and Ayala did whatever Kling told him
to do.
30.

Tr. at 98-99; see also Tr. at 46.

The relative positions of the HUGHES 660, the BRUCE

RUSSELL, the Tappan Zee Bridge, and the dolphins on the day of
the incident is established by Bridge Trial Ex. 29 and the
- 13 -

testimony of the parties.

To summarize, on the day of the

incident, the Tappan Zee Bridge and the HUGHES 660 were parallel
to each other, the barge sitting on the south side of the
bridge.

When the barge was at rest, it was tied to two

dolphins, one in the fore (referred to as “Point A”) and one at
the aft of the barge (“Point B”).

The tug, which was also

parallel to the barge, was tied to the starboard side of the
barge, facing east.
31.

See generally Bridge Trial Ex. 29.

As the workers laid conduit along the bridge, the BRUCE

RUSSELL moved the HUGHES 660 along the bridge in a kind of
shifting maneuver.

Kling explained that, after one end of the

barge was tied off onto a dolphin, he would reverse gears, twist
in the opposite direction, and then use the tug to push the
other end of the barge toward the other dolphin.
32.

Tr. at 118.

During the maneuver, a deckhand would come to the edge of

the barge to tie and untie the barge to the dolphins.
512.

The deckhand would have to reach over from the corner of

the barge to complete the tying and untying.
33.

Tr. at

See Tr. at 274.

The tying and untying operation is a “time thing.”

Kling

described how, while he could not always see Ayala, he would
anticipate how long it would take him to walk along the barge,
and he (Kling) would move the tug when he believed Ayala was in
the correct position.

Tr. at 237.
- 14 -

34.

According to Kling, a good captain and good deckhand that

have worked together for a long period of time do not need to
communicate during the shifting maneuver because each knows what
the other is going to do and when he needs to do it, based upon
experience.
35.

Tr. at 124, 231.

Chakides personally observed Bridge’s prior tug captain,

Jim White (“White”), communicating with his deckhand by a
handheld walkie-talkie.

Tr. at 316-17.

Kling testified that on

the day of the incident, Ayala did not have a walkie-talkie.
Tr. at 189.
36.

David Daoust (“Daoust”), who was the Superintendent for the

Tappan Zee Bridge project in December of 2010, also observed
White, when he was captain, communicating with the prior
deckhand with two-way marine radios and through the public
address system on the tug’s wheelhouse.

Tr. at 397; see also

Bridge Trial Ex. 2.
37.

Sweet, who had a Coast Guard captain’s license at the time

of the incident, testified that in his experience, during the
course of moving a barge such as the HUGHES 660, the captain of
the tug would have to communicate with the deckhand about such
things as when the barge was going to move, when the rope was
going to be taken off, and when the rope was going to be put
back. Tr. at 535, 557.
- 15 -

December 14, 2010 Incident
38.

The day before the incident at issue in this case, Ayala

also fell into the water.

On December 14, 2010, while tying up

a barge underneath the bridge, Ayala slipped on a combination of
ice and/or water and mud and fell off a concrete surface on the
abutment of the bridge.
39.

See Tr. 4, 105-06, 127-28.

After the December 14 incident, Kling spoke to Chakides and

expressed his concern that Ayala may not be physically able to
do the job and that there was a language barrier because Ayala
spoke Spanish and some English and Kling only spoke English.
Nevertheless, Kling was told that he would have to continue
working with Ayala.
40.

Tr. at 129.

Kling also spoke to Sweet to tell him that Ayala fell into

the water and that he was concerned that Tutor Perini was not
filling the deckhand position with the proper person. Tr. at
129-30; see also Tr. at 553.
41.

Sweet then contacted Tutor Perini and probably spoke to

Daoust to voice his concerns about the communication barrier
between Ayala and Sweet.

Tr. at 553-54.

Sweet’s concern was

that if a situation developed out of the ordinary while moving a
barge, Kling would not be able to communicate with Ayala.
at 557.

- 16 -

Tr.

42.

Daoust testified that he learned of Ayala’s accident on

December 14 from Chakides and that afterward he directed that at
the next morning’s safety meeting, known as a “Take Five”
meeting, Chakides give a specific briefing to the workmen
concerning slipping on barges and ice and preventing falls into
the river.
43.

Tr. at 363-64, 380-81.

After the first fall, Tutor Perini did not require Ayala to

attend any additional safety classes or training aside from the
Take Five meeting the next morning, which was given to all the
workers.

Tr. at 305.
December 15, 2010 Incident

44.

The parties’ versions of how Ayala fell into the water on

December 15, 2010 differ.

Tutor Perini and Hughes attempt to

place all the blame on Kling for bumping the barge and causing
Ayala to fall while Bridge maintains that the barge had actually
stopped its motion and was against the dolphins when Ayala
simply slipped on ice on the barge, ice that Ayala should have
cleared beforehand.

It is clear by more than a preponderance of

the evidence that a confluence of factors contributed to the
fall, including the bump from the tug as well as the icy
condition that had not been cleared by Ayala as it should have
been.

Moreover, the inability of Kling to see Ayala on the edge

of the barge and to coordinate with him contributed to the
- 17 -

accident.

While it is plain that some of Ayala’s testimony was

exaggerated, there is sufficient credible corroborating
testimony to support the conclusion that a combination of
factors caused Ayala to fall into the water.
45.

On December 15, 2010, Ayala fell when Kling bumped the

barge as Ayala was attempting to tie the front end of the barge
to the dolphin.
46.

Tr. at 55-56

Despite the fact that Ayala reportedly moved slower than

Valdovinos, Tr. at 453, and that the shifting maneuver relies on
experience and timing, when Kling started pushing the barge, he
did not know where Ayala was and did not use a walkie-talkie or
other device to communicate with Ayala. Tr. at 238; Tr. at 189.
47.

Ayala did not expect Kling to push the barge with the

particular speed he did. Tr. at 62-63, 65.
48.

While Ayala did not see the tug impact the barge, he felt a

forward bump, distinct from the “up and down” motion resulting
from the river’s current.
49.

Ayala fell in the direction of the bridge because Kling was

pushing with the tug.
50.

Tr. at 75-77. 104.

Tr. at 77, 104

Ayala had not yet finished tying up the barge at the time

of the fall.

Tr. at 251.

The movement of the barge is complete

only when the barge is tied up.

Tr. at 251.

Therefore, the

movement of the barge was not complete at the time of Ayala’s
- 18 -

fall, and his safety was Bridge’s responsibility.

While the

barge was tied up at its rear, it had not yet been secured to
the front of the barge when Ayala fell in the process of
attempting to tie it up.
51.

Andrew Reeves (“Reeves”), one of the Tri-State

electricians, was working on the barge on December 15, 2010 when
Ayala fell into the water.
fall.

Tr. at 286.

Tr. at 283.

He did not see Ayala

Reeves saw that Ayala was at the edge of the

barge, although he did not know the exact placement of Ayala’s
feet at the time of Ayala’s fall.

Tr. at 290-91.

He felt a

bump while the barge was still moving, looked back, and then
noticed that Ayala was gone.

Tr. at 290.

Reeves testified that

Ayala fell when the bump occurred, Tr. at 291, and at that time,
the barge had not yet come to a stop against the pilings.

Tr.,

at 289
52.

Two other Tri-State employees, Thomas Conese and Thomas

Damiani, did not see Ayala fall into the water.

Tr. at 453,

462, 471.
53.

Kling gave a contemporaneous statement, the import of which

is that the tug was moving the barge at the time of Ayala’s
fall.

On December 17, 2010, Kling gave the following written

statement:

- 19 -

On Wednesday, December 15, I was shifting a 30 by 90
barge down to the east. As I was pushing barge back to
the bridge, Jose fell off the north side of the barge
into the water. He was pulled out by the crew on the
barge, brought to dockside. Kenny Kling, tug captain.
Tr. at 140.
54.

Kling threw out the vessel’s logbook sometime after he

learned that Ayala may file a lawsuit.

Tr. at 245-46.

A fair

inference from Kling’s destruction of the log book is that it
would have been adverse to his position in this case, in
particular, that it would have supported the position of the
other parties that the tug had not stopped pushing the barge at
the time of the incident but rather that it was in the process
of pushing the barge when Ayala fell.
55.

While Kling testified at trial that the barge was not

moving at the time that Ayala fell and that it was “hard up
against the piles,” that testimony was not credible.
96.

The evidence and credible testimony indicates that Kling

was pushing the barge at the time Ayala fell.
56.

Tr. at 95-

Tr. at 268.

Kling could not see Ayala from midship of the barge up to

the front of the barge, or Point A of Bridge Trial Ex. 29.
Tr. at 237.

See

From his vantage point on the tug, Kling could not

see Point A on the barge, which is the location in which Ayala
testified he was standing.

Tr. at 141.

- 20 -

57.

Kling could not see the “piles” or dolphins at the time

Ayala fell. Tr. at 255.
58.

Kling could not see Ayala when he fell.

59.

As such, Kling could not provide any information about how

or why Ayala fell.

Tr. at 239-40.

Tr. at 241.

60.

Kling was an inexperienced tug captain.

Tr. at 230.

61.

According to Kling, Ayala was an inexperienced deckhand,

based upon Kling’s knowledge that Ayala had only been a deckhand
for three days at the time of the incident, as well as Kling’s
observations of Ayala.
62.

Tr. at 227, 229-30.

Where a tug captain and a deckhand are experienced at

working together, they may be able to conduct the barge’s tie-up
maneuver without communicating.

But Kling and Ayala were not

experienced at working together; therefore, they needed to
communicate to execute the maneuver safely.
63.

Kling told Milner that Kling was pushing the barge into

place when Ayala fell off the barge.
64.

Tr. at 231.

Tr. at 519-20.

Bridge attempts to avoid liability by blaming Ayala for his

fall and claiming that Ayala slipped on ice that Ayala should
have cleared.

Tutor Perini and Hughes contend that Ayala did

not slip on ice and Ayala testified that he could not recall
seeing any ice on the deck of the barge at the location where he
fell on December 15, 2010.

Tr. at 64-65, 68, 84.
- 21 -

Kling was not

able to see if there was ice in the area where Ayala was
standing.
65.

However, Reeves, a disinterested and credible witness,

observed ice around the edges of the barge and saw ice where
Ayala was standing when he fell.

Tr. at 287-88.

Reeves

testified credibly that “it’s cold out, it’s wintertime, it
rains, ice freezes, it’s a steel barge.”
66.

Tr. at 288.

There was salt or ice melt on the barge, and it was Ayala’s

responsibility to apply it to any icy spots.
also Tr. 141-42.

Tr. at 288; see

Ayala was not credible when he testified that

he was told not to use such materials to remove ice on decks and
that he had no responsibility to remove ice.
67.

Tr. 37-38.

Tutor Perini prepared two reports of the incident, each

signed by Daoust, each prepared at least within two days of the
accident.

In one report titled “Post Incident Review,” Daoust

notes “Slippery Conditions,” and states that the contributing
factors were as follows: “Not sure of contributing factors since
nobody actually saw him fall. . . . From pictures of the barge,
there is visible water standing on the deck 2 days later. It is
possible he slipped on ice and fell in.”

Bridge Trial Ex. 15.

In another report titled “Accident/Incident Report,” Daoust
writes: “Jose was the deckhand for the tugboat and was in the
process of tying up a barge. He was too close to the edge of the
- 22 -

barge, lost his balance and fell in the water.”

Bridge Trial

Ex. 19.
68.

Because the barge had not yet come to rest against the

dolphins (or pilings), a fair inference from the evidence is
that Ayala was in fact standing too close to the edge of the
barge at the time that he fell.

It is also clear that Kling was

unable to observe where Ayala was at the time of the fall and
did not communicate with him during the shifting maneuver of
moving the barge.
DAMAGES
69.

Prior to the trial, Tutor Perini/Hughes and Ayala settled

for the total amount of $539,448.97. See Tutor Perini Trial Ex.
F.
70.

Prior to the trial, Bridge and Ayala settled for the total

amount of $255,000.00. See Bridge Trial Ex. 28.
71.

The total amount Ayala received in settlement of his claims

against Tutor Perini, Hughes, and Bridge in this matter was
$794,448.97.
CONCLUSIONS OF LAW
1.

This Court has subject matter jurisdiction of this case

pursuant to 28 U.S.C. §§ 1333(1) and 1367(a).
Bridge’s Obligation to Indemnify Tutor Perini

- 23 -

2.

The Tutor Perini-Bridge Subcontract provides that it is

governed by and should be construed under New York law.

See

Tutor Perini Trial Ex. C; see also Bridge II, 2015 WL 6437562,
at *4.
3.

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.’”

Bridge II, 2015 WL 6437562, at *4 (quoting

Alfaro v. 65 W. 13th Acquisition, LLC, 904 N.Y.S.2d 205, 207
(App. Div. 2010)); see also Heimbach v. Metro. Transp. Auth.,
553 N.E.2d 242, 246 (N.Y. 1990) (contractual language has to
evince an “unmistakable intention” to indemnify before a court
enforces such an obligation).
4.

Section 11.1 of the Tutor Perini-Bridge Subcontract

requires Bridge to indemnify Tutor Perini for any liability
arising from Bridge’s negligence.

See Findings of Fact No. 13;

see also Bridge II, 2015 WL 6437562, at *4.
5.

The elements of a claim of negligence under maritime law

are the same as the elements of negligence under New York Law.
“Under New York law . . . a plaintiff must establish three
elements to prevail on a negligence claim: ‘(1) the existence of
- 24 -

a duty on defendant’s part as to plaintiff; (2) a breach of this
duty; and (3) injury to the plaintiff as a result thereof.’”
Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir.
2000) (per curiam) (quoting Akins v. Glens Falls City Sch.
Dist., 424 N.E.2d 531, 535 (N.Y. 1981)).
6.

Bridge owed a legal duty to both Ayala and Tutor Perini to

perform the safe navigation of the tugboat and barge at the
Tappan Zee Bridge project in December 2010, and more
specifically, on December 15, 2010.
7.

Bridge breached its duty by having Kling, an unlicensed

captain, operate the tugboat on December 15, 2010.

Thus, Bridge

violated 46 C.F.R. § 15.605, which requires that “[e]ach
uninspected passenger vessel (UPV) must be under the direction
and control of an individual credentialed by the Coast Guard.”
46 C.F.R. § 15.605.

Tutor Perini argues that Bridge’s violation

of 46 C.F.R. § 15.605 on December 15, 2010 constituted
negligence per se.

Whether that violation should be considered

negligence per se, see, e.g., Reyes v. Vantage S.S. Co., 609
F.2d 140, 143 (5th Cir. 1980); Brown v. Reinauer Transp.
Companies, LLC, 886 N.Y.S.2d 769, 772 (App. Div. 2009), is
unnecessary to decide.

The violation is at least persuasive

evidence of negligence on behalf of Kling. See, e.g., Chen v.

- 25 -

United States, 854 F.2d 622, 627 (2d Cir. 1988); Pasternack v.
Lab. Corp. of Am., 892 F. Supp. 2d 540, 555 (S.D.N.Y. 2012).
8.

Kling did not have a visible sightline to Ayala and failed

to communicate with Ayala during the shifting operation on
December 15, 2010.

Accordingly, he did not exercise ordinary

care, caution, and maritime skill in his operation of the
tugboat and barge on December 15, 2010.

See Bridge I, 39 F.

Supp. 3d at 383.
9.

In The Pennsylvania, 86 U.S. 125 (1874), the United States

Supreme Court held:
[W]hen . . . a ship at the time of a collision is in
actual violation of a statutory rule intended to
prevent collisions, it is no more than a reasonable
presumption that the fault, if not the sole cause, was
at least a contributory cause of the disaster. In such
a case the burden rests upon the ship of showing not
merely that her fault might not have been one of the
causes, or that it probably was not, but that it could
not have been. Such a rule is necessary to enforce
obedience to the mandate of the statute.
Id. at 136.
10.

Under the “Pennsylvania Rule,” the burden of disproving

causation shifts to Bridge.

Bridge II, 2015 WL 6437562, at *8;

Dover Barge Co. v. Tug Crow, 642 F. Supp. 2d 266, 274 (S.D.N.Y.
2009).
11.

The “Pennsylvania Rule” “originally ‘applied only to cases

involving collisions between ships, but has been extended to

- 26 -

apply to any statutory violator who is a party to a maritime
accident.’” Bridge II, 2015 WL 6437562, at *8.
12.

The “Pennsylvania Rule” holds that a vessel guilty of a

statutory fault is presumed to have contributed to the accident
and can only escape liability if she shows that she could not
have contributed to causing the collision.

See, e.g., Dover

Barge, 642 F. Supp. 2d at 274; Sinclair Ref. Co. v. The Morania
Dolphin, 170 F. Supp. 586, 590 (S.D.N.Y.) (Weinfeld, J.), aff’d
sub nom., Sinclair Ref. Co. in Possion of the P.W. Thirtle v.
the Morania Dolphin & the Dalzelleader & Edna M. Matton, 272
F.2d 192 (2d Cir. 1959).

Although the rule speaks of a

statutory violation, it is equally applicable to violations of
federal regulations.

See, e.g., Folkstone Mar., Ltd. v. CSX

Corp., 64 F.3d 1037, 1046 n.5 (7th Cir. 1995).
13.

“Three elements must exist for the Pennsylvania Rule to

apply: (1) proof by a preponderance of the evidence of a
violation of a statute or regulation that imposes a mandatory
duty; (2) the statute or regulation must involve marine safety
or navigation; and (3) the injury suffered must be of a nature
that the statute or regulation was intended to prevent.”

Dover

Barge, 642 F. Supp. 2d at 274 (citing 2 Thomas J. Schoenbaum,
The Law of Admiralty § 14–3, at 102 (4th ed. 2004)).

- 27 -

14.

These elements are met here.

First, it is without dispute

that Kling was unlicensed while he was operating the tugboat at
the time of the incident and that Kling’s failure to have a
license at the time of the incident violated the United States
Coast Guard regulation requiring him to be licensed.

Ins. Co.

of N. Am. v. John J. Bordlee Contractors, Inc., 532 F. Supp. 774
(E.D. La. 1982), aff’d sub nom., Ins. Co. of N. Am. v. Bd. of
Comm’rs of Port of New Orleans, 733 F.2d 1161 (5th Cir. 1984)
(applying “Pennsylvania Rule” where unlicensed person was
operating uninspected towing vessel, in violation of statute).
Second, the United States Coast Guard requirement that a tug
operator be licensed plainly involves marine safety and
navigation.

The regulation is meant to assure that the tug is

safely operated, including operated in a manner that is safe for
the people working on or in connection with it.

Third, the

injuries suffered by Ayala as a result of being caused to fall
off of the barge due to the tug’s impact with the barge is of
the nature that the regulation was intended to prevent.
15.

The credible evidence from Ayala and Reeves supports the

conclusion that the tug’s impact with the barge was a cause of
Ayala’s fall.

Moreover, the fall occurred while Kling failed to

exercise due care to assure the safety of Ayala because he could
not see Ayala and did not know where Ayala was on the vessel.
- 28 -

Kling could not reasonably communicate with Ayala while the tug
was maneuvering the barge into the dolphins.

Further, Bridge

was aware that it was likely unsafe to proceed with Ayala as the
deckhand on the tug.

Ayala had fallen into the river the day

before the incident in question, which was such an unusual and
troubling occurrence that Sweet, Bridge’s President, took the
issue up with Tutor Perini, but Bridge proceeded to use Ayala
despite the warning of his possible unfitness to act as a
deckhand on the tug and barge.
16.

Furthermore, Bridge’s spoliation of evidence, namely the

destruction of Kling’s log book warrants an adverse inference
that the evidence contained in the log book would have been
unfavorable to Bridge, and, conversely, favorable to Hughes and
Tutor Perini.

Sanctions for the spoliation of evidence are

appropriate in this Circuit where: (1) “the party having control
over the evidence had an obligation to preserve it at the time
it was destroyed; (2) [ ] the records were destroyed ‘with a
culpable state of mind’; and (3) [ ] the destroyed evidence was
‘relevant’ to the party's claim or defense such that a
reasonable trier of fact could find that it would support that
claim or defense.”

Residential Funding Corp. v. DeGeorge

Financial Corp., 306 F.3d 99, 107 (2d Cir. 2002).

- 29 -

17.

The recent Amendments to Rule 37(e) of the Federal Rules of

Civil Procedure have changed the rules relating to spoliation
when it involves Electronically Stored Information (“ESI”).

In

particular, it overruled Residential Funding because no adverse
inference instruction is available unless the proponent of the
request for the instruction demonstrates that the party who
destroyed the ESI acted with the intent to deprive another party
of the information’s use in the litigation.

However, the change

in Rule 37(e) applies only to ESI and therefore does not affect
the standard in Residential Funding as it relates to this case
which concerns physical evidence, namely the notebook or log
book, and not ESI.
18.

Bridge has argued that sanctions should not be imposed.

Bridge argues that Kling was not an officer or director of
Bridge.

That is plainly irrelevant.

He was certainly an

employee of Bridge and therefore an agent of Bridge to the
extent that he was acting within the scope of his employment.
Bridge has argued also that the notebook was simply a personal
notebook.

But that is irrelevant because Kling was plainly

recording matters observed in the course of his employment, and
indeed he testified at his deposition that the notebook itself
was kept by the previous Captain of the tug, and Kling continued
to use it.
- 30 -

19.

Bridge has suggested that Kling did not destroy the

notebook in the course of his employment, but the evidence
establishes otherwise.

He kept the entries in the regular

course of the business and the testimony supports the fact that
it related to business matters---the movement of the barges--and that therefore the maintenance or lack of maintenance of the
book was part of the business of his employer.

Bridge does not

dispute that Kling destroyed the notebook after becoming aware
that Ayala might sue.
20.

Therefore, Kling destroyed the notebook after litigation

was anticipated, and thus at a time when he had an obligation to
preserve the evidence.

See, e.g., Kronisch v. United States,

150 F.3d 112, 126-27 (2d Cir. 1998); Skyline Steel, LLC v.
PilePro, LLC, 101 F. Supp. 3d 394, 407-08 (S.D.N.Y. 2015), on
reconsideration in part, No. 13cv8171 (JMF), 2015 WL 3739276
(S.D.N.Y. June 15, 2015).
21.

Thus, the Court infers that the log book would have

confirmed that Kling was pushing the barge at the time of
Ayala’s fall and would not have supported Kling’s testimony that
the barge was not moving when the accident occurred.
22.

However, Bridge is only responsible for its own negligence

and not for the negligence of Hughes or Tutor Perini that
contributed to Ayala’s damages.

While there is no credible

- 31 -

evidence of negligence on the part of Hughes, there is ample
evidence of negligence on the part of Tutor Perini.
23.

Tutor Perini is liable for any negligence of Hughes.

Hughes chartered the HUGHES 660 to Tutor Perini pursuant to the
Hughes-Tutor Perini Bareboat Charter Party Agreement dated
November 19, 2010.

See Tutor Perini Trial Ex. B. Perini

assumed, from Hughes, the full responsibility for the vessel,
including its maintenance and operation.

“The effect of the

bareboat charter party arrangement is that a charterer is
considered the owner of the vessel pro hac vice.”

Uni-Petrol

Gesellschaft Fur Mineraloel Produkte M.B.H. v. M/T Lotus Maru,
et al., 615 F. Supp. 78, 80 (S.D.N.Y. 1985) (citing The Yaka,
373 U.S. 410 (1963)). “The liability of the ship owner is
limited: ‘. . . An owner who has demised his ship is not indeed
liable to anyone but the demisee under his warranty of
seaworthiness for any loss or injury suffered during the demise.
Such liabilities sound in contract and he has not made any
contract with anyone else.’”

Id. at 81 (quoting Cannella v.

Lykes Bros. S.S. Co., 174 F.2d 794, 796 (2d. Cir. 1949)).
24.

“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
- 32 -

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.’”

Bridge I, 39 F. Supp. 3d at 385

(quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550
(1960)).
25.

There is no evidence that the HUGHES 660 was unseaworthy or

that any act or omission of Hughes caused or contributed to
Ayala’s damages.

While there were dents in the decking, there

is no evidence that those dents contributed to Ayala’s fall.
Moreover, there is no evidence that there were any dents near
the edge of the vessel where Ayala fell or that ice accumulated
in that area because of any defects in the deck at that point.
26.

Tutor Perini was negligent and its negligence was a cause

of Ayala’s fall.

Tutor Perini was negligent in providing an

inexperienced deckhand to tie the HUGHES 660 to the dolphins on
the date in question after being alerted to Ayala’s unsuitably
for the task after Ayala had fallen into the Hudson River the
day before the December 15, 2010 incident.

Tutor Perini was

also responsible for the negligence of Ayala, its agent, which
contributed to Ayala’s injuries.

In particular, (1) Ayala

knowingly disregarded his training to stay clear of the edge of
the barge while it was still in motion and fell off the barge as
- 33 -

a result; (2) Ayala failed in his obligation to remove ice or
remedy a known slippery condition from the barge and fell off
the barge as a result; (3) Ayala was not properly trained to
remove ice from the deck of the barge and fell because of an icy
condition; (4) Ayala failed to advise anyone at Tutor Perini of
icy conditions; and (5) Tutor Perini failed to keep the barge
free of a known icy condition or slippery surface and required
Ayala to work despite that condition.

Therefore, Tutor Perini’s

negligence was a substantial cause of Ayala’s damages.
27.

Tutor Perini argues that any negligence on the part of

Ayala should not be taken into account in the Court’s assessment
of the proportionate share of fault of Bridge, on the one hand,
and Hughes and Tutor Perini, on the other hand.

Tutor Perini

argues that the parties have already taken Ayala’s comparative
fault into account in their decision to settle with Ayala.
However, there is no evidence and no way to determine how, if at
all, the parties have already taken Ayala’s fault into account
when they determined the amounts they paid to Ayala.

The only

measure of damages is the amounts that Bridge and Tutor Perini
have paid to Ayala. Therefore, the comparative fault of Ayala
should be part of the comparative fault that is attributed to
Tutor Perini, Ayala’s employer.

- 34 -

28.

Tutor Perini also argues that, to the extent that the Court

determines that Ayala’s proportionate share of fault should be
taken into account, any such fault on the part of Ayala should
be attributed to Bridge in view of the fact that Ayala was a
deckhand who was being directed by Kling during the course of
the barge-shifting maneuver at the time of Ayala’s fall.
However, Tutor Perini cites no authority for ignoring vicarious
liability pursuant to which Tutor Perini is liable for the acts
and omissions of Ayala, its employee, in the course of his
employment.

Therefore, the negligent acts and omissions of

Ayala are attributed to Tutor Perini in determining the total
amount of fault attributed to Tutor Perini.
29.

Pursuant to Section 11.1 of the Tutor Perini-Bridge

Subcontract, Bridge is required to indemnify Tutor Perini for
the liability caused by Bridge’s negligence but not for any
liability caused by Tutor Perini’s negligence.

The sum already

paid to Ayala is for the total amount of damages he suffered, in
the amount of $794,448.97.

The Court concludes that Bridge’s

negligence caused 40% of Ayala’s damages and Tutor Perini’s
negligence caused 60% of Ayala’s damages, namely $476, 669.38.
Because Tutor Perini already paid an amount exceeding its
percentage of fault, Bridge is required to indemnify Tutor
Perini for the excess damages Tutor Perini paid to Ayala, namely
- 35 -

$62,779.59.

Accordingly, Bridge shall pay Tutor Perini

$62,779.59.

Then, Tutor Perini will have paid damages in the

amount of $476,669.38 and Bridge will have paid $317,779.58.
30.

Bridge has sought indemnification from Tutor Perini

pursuant to Change Order No. 001 to the Tutor Perini-Bridge
Subcontract.

However, Bridge concedes that it would be entitled

to contractual indemnification from Tutor Perini under Change
Order No. 001 only if Tutor Perini was solely negligent.
Because Ayala’s injuries did not arise solely out of the
negligent acts or omissions of Tutor Perini or its personnel or
invitees, Bridge is not entitled to any indemnification from
Tutor Perini. 2

2

The result is the same under Bridge’s claim for common law
indemnification from Tutor Perini. Under principles of
comparative negligence under maritime law and New York law,
Tutor Perini is only liable for its share of Ayala’s damages
based on its comparative fault. See, e.g., Williams v. United
States, 712 F. Supp. 1132, 1135 (S.D.N.Y. 1989); Shanahan v.
Orenstein, 383 N.Y.S.2d 327, 331 (App. Div. 1976); see also
Cent. Hudson Gas & Elec. Corp. v. The TUG M/V SCOTT TURECAMO,
496 F. Supp. 2d 331, 351 (S.D.N.Y. 2007) (“Both New York law and
federal maritime law employ a pure comparative negligence
standard, apportioning loss in direct proportion to the degree
of fault.”).
- 36 -

CONCLUSION
Bridge is required to pay $62,779.59 in damages to Tutor
Perini. 3
The Clerk is directed to close all open motions.
Tutor Perini is directed to submit a proposed Judgment by
May 18, 2016.

Bridge may submit any responsive papers by May

20, 2016.
SO ORDERED.
Dated: New York, New York
May 12, 2016

____________/s/_____________
John G. Koeltl
United States District Court

3

The Court has previously determined that Bridge is required to
pay Tutor Perini’s defense costs, including attorneys’ fees,
under Section 11.3 of the Tutor Perini-Bridge Subcontract. See
Bridge II, 2015 WL 6437562, at *8.
- 37 -