Tilcon New York v. Volk
2017 U.S. App. LEXIS 21321
2d Cir.2017Background
- Wayne Volk worked as a barge maintainer for Buchanan at Tilcon’s Clinton Point rock‑processing facility; he inspected and repaired Buchanan barges tied to the dock.
- Barges were "dumb" (tug‑towed); Tilcon moved barges for loading and Buchanan supplied tug transport; Volk did not operate tugs or spend nights aboard.
- Volk slipped on wet, loose stone on a barge margin deck on May 19, 2011, injuring his arm; he has received LHWCA benefits and sued for additional relief.
- Plaintiffs sued Buchanan (employer/bareboat charterer), Franz (barge owner), and Tilcon (facility operator) under the Jones Act, the LHWCA (§905(b)), general maritime law, and New York law.
- District court granted summary judgment dismissing Jones Act and all remaining claims; Second Circuit affirmed Jones Act dismissal, vacated dismissal of certain claims, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Volk is a "seaman" under the Jones Act | Volk argued his regular work aboard barges made him a seaman entitled to Jones Act remedies | Defendants argued Volk's duties were land‑based: barges were moored, he went home nightly, lacked maritime union/license, and did not sail | Not a seaman as a matter of law; Jones Act claims dismissed |
| Whether Franz (owner) is liable under §905(b) for vessel condition | Volk argued owner could be liable for turning over an unsafe vessel or vessel defects that caused the hazard | Franz argued he had only turnover duty and no liability if condition caused by others | §905(b) claim against Franz for vessel condition may proceed; district court erred to dismiss without analyzing vessel‑condition theories |
| Whether Buchanan (employer/bareboat charterer) is liable beyond LHWCA | Volk sought common‑law/maritime/state remedies against Buchanan in addition to LHWCA benefits | Buchanan argued employer immunity under §905(a); as bareboat charterer it could be liable only in vessel capacity (not contested on appeal) | Remaining claims against Buchanan properly dismissed; LHWCA remedies exclusive against Buchanan |
| Whether Tilcon (facility operator) is liable under state law (negligence, gross negligence, NYLL §200) | Volk alleged Tilcon had a duty to maintain safe workplace and could be negligent in loading/handling causing spilled stone | Tilcon argued the hazard was open and obvious, and no maritime/common law duties applied because it did not own vessel or employ Volk | Dismissal was erroneous: state‑law negligence claims against Tilcon survive (comparative negligence applies); LHWCA and general maritime claims against Tilcon properly dismissed |
Key Cases Cited
- Chandris, Inc. v. Latsis, 515 U.S. 347 (seaman test: substantial connection to vessel or fleet)
- O'Hara v. Weeks Marine, Inc., 294 F.3d 55 (2d Cir.) (worker must do the ship's work; duration and nature of connection)
- Harbor Tug & Barge Co. v. Papai, 520 U.S. 548 (focus on whether duties take employee to sea)
- Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (turnover, active control, and intervention duties under maritime law)
- Gravatt v. City of New York, 226 F.3d 108 (2d Cir.) (§905(b) allows suits against negligent vessel owners/third parties)