In re Complaint of Buchanan Marine, L.P.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK
Before: KEARSE, CABRANES, AND CHIN, Circuit Judges.
Appeal from a judgment of the United States District Court for the Northern District of New York (Sharpe, J.), dismissing a barge worker‘s claims under the Jones Act,
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
EDWARD P. FLOOD, LYONS & FLOOD, LLP, New York, New York, for Petitioners-Counter-Defendants-Appellees.
ERIC M. KURTZ, COOK, NETTER, CLOONAN, KURTZ, & MURPHY P.C., Kingston, New York, for Claimant-Counter-Claimant-Appellee.
STEVEN M. MELLEY (Richard Nardone, on the brief), STEVEN M. MELLEY, P.L.L.C., Rhinebeck, New York, for Claimants-Appellants.
In this case, claimant-appellant Wayne Volk worked at a quarried rock processing facility on the Hudson River, inspecting and maintaining barges used to transport rock down the river. In the accident that led to these proceedings, Volk was inspecting a moored barge when he slipped on some loose stone and fell, injuring himself.
The principal question presented is whether Volk was a “seaman” within the meaning of the Jones Act. The district court (Sharpe, J.) held that Volk was not a seaman and dismissed his claims under the Jones Act. It also dismissed Volk‘s remaining claims.
We affirm the dismissal of Volk‘s Jones Act claims because we agree with the district court that Volk does not qualify as a “seaman” within the meaning of the Jones Act. We hold, however, that the district court erred in dismissing certain of Volk‘s remaining claims against the owner of the barge and the operator of the rock processing facility. We therefore affirm in part and vacate in part and remand for the district court to conduct further proceedings consistent with our rulings below.
BACKGROUND
I. The Facts
The facts are largely undisputed and are summarized in the light most favorable to Volk, against whom summary judgment was granted.
Volk worked for petitioner-counter-defendant-appellee Buchanan Marine, L.P. (“Buchanan“) at the Clinton Point quarried rock processing facility on the Hudson River, in Dutchess County, New York, as a “barge maintainer” from 1999 until his accident on May 19, 2011.1 At the Clinton Point facility, claimant-counter-claimant-appellee Tilcon New York, Inc. (“Tilcon“) processes quarried rock for use in, e.g., construction work, and loads the rock onto barges supplied by Buchanan. Buchanan then transports the loaded barges, using its tugboats, down the Hudson River to Tilcon‘s customers.2
The loading process has three steps. First, before an empty barge is loaded, and while it is tied to the dock, it is inspected by a Buchanan barge maintainer. The barge maintainer checks the barge for damage and excess water and repairs any damage so that the barge is in acceptable condition for loading. Second, the barge is moved to the loading facility by Tilcon, where it is loaded with quarried rock. Third, after the barge is loaded, it is moved back to the dock by Tilcon, where a Buchanan barge maintainer conducts a final inspection. During the first and third steps of the loading process, the barge is in the water and secured to the dock, either tied directly to the dock or to barges already tied to the dock. Moored barges may be three or four barges deep, with the closest
barge tied to the dock and the outward barges tied to one another. When a barge was tied to other barges -- rather than tied directly to the dock -- barge maintainers would climb over the barges to get to the one they needed to inspect.
When Volk was inspecting a barge, he would walk along the perimeter of the barge on the “margin decks,” which ran the length of the barge. App‘x at 185. The margin decks were “so narrow [that] they were difficult to walk on or stand on,” id., lacked guard or hand rails, and were often
Volk was not assigned to any specific barge; rather, he worked on all Buchanan barges that arrived for loading at the Tilcon facility. Volk was not a crewmember of any of Buchanan‘s tugboats that transported the barges down the Hudson River. He worked an hourly shift, went home at the end of each work day, and did not take meals or sleep on any barge. He was a member of the International Union of Operating Engineers, which represents equipment operators. He did not belong to a maritime union or hold a maritime license.
On May 19, 2011, Volk was walking along the margin decks of Barge B-252 (the “Barge“), which had been loaded with stone, when he slipped on excess wet stone and injured his right arm and shoulder on the side of the Barge. He filled out an incident report with his dock supervisor, Timothy Conn, the same day. The next day, Conn drove Volk to the local medical clinic, where Volk was diagnosed with a sprained arm and prescribed pain medication. Later that day, Volk saw a chiropractor, who advised him that he could not work. Volk has not worked since the accident and has been receiving workers’ compensation benefits under the LHWCA.
II. The Proceedings Below
On October 16, 2012, Volk and his wife Karen Volk commenced a personal injury action against Buchanan and Tilcon in New York State Supreme Court, Ulster County. On April 15, 2013, A.P. Franz, Jr., the owner of the Barge, and Buchanan, as bareboat charterer of the Barge,3 commenced this action in the
district court pursuant to the Limitation of Liability Act of 1851,
indemnification or contribution. The Volks asserted claims against Franz, Buchanan, and Tilcon under the Jones Act, the LHWCA, general maritime law, and New York state law.
The Volks filed a motion to dismiss on August 16, 2013. The district court denied the motion on March 28, 2014. The parties thereafter cross-moved for summary judgment. On March 10, 2016, the district court granted the motions of Franz, Buchanan, and Tilcon, denied the Volks’ cross-motion, and granted Franz and Buchanan‘s complaint for exoneration from liability. The court exonerated Franz, Buchanan, and Tilcon from liability for Volk‘s injury, except for Buchanan‘s liability for workers’ compensation. The court concluded that Volk‘s Jones Act claims fail because he is not a “seaman” under the Jones Act. The court also concluded that all of Volks’ remaining claims under the LHWCA, general maritime law, and state law fail.
This appeal followed.
DISCUSSION
“We review de novo a district court‘s grant of summary judgment to determine whether the district court properly concluded that there was no genuine dispute as to any material fact, such that the moving party was entitled to judgment as a matter of law.” Myers v. Patterson, 819 F.3d 625, 632 (2d Cir. 2016).
I. Overview
Maritime workers injured in the course of their employment may proceed, depending on their status and the status of the responsible party, on four possible theories or sets of theories: the Jones Act, the LHWCA, general maritime law, and state law. See generally O‘Hara v. Weeks Marine, Inc., 294 F.3d 55, 61-62 (2d Cir. 2012).
The Jones Act confers a cause of action in negligence to any “seaman injured in the course of employment.”
The LHWCA is a workers’ compensation system, which provides scheduled compensation for injury to a broad range of land-based maritime workers. Chandris, 515 U.S. at 355. It covers “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker,”
The LHWCA does not, however, affect an employee‘s right to sue the owner or charterer of the vessel on which he or she was injured for negligence. Id. § 933(a); see also Gravatt v. City of N.Y., 226 F.3d 108, 115 (2d Cir. 2000) (noting that, under LHWCA, employee “may sue negligent third parties in tort, notwithstanding his entitlement to no-fault compensation provided by the employer“). Pursuant to § 905(b), a claimant retains the right to bring an action for damages “caused by the negligence of a vessel, . . . against such vessel as a
third party.”
In some cases, the vessel owner is also the employer, and a different analysis will be required. Gravatt, 226 F.3d at 118-20;
In short, “[t]he Jones Act allows seamen to recover for negligence against their employers; the LHWCA authorizes maritime workers other than
seamen to recover for negligence, but only against parties other than their employers.” O‘Hara, 294 F.3d at 62. The two remedies are mutually exclusive. Chandris, 515 U.S. at 355-56 (“[T]he Jones Act and the LHWCA are mutually exclusive compensation regimes.“).
The Jones Act does not define “seaman,” but, as noted above, the LHWCA excludes from coverage “a master or member of a crew of any vessel.”
Maritime workers may also have common law remedies available to them, including, as noted, general maritime remedies for “maintenance and cure” and “unseaworthiness.” Chandris, 515 U.S. at 354 (internal quotation marks omitted). The Jones Act -- unlike the LHWCA -- does not eliminate pre-existing common law causes of action. See Miles v. Apex Marine Corp., 498 U.S. 19, 29 (1990) (“The Jones Act evinces no general hostility to recovery under maritime law.“); see also Atl. Sounding Co. v. Townsend, 557 U.S. 404, 429 (2009) (Alito, J.,
dissenting). And while the LHWCA eliminates common law claims against the employer, it permits harbor workers to sue third-party vessel owners for negligence under federal common law standards that establish certain duties of care. See O‘Hara, 294 F.3d at 64-65.
In Scindia Steam Navigation Company v. De Los Santos, 451 U.S. 156 (1981), the Supreme Court set forth standards to
its equipment poses an unreasonable risk of harm and (2) the stevedore . . . is not exercising reasonable care to protect its employees from that risk.” Id. (internal quotation marks omitted).
Finally, in some circumstances, maritime workers may assert claims under state law. Id. at 68 (discussing claims under
II. Jones Act Claims
The district court dismissed Volk‘s Jones Act claims because it concluded that Volk did not qualify as a “seaman” within the meaning of the Jones Act. We agree.
A. Applicable Law
Congress enacted the Jones Act in 1920 to provide “heightened legal protections to seamen because of their exposure to the perils of the sea.” O‘Hara, 294 F.3d at 61 (internal quotation marks and alterations omitted). It “gives seamen an express right of action in tort because of their status as ‘wards of the admiralty’ who ‘are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour.‘” Id. at 61-62 (quoting Chandris, 515 U.S. at 354-55). “[T]o qualify as a seaman under the Jones
Act, a maritime employee must have a substantial employment-related connection to a vessel in navigation,” Chandris, 515 U.S. at 373 (emphasis omitted), or “to an identifiable group of such vessels,” id. at 368.
To have an “employment-related connection” to a vessel, “the worker‘s duties must contribute to the function of the vessel or to the accomplishment of its mission.” O‘Hara, 294 F.3d at 63 (internal quotation marks omitted). This standard is liberal: “[t]he putative seaman need not aid in the navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship‘s work.” Id. (internal quotation marks omitted); see also Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997) (noting this prong focuses on whether the worker “contributed to the function of the vessel or the accomplishment of its mission“). Moreover, “the worker‘s connection to the vessel must be ‘substantial in both its duration and its nature.‘” O‘Hara, 294 F.3d at 63 (quoting Tonnesen v. Yonkers Contracting Co., 82 F.3d 30, 32 n.2 (2d Cir. 1996)). This inquiry “focuses on whether the [worker] derives his livelihood from sea-based activities.” Id. (internal quotation marks omitted). “Land-based maritime workers do not become seamen because they happen to be working on board a vessel when they are injured, and seamen do not lose Jones Act
protection when the course of their service
Nevertheless, the “recognized [] distinction between land-based and sea-based maritime workers” does not mean “that a maritime employee must work only on board a vessel to qualify as a seaman under the Jones Act.” Id. at 363. Rather, “the ultimate inquiry” is whether, in light of the totality of the circumstances, “the worker in question is a member of the vessel‘s crew or simply a land-based employee who happens to be working on the vessel at a given time.” Id. at 370; see also Harbor Tug & Barge Co., 520 U.S. at 555 (“For the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee‘s connection to the vessel must concentrate on whether the employee‘s duties take him to sea.“). “Whether [a worker] qualifies as a seaman ‘is a mixed question of law and fact.‘” O‘Hara, 294 F.3d at 63-64 (quoting Harbor Tug & Barge Co., 520 U.S. at 554).
The Supreme Court has emphasized that it is important “to focus upon the essence of what it means to be a seaman and to eschew the temptation to create detailed tests to effectuate the congressional purpose.” Chandris, 515 U.S. at 369. “The Jones Act remedy is reserved for sea-based maritime employees
whose work regularly exposes them to ‘the special hazards and disadvantages to which they who go down to sea in ships are subjected.‘” Id. at 370 (quoting Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104 (1946) (Stone, C.J., dissenting)). The key is whether the individual “‘had a sufficient relation to the navigation of vessels and the perils attendant thereon.‘” Id. (quoting Wallace v. Oceaneering Int‘l, 727 F.2d 427, 435 (5th Cir. 1984)).
B. Application
In weighing “the total circumstances” of Volk‘s employment, we conclude as a matter of law that Volk does not qualify as a seaman under the Jones Act. See id. As a reasonable factfinder could only conclude, his work on the barges did not regularly expose him to the special hazards and disadvantages of the sea. See id. at 369-70.
Volk did not “derive[] his livelihood from sea-based activities.” O‘Hara, 294 F.3d at 64 (internal quotation marks omitted). Volk never operated a barge and only worked aboard the barges when they were secured to the dock. See Harbor Tug & Barge Co., 520 U.S. at 555 (“For the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee‘s connection to the vessel must concentrate on whether the employee‘s duties take
him to sea.“). The barges Volk worked on were moved to the loading dock by Tilcon workboats and Tilcon employees, and transported down the Hudson River by Buchanan tugboats.8 Volk was not a crew member of and did not serve on the Buchanan tugboats.9 Indeed,
serves for voyages or tours of duty. See, e.g., Aguilar v. Standard Oil Co., 318 U.S. 724, 731-32 (1943) (voyages); Sellers v. Dixilyn Corp., 433 F.2d 446, 447-48 (5th Cir. 1970) (tours of duty).
In O‘Hara, we concluded that a dock worker who was injured while repairing the Staten Island pier aboard a barge was not a “seaman” as a matter of law because he had, at most, “a transitory or sporadic connection” to the barges “in their capacity as vessels in navigation.” 294 F.3d at 64 (emphasis omitted). Key to our holding was that the dock worker (1) belonged to a dock workers union rather than a maritime union, (2) lacked a maritime license, (3) never spent the night aboard a barge, and (4) never operated a barge or assisted in its navigation and only worked aboard the barges when they were fully secured to the pier that the dock worker was employed to repair. Id. We emphasized that, although the worker “spent more than half his working hours . . . aboard the barges, . . . he spent all of that time performing tasks related to the repair of the Staten Island pier while the barges were secured to the pier.” Id. This case is not substantially different from O‘Hara.
Volk seeks to rely on the Fifth Circuit‘s decision in Naquin v. Elevating Boats, LLC, 744 F.3d 927 (5th Cir. 2014), cert. denied 135 S. Ct. 1397 (2015).
There, a shipyard worker “spent approximately 70 percent of his total time working aboard” so-called “lift-boats” that “were moored, jacked up or docked in [the] shipyard canal.” Id. at 930. His duties included “inspecting [the lift-boats] for repairs, cleaning them, painting them, replacing defective or damaged parts, performing engine repairs, going on test runs, securing equipment, and operating the vessels’ marine cranes and jack-up legs.” Id. The worker was occasionally “dispatched . . . to repair a vessel or fill in as a vessel crane operator while the vessel was operating in open water.” Id. at 931. The Fifth Circuit affirmed the jury verdict in favor of the shipyard worker awarding Jones Act damages, finding that the shipyard worker was exposed to the perils of a maritime work environment such that he was a seaman. Id. at 935.
The Fifth Circuit‘s decision is not controlling on us, and it is in any event distinguishable. The shipyard worker there clearly had a more substantial connection to seafaring vessels than Volk does. For example, the shipyard worker operated “the vessels’ marine cranes and jack-up legs” and worked aboard the vessels in open water, even if only “occasionally.” Id. at 930. Volk did none of these things; Volk worked on barges that were moored, directly or indirectly, to the Tilcon dock and did not operate the Tilcon workboats or
Buchanan tugboats that transported the
In sum, none of Volk‘s work was of a seagoing nature. Volk‘s duties were limited to inspecting and repairing barges that were secured to the dock at the Clinton Point facility. Volk did not go to sea and he was not exposed to the “perils of the sea” in the manner associated with seaman status. See Denson v. Ingram Barge Co., 5:07-cv-00084-R, 2009 WL 1033817, at *3 (W.D. Ky. Apr. 16, 2009) (“The hazards Denson states he faced do not rise to the level of the special hazards and disadvantages faced by seamen; they are hazards that longshoremen commonly encounter. Therefore, Denson was an intended beneficiary of the LHWCA.“). Accordingly, considering the total circumstances of Volk‘s employment, we conclude as a matter of law that Volk does not qualify
as a “seaman” within the meaning of the Jones Act, and we affirm the dismissal of his Jones Act claims.
III. Other Claims
Volk also asserted claims under the LHWCA, general maritime law, and New York law against all three appellees: Buchanan, Franz, and Tilcon. The district court dismissed all these claims. We conclude that the district court should have permitted certain of these claims to proceed.
A. Buchanan
The district court correctly dismissed all the remaining claims against Buchanan. Buchanan is Volk‘s employer and ordinarily would be immune from suit under
relation to Volk‘s injury, and therefore is liable exclusively for Volk‘s workers’ compensation payments under the LHWCA. See
B. Franz
As vessel owner, Franz was subject to suit for negligence under the LHWCA.
caused W. Volk‘s injury could plausibly originate from one of two sources. The first is where the stones reached the margin deck of the B-252 from a barge weeper, which is a drainage hole on the side of a barge. The second is where the stones could have been overloaded by Tilcon and spilled onto the margin deck.” (citation omitted and emphasis added)). On remand, the district court shall consider whether there is a viable claim under
C. Tilcon
The district court correctly held that Tilcon, the operator of the rock processing facility, has no LHWCA liability because it did not employ Volk or
own the Barge. See
The district court erred, however, in dismissing Volk‘s New York state law claims against Tilcon for negligence, gross negligence, and violations of
scheme, meaning the doctrines of contributory negligence and assumption of risk are not complete defenses as a matter of law. See Integrated Waste Servs., Inc. v. Akzo Nobel Salt, Inc., 113 F.3d 296, 300 (2d Cir. 1997) (“[W]hen New York, by statute, adopted comparative negligence, it abolished not only contributory negligence as a complete defense, but also assumption of risk. Under the statute, liability is split between plaintiffs and defendants based on the relative culpability and causal significance of their conduct.” (citing
Accordingly, the district court‘s grant of summary judgment to Tilcon on these state law claims was error.
CONCLUSION
To summarize, we conclude as follows:
- The district court correctly dismissed: (a) the Jones Act claims against all three appellees; (b) the LHWCA, general maritime law, and state law
claims against Buchanan; and (c) the LHWCA and general maritime claims against Tilcon; and
- The district court erred in dismissing: (a) the LHWCA claim against Franz to the extent it is based on the alleged breach of Franz‘s duty, as owner, to turn over a reasonably safe vessel; and (b) the state law claims against Tilcon for negligence, gross negligence, and violation of
N.Y. Labor Law § 200 .
Accordingly, the case is AFFIRMED IN PART, VACATED IN PART, and REMANDED for such further proceedings as may be appropriate.