Opinion
June 24, 1996
Appeal from the Supreme Court, Kings County (Jackson, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant third-party plaintiff Healy Tibbitts Construction Company (hereinafter Healy) contracted with the City of New York to install an outfall sewer project in Brooklyn, New York. Pursuant to the contract, Healy contracted with the third-party defendant MVN Associates, Inc. (hereinafter MVN), to perform certain underwater diving services. The plaintiff James Hartley was an employee-diver of MVN. Healy provided the barges from which the dives at issue were accomplished. The plaintiff, alleging that he was injured while performing diving services for the project, commenced this action against Healy and others seeking to recover damages arising from, inter alia, common law negligence. Healy, in turn, commenced a third-party action against MVN seeking indemnity pursuant to the contract between the parties. At issue on appeal is MVN's cross motion for summary judgment dismissing the third-party complaint.
The injured plaintiff concedes that his exclusive remedy against MVN, as his "employer" ( see, 33 U.S.C. § 902), is compensation pursuant to the Longshore and Harbor Workers' Compensation Act (hereinafter the Act) ( 33 U.S.C. § 901 et seq.; § 905 [a]). However, pursuant to 33 U.S.C. § 905 (b) of the Act, the plaintiff may sue a "vessel" for damages arising from negligence. The definition of "vessel" includes the "owner, owner pro hac vice, agent, operator, charter or bare boat charter, master, officer, or crew member" thereof ( see, 33 U.S.C. § 902). Such a "vessel" may not seek indemnity or contribution from an "employer," either directly or indirectly, and "any agreements or warranties to the contrary shall be void" ( see, 33 U.S.C. § 905 [b]; Dodge v. Mitsui Shintaku Ginko K.K. Tokyo, 528 F.2d 669, cert denied 425 U.S. 944). A nonvessel, however, may pursue, inter alia, its contractual remedies against an "employer" ( see, Pennisi v. Standard Fruit S.S. Co., 206 A.D.2d 290). Here, MVN, arguing that Healy is a "vessel," sought dismissal of the third-party complaint pursuant to 33 U.S.C. § 905 (b). However, questions of fact exist as to whether the barges at issue were "vessels" ( compare, Penton v. Pompano Constr. Co., 976 F.2d 636; Michel v. Total Transp., 957 F.2d 186; Burks v. American Riv. Transp. Co., 679 F.2d 69; Burchett v Cargill, Inc., 48 F.3d 173; Ellender v. Kiva Constr. Eng'g, 909 F.2d 803; Sharp v. Johnson Bros. Corp., 917 F.2d 885; Brunet v. Boh Bros. Constr. Co., 715 F.2d 196) and whether Healy was the "owner, owner pro hac vice, agent, operator, charter or bare boat charter, master, officer, or crew member" thereof within the meaning of the Act ( 33 U.S.C. § 902; § 905 [b]; see, Loland v City of New York, 212 A.D.2d 674; Standard Fruit Co. v Metropolitan Stevedore Co., 52 Cal.App.3d 305, 125 Cal.Rptr. 111) . Accordingly, MVN's cross motion to dismiss the third-party complaint was properly denied.
Healy's arguments concerning the underlying merits of the plaintiff's negligence claims are not properly before this Court on this appeal. Mangano, P.J., Rosenblatt, Ritter and Copertino, JJ., concur.