Summary
holding that claims of worker injured while repairing ship on a floating dry dock fell within admiralty jurisdiction
Summary of this case from In Matter of Complaint of Donjon Marine Co., Inc.Opinion
No. 05 Civ. 3202 (NRB).
July 26, 2005
David Jaroslawicz, Esq. Jaroslawicz Jaros, New York, New York, Counsel for Plaintiff.
Alfred J. Will, Esq. Badiak Will Ruddy, LLP, New York, New York, Counsel for Defendant.
MEMORANDUM ORDER
Juan Angel Murillo ("Murillo" or "plaintiff") commenced the present action on March 9, 2005 in Supreme Court, New York County, alleging negligence and violations of Sections 200, 240 and 241 (6) of the Labor Law, and the rules and regulations promulgated thereunder. Pl.'s Compl. ¶¶ 9, 13. On March 23, 2005, Caddell Dry Dock and Repair Co., Inc. ("Caddell" or "defendant") filed a notice of removal, arguing that the case falls under admiralty jurisdiction, over which federal courts have original, exclusive jurisdiction pursuant to 28 U.S.C. § 1333(1). Plaintiff has moved to remand, arguing that "an action relating to an injury occurring on a vessel in dry dock is not within the . . . admiralty jurisdiction of the federal courts." Pl.'s Supp. Mem. at 1. We disagree, and deny plaintiff's motion to remand.
BACKGROUND
The complaint alleges that on January 11, 2005, plaintiff was performing repair work on the vessel "Tug Turecamo Girls" at a facility owned by the defendant, when, due to unsafe working conditions, he was injured when he fell from a scaffold. Compl. ¶¶ 3-8.The complaint describes defendant's facility as "a dry dock and shipping yard" in Staten Island. Compl. ¶ 3. Defendant explains that the Tug Turecamo Girls required routine "underwater repairs" — that is, repairs to parts of the vessel below its water line. Defendant's Affidavit in Opposition to Motion for Remand ("Opp. Aff.") ¶ 4. To accomplish these repairs, the Tug Turecamo Girls was hauled onto Dry Dock No. 3. Id. ¶ 7. Dry Dock No. 3 is a vessel without propulsion that rests upon the water contiguous with the channel that separates Staten Island from New Jersey.Id. ¶ 7. The Tug Turecamo Girls was hauled onto Dry Dock No. 3, after which water was pumped out to make the dry dock float, exposing those parts of the tugboat that were previously underwater and facilitating its repair. Id.
DISCUSSION
In order to invoke admiralty jurisdiction over a tort claim, a party must satisfy both the (1) "location" test and the (2) "nexus" test. LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999) (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 U.S. 527, 534 (1995)). Here, plaintiff argues that the location test is not satisfied. The location test requires that a party show either that (1) "the tort occurred on navigable water" or that the (2) "injury suffered on land was caused by a vessel on navigable water." Jessica Howard Ltd. v. M/V Sky Light, Tower Bridge, No. 00 Civ. 6319, 2002 WL 362767, at *2 (S.D.N.Y. Mar. 5, 2002), rev'd on other grounds, 316 F.3d 165 (2d Cir. 2003) (quoting Grubart, 513 U.S. at 534-35).The Supreme Court addressed nearly identical circumstances inGonsalves v. Morse Dry Dock Repair Co., 266 U.S. 171 (1924). The accident in Gonsalves involved a plaintiff who was injured by an exploding blowtorch while repairing a steamer in a floating dry dock in Brooklyn. The Court relied on its earlier decision inThe Robert W. Parsons, 191 U.S. 17, 33 (1903), where it held that "repairs to a vessel while in an ordinary dry dock were not made on land." Gonsalves, 266 U.S. at 172. The Robert W. Parsons court had explained why an ordinary dry dock was considered water, not land:
A dock is an artificial basin in connection with a harbor, used for the reception of vessels in the taking on or discharging of their cargoes, and provided with gates for preventing the rise and fall of the waters occasioned by the tides, and keeping a uniform level within the docks. A dry dock difiers [sic] from an ordinary dock only in the fact that it is smaller, and provided with machinery for pumping out the water in order that the vessel may be repaired. All injuries suffered by the hulls of vessels below the water line, by collision or stranding, must necessarily be repaired in a dry dock, to prevent the inflow of water, but it has never been supposed, and it is believed the proposition is now for the first time made, that such repairs were made on land.191 U.S. at 33. The Court suggested that the question might have been different if the vessel had been "hauled up . . . upon the land and there repaired," but noted that "as all serious repairs upon the hulls of vessels are made in dry dock, the proposition that such repairs are made on land would practically deprive the admiralty courts of their largest and most important jurisdiction in connection with repairs." Id. Gonsalves itself presented an even more straightforward situation because the repairs there were made upon a floating dry dock — while the ship was "supported by a structure floating on navigable waters" — and so "[c]learly, the accident did not occur upon land." 266 U.S. at 172. More recently, Sydney v. United States held that the same law applied to another worker injured while repairing the exterior of a ship on a floating dry dock in Brooklyn. No. 94 Civ. 5956 (JG), 1998 WL 765129, at *2 (E.D.N.Y. June 30, 1998) (quoting Gonsalves, 266 U.S. at 172). The case before us also involves a worker injured while repairing a ship on a floating dry dock, and is therefore governed by admiralty jurisdiction.
The cases that plaintiff cites to support its position are readily distinguishable. Plaintiff cites In re Complaint of Dickenson, 780 F. Supp. 974 (E.D.N.Y. 1992), for the proposition that a vessel in dry dock is not on navigable waters, Support Mem. at 2. However, plaintiff ignores the fact that the petitioner's boat was "in dry dock, 50 feet from the water" when the accident occurred. 780 F. Supp. at 974-75 (emphasis added). It seems clear that the vessel in Dickenson had, as theParsons court described, been "hauled up . . . upon the land." 191 U.S. at 33. The descriptive term "in dry dock" is not interchangeable with the term "in a dry dock," for the former may refer to the latter as well as to the situation where a vessel is removed from the water entirely for dry storage or repair.
Plaintiff also cites Florio v. Olson, 129 F.3d 678 (1st Cir. 1997), where the appellant was injured when a line being used to winch closed the gates of a dry dock snapped. But the Florio court found the location test was not satisfied "because no vessel can be said to have caused [appellant]'s injuries." 129 F.3d at 681. The ship in Florio "had already been guided into the drydock," and "[the injured party] was not injured by equipment that was part of the ship's usual gear or that was stored on board, the equipment that injured him was in no way attached to the ship, [the equipment] was not under the control of the ship or its crew, and the accident did not occur aboard ship or on the gangplank." 129 F.3d at 680, 681 (quoting Victory Carriers, Inc. v. Law, 404 U.S. 202, 213-14 (1971)).
CONCLUSION
For the foregoing reasons, we hold that this action is governed by admiralty jurisdiction and therefore deny plaintiff's motion to remand.
IT IS SO ORDERED.