Opinion
34031/06.
Decided March 24, 2009.
Joshua Gropper, Esq., Brown Gropper LLC, Plaintiff Attorney.
Joseph Donat, Esq., Hertzfeld Rubin, Kennedylillis Schmidt English., Patricia J Bonner, Esq, Freehill Hogan Mahar LLP, Defendant Attorney.
Claudio Salazar-Torres, the plaintiff employee of a non-party herein, was injured in the course of heating a hollow pipe while working on Barge ATC-1800 which was dry docked for repairs at GMD Shipyard in New York State. Said barge is home ported in Charleston, South Carolina, has utilized shipyards in Texas, Louisiana, Alabama, Florida, and Virginia, and operates in interstate and foreign commerce. The defendants, Allied Marine Industries Inc., Allied Transportation Company (barge operator), and OA, LLC, (barge owner) have moved this court for an order, pursuant to CPLR §§ 3211 and 3212 , dismissing counts 1, 2, 3 (seeking recovery under the New York Labor Law), and 4 (seeking recovery under a claim of unseaworthiness) of the plaintiff's amended complaint. This request is predicated on the fact that the plaintiff collected compensation under the Longshore and Harbor Workers Compensation Act (LHWCA), 33 USC § 901, et seq. S ection 905(b) thereof clearly provides that "[t]he remedy provided in this sub-section shall be exclusive of all other remedies against the vessel except remedies available under this chapter." In other words, the claims based on New York Labor Law against the barge owner and operator are preempted by the LHWCA (see Matter of DonJon Marine Co., 2008 AMC 2045 (SDNY, 2008); Emanuel v. Sheridan Transportation Co., 10 AD3d 46, 779 NYS2d 168 [1st Dept., 2004]). Counsel for the said defendants additionally notes that the Appellate Division, Second Department recently reaffirmed the holding in Riley v. Agwilines, Inc., 296 NY 402, 73 NE2d 718 [1947], that New York Courts "must look to the decisions of the Federal Courts to define the liabilities of shipowners for maritime torts, leaving out of consideration decisions of our own courts or statutes of the State with the rules of liability established in the Federal Court." ( Lischinskaya v. Carnival Corporation, 2008 NY Slip Op. 7875, 865 NYS2d 334 [2d Dept., 2008]). Counsel for the said defendants further notes the disparate standard of care under State law and the LHWCA; to wit, while the New York State Labor Law imposes a duty on all contractors and owners to provide reasonable and adequate protection and safety to persons engaged in construction, evacuation, or demolition, under the maritime law shipowners and operators are liable only for known dangers, with no general duty to supervise or inspect. They are required only to have the ship and its equipment in such condition that an expert and experienced employer will be able by the exercise of reasonable care to carry out the work with reasonable safety to persons and property ( citing, Scindia Steam Navigation co. v. Del Lo Santos, 451 US 156, 101 S.Ct. 1614 [1981]). Lastly, counsel points to the fact that in 1972, the LHWCA was amended to eliminate the unseaworthiness remedy that had been established by the Supreme Court in Seas Shipping Co. v. Sieracki, 328 US 85 (1946); to wit, 33 USC § 905 (b) now clearly provides that liability of the vessel under this sub-section shall not be based upon the warranty of seaworthiness or a breach thereof at the time that the injury occurred.
In opposition, plaintiff's counsel argues that the defendants' request herein should be summarily denied as time barred inasmuch as a note of issue was filed on March 23, 2008 and the one-hundred and twenty days from which a summary judgment motion should have been made has elapsed. Defendants' motion is dated November 21, 2008 and stamped received by the county clerk on November 25, 2008. With regards to the merits of the defendants' assertions, counsel notes that the Second Department, in Songui v. City of New York, 2 AD3d 706 (2d Dept., 2003), specifically found that the Court of Appeals already ruled that the LHWCA does not preempt Labor Law § 241 (6), as that provision "allow[s] for liability predicated on fault and [is] wholly consistent with the laudatory maritime goal of compensating maritime workers" ( citing Cammon v. City of New York, 95 NY2d 583, 721 NYS2d 579 [2000]; Eriksen v. Long Is. Light Co., 236 AD2d 439, 653 NYS2d 670 [1997]). The Court noted that although the state and federal statutes differ on the doctrine of vicarious liability, the doctrine of comparative fault, which is considered a characteristic feature of maritime law ( citing Pope Talbot v. Hawn, 346 US 406, 74 S.Ct. 203 [1953]; Cammon v. City of New York, supra), is common to both statutes. The court specifically found that the involvement of a land-based property owner as opposed to a vessel owner did not warrant a finding that the LHWCA preempts Labor law § 241(6); in fact, the application of state law would not interfere with the harmony and uniformity of maritime law, as this was a local vessel, which had no crew or means of self-propulsion. A fortiori, counsel notes the matter of Eriksen v. Long Is. Light Co., supra, which held that the existence of maritime jurisdiction does not require dismissal of labor law causes of action under Labor law §§ 200 (1) and 241(6) (citing, Yamaha Motor Corp., USA v. Calhoun, 516 US 199); that state law may supplement maritime law when the latter is silent or where a local matter is at issue, provided that state law does not conflict with maritime law ( citing Floyd v. Lykes Bros. S. S. Co., 844 F2d 1044); and that neither Labor law § 200 (1), which is a codification of the common law duty to provide workers with a safe place to work, nor Labor law § 241 (6), which requires that workers be provided with "reasonable and adequate protection and safety," impose strict liability upon property owners ( citing, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Zimmer v. Chemung County Performing Arts, 65 NY2d 513; and Monroe v. City of New York, 67 AD2d 89 ). Thus these provisions of the labor Law are not in conflict with Federal Maritime Law, and are not preempted.( citing, Rigopoulos v. State of New York, 236 AD2d 459 and McDonald v. City of New York, 231 AD2d 556 ). The court then declared that to the extent that any of its prior decisions indicated that causes of action pursuant to Labor law §§ 200 (1) and 241(6) are preempted by Federal Maritime Law they are not to be followed, particularizing the matters of Irvin v. Amerada Hess Corp. ( 191 AD2d 478), Torres v. City of New York ( 177 AD2d 97) and Stuto v. Coastal Dry Dock Repair Corp. ( 153 AD2d 937). In the matter sub judice, counsel notes that it was the defendant, Allied Transportation Company's port engineer who instructed the plaintiff to heat and bend the pipe that caused his injury, thereby giving rise to a claim based on fault, not any general duty to supervise and/or inspect.
In reply, defendants' counsel notes that the movants only entered the case on November 17, 2008 and therefore could not have earlier filed any summary judgment motion, and that this court (J. Held), by order dated November 17, 2008 directed that an answer was not due until thirty days thereafter. In addition, counsel highlights its earlier assertion that 33 USC 905(b) is distinct, "[t]he remedy provided in this sub-section shall be exclusive of all other remedies against the vessel except remedies available under this chapter." In addition, the Songui, supra, case relied upon by the plaintiff not only fails to refute the foregoing assertion, but involved a local vessel, not one such as in the within matter which is engaged in interstate commerce.
Inasmuch as the moving defendants only entered the case on November 17, 2008 and filed the within summary judgment motion with the court on November 25, 2008, it cannot be deemed untimely. In addition, since the plaintiff failed to respond, much less counter the fact that the LHWCA was amended in 1972 to provided that liability of the vessel under this sub-section shall not be based upon the warranty of seaworthiness or a breach thereof at the time that the injury occurred ( 33 USC § 905 [b]), that portion of the defendants' motion to dismiss count 4 of the amended complaint is granted. With regards to the issue of preemption, the Appellate Division, Second Department's decision in the matter of E riksen v. Long Is. Light Co., 236 AD2d 439, 653 NYS2d 670 [1997]) still pertains in abrogating all prior cases that held that federal law preempts local statute by its ruling that "neither Labor law § 200, which is a codification of the common law duty to provide workers with a safe place to work, nor Labor Law § 241 (6), which requires that workers be provided with reasonable and adequate protection and safety,' impose strict liability upon property owners ( citing, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Zimmer v. Chemung County Performing Arts, 65 NY2d 513; Monroe v. City of New York, 67 AD2d 89 ). Thus, these provisions of the Labor Law are not in conflict with Federal maritime law, and are not preempted ( citing, Rigopoulos v. State of New York, 236 AD2d 459; McDonald v. City of New York, 231 AD2d 556 )." The New York Court of Appeals, in Cammon v. City of New York, 95 NY2d 583, 744 NE2d 114 , still controls in finding that "New York's Labor law is a local regulation enacted to protect the health and safety of its workers. As the Appellate Division properly concluded, application of the Labor Law a local regulation governing liability of landowners and contractors acting within the State ( citing, Padula v. Lilarn Props. Corp., 84 NY2d 519 ) will not unduly interfere with a fundamental characteristic or maritime law or unduly hamper maritime commerce. Indeed, many Labor Law provisions such as section 200 (1) and section 241 (6) allow for liability predicated on fault and are wholly consistent with the laudatory maritime goal of compensating injured maritime workers. Furthermore . . . where the tort was maritime but local and there are no far-reaching implications for vessels, seafarers or entities engaged in maritime commercial transactions, there is no threat to the uniformity of Federal maritime law sufficient to displace application of an important State health and safety measure, even though it may impose strict liability ( citing, Gravatt v. City of New York, 1998 WL 171491, 1998 US Dist LEXIS 4886 [SDNY] ["protecting workers employed in the state is within the historic police powers of the State and there is no clear and manifest' congressional intent to preempt this state prerogative"]).
In light of the foregoing, the distinction stressed by the moving defendants that the matter sub judice is preempted by federal maritime law since the subject vessel was home ported in Charleston, South Carolina, utilized shipyards in Texas, Louisiana, Alabama, Florida, and Virginia, and operates in interstate and foreign commerce is unavailing. The plain fact is that the subject barge was dry docked in New York when the injury occurred and therefore "maritime but local"in nature. Hence, the incident is not only not preempted by federal law, but Labor Law provisions 200 (1) and section 241 (6) , which allow for liability predicated on fault and are wholly consistent with the laudatory maritime goal of compensating injured maritime workers, are clearly applicable. In addition, it would appear, under the attendant circumstances of this case, that since "there are no far-reaching implications for vessels, seafarers or entities engaged in maritime commercial transactions, there is no threat to the uniformity of Federal maritime law sufficient to displace application of an important State health and safety measure, even though it may impose strict liability." Applying clear legislative intent and settled rules of statutory construction ( compare Brown v. Wing, 93 NY2d 517, 693 NYS2d 475; McKinneys, Book 1, Statutes § 145), it therefore follows that the exclusivity provision of section 905(b) of the LHWCA must be read to refer solely to federal remedies against the vessel.
Wherefore, on the basis of all of the foregoing, the defendants, Allied Marine Industries Inc., Allied Transportation Company (barge operator), and OA, LLC, (barge owner) motion for an order, pursuant to CPLR §§ 3211 and 3212 , dismissing counts 1, 2, and 3 (seeking recovery under the New York Labor Law), and dismissing count 4 (seeking recovery under a claim of unseaworthiness) of the plaintiff's amended complaint are respectively denied and granted. This constitutes the decision and order of this Court.