Opinion
Civil Action No. 02-858.
September 9, 2004
MEMORANDUM
Before the Court are the Motion of Third-party Defendant United States for Judgment on the Pleadings and Motions for Summary Judgment by Owl International, Inc., d/b/a Global Associates ("Global"), McAllister Towing and Transportation Company, Inc. ("McAllister"), Oil States International, Inc. ("Oil States") and Marinette Marine Corp. ("Marinette"). For the reasons that follow, the Motion of the United States will be granted, Global's Motion for Summary Judgment will be denied, McAllister's Motion for Partial Summary Judgment will be denied, and the Motions for Summary Judgment of Marinette and Oil States will be granted.
I. Background
The United States Navy ("Navy") keeps many of its decommissioned ships at the Navy Inactive Ship Maintenance Facility ("NISMF") in Philadelphia. Third-party Complaint of McAllister Towing and Transportation Co. ("Complaint") at ¶ 7. The Navy contracted with Global to have one of those ships, the ex-USS Guadalcanal, towed to the Navy's James River facility at Hampton Roads, Virginia . Complaint at ¶ 9.
Global arranged to have the USNS Mohawk, one of the Military Sealift Command's ocean-going tugs, do the bulk of the towing. However, the job also required smaller tug-boats to guide the Guadalcanal from its slip. Global subcontracted with McAllister to provide two additional tug-boats for the job. Complaint at ¶ 8-14. Global also engaged docking master Curt Chamberlain and two licensed river pilots, Earl Eggers and J. Ward Guilday. Complaint at ¶ 14.
Eggers and Guilday were initially named as parties in this action, but were dismissed by stipulation on March 16, 2004.
Claimant Todd Bruemmer was a civilian employed by the U.S. Government, and was stationed aboard the USNS Mohawk. Complaint at ¶ 16. The Master of the Mohawk was Captain Garrett Wanzor. Complaint at ¶ 16.
During the tow of the Guadalcanal, stress on the tow lines of the Mohawk increased, eventually causing the tow guide assembly to break apart with significant force. See USNS Mohawk Mishap Investigation Report ("Mishap Report") at ¶¶ 3K-3L. The top of the tow-guide assembly was projected into the air and then struck Bruemmer in the side, causing injuries. Id. at ¶¶ 3M-3O. The U.S. Navy investigation report concluded that the incident was caused by a series of lapses in judgment by Capt. Wanzor, a federal employee. See Mishap Report at ¶¶ 5-6.
It is alleged that Bruemmer suffered an open left femur fracture, open right tibia and fibula fractures, and abdominal compartment syndrome.
McAllister Towing filed this action pursuant to Rule F of the Federal Rules of Civil Procedure Supplemental Rules on Admiralty and Maritime Claims, which allows suit in a federal forum and provides for a stay of state proceedings.
At the time of the filing of this action, a state case filed by Claimants Todd and Leslie Bruemmer was pending. Proceedings in that case were stayed by Order of the Court on February 20, 2002.
II. Legal Standard
Motion for Judgment on the Pleadings
A motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) is subject to the same standard as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Haines v. Metro. Life Ins. Co., 94 Fed. Appx. 956, 958 (3d Cir. 2004); Turbe v. Government of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). Under that standard, the Court must "accept as true all of the factual allegations in the complaint as well as the reasonable inferences that can be drawn from them." Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001). Dismissal is appropriate only where the Court finds that the facts the plaintiff has pleaded cannot, under any circumstances, support the relief it is requesting. Id.. Motion for Summary Judgment
In deciding a motion for summary judgment, "the test is whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; Med. Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (citing Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)). "Summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The Court must examine the evidence in the light most favorable to the nonmoving party and resolve all reasonable inferences in that party's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, "there can be `no genuine issue as to any material fact' . . . [where the non-moving party's] complete failure of proof concerning an essential element of [its] case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (emphasis added).
III. Analysis — Motion for Judgment on the Pleadings
The Government's motion for judgment on the pleadings ultimately rests on its contention that the United States is immune from the actions in this case under the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8101 et seq. The Government's claim of immunity is based on FECA's exclusive liability provision, 5 U.S.C. § 8116(c), which is designed to insulate the federal government from liability for injuries covered by the Act. See United States' Memorandum in Support of Motion for Judgment on the Pleadings at 2.
McAllister, in turn, argues that the United States lacks immunity because the exclusive liability clause does not apply to a seaman like Bruemmer. McAllister's Memorandum in Opposition to Motion for Judgment on the Pleadings at 7. McAllister and the other crossclaimants argue in the alternative that the United States' immunity under FECA is limited to Bruemmer's suit, and does not apply to third parties like themselves suing the United States for indemnification or contribution.
A. Whether FECA Prevents Bruemmer from Suing the United States
FECA's exclusivity clause reads as follows:
The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute. However, this subsection does not apply to a master or a member of a crew of a vessel.5 U.S.C. § 8116(c).
It is undisputed that the United States has been paying compensation under FECA to claimant Bruemmer.
McAllister argues that the final sentence of § 8116(c) has the effect of withholding immunity from the United States when the injured federal employee is a seaman. McAllister, in other words, reads the last sentence of § 8116(c) to mean that the United States is immune from all federal employee work-injury suits, except those brought by seamen. McAllister's Memorandum in Opposition to Motion for Judgment on the Pleadings at 7. Just as the United States is not immune from a suit by Bruemmer, McAllister argues, neither is it immune from McAllister's third-party suit for indemnity.
Although McAllister's reading seems to track the plain text of the statute, it was rejected by the Supreme Court, which ruled, based on legislative history, that "the Federal Employees Compensation Act is the exclusive remedy for civilian . . . employees of the United States on government vessels engaged in public service." Patterson v. United States, 359 U.S. 495, 496 (1959) (emphasis added); see also Johansen v. United States, 343 U.S. 427, 441 (1952) ("[W]e are convinced that the Federal Employees Compensation Act is the exclusive remedy for civilian seamen on public vessels"). Circuit courts have subsequently applied Patterson, and held that FECA gives the United States immunity from suits arising out of employment-related injury.See, e.g.; Cox v. Dravo Corp., 517 F.2d 620, 623 n. 3 (3d Cir. 1975); Turner ex rel Turner v. Tennessee Valley Authority, 859 F.2d 412, 414-15 (6th Cir. 1988) ("The lower federal courts [since] Johansen andPatterson . . . have held, uniformly, that persons for whom the Government has supplied an administrative compensation remedy are precluded from seeking recovery against the United States for injuries received in the course of their work under the Federal Tort Claims Act, the Jones Act, or the Public Vessels Act").
Thus, as a result of the Patterson holding, § 8116(c) immunizes the United States against seamen suits just as it does against those by other federal employees. Accordingly, the Court rejects McAllister's argument that the FECA exclusive liability clause is inapplicable in this case and holds that the United States is immune from suit by Bruemmer.
B. Whether the United States is Immune from Third-Party Tort Claims
Alternatively, McAllister and the other third-party plaintiffs against the United States ("third-party plaintiffs") argue that while FECA may insulate the United States from suit by Bruemmer, the statute does not immunize the United States from third-party suits for contribution or indemnity. They argue that the immunity that FECA's exclusive liability provision confers on the United States is limited: it applies only to federal employees. But if the employee sues third parties, those third parties can seek indemnity from the United States in accordance with the government's responsibility for the accident. That way, the third parties do not have to bear the full legal burden of an accident that is not entirely their fault.
1. The Weyerhaeuser and Lockheed cases
Third-party plaintiffs cite two Supreme Court cases:Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597 (1963) and Lockheed Aircraft Corp. v. United States, 460 U.S. 190 (1983). Weyerhaeuser involved a collision between a U.S. Army Dredge Ship and a civilian vessel, in which a United States civil service employee was injured. 372 U.S. at 598. The federal employee sued Weyerhaeuser, the owner of the civilian vessel, because the United States was immune under FECA. Weyerhaeuser, in turn, sued the United States for contribution. Despite the Government's arguments to the contrary, the Supreme Court found that "[t]here is no evidence whatever that Congress was concerned with the rights of unrelated third parties. . . ." Weyerhaeuser S.S. Co. v. United States, 372 U.S. at 601 (1963). Accordingly, the Court found, the United States' immunity from suit by its employee did not extend to Weyerhaeuser, and Weyerhaeuser's suit for contribution could go forward on the merits.
In Lockheed, a civilian federal employee was killed in a United States Air Force plane crash. The administrator of her estate subsequently brought suit against the Lockheed Aircraft Corporation ("Lockheed"). Lockheed, in turn, brought a third-party action against the United States. The Government fully admitted responsibility for the accident, but claimed immunity under § 8116(c) of FECA. Lockheed, 460 U.S. at 191-192. The Court began its analysis by noting that while § 8116(c) strips federal employees of their right to sue the government, they get something in return: namely the worker's compensation benefits that FECA confers. The Court then went on to hold that "Section 8116(c) was intended to govern only the rights of employees, their relatives, and people claiming through or on behalf of them. These are the only categories of parties who benefit from the `quid pro quo' compromise that FECA adopts." Accordingly, the United States was not immune from suit by Lockheed. Lockheed, 460 U.S. at 196.
Third-party plaintiffs contend that Weyerhaeuser andLockheed together establish that the United States is not immune from third-party suit in these circumstances, and that the Government's Motion for Judgment on the Pleadings should, accordingly, be dismissed.
The problem, however, is that there is more to theWeyerhaeuser and Lockheed holdings than third-party plaintiffs acknowledge. While the Lockheed Court explicitly held that the exclusion of liability clause does not bar third-party actions, it did not go so far as to say that third-party claims against the government in these circumstances are always viable. The Court was careful to note that
[t]he District Court held that Lockheed had a right to indemnity under the governing substantive law, but the Court of Appeals did not rule on that question. Accordingly, we do not consider it. We adhere to the decision in Weyerhaeuser, and hold only that FECA's exclusive liability provision . . . does not directly bar a third-party indemnity action against the United StatesLockheed, 460 U.S. at 199 (emphasis added). The implication of the statement is clear: while FECA's exclusive liability provision does not directly bar a third-party action, it may do so indirectly, depending on the underlying substantive law. The question, thus, is not whether FECA's exclusive liability clause immunizes the Government from third-party contribution actions, but how the Government's immunity figures into the analysis of such actions. See Eagle-Picher Indus., Inc. v. United States, 846 F.2d 888, 893, n. 8 (3d Cir. 1988) ("Although the FECA does not directly bar this third-party suit . . . the immunity it creates against suits by federal employees is a significant circumstance that we would have to consider[.]"); Walls Indus., Inc. v. United States, 958 F.2d 69, 71 (5th Cir. 1992) ("The question becomes whether [third-party plaintiff] has a cause of action under the substantive law."); Eagle-Picher Indus., Inc. v. U.S. GAF Corp., 937 F.2d 625, 634 (D.C. Cir. 1991) ("Instead, to determine the availability of [thirdparty] actions, we must look to the `underlying substantive' law."). Accordingly, the Court will now turn its attention to the underlying substantive law of the third-party plaintiffs' contribution and indemnity actions.
2. The underlying substantive law of the indemnity and contribution actions
Maritime common law does recognize a right of contribution between joint tort-feasors. Eagle-Picher Indus., Inc. v. United States GAF Corp., 937 F.2d 625, 635 (D.C. Cir. 1991). However, there are important limitations. Two Supreme Court opinions,Halcyon Lines v. Haenn Ship Ceiling and Refitting Corp., 342 U.S. 282 (1952), and Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106 (1974) clearly establish the rule that there can be no third-party suit against a joint tort-feasor where the tortfeasor has statutory immunity from the first-party plaintiff. The rule's application to this case is straightforward: Bruemmer is suing the thirdparty plaintiffs for the injuries he suffered in the towing of the ex- USS Guadalcanal; under the Cooper case, third-party plaintiffs cannot force the United States to help pay for the damages they may owe Bruemmer, since FECA's exclusive liability clause bars Bruemmer from suing the United States. The third-parties, in other words, cannot compel the United States to pay damages for Bruemmer's injuries where Bruemmer could not have done so.
Numerous courts have applied this rule to the United States' immunity from first-party plaintiffs under FECA. See the cases cited immediately infra.
Almost every circuit that has analyzed contribution law for joint tortfeasors, including the Third Circuit, has applied the reasoning in Cooper. See Eagle-Picher Indus., Inc. v. United States, 846 F.2d 888, 894 (3d Cir. 1988) (third-party plaintiffs cannot "accomplish indirectly what federal employees could not accomplish directly"); Travelers Ins. Co. v. United States, 493 F.2d 881, 887 (3d Cir. 1974); Walls Indus., Inc. v. United States, 958 F.2d 69, 71 (5th Cir. 1992) ("If one tortfeasor is not liable to the plaintiff (e.g., because of a worker's compensation statute), it is not liable for contribution or indemnity either."); Eagle-Picher Indus., Inc. v. United States GAF Corp., 937 F.2d 625, 635 (D.C. Cir. 1991) ("In short, Halcyon and Cooper established that the maritime common law does not allow contribution against a party who holds a statutory immunity from first-party liability.").
Only the Fourth Circuit has recognized a tort-based indemnity right against a tortfeasor who is immune from first-party liability. See Wallenius Bremen v. United States, 409 F.2d 994, 998 (4th Cir. 1969). This Court, however, does not find theWallenius case, on which Global places so much weight in its brief, persuasive. First, Wallenius fails to consider theCooper decision, which so clearly states that a joint tortfeasor's third-party liability is contingent on the underlying first-party liability. Second, Wallenius was decided fourteen years before Lockheed, where the Supreme Court emphasized that the United States' immunity could be relevant to the third-party contribution analysis. Finally, the overwhelming weight of authority goes against Wallenius. Every other circuit, including the Third, has followed Cooper in holding that there is no right to contribution or indemnity against a joint tortfeasor when the tortfeasor has immunity against the first-party plaintiff.
In sum, while FECA's exclusive liability clause does not directly bar third-party suits against the United States, it does figure into the analysis of the underlying substantive law in such suits. Under that analysis in this case, the third-party plaintiffs' tort-based actions for contribution and indemnity are contingent on the United States' first-party liability to Bruemmer. Accordingly, since Bruemmer has no tort claim against the United States, neither do the thirdparty plaintiffs.
C. Underlying Causes of Action in Contract
Because the foregoing analysis applies only to tort claims, third-party plaintiffs can still receive indemnification from the United States if they can identify an underlying cause of action based on contract law. See Travelers Ins. Co. v. United States, 493 F.2d 881, 887 (3d Cir. 1974) (holding that FECA's exclusive liability provision precludes tort-based but not contract-based actions against the United States). Here, third-party plaintiffs raise several contract-based theories under which they claim that the Court could order indemnification.
1. The Implied Warranty of Workmanlike Performance
Although they concede that there is no express contractual warranty of workmanlike service, McAllister, Marinette, and Chamberlain argue that they should be indemnified based on the United States' breach of the implied warranty of workmanlike service. See generally Ryan Stevedoring v. Pan-Atlantic S.S. Corp, 350 U.S. 124 (1956); see also Fairmont Shipping Corp. v. Chevron Int'l Oil Co., 511 F.2d 1252 (2d Cir. 1975). They contend that when the United States (through its agent, Global) hired McAllister to perform tugging operations, the United States impliedly promised McAllister that it would provide safe conditions for the operation. Stated another way, third-party plaintiffs are asking this Court to hold that the towing contract included an implied warranty of workmanlike performance under which the United States had an obligation to ensure that McAllister would be able to safely perform its work. Memorandum of McAllister Towing in Opposition to Government's Motion at 14.
However, as the Government points out, applying the warranty of workmanlike performance to the United States' contract with McAllister would be an expansion of the doctrine, without precedential support.
The Supreme Court first recognized the warranty of workmanlike performance in Ryan. However, the doctrine's clearest articulation can be found in Fairmont Shipping Corp. v. Chevron Int'l Oil Co., Inc., 511 F.2d 1252 (2d Cir. 1975). TheFairmont court explained that the elements for the warranty are as follows:
a shipowner, relying on the expertise of another party (the contractor) enters into a contract whereby the contractor agrees to perform services without the supervision or control by the shipowner; the improper, unsafe or incompetent execution of such services would foreseeably render the vessel unseaworthy or bring into play a pre-existing unseaworthy condition; and the ship-owner would thereby be exposed to liability regardless of fault. Where these elements are present, there will be implied in the contract an agreement by the contractor to indemnify the shipowner for any liability it might incur as a result of an unseaworthy condition caused or brought into play by the improper, unsafe or incompetent performance of the contractor.Fairmont, 511 F.2d at 1258. That these elements are controlling in the present case is clear. Both the Government and McAllister cite Fairmont as authority. See Government's Reply Memorandum at 10; Memorandum of McAllister Towing in Opposition to Government's Motion at 17. Moreover, the Fairmont elements are cited in virtually every case analyzing the application of the warranty. See, e.g., Hurst v. Triad Shipping Co., 554 F.2d 1237, 1243 n. 10 (3d Cir. 1977); Stevens v. East-West Towing Co., Inc., 649 F.2d 1104, 1108-1109 (5th Cir. 1981).
A review of the Fairmont elements reveals that this is not the standard case to which the warranty of workmanlike performance has been applied. As those elements make clear, the warranty of workmanlike performance is something the hired contractor owes to the ship-owner. Third-party plaintiffs, however, have asked the Court to apply the warranty in the other direction — from the United States, which owns the ship in question to the tugboats it hired.
Third-party plaintiffs have failed to cite a single case in which the warranty runs from the vessel owner to the contractors. Instead, McAllister attempts to anchor its case for implying the warranty in Stevens v. East-West Towing Co., Inc., 649 F.2d 1104, 1108-1109 (5th Cir. 1981). McAllister claims that "Stevens presents a factual situation which is almost identical to the case at bar." McAllister Opposition at 18. In fact, the cases are not as "identical" as McAllister suggests. They differ in at least one fundamental respect: in Stevens, it was the ship-owner seeking indemnity from the towing company rather than the other way around. To that extent, the case is inapposite.
This distinction between this case and all the cases third-party plaintiffs have cited as precedent is not trivial. Indeed, the direction of the warranty is one of its fundamental characteristics. As the Fairmont court explained, the reason the Supreme Court imposed the warranty in the first place had to do with the shipowner's strict liability for workers' injuries, under which the shipowner was liable for all damages, even if the shipowner's contractor was ultimately the party responsible for the accident. Fairmont, 511 F.2d at 1257 ("This court has more than once recognized that it is the shipowner's strict liability for unseaworthiness that rests at the heart of Ryan indemnity.") That rationale is absent here. McAllister and the other thirdparty plaintiffs are not subject to strict liability (with the possible exception of Marinette Marine). The damages for which they are liable will, accordingly, correspond to their fault. Hence, the justification for applying the warranty is absent in this case.
That Marinette Marine faces strict liability is not sufficient reason for implying a warranty of workmanlike performance in light of the complete absence of precedential support for implying a warranty of workmanlike performance owed by the owner of a ship (the United States) to the company that built that ship.
Furthermore, this is a warranty that " services will be performed in a workmanlike manner." Cooper v. Loper, 923 F.2d 1045, 1050 (3d Cir. 1991) (emphasis added). The clear implication is that this warranty applies to the party performing the services, not the party benefitting from them. What is warranted is that those services will be conducted in a workmanlike manner, not that workmen will be provided the means of performing their services.
2. Dominant Mind and Servant
Next, McAllister argues that it is entitled to indemnity because the Navy was the "dominant mind" in the tow. See McAllister Opposition at 19. Where a tug is a mere servant, obeying the orders of a "dominant" tug or other vessel, it is not liable for any damages caused by its actions pursuant to those orders. The Connecticut, 103 U.S. 710, 712 (1880) ("So far as the [servant tug] is concerned, she was clearly not to blame. She was the mere servant of the [dominant tug], and could exercise no will of her own"); In re Walsh, et al., 136 F. 557, 559 (5th Cir. 1905) ("As the [servant tug] was not responsible for the proper navigation of the fleet, and in all respects complied with the laws and regulations applicable to her handling and management in the premises, and in no way by her own fault contributed to the collision, she ought not to be held responsible for faults, if there were any, in the navigation. . . ."); Moran Towing Transp. Co. v. Empresa Hondurena De V., 194 F.2d 629, 632 n. 3 (5th Cir. 1952) (collecting cases).
However, McAllister's assertion that it was not the dominant mind in the towing operation cannot support a cause of action for indemnification. The argument speaks to McAllister's liability, but is irrelevant to whether the United States is contractually obligated to indemnify McAllister for any damages it might have to pay. Accordingly, McAllister's dominant mind argument does not defeat the Government's motion.
There is at least one towing case in this District in which the court ordered indemnification. See Consolidated Rail v. Lagada Beach, 1983 AMC 1242 (E.D. Pa. 1982). However, inConsolidated Rail, indemnification was ordered pursuant to an express contractual provision.
In sum, third-party plaintiffs cannot make out a viable claim for indemnity or contribution based on either tort or contract theory. Accordingly, the Government's Motion for Judgment on the Pleadings will be granted.
IV. Motion for Summary Judgment by Global Associates
Global moves for summary judgment, arguing that it had no duty to call a pre-tow conference and that, in any case, its failure to do so did not cause Bruemmer's injuries.
A. Whether Global Had a Duty to Call a Pre-Tow Conference
It is undisputed that the Navy contracted with Global to "furnish direct labor, supervision, administrative support, materials and supplies, vehicles, tools and equipment as specified [in its contract] to operate and maintain the Naval Inactive Ship Maintenance Facility (NISMF) at Philadelphia." Solicitation N00140-96-R-K013 ("Solicitation"), Attached as Exhibit L to McAllister Towing's Memorandum of Law in Opposition to Global's Motion for Summary Judgment ("McAllister Opposition") at 17. Global was to provide the "direct labor, supervision, and administrative support for the receipt, inactivation/activation, maintenance and disposal of all vessels assigned to the NISMF." Solicitation at 33. Global's project manager was "responsible for the overall project operations of the NISMF Philadelphia, PA," although he had to report to the Navy's chief officer at the NISMF. Solicitation at 52.
Global contends that because its actions were subject to Navy approval and were undertaken at the Navy's direction, it was merely the Navy's agent. Accordingly, Global argues that it had no duty of reasonable care to call a pre-tow conference absent the Navy's specific request that it do so. However, the evidence could lead to the opposite inference. Global routinely called pre-tow meetings, which its representatives attended and at which they participated in planning the tow. Although the fact that Global had called previous meetings is not conclusive evidence that it had a duty to do so, it could support that inference. Furthermore, Global's representative was given copies of the orders transmitted to the Navy's executive at NISMF, which made it clear that a pre-tow conference should be held. See COMLOGRON TWO, attached as Exhibit B to McAllister Opposition (stating that the NISMF was to obey relevant U.S. Navy protocols, including the U.S. Navy Towing Manual, in handling the tow). A reasonable trier of fact could conclude that the transfer of these orders was intended as a specific request that Global hold such a conference, since Global handled many of the duties that COMLOGRON TWO ordered the NISMF to perform. Global's failure to fulfill the Navy's request also could then support an inference that Global failed to satisfy its duty of care.
See Deposition of Charles Curtis Chamberlain ("Chamberlain Dep."), attached as Exhibit F to Global's Reply Memorandum in Support of its Motion for Summary Judgment ("Global Reply") at 235 ("My understanding was Global always called the meetings"); Deposition of Charles Walker ("Walker Dep."), Attached as Exhibit B to Charles Curtis Chamberlain's Memorandum in Opposition to Global's Motion for Summary Judgment ("Chamberlain Memorandum") at 47, 51-54 (Global's representative "called the pilots to come to the conference"); Deposition of Frank Huesser, Attached as Exhibit D to McAllister Opposition at 55 ("The meetings were held by Global. Global called us up and told us there was a meeting"). Global asserts that it only called these meetings when instructed to do so by the Navy.
The Towing Manual provides that "[t]he pre-tow planning and preparations must be conducted each time a towing task is undertaken. . . ." U.S. Navy Towing Manual, attached as Exhibit G to McAllister Opposition at A-4.1.4; see also Towing Manual at A-4-3.1; A-4.1.3.
COMLOGRON TWO instructed the Navy commander to requisition "pilots, tugs . . . and sufficient number of steerage tugs." COMLOGRON TWO at B(3). However, it was Global that hired the McAllister tugs, specifying both the number and type of tugs to be used. See McAllister Sub-Contract, attached as Exhibit A to McAllister Opposition; Memorandum of 10/15/99, attached as Exhibit K to McAllister Opposition. Global also arranged for the pilots to be hired, through its sub-contract with McAllister.Id. Global even handled bidding and negotiation with the tugs contracted to handle the towing of the Guadalcanal from Pennsylvania to Virginia. See Exhibit O to McAllister Opposition. There is no indication on the record that it consulted with the Navy on its selections of tugs and pilots or that the Navy had the final say, other than approving the extra funds necessary to hire the pilots and the tugs transporting the Guadalcanal to Virginia. See id.; Exhibits 4 and 5 to McAllister's Motion for Partial Summary Judgment.
In sum, Global exercised control over the day-to-day operations of the NISMF, including performing many of the duties initially assigned to NISMF's Navy executives. It is not clear from the evidence whether Global, the Navy, or both would have had the ultimate responsibility for scheduling the pre-tow conference. Resolving all inferences against the moving party, the Court finds that a reasonable trier of fact could conclude that Global had a duty to call such a meeting. Accordingly, summary judgment will be denied.
B. Whether the Absence of a Pre-Tow Conference Caused Bruemmer's Injuries
Global also argues that there is no factual basis for concluding that a pre-tow conference would have averted the accident. Global avers that the individuals who would have been present at the conference have testified that they would not have made comments that would have prevented the injuries. See Global Reply at 7-9. However, it is undisputed that the river current and towing procedures are routinely discussed at pre-tow conferences. Insofar as confusion over towing procedure and questions about how to cope with the current were both significant factors in the accident, a reasonable fact-finder could conclude that Global's failure to hold a pre-tow conference where those issues could be discussed contributed to Bruemmer's injuries. See Mishap Report at ¶¶ 85-88, 146; Opinion section of Mishap Report 3(c); Conclusion of Mishap Report; Mishap Investigation Report at 6, 11.
Furthermore, the Navy's report on the incident concluded that the failure to hold a pretow conference was part of the "series of errors" resulting in "incomplete preparation and preplanning." Command Investigation of Roy Nixon, 11/4/99, attached as Exhibit E to McAllister Opposition at 38. Finally, before the Court is the affidavit of a docking master with over two decades of experience who has asserted that "the failure to hold a pre-tow conference was . . . a breach of the custom, practice, and standard of care exercised by merchant mariners in the United States," and that "the accident and injuries suffered by Todd Bruemmer could well have been avoided if [Captain] Wanzor had the benefit of a pre-tow meeting." Affidavit of William E. Clifford, attached as Exhibit P to McAllister Opposition, at ¶¶ 4, 10. Accordingly, a material issue of fact exists as to causation, and summary judgment will be denied.
V. Marinette and Oil States's Motions for Summary Judgment
Marinette and Oil States also move for summary judgment on the claims against them. There is no opposition to their motions.
After an independent review of the facts, the Court finds that there is no material issue of fact as to whether any alleged defect in the design or construction of either the Mohawk or the tow guide assembly caused Bruemmer's injuries. Given the extreme forces that were placed on it, even a flawlessly designed and installed assembly would have broken. Accordingly, the Motions for Summary Judgment of Oil States and Marinette will be granted.
VI. McAllister's Motion for Partial Summary Judgment
McAllister has also moved for partial summary judgment, asking the Court to hold, as a matter of law, that the actions of docking pilot Charles Chamberlain ("Chamberlain") cannot be imputed to it. McAllister has presented two arguments why it is not responsible for any errors Chamberlain may have committed: (1) the towing of the Guadalcanal was subject to a pilotage clause, under which it is not liable for the conduct of the docking pilot; (2) Chamberlain was an independent contractor, not its employee.
Claimant Charles Chamberlain argues that the pilotage clause was not a part of the contract between Global and McAllister. However, the Court need not reach this issue because it finds that even if it were a part of their agreement, it would not apply to the facts at bar.
A. The Pilotage Clause
McAllister argues that under the pilotage clause, Chamberlain would have been a borrowed servant of the United States, and that, as a consequence, McAllister cannot be held liable for his conduct. McAllister's pilotage clause applies to a towing operation where one of McAllister's pilots or captains is "engaged in the service of assisting a vessel making use of or having available her own propelling power." Exhibit E to McAllister's Motion for Partial Summary Judgment at 3 ("Pilotage Clause").
In Tidewater Grain Co. v. S.S. Point Manatee, the Court construed the "having available her own propelling power" clause to mean that the vessel's own power plant was available for use.See 614 F. Supp. 29, 32 (D.C. Pa. 1984). The court further noted that "[i]t is well established that a tug company employee piloting a dead ship (a ship having no propelling power of its own available) remains the employee of the tug company and does not become the borrowed servant of the owners of the dead ship." Tidewater Grain Co., 614 F. Supp. at 32 (collecting cases).
There is no question that the Guadalcanal's power plant was not operational at the time of the tow. See, e.g., Exhibits 1 and 2 to Charles Chamberlain's Memorandum in Opposition to McAllister's Motion for Partial Summary Judgment. It follows that the pilotage clause did not apply to the towing of the Guadalcanal, and, consequently, that the clause cannot insulate McAllister from liability for any negligence of Chamberlain.
McAllister argues in its Reply Brief that, in fact, the two McAllister tugs were assisting the Mohawk rather than the Guadalcanal. Since, McAllister argues, the Mohawk was operating under its own power, the pilotage clause does apply.See Response of McAllister Towing to Opposition of Bruemmer at 8. It is not clear, however, that the McAllister tugs were assisting the Mohawk rather than the Guadalcanal. A reasonable fact-finder might read the pilotage clause to apply only when the barge being towed (rather than the barge being assisted) is operating under its own power. Accordingly, there remains a genuine issue of material fact as to whether the pilotage clause applies, and summary judgment is inappropriate.
B. Chamberlain's Employment Status with McAllister
McAllister also argues that it is not liable for any negligence of Chamberlain, since Chamberlain was not McAllister's employee. However, a review of the pleadings shows that genuine issues of material fact remain as to Chamberlain's employment status with McAllister.
Chamberlain was paid approximately $17,000 per year to work exclusively for McAllister. Deposition of Frank J. Huesser, attached as Exhibit 5 to Chamberlain's Memorandum in Opposition to McAllister's Motion ("Huesser Deposition") at 33, 174, 258. McAllister also paid Chamberlain's social security taxes. Chamberlain received benefits through McAllister, including contributions to a 401(k) plan, major medical insurance, and life insurance. Huesser Deposition at 33, 133-34. Finally, McAllister has twice certified to the Coast Guard that Chamberlain is its employee. Huesser Deposition at 134-35. Thus, a trier of fact could conclude that Chamberlain was McAllister's employee. A finding of Summary Judgment in McAllister's favor would, therefore, be inappropriate.
VII. Conclusion
For the foregoing reasons, the Motion of the United States for Judgment on the Pleadings will be granted, the Motions for Summary Judgment of Marinette and Oil States will be granted, Global's Motion for Summary Judgment will be denied, and McAllister's Motion for Partial Summary Judgment will be denied.