Opinion
February 5, 1996
Appeal from the Supreme Court, Nassau County, Kenneth D. Molloy, J.
Fiedelman Hoefling, Jericho (Susan E. Lysaght of counsel), for appellant and third-party plaintiff.
Harvey S. Barer, Garden City, for respondent.
Ahmuty, Demers McManus, Albertson (Frederick B. Simpson and Daniel J. Hansen of counsel), for third-party defendant-respondent.
In this action to recover damages for personal injuries, we conclude (1) that there was both a maritime situs and a maritime nexus, (2) that these circumstances establish that the case falls within Federal maritime jurisdiction, (3) that we are therefore required to apply substantive Federal maritime law to this action, and (4) that the appellant, Port of New York Authority, has demonstrated its entitlement to summary judgment under the principles of Federal maritime law, because it has demonstrated its freedom from any actual negligence which might have contributed to the plaintiff's injuries. For these reasons, we reverse, and grant the appellant's motion for summary judgment.
The plaintiff was injured while engaged in the making of certain repairs to Pier 88 in New York harbor. At the time of the injury, the plaintiff was located on a "float stage". The float stage rested on the surface of the water, and rose and fell with the tide. It was secured to the pier by "heavy lines", and could be "moved along the edge of Pier 88 during the construction process". The accident occurred when "a nearby crane * * * allowed [a piling] to fall and strike the float stage". This in turn caused the plaintiff to fall and injure himself.
After the plaintiff moved for partial summary judgment the appellant Port of New York Authority cross-moved for summary judgment to dismiss the complaint, arguing that the tort alleged by the plaintiff as the basis for relief came within Federal maritime jurisdiction (see, US Const, art III, § 2 [1]; 28 U.S.C. § 1333; Executive Jet Aviation v. City of Cleveland, 409 U.S. 249). The appellant established, in support of its cross motion, that it was the plaintiff's employer, the third-party defendant Macro Enterprises, Ltd., which had "provided and operated the crane which was holding the piling involved in the accident". The Supreme Court initially agreed with the appellant's argument that maritime law applied, and granted the cross motion. However, on reargument, the court vacated the prior order, and denied the cross motion. This appeal followed.
The general principles of Federal maritime law, as such law may be applied in State courts, were set forth by this Court in Torres v. City of New York ( 177 A.D.2d 97, 100-102, 109, cert denied 507 U.S. 986), as follows:
"United States Constitution, article III, § 2, clause (1), provides that `[t]he judicial Power [of the courts of the United States] shall extend * * * to all Cases of admiralty and maritime Jurisdiction'. This provision of the Constitution has been implemented by 28 U.S.C. § 1333 (1), which states that `[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled'. * * *
"The scope of Federal maritime jurisdiction in tort cases was, until relatively recently, defined with reference to one single test, that is, a test based upon `the locality of the wrong' (Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 253, supra; see also, Victory Carriers v. Law, 404 U.S. 202, 205). According to this test, the border between State tort law jurisdiction and Federal maritime jurisdiction was as easy to trace as the border between the land and the sea. Admiralty jurisdiction encompassed only those torts which were `"committed on the high seas, or on waters within the ebb and flow of the tide"' (Executive Jet Aviation v. City of Cleveland, supra, at 253; Victory Carriers v. Law, supra, at 205; Thomas v. Lane, 23 F Cas 957, 960 [CC Me 1813; No. 13, 902]). The scope of Federal maritime jurisdiction in tort cases was later expanded to cover `not only tidewaters, but all navigable waters, including lakes and rivers' (Executive Jet Aviation v. City of Cleveland, supra, at 253, citing The Propeller Genesee Chief v. Fitzhugh, 12 How [53 US] 443). In contract cases, by way of contrast, Federal maritime jurisdiction has been traditionally defined not with reference to the locality of the wrong, but instead with reference to the nature of the transaction (see, Exxon Corp. v Central Gulf Lines, 500 US [603]; Grant Smith-Porter Co. v Rohde, 257 U.S. 469, 476; Danielsen v. Morse Dry Dock Repair Co., 235 N.Y. 439, 442, cert denied 262 U.S. 756). * * *
"In Executive Jet Aviation v. City of Cleveland ( 409 U.S. 249, 256, supra), the United States Supreme Court held that in order for maritime jurisdiction to exist in tort cases, the wrong must not only have occurred in navigable waters, but it must also have borne some relationship to `traditional maritime activities'. The plaintiffs argue not only that there was no maritime `situs' in this case, an argument which we have rejected on the authority of Butler v. Robins Dry Dock Repair Co. ( 240 N.Y. 23, supra), but also that there is no maritime `nexus'".
As outlined in Torres (supra), Federal maritime law applies in personal injury cases where:
(1) There is a maritime situs, that is, where the accident occurs on navigable waters (or, under the Admiralty Jurisdiction Extension Act, where a vessel on navigable waters inflicts an injury on a person positioned on the land) and
(2) There is a maritime nexus, that is, the plaintiff's accident arises out of some traditional maritime activity.
The submissions establish conclusively that the plaintiff was engaged in a traditional maritime activity at the time of the accident in that he was engaged in the repairing of a dock (see, Irvin v. Amerada Hess Corp., 191 A.D.2d 478, 479, citing Torres v City of New York, supra; Duncanson-Harrelson Co. v. Director, Off. of Workers' Compensation Programs, 686 F.2d 1336, vacated on other grounds 462 U.S. 1101, on remand 713 F.2d 462; Wistrom v Duluth, Missabe Iron Range Ry. Co., 437 N.W.2d 730 [Minn]). The submissions also establish that the tort was consummated "`on the high seas, or on waters within the ebb and flow of the tide'" (Executive Jet Aviation v. City of Cleveland, supra, at 253, quoted in Torres v. City of New York, supra, at 101; see also, Great Lakes Co. v. Kierejewski, 261 U.S. 479 [plaintiff's decedent located on float alongside scow]; Gonsalves v. Morse Dry Dock Co., 266 U.S. 171 [plaintiff located on floating dock off 27th Street, Brooklyn]). Contrary to the plaintiff's central argument, the "floating dock" in question was not permanently attached to Pier 88, and hence cannot be considered an extension of the land (cf., Victory Carriers v. Law, 404 U.S. 202, 206-207, supra).
Because there was both a maritime "nexus" and a maritime "situs", traditional maritime law applies (see, US Const, art III, § 2 [1]; 28 U.S.C. § 1333; Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, supra; Torres v. City of New York, 177 A.D.2d 97, supra). Application of maritime law does not depend either on the terms of the Admiralty Jurisdiction Extension Act of 1948 (46 U.S.C. Appendix § 740; see, Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., 513 US ___, 115 S Ct 1043) or on the terms of the Jones Act (46 U.S.C. Appendix § 688; see, Powers v. Bethlehem Steel Corp., 477 F.2d 643, 648, cert denied 414 U.S. 856). Thus, maritime law applies irrespective of whether the float stage may properly be described as a "vessel" (cf., Jerome B. Grubart, Inc. v. Great Lakes Dredge Dock Co., supra).
Under Federal maritime law, the appellant may be liable to the plaintiff only upon proof of actual negligence. The absolute liability provisions of the Labor Law may not serve as the basis for the imposition of tort liability (Torres v. City of New York, supra). The provisions in the appellant's contract with the third-party defendant which allowed the appellant to supervise the progress of the work do not furnish the basis for imposing such liability (Amazon v. British Am. Dev. Corp., 216 A.D.2d 702; Paterson v. Hennessy, 206 A.D.2d 919; Wendel v. Pillsbury Corp., 205 A.D.2d 527; Macutek v. Lansing, 202 A.D.2d 823; Jonchuk v Weafer, 199 A.D.2d 591; Danish v. Kennedy, 168 A.D.2d 768; Rimoldi v. Schanzer, 147 A.D.2d 541; Dewitt v. Pizzagalli Constr. Co., 183 A.D.2d 991; Ortiz v. Uhl, 39 A.D.2d 143, affd 33 N.Y.2d 989).
For these reasons, the order is reversed insofar as appealed from, on the law, the appellant's cross motion for summary judgment is granted, and the complaint is dismissed.
MANGANO, P.J., SULLIVAN and HART, JJ., concur.
Ordered that the order is reversed insofar as appealed from, on the law, with costs payable by the plaintiff, the appellant's cross motion for summary judgment is granted, and the complaint is dismissed.