The opinion of the court was delivered by: McLAUGHLIN, District Judge.
Third-party defendant moves to dismiss the third-party
complaint for failure to state a claim and, in the alternative,
for summary judgment. For the reasons discussed below, the
motion to dismiss is granted.
On March 16, 1987 plaintiff Ronald Kramer allegedly sustained
disabling injuries while picking up and positioning a hose on
the defendant's barge Bouchard B-25. This injury occurred
during the course of plaintiff's employment as a dock worker
for third-party defendant Amerada Hess Corporation ("Hess") in
Wethersfield, Connecticut, on the Connecticut River.
After the injury plaintiff received workmen's compensation
pursuant to the Connecticut Workmen's Compensation Act. As of
June 1, 1989, plaintiff has received medical benefits in the
amount of $24,704.41 and compensation benefits in the amount of
$46,482.95. Buro Affidavit at ¶ 3.
Plaintiff has now commenced this negligence action against
defendant Bouchard Transportation Co. ("Bouchard"), owner of
the barge docked at the time of the accident. Plaintiff is a
citizen of Connecticut. Defendant is a corporation incorporated
under the laws of the State of New York and has its principal
place of business in New York. Accordingly, jurisdiction, based
on diversity, is proper. 28 U.S.C. § 1332.
Shortly after commencement of the main action, defendant
Hess as third-party defendant*fn1, seeking indemnity.
Fed.R.Civ.P. 14(c). Hess now moves to dismiss the third-party
complaint, Fed.R.Civ.P. 12(b)(6), or, alternatively, for
summary judgment. Fed.R.Civ.P. 56.
In its motion Hess alleges that both the Longshore and Harbor
Workers' Compensation Act ("Longshore Act"), 33 U.S.C. § 901 et
seq., and the Connecticut Workmen's Compensation statute bar
the third-party action in this case.
I. CONCURRENT JURISIDICTION
The Longshore Act provides:
Except as otherwise provided in this section,
compensation shall be payable under this chapter
in respect of disability or death of an employee,
but only if the disability or death results from
an injury occurring upon the navigable waters of
the United States (including any adjoining pier,
wharf, dry dock, terminal, building way, marine
railway, or other adjoining area customarily used
by an employer in loading, unloading, repairing,
dismantling, or building a vessel).
After reporting to the unloading dock on the day of the
accident, plaintiff moved a cargo hose on the dock to inspect
"the manifold on the dock" before inspecting the barge itself.
Plaintiff's deposition at 29-30. According to plaintiff, it was
while moving the hose on the dock that he sustained his injury.
As all parties agree, plaintiff plainly falls within the
jurisdiction of the Longshore Act. Northeast Marine Terminal
Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320
(1977); see Pittston v. Dellaventura, 544 F.2d 35 (2d Cir.),
aff'd, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). It
is also ...