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KRAMER v. BOUCHARD TRANSP. CO. INC.

June 29, 1990

RONALD KRAMER, PLAINTIFF,
v.
BOUCHARD TRANSPORTATION CO. INC., DEFENDANT. BOUCHARD TRANSPORTATION CO. INC., & B NO. 25 CORPORATION, THIRD-PARTY PLAINTIFF, V. AMERADA HESS CORPORATION, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: McLAUGHLIN, District Judge.

MEMORANDUM AND ORDER

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.

FACTS

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 Bouchard impleaded 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.

DISCUSSION

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).

33 U.S.C. § 903(a).

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 ...


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