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United States District Court, Eastern District of New York

June 29, 1990


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 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.


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.


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 undisputed that plaintiff rightfully received compensation benefits under Connecticut's Workmen's Compensation statute. Conn.Gen. Stat. § 31-275 et seq. (1987).

Federal jurisdiction under the Long-shore Act, however, is not exclusive, and may coexist with state workers' compensation laws. In short, concurrent jurisdiction is not inconsistent with the policies of the Longshore Act. Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980).

Dock workers injured on a wharf or pier fall squarely within the overlap of federal and state jurisdiction, otherwise known as a "twilight zone." Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959). When injured within this overlap zone, a plaintiff may proceed under either compensation scheme. Garvin v. Alumax of South Carolina, Inc., 787 F.2d 910 (4th Cir.), cert. denied, 479 U.S. 914, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986). In fact, under such circumstances, receiving state benefits is not necessarily a bar to compensation under the Longshore Act, as long as no double recovery occurs. Harney v. William M. Moore Bldg. Corp., 359 F.2d 649 (2d Cir. 1966).

One purpose in allowing concurrent state and federal jurisdiction is to enhance available compensation benefits, thereby raising awards to a federal minimum. Sun Ship, Inc., 447 U.S. at 723, 100 S.Ct. at 2438. If a state's remedial scheme should happen to be more generous than the Longshore Act, state jurisdiction could result in a more favorable award than an injured worker would get under an exclusively federal compensation system. Id. at 723, 723 n. 4, 100 S.Ct. at 2438, 2438 n. 4 (court does not interpret § 905(a) to exclude remedies offered by other jurisdictions);*fn2 see Churchill v. Perini North River Assoc., 652 F.2d 255, 258 (2d Cir. 1981), rev'd on other grounds, 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983) ("[N]othing in the 1972 Amendments precludes a state from offering compensation to an employee who is admittedly covered under the . . . [Long-shore] Act.").

While this overlap in jurisdiction allows alternative, and even — on occasion — complementary, routes to recovery, the doctrine of preemption still applies because "[e]ven within the twilight zone . . . conflicts between federal and state laws may occur such that pre-emption is nevertheless invoked." Wallace v. Ryan-Walsh Stevedoring Co., Inc., 708 F. Supp. 144, 154 (E.D. Tex. 1989); see Garvin, 787 F.2d at 917 (State is free to create cause of action in twilight zone unless it conflicts with Long-shore Act and "[e]xcept with respect to claims against vessels addressed in 33 U.S.C.A. § 905(b), the [Longshore Act] does not address the substantive rights of claimants against third parties.") (emphasis added); In re All Maine Asbestos Litigation, 589 F. Supp. 1563, 1568 (D.Me. 1984); Couch v. Cro-Marine Transport, Inc., 725 F. Supp. 978 (C.D.Ill. 1989).


Plaintiff, injured in the "twilight zone," has chosen state-based compensation from his employer. Through this subsequent civil action, plaintiff also asserts a negligence claim against Bouchard as barge owner. In filing the third-party complaint against Hess, Bouchard has attempted to secure indemnity from plaintiff's employer for any potential liability.

Bouchard claims a right of indemnity in the third-party complaint, alleging Hess breached an "implied warranty" to provide safe shipping berths and competent personnel. Third-party compl. at ¶ 14-16, 29-31. Apparently, such a claim may exist under Connecticut law because "[t]he [Connecticut] Workmen's Compensation Act . . . is not a bar to indemnity where such a right can be predicated on some legal relationship between the third party and employer giving rise to a duty on the part of the employer to the third party which is either contractually or tortiously breached." Ranta v. Bethlehem Steel, 287 F. Supp. 111, 113 (D.Conn. 1968); see Truran v. Ottis Elevator, 143 A.D.2d 1002, 533 N.Y.S.2d 599 (2d Dep't 1988) (the breach of some independent duty owed by employer to third party overcomes the exclusivity of Connecticut's Workmen's Compensation remedy).

Hess, however, argues that the Long-shore Act precludes a claim for indemnity by a barge owner against an employer.


While the Supreme Court's accommodating mandate in Sun Ship, supra, encourages a strong respect for state workmen's compensation remedies within the "twilight zone," it remains clear that the overlap in jurisdiction does not displace federal supremacy. Wallace, 708 F. Supp. at 154. Accordingly, the Longshore Act will only "preempt a conflicting provision of a state compensation act. Preemption will not be presumed absent clear conflict between federal and state legislation 'in a field which the states have traditionally occupied.'" In re All Maine Asbestos Litigation, 589 F. Supp. at 1568 (emphasis in original) (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). See Garvin, 787 F.2d at 916-17; Couch, 725 F. Supp. at 982. Cf. Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979).

As correctly noted by Hess, even if Connecticut law does allow a suit for indemnity by the barge Bouchard against Hess, the Longshore Act specifically exempts Hess from liability. The Longshore Act provides:

  In the event of injury to a person covered under
  this chapter caused by the negligence of a vessel,
  then such person, or anyone otherwise entitled to
  recover damages by reason thereof, may bring

  an action against such vessel as a third party in
  accordance with the provisions of section 933 of
  this title, and the employer shall not be liable to
  the vessel for such damages directly or indirectly
  and any agreements or warranties to the contrary
  shall be void . . . (emphasis added).

33 U.S.C. § 905(b).

The language of section 905(b) is not ambiguous and its last clause bars liability of the employer (Hess) to the barge owner (Bouchard). In the face of this irreconcilable conflict, the Longshore Act must control, and the third-party complaint against Hess must therefore be dismissed. Lipsky v. Commonwealth United Corp., 551 F.2d 887, 894 (2d Cir. 1976) (citing 2A Moores Federal Practice ¶ 12.08 at 2271 (2d ed. 1975)); Lou v. Belzberg, 728 F. Supp. 1010, 1016 (S.D.N Y 1990).

A recent case, Couch v. Cro-Marine Transport, Inc., 725 F. Supp. 978 (C.D.Ill. 1989), points in the same direction. In Couch an injured dock worker sued, among others, the barge owner and the cargo owner associated with his accident on an unloading wharf. Plaintiff had also filed for benefits under the Illinois Worker's Compensation Act, choosing not to pursue any remedy that he might have against his employer under the Longshore Act. Id. at 979.

Subsequently, the defendant cargo owner filed a third-party complaint against the employer. That third-party complaint, much like the one at issue here, sought indemnification from the employer on the basis of the employer's breach of an implied contract to "perform its services in a good and workmanlike manner." Id. at 985. The court found that Illinois law allows third-party actions against an employer for indemnification under the state's Workers' Compensation Act. Id. at 983.

Although plaintiff never sought relief under the federal compensation scheme, the Couch court considered whether the Longshore Act preempted Illinois law. In assessing section 905 of the Act, the court concluded that "[t]he first sentence of subsection (b) plainly refers only to actions against the vessel and thus has no relevance in a suit between the cargo owner and the [employer]." Id. at 984 (emphasis added). Thus, there was no preemption.

The case before this Court, by contrast, is an action directly against the barge owner; and the third-party complaint seeks to thrust barge-related liability on the employer.*fn3 Section 905(b) of the Act explicitly forbids this. At least to this limited extent, the federal remedy (or, more precisely, non-remedy) preempts the state remedy.*fn4


Accordingly, the motion to dismiss the third-party complaint is hereby granted.


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