United States District Court, Eastern District of New York
June 29, 1990
RONALD KRAMER, PLAINTIFF,
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.
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).
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
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.
II. THE CIVIL SUIT FOR NEGLIGENCE
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
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
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
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
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.