The opinion of the court was delivered by: Curtin, District Judge.
On June 3, 1986, at about 9:00 p.m., plaintiff Emmett L.
Turner was involved in an accident on the vessel "Samuel
Wilkeson" wherein he tripped over a rope on the deck and fell
through an open hatch of the engine compartment, sustaining
serious permanent injuries resulting in quadriplegia. At the
time of the accident, Mr. Turner was employed by the defendant
Niagara Frontier Transportation Authority ("NFTA"). The vessel
was owned by the City of Buffalo ("City"), but was being
chartered by the NFTA under a signed agreement. See Item 35,
Ex. A. Plaintiff has sued both the NFTA and the City of
Buffalo, alleging negligence and unseaworthiness of the vessel.
Defendant NFTA has moved to file a second amended answer.
Defendant City has moved for summary judgment on all counts.
Both motions are opposed by plaintiff.
I. MOTION FOR SUMMARY JUDGMENT
Defendant City moves for summary judgment. In order to
prevail on its motion, the City must show "that there is no
genuine issue as to any material fact and that [it] is
entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). A material fact is one "that might affect the outcome
of the suit under the governing law. . . ." Anderson v. Liberty
Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202
(1986). A dispute is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Id. The court "must resolve all ambiguities and draw
all reasonable inferences in favor of the party defending
against the motion." Eastway Constr. Corp. v. City of New York,
762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918,
108 S.Ct. 269, 98 L.Ed.2d 226 (1987). "Uncertainty as to the
true state of any material fact defeats the motion." United
States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir.
1982) (citation omitted).
The City has advanced three arguments to support its motion.
Its first argument is that a seaman's remedy for negligence
under the Jones Act, 46 U.S.C. App. § 688, can only be brought
against his "employer."*fn1 See Baker v. Raymond Int'l, Inc.,
656 F.2d 173, 177 (5th Cir. 1981), cert. denied, 456 U.S. 983,
102 S.Ct. 2256, 72 L.Ed.2d 861 (1982). There is no dispute that
the NFTA was plaintiff's sole employer. See Item 43, at 1.
Thus, the City of Buffalo cannot be sued for negligence under
the Jones Act. This does not, however, prevent plaintiff from
suing under general maritime law for the City's alleged
negligence. See Baker, 656 F.2d at 177 ("recovery may be had in
admiralty for negligence resulting in the injury of a person
who is not an employee.").
Defendant's second argument is more critical. Under the
general maritime law, an action for unseaworthiness may lie
against the owner of the vessel. See id., at 181-84. Defendant
argues that, although the City was the legal owner of the
"Samuel Wilkeson," for the purpose of determining liability for
unseaworthiness, it is not liable because, at the time of the
accident, it had surrendered complete command, control and
possession of the vessel to the NFTA. See Rodriguez v.
McAllister Brothers, Inc., 736 F.2d 813, 815 (1st Cir. 1984).
In the present status of this case, defendant's argument
cannot prevail. Even assuming arguendo that the City had
relinquished complete command, control, and possession of the
vessel by chartering it to the NFTA at the time of the
accident, under the law of this circuit, defendant would still
be liable for injuries caused by defects in the vessel that
existed prior to commencement of the charter. In re Marine
Sulphur Queen, 460 F.2d 89, 100 (2d
Cir.), cert. denied, U.S. Fire Ins. Co. v. Marine Sulphur
Transp. Corp., 409 U.S. 982, 93 S.Ct. 318, 34 L.Ed.2d 246
(1972); Uni-Petrol Gesellschaft Fur Mineraloel Produkte M.B.H.
v. M/T Lotus Maru, 615 F. Supp. 78, 81 (S.D.N.Y. 1985). See also
Cannella v. Lykes Bros. S.S. Co., 174 F.2d 794, 795 (2d Cir.),
cert. denied, 338 U.S. 859, 70 S.Ct. 102, 94 L.Ed. 526 (1949).
This principle has been upheld by other circuits as well. See
Kerr-McGee Corp. v. Law, 479 F.2d 61, 63 (4th Cir. 1973); Ramos
v. Beauregard, Inc., 423 F.2d 916, 917-18 (1st Cir.),
cert. denied, 400 U.S. 865, 91 S.Ct. 101, 27 L.Ed.2d 104
(1970); Haskins v. Point Towing Co., 421 F.2d 532, 536 (3d
Cir.), cert. denied, 400 U.S. 834, 91 S.Ct. 68, 27 L.Ed.2d 66
(1970). Indeed, one court has even held, after extensive
analysis, that an owner is liable for a vessel's
unseaworthiness "without regard to whether [the] owner or
bareboat charterer is responsible for the vessel's condition."
Baker, 656 F.2d at 184. Plaintiff alleges that several
conditions of unseaworthiness which may have contributed to his
injury existed prior to the City's chartering of the boat to
the NFTA. See Item 43, at 3-5 (lack of railings, guards, or
coaming surrounding the engine hatch). These allegations raise
a genuine issue of fact whether the vessel was unseaworthy at
the time it was in the City's possession, and whether these
conditions were a proximate cause of plaintiff's injury.
A second aspect of this argument is more troubling.
Defendant asserts that NFTA, not the City, was for all intents
and purposes the "owner" of the "Samuel Wilkeson" at the time
of the accident, thus relieving the City of responsibility.
The City relies on Reed v. The Yaka, 373 U.S. 410, 412, 83
S.Ct. 1349, 1351, 10 L.Ed.2d 448 (1963), which held that "[i]t
has long been recognized in the law of admiralty that for many,
if not most, purposes the bareboat charterer is to be treated
as the owner, generally called the owner pro hac vice." This
case merely begs the underlying question, however, whether NFTA
was a bareboat charterer at the time of the accident. And this
question hinges on whether the legal owner, i.e., the City, had
"completely and exclusively relinquish[ed] `possession,
command, and navigation' [of the vessel] to the demisee."
Guzman v. Pichirilo, 369 U.S. 698, 699, 82 S.Ct. 1095, 1096, 8
L.Ed.2d 205 (1962) (quoting United States v. Shea,
152 U.S. 178, 14 S.Ct. 519, 38 L.Ed. 403 (1894)). Moreover, where a
defendant owner is seeking to escape liability on the ground
that it has demised the boat to a charterer, "the owner has the
burden of showing such a charter. This burden is heavy, for
courts are reluctant to find a demise when the dealings between
the parties are consistent with any lesser relationship."
Guzman, 369 U.S. at 700, 82 S.Ct. at 1097. See also Fitzgerald
v. A.L. Burbank & Co., 451 F.2d 670, 676 (2d Cir. 1971).
Defendant has not carried this burden. It has argued that it
leased the Wilkeson to the NFTA outright,
reserving only the right to use it on occasion
with reasonable advance notice. Under the terms
of the lease, Defendant NFTA was responsible for
hiring and directing the master and crew,
providing fuel and supplies and making all
necessary repairs to the vessel.
Item 36, at 5. Plaintiff has countered that the City's
continued inspections, its right under the charter to use the
vessel at any time, and the fact that the City exercised that
right between August 12, 1983 and October 11, 1983 raise a
genuine issue of fact whether the City had control. The court
finds these facts, especially the fact the City continued to
inspect the vessel and order that repairs be made to it right
up to and immediately after the accident (see Item 43, Ex. J),
sufficient to deny defendant's motion.
Defendant's third argument is that, by law, the ship was not
unseaworthy. In Mitchell v. Trawler Racer, 362 U.S. 539, 549,
80 S.Ct. 926, 932, 4 L.Ed.2d 941 (1960), the Supreme Court,
after reviewing the history of the law on unseaworthiness,