United States District Court, Western District of New York
October 19, 1990
EMMETT L. TURNER, PLAINTIFF,
NIAGARA FRONTIER TRANSPORTATION AUTHORITY AND CITY OF BUFFALO, DEFENDANTS.
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,
the decisions of this Court have undeviatingly
reflected an understanding that the owner's duty
to furnish a seaworthy ship
is absolute and completely independent of his
duty under the Jones Act to exercise reasonable
An owner's duty is absolute even if the unseaworthy condition
arises after the ship leaves its home port, or is only
temporary. Id. Nor is the shipowner's knowledge of the
unseaworthy condition relevant to liability. Id. Nevertheless,
the owner is not required to provide a perfect ship. "The duty
is absolute, but it is a duty only to furnish a vessel and
appurtenances reasonably fit for their intended use." Id. at
550, 80 S.Ct. at 933 (emphasis added).
Defendant and plaintiff spend a considerable portion of
their briefs arguing whether Occupational Safety and Health
Administration or Coast Guard regulations apply in determining
whether the Samuel Wilkeson was unseaworthy. We need not
decide this issue, however, because plaintiff has alleged
facts sufficient for a jury to conclude that the ship was not
reasonably fit. See Item 43, at 3-8. As the Supreme Court held
in Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499, 91
S.Ct. 514, 517, 27 L.Ed.2d 562 (1971):
A vessel's condition of unseaworthiness might
arise from any number of circumstances. Her gear
might be defective, her appurtenances in
disrepair, her crew unfit. The number of men
assigned to perform a shipboard task might be
insufficient. The method of loading her cargo, or
the manner of its stowage, might be improper. For
any of these reasons, or others, a vessel might
not be reasonably fit for her intended service.
See also Johnson v. Offshore Express, Inc., 845 F.2d 1347
1354-55 (5th Cir.), cert. denied, 488 U.S. 968
, 109 S.Ct. 497
102 L.Ed.2d 533 (1988) (lack of equipment rendered ship
unseaworthy). Moreover, "`[u]nseaworthiness' is normally a
question of fact to be determined by the jury." Jordan v.
United States Lines, Inc., 738 F.2d 48
, 50 (1st Cir. 1984);
Johnson v. Bryant, 671 F.2d 1276
, 1279 (11th Cir. 1982); Dunlap
v. G & C Towing, Inc., 613 F.2d 493
, 496 (4th Cir. 1980). See
also Morton v. Berman Enter., Inc., 508 F. Supp. 342, 343-45
Defendant also argues that the accident in this case stemmed
not from a condition of unseaworthiness, but from an isolated
negligent use of gear that was not inherently defective.
See Usner, 400 U.S. at 500, 91 S.Ct. at 518. In Usner, a
longshoreman was injured when a winch operator lowered a sling
too fast, striking the plaintiff and knocking him to the deck.
The Court held that since there was nothing inherently wrong
with the winch or the sling, the isolated act of the winch
operator did not render the ship unseaworthy. Id. The Court
contrasted this case with the facts of Mitchell v. Trawler
Racer, Inc., supra, in which a seaman was injured from slipping
on slime and fish gurry along a ships rail. Usner, 400 U.S. at
500, 91 S.Ct. at 518. "[U]nseaworthiness is a condition," the
Court held. Id. at 498, 91 S.Ct. at 517 (emphasis in original).
In the present case, the alleged circumstances of
unseaworthiness — improperly coiled rope, unguarded open
hatch, lack of lighting — were not one-time acts of a
negligent employee, but conditions of the ship. Thus, this
argument also fails.
Accordingly, defendant's motion for summary judgment is
denied on all counts.
II. MOTION TO AMEND THE ANSWER.
Defendant Niagara Frontier Transportation Authority has
moved to amend its second answer in order to reinsert the
defense that plaintiff has availed himself of the State
Workmen's Compensation Law, Item 41, and thus waived his
federal maritime and Jones Act remedies. See N.Y. Work.Comp.Law
§ 113 (McKinney 1965). Defendant specifically moved this court
to strike this defense in its Second Amended Answer. The motion
was granted. See Item 34, Exs. A-E. Defendant notes, however,
that since that motion was granted, plaintiff was granted an
award by the New York State Workers' Compensation Board on May
10, 1988. Defendant argues that this award creates an issue of
fact whether plaintiff "unqualifiedly" accepted his Workmen's
Compensation award and thereby waived his federal remedies.
argues that, at the very least, it should have an opportunity
at trial to prove that plaintiff waived his federal remedies.
The court does not agree.
Under Fed.R.Civ.P. 15(a) "leave [to amend] shall be freely
given when justice so requires." See Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Granting
leave to amend is not, however, automatic. Courts have
specifically denied such a motion where the amended pleading
could be defeated by a motion to dismiss, see Halpert v.
Wertheim & Co., 81 F.R.D. 734, 735 (S.D.N.Y. 1979); Bruno Wine
& Spirits, Inc. v. Guimarra Vineyards, 573 F. Supp. 337, 340-41
(E.D. Wisc. 1983), where the amendment would be futile,
Friedman v. New York City Dep't of Hous. & Dev. Admin.,
688 F. Supp. 896, 899 (S.D.N.Y. 1988), aff'd, 876 F.2d 890 (2d Cir.
1989), or where the claims put forth were defective, Valdan
Sportswear v. Montgomery Ward & Co., 591 F. Supp. 1188, 1190
(S.D.N.Y. 1984) or where there was no merit in the proposed
amendments, Health-Chem. Corp. v. Baker, 915 F.2d 805, 809-10,
(2d Cir. 1990). But where plaintiff has at least "colorable"
grounds for relief, most Second Circuit courts have permitted
the requested amendment. See Ryder Energy Distribution v.
Merrill Lynch Commodities, 748 F.2d 774, 783 (2d Cir. 1984);
Williams v. Chase Manhattan Bank, 728 F. Supp. 1004, 1007
(S.D.N.Y. 1990); Banco de Desarrollo Agropecuario, S.A. v.
Gibbs, 116 F.R.D. 548, 548-49 (S.D.N.Y. 1987). Testing whether
a claim is "colorable" has been held comparable to the test
under Fed.R.Civ.P. 12(b)(6). CBS, Inc. v. Ahern, 108 F.R.D.
14, 18 (S.D.N.Y. 1985); In re Cohen, 98 B.R. 179, 183-84
(Bankr.S.D.N.Y. 1989). The standard for dismissal under Rule
12(b)(6) is quite stringent. As the Second Circuit has stated:
to dismiss a complaint for failure to state a
claim upon which relief can be granted, a court
must accept plaintiff's allegations at face
value, . . . must construe the allegations in the
complaint in plaintiff's favor, . . . and must
dismiss the complaint only if `it appears beyond
doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle
him to relief.'
Rapf v. Suffolk County of New York, 755 F.2d 282, 290 (2d Cir.
1985) (citations omitted).
Despite this broad standard, defendant has not met it in
this case. The case law in this Circuit is clear: receipt of
a Workmen's Compensation award is not a waiver of federal
remedies unless there is "an unqualified acceptance of
compensation payments over a period of years," Dacus v.
Spin-Nes Realty & Constr. Co., 22 N.Y.2d 427, 293 N.Y.S.2d 83,
86, 239 N.E.2d 718, 720 (1968), or "all of the parties elect to
settle their dispute [through compensation], and forego their
Federal rights and remedies," id. 293 N.Y.S.2d at 87, 239
N.E.2d at 721 (quoting Matter of Ahern v. South Buffalo Ry.
Co., 303 N.Y. 545, 555, 104 N.E.2d 898, 903 (N.Y. 1952) aff'd
sub nom. South Buffalo Ry. Co. v. Ahern, 344 U.S. 367, 73 S.Ct.
340, 97 L.Ed. 395 (1953)). In Ahern, the court specifically
held that the statutory waiver of § 113 "is not to be imposed
upon [petitioners] in the absence of a joint waiver or
agreement evidencing an intention to be bound by its terms."
Id. See also Harney v. William M. Moore Bldg. Corp.,
359 F.2d 649, 652 (2d Cir. 1966); Pederson v. Manitowoc Co., 25 N.Y.2d
412, 306 N.Y.S.2d 903, 906, 255 N.E.2d 146, 148 (1969) (holding
"[i]t had been well established in the Federal jurisdictions
that the mere acceptance of workers' compensation benefits will
not bar subsequent Federal maritime actions for the same
occurrence unless there is an express waiver."). Indeed,
defendant admits that these "decisions shape the law of the
situation at bar." Item 41, Point II.*fn2
Defendant has offered no evidence that plaintiff
affirmatively waived his claim. In contrast, plaintiff has
thoroughly documented that, at every step of the process, he
expressly was not waiving his federal claims. See Item 34, Exs.
F, G. Moreover, he fully alerted his employer of his federal
claims — by bringing this suit — well prior to the acceptance
of State compensation benefits. See Morris v. Cleanco Indus.
Services, Inc., 84 A.D.2d 592, 444 N.Y.S.2d 206, 207 (1981).
Thus, defendants motion to amend is denied.
Plaintiff's request for attorney's fees responding to this
motion are also denied. Counsel shall meet with the court on
November 16, 1990 at 9:00 a.m. to set a further schedule.