Group and Poling, the LIRR/MTA is not relieved of its apportioned share of liability for its own negligence unless it can establish either that it would be held liable for the primary negligence of the Ditmas Group and/or Poling or that the Ditmas Group and/or Poling have assumed the LIRR/MTA's duty of reasonable care by agreement, as in cases such as Mas, or by operation of law, as in cases such as Bellevue South Assocs. or McDermott.3
Moreover, the LIRR/MTA has not established the existence of any relationship or theory pursuant to which the Ditmas Group and/or Poling can be said to have assumed the LIRR/MTA's duty of care either by agreement or by operation of law.
The LIRR/MTA cites the New York Oil Spill Prevention, Control, and Compensation Act, N.Y. Navigation Law §§ 170 et seq. (McKinney's 1992) (the, "Act"). The purpose of that law is "to ensure a clean environment and healthy economy for the state by preventing the unregulated discharge of petroleum ["intentional or unintentional action or omission resulting in the release, spillage, leakage, pumping, pouring, admitting, emptying or dumping the petroleum into the waters of the State or onto land from which it might flow. . . ." Id. § 172(8)] which may result in damage to lands, water or natural resources of the state by . . . providing for liability for damage sustained within the state as a result of such discharges." Id. § 171. Section 181 provides that:
1. Any person who has discharged petroleum shall be strictly liable without regard to fault, for all clean up and removal costs and all direct and indirect damages no matter by whom sustained as defined in this section.
* * * * *
3. The owner or operator of a major facility or vessel which has discharged petroleum shall be strictly liable, without regard to fault . . . for all clean up and removal costs and all direct and indirect damage paid by the fund.
Based on this statute, the LIRR/MTA contends that its duty has been transferred to the Ditmas Group and Poling.
While the court applauds the LIRR/MTA for its efforts in putting forth this argument, particularly given the extreme time pressure imposed by the circumstances, it does not satisfy the requirements for finding a right to implied indemnification. First, the Act does not appear to be applicable to these parties and these facts. Parties liable under this Act are strictly liable to the "Fund," defined as the "New York environmental protection and spill compensation fund," N.Y. Environmental Conservation Law § 172(9), not to private entities paying personal injury damage claims. Furthermore, the Act appears to be directed at environmental concerns, limited to liability for cleanup and removal costs of oil spills. There is no indication that the Act contemplates liability for personal injury or property damage occasioned by an explosion involving a gasoline spill.
Second, even assuming that the Navigation Law's provision for strict liability to pay "indirect" damages resulting from a spill encompasses personal injury and property damage claims paid by a joint tortfeasor, the LIRR/MTA has not successfully argued the the law operates to transfer its direct duty of reasonable care to the Ditmas Group and/or Poling. Nevertheless, as demonstrated by the cases discussed above, and as concluded by a court within this district:
"To maintain a cause of action for indemnity, the party seeking indemnity must show that the proposed indemnitor owed it a duty to perform the act in question. Absent a duty between the tortfeasors independent of the plaintiff's cause of action, there can be no claim for indemnity.
Ramirez v. National R.R. Passenger Corp., 576 F. Supp. 95, 99 (S.D.N.Y. 1983) (citing Smith v. Hooker Chem. and Plastics Corp., 83 A.D.2d 199, 200-01, 443 N.Y.S.2d 922, 924 (4th Dept. 1981)).
The Settlement operates to remove the claims by the Individual Claimants and by the Ditmas Group against Poling, the various counter- and cross-claims asserted between those parties, and claims for contribution by or against the settling parties, including those asserted by the LIRR/MTA. As this opinion concludes, the only claim against Poling not resolved by the Settlement, the LIRR/MTA's claim for indemnification, is dismissed. Thus, are the claims by the Individual Claimants and Poling against the LIRR/MTA.
This being so, there no longer appears to be any basis for jurisdiction. This case came under this court's admiralty jurisdiction when Poling filed its claim for exoneration or limitation of liability under 28 U.S.C. § 1333 and 46 U.S.C. § 183(a). This court determined that it would exercise pendent jurisdiction over the common law cross-claims. See In re Complaint of Poling Transp. Corp., No. 87 Civ. 8505, slip op. at 5 (S.D.N.Y. Oct. 23, 1991), and that "since virtually the entire case must be presented just on the limitation issue, even if the court denies limitation, it would be consistent with the purposes of pendent jurisdiction to retain the state issues." Id. (citing Enercomp., Inc. v. McCorhill Pub., Inc., 873 F.2d 536, 545-46 (2d Cir. 1989)).
Because liability has already been determined as far as the admiralty case is concerned, and the damages case has not been made ready for trial, there is no reason to exercise pendent jurisdiction. In fact, this court may be compelled to dismiss the pendent claims against the LIRR. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.").
For the foregoing reasons, the motion to dismiss the indemnification claims of the LIRR/MTA is granted. In view of the Settlement, all claims against Poling, the Ditmas Group and the Individual Claimants are dismissed with prejudice. Submit judgments on notice.
It is so ordered.
New York, N.Y.
January 9, 1992
ROBERT W. SWEET