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April 15, 1993


The opinion of the court was delivered by: SONIA SOTOMAYOR


 Plaintiff Jacinto G. Guilles ("Guilles") is a retired shoregang employee of defendant Sea-Land Service, Inc. ("Sea-Land") who seeks damages under the Longshore and Harbor Workers' Compensation Act of 1927, 44 Stat. 1426, as amended, 33 U.S.C. § 901 et seq. (1990 ed., and West Supp. 1992) (hereinafter the "LHWCA" or the "Act") for an injury sustained when he fell from the main gangplank of a vessel owned and operated by Sea-Land. The parties have stipulated to the negligence of the vessel and the amount of Guilles' damages. The remaining issue before the Court is whether Guilles, a harbor worker who is not a longshore person, is permitted, under § 905(b) of the LHWCA, to bring a negligence action against the owner of a vessel who is also his employer. For the reasons set forth below, the Court concludes that Guilles is entitled to bring such an action and enters judgment in his favor.

 Procedural Background

 Guilles originally brought this action as a seaman for the negligence of the vessel under the Jones Act, 38 Stat. 1185, 46 U.S.C. § 688 et seq. (1990 ed., and West Supp. 1992) ("Jones Act"). In the alternative, Guilles claimed the vessel was negligent and that he was entitled to recover for said negligence under § 905(b) of the LHWCA.

 On December 9, 1991, Sea-Land moved for summary judgment, claiming (1) that Guilles was not a seaman entitled to bring suit under the Jones Act, and (2) that Guilles was limited to worker compensation benefits under § 904 of the LHWCA and was not permitted, as a harbor worker who was not a longshore person, to bring a negligence suit under § 905(b) of the LHWCA. Guilles opposed the motion.

 Oral argument was held on March 27, 1992. By Stipulation dated June 1, 1992, the parties changed the focus of the case by agreeing that Guilles was not a seaman under the Jones Act but that he was entitled, as a harbor worker, to workers compensation benefits, which he received, under § 904 of the LHWCA. Sea-Land, however, reserved its right in the Stipulation to maintain the defense that Guilles, as a non-longshore harbor worker, was not entitled to bring a tort action under § 905(b) of the LHWCA. By Order dated June 11, 1992, Judge John E. Sprizzo denied Sea-Land's summary judgment motion as it related to the LHWCA claim and set trial for December 21, 1992.

 On October 2, 1992, the case was transferred to Judge Sonia Sotomayor who rescheduled the trial to February 1, 1992. On January 22, 1993, Sea-Land sought leave to refile its summary judgment motion on the identical grounds argued before Judge Sprizzo. Guilles opposed Sea-Land's request, arguing that Judge Sprizzo had already rejected the same claims. After reviewing the summary judgment papers submitted to Judge Sprizzo and the letter submissions to it, this Court concurred with Judge Sprizzo's opinion and denied Sea-Land's request.

 Following a bench trial held on February 1 and 2, 1993, during which all witnesses for both parties testified (except for Guilles' doctor), the parties Stipulated to the following facts and conclusions of law which are adopted by the Court, as supported by the evidence presented at trial and by law. *fn1"

 For the sake of clarity in understanding the stipulations of the parties, the Court explains that Guilles was a shoregang employee who functioned as a relief cook on Sea-Land Vessels when they berthed in the New York/New Jersey area. On April 22, 1988, as he attempted to board the M/V Sea-Land Integrity to commence working for the day, Guilles fell from the main gangplank and injured his ankle. The testimony at trial demonstrated that Sea-Land knew that the main gangplank was too short to reach the dock at a safe climbing angle. The following are the parties' Stipulated facts:

 1. On April 22, 1988, Jacinto G. Guilles was employed by defendant Sea-Land as a member of the shoregang and, as such, was covered for purposes of entitlement to compensation benefits of the LHWCA, both by virtue of his status and situs of injury. Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 97 S. Ct. 2348, 53 L. Ed. 2d 320 (1977); Director, OWCPU v. Perini North River Assoc., 459 U.S. 297, 103 S. Ct. 634, 74 L. Ed. 2d 465 (1983).

 2. Plaintiff did not engage in providing stevedoring services to the vessel, shipbuilding, repairing or breaking services.

 3. Plaintiff, on April 22, 1988, sustained "an injury", which occurred as a result of the "negligence of the vessel" within the meaning of § 905(b) of the Act, on the main gangway or so-called "accommodation ladder" of the vessel SEA LAND INTEGRITY.

 4. As a result of said injury, plaintiff sustained damages in the amount of $ 20,000.00 over and above the $ 10,533.78 he received in worker compensation payments, and $ 3,382.57 he received under the LHWCA as compensation benefits for his medical care and treatment. Thus, the total amount of damages suffered by Guilles is $ 33,916.35, of which $ 13,916.35 is subject to a compensation lien.

 5. This Court has jurisdiction over plaintiff's claims, pursuant to 28 U.S.C., § 1333, because the injury occurred on the navigable waters of the United States. Victory Carriers v. Law, 404 U.S. 202, 207, 92 S. Ct. 418, 422, 30 L. Ed. 2d 383 (1971).

 The parties did not stipulate about the applicability of § 905(b) of the LHWCA to Guilles' claim.


 In 1927, Congress passed the LHWCA and created a worker compensation scheme for longshore persons and harbor workers. The exclusive worker compensation remedy was (and is still found today) in § 904 of the LHWCA: "Every employer shall be liable for and shall secure the payment to his employees of the compensation scheme payable under sections 907, 908, and 909 of this title." 33 U.S.C.A. § 904 (1990 ed., and West Supp. 1992). Section 905 made clear that the only remedy under the statute was the compensation scheme of § 904: "The liability of an employer prescribed in § 904 of this title shall be exclusive and in place of all other liability of such employer to the employee . . . ." 33 U.S.C. § 905 (1970 ed., ...

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