The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
This is an action by plaintiffs Edward Claudio and Edna Claudio seeking damages for personal injuries sustained by Edward Claudio ("Claudio") on October 1, 1993, when he fell into the hold of the tank barge Nathan Berman. Defendant Ken's Marine Service Inc. ("KMS") was performing cleanup tasks on the Nathan Berman on that date pursuant to a contract with the United States Coast Guard for the removal of the hazardous substance. On June 3, 1993, the United States Coast Guard issued to the owner and operator of the Nathan Berman a Notice of Federal Assumption for a Hazardous Substance Incident, and entered into a contract with KMS for cleanup of the barge on the same day.
Defendant United States has cross-claimed against defendant KMS alleging that under the terms of their contract, KMS is obligated to indemnify the United States for any loss, damage, or injury arising from the work it undertook to perform, and for all or part of any verdict or judgment a plaintiff may recover against the United States. The United States also alleges that any damages sustained by Claudio were caused by the negligence of KMS and that the United States would therefore be entitled to contribution from KMS based upon apportionment of fault.
Based on its theory that the defendant was employed jointly by KMS and KMOS, defendant KMS has moved for an order pursuant to Rule 12(b)(6) and/or rule 56 Federal Rules of Civil Procedure granting summary judgment dismissing plaintiffs' complaint and all cross claims against it. KMS asserts that this action is barred by section 905 of the Longshore and Harborworkers Compensation Act, 33 U.S.C. § 901 et seq. ("LHWCA"), under which an employer who provides his employee with the insurance benefits required by statute has no other liability toward the employee for injuries. 33 U.S.C. §§ 904, 905(a). KMS also asserts that the United States was the owner pro hac vice of the Nathan Berman at the time of the accident, that the plaintiffs' action against the United States is for negligence in that capacity and that accordingly, the United States' cross claims against KMS are barred by 33 U.S.C. § 905(b).
Summary judgment "shall be rendered forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In order for the moving party to be successful, it must "point out to the district court . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1985). In opposing a properly supported summary judgment motion, "an adverse party may not rest upon the mere allegations or denials of [its] pleading, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e) (emphasis added).
In deciding a summary judgment motion, the court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried. Eastman Mach. Co., Inc. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The nonmoving party, therefore, must come forward with facts, and not doubts as to the veracity of the moving party's allegations: "Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. "The mere existence of factual issues [pertaining to immaterial facts] will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985). The nonmovant "must do more that simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Applicability of the Longshoremen's Act
Defendant KMS argues for summary judgment based on the LHWCA, which provides:
(a) Except as otherwise provided in this section, compensation shall be payable under this Act 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).
The work performed by Claudio on the Nathan Berman involved maritime employment upon the navigable waters of the United States. See generally Director, OWCP v. Perini North River Assoc., 459 U.S. 297, 74 L. Ed. 2d 465, 103 S. Ct. 634 (1983). The LHWCA therefore bars any recovery by ...