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JURGENS v. POLING TRANSP. CORP.

September 19, 2000

JOHN F. JURGENS, GAIL JURGENS, BRIDGET JURGENS AND KATE JURGENS, PLAINTIFFS,
V.
POLING TRANSPORTATION CORPORATION, CHESTER A. POLING, INC., MABEL L. POLING CORP., MOTOR VESSEL POLING BROS. 9, INC., METRO FUEL OIL CORPORATION, METRO TERMINALS CORP., ULTIMATE TRANSPORT INC., JANET MAHLAND, THE ANTHONY J., THE CLARA P. AND THE JEANNE C., THEIR TACKLE, ENGINES AND APPURTENANCES, ETC. IN REM, DEFENDANTS. PHILIP BECKER AND PATRICIA BECKER, PLAINTIFFS, V. POLING TRANSPORTATION CORPORATION, CHESTER A. POLING, INC., MABEL L. POLING CORP., MOTOR VESSEL POLING BROS. 9, INC., METRO FUEL OIL CORPORATION, METRO TERMINALS CORP., ULTIMATE TRANSPORT INC., JANET MAHLAND, THE ANTHONY J., THE CLARA P. AND THE JEANNE C., THEIR TACKLE, ENGINES AND APPURTENANCES, ETC. IN REM, DEFENDANTS.



The opinion of the court was delivered by: Nickerson, District Judge.

    MEMORANDUM AND ORDER

Plaintiffs John F. Jurgens and Philip Becker, seamen employed on the ANTHONY J, a commercial vessel, brought these consolidated actions against the named defendants under the admiralty law as modified by the Jones Act, 46 U.S.C.App. § 688, the general maritime law, 28 U.S.C. § 1333, and the common law of negligence, seeking recovery for injuries they sustained from a fire while transferring gasoline from a barge called THE CLARA P. into a fuel truck.

The only defendants now remaining before the court are Janet P. Mahland, Metro Fuel Oil Corp., and Metro Terminals Corp. The other defendants are no longer parties before the court.

Plaintiffs have moved for partial summary judgment against defendant Janet P. Mahland, and she has cross-moved for summary judgment dismissing the complaints as to her. Defendants Metro Fuel Oil Corp. and Metro Terminals Corp. have also moved for summary judgment dismissing the complaints as to them.

I. BACKGROUND

Procedural Background

Plaintiffs Jurgens and Becker were seaman working on the coastal tanker called THE ANTHONY J. Jurgens as captain and Becker as chief engineer. The record contains conflicting evidence as to whether plaintiffs were employed by defendant Poling Transportation Corporation or defendant Chester A. Poling, Inc.

Defendant Chester A. Poling, Inc. (Chester A. Poling) is the parent corporation of Poling Transportation Corporation (Poling Transportation). Poling Transportation, in turn, is the corporate parent of several corporations that own or owned one or more vessels in navigation, among them the defendant Motor Vessel Poling Bros. No. 9, which owned a barge called THE CLARA P. Another Poling Transportation subsidiary owned THE ANTHONY J.

Janet Mahland was in August 1995 a director and president of Poling Transportation and Motor Vessel Poling Bros. No. 9, and president of Chester A. Poling. The court entered a default judgment against all three corporations.

Defendants Metro Fuel Oil Corporation (Metro Fuel) and Metro Terminals Corp. (Metro Terminals) collectively "Metro," are companies based in Brooklyn, New York, in the business of buying, selling and distributing petroleum products. Metro Fuel is a marketing entity that buys and sells petroleum products using terminal facilities owned by Metro Terminals. Metro Terminals is also licensed to buy and sell gasoline. Joseph Squadrito was a purchase and sales manager for Metro Fuel, and also handled purchases made by Metro Terminals.

Defendant Ultimate Transport Inc. ("Ultimate") owned and operated a small fleet of trucks for transporting fuel oil and other products.

The Court entered default judgment against Ultimate on March 10, 1997. Ultimate and plaintiffs entered into a settlement agreement on April 14, 2000.

The Proposed Sale of THE CLARA P.

In August 1995 THE CLARA P. was moored at a dock operated by Poling Transportation in Staten Island, New York. A person the parties knew only as "Marcos," an agent for a buyer named Abdullah Abdullah, approached Mahland in 1995 with an offer to buy THE CLARA P. Upon inspection, Marcos discovered that THE CLARA P.'s "slop" tanks contained a substance that smelled of gasoline.

This substance, referred to by the parties as "product," included water mixed with gasoline or some other hydrocarbon fluid. The parties disagree as to its precise composition.

On behalf of Abdullah, Marcos agreed to buy THE CLARA P. provided that the tank containing the product and the other storage compartments were cleaned. Mahland negotiated the agreement. It is unclear whether she did so as president of Poling Transportation or of Motor Vessel Poling Bros.

On August 17, 1995, Mahland told Frederick Carmant, a dispatcher for Poling Transportation, to arrange for THE CLARA P.'s slop tanks to be cleaned out. She and Carmant were both aware that THE CLARA P.'s onboard pumping system was inoperative.

Discussions with Metro Fuel

At Mahland's suggestion, Carmant called several companies who provide pumping services in the harbor. When he told Mahland that none of the companies was available, Mahland told him to call Metro Fuel. She did not give specific instructions on how the boat was to be cleaned.

Carmant stated that Metro had often bought gasoline or fuel oil from Poling Transportation, and that a boat in Poling Transportation's fleet would typically transport the product to Metro Terminals where it would be offloaded. THE CLARA P. could not do this job because its internal pumps were inoperative and, apparently, it was not then authorized to travel upon navigable waters.

Carmant then called Joseph Squadrito, Metro's purchase and sales manager. Carmant claimed that he offered to give Metro the product on the Clara P. without charge if Metro would arrange have it offloaded from the barge and transported to Metro Terminal. Squadrito said Carmant offered to sell him gasoline, without mentioning that Metro Fuel needed to arrange for its transportation.

Squadrito came to the Poling Transportation yard on the morning of August 18, 1995 to obtain a sample of the product from THE CLARA P. Carmant, Mahland and Squadrito gave different versions of Squadrito's visit and of subsequent events.

In a deposition Squadrito testified in substance as follows. When he visited the Poling yard, Carmant told him that the product would have to be pumped off of the barge onto a truck prior to any delivery. Squadrito told Carmant that Metro Terminal could not receive fuel unless it was delivered by barge, and so probably could not accept the product. Carmant then asked Squadrito to recommend a company that could offload and transport the product to another location within the Poling Transportation yard. Squadrito said he suggested Ultimate Transportation and two other trucking companies.

Carmant's testimony was that Squadrito obtained a sample of the product and said he would have it tested and tell Carmant later that day whether Metro Fuel would accept it. Squadrito then left Poling's yard without discussing Ultimate.

Carmant said Squadrito called him early the same afternoon and said the product had been tested and found to be clean gasoline. Squadrito allegedly said also that Metro would accept the product. Carmant said he then told Squadrito that the product would have to be pumped off THE CLARA P. and then transported to Metro Terminal. It was Carmant's understanding that Metro Fuel would accept delivery at Metro Terminal, and would pay for the transportation.

Carmant also said he asked Squadrito how Poling should transport the product. Carmant said he told Squadrito that a "vacuum truck" was needed for the job.

Carmant gave conflicting testimony as to whether Squadrito instructed him to call Ultimate or simply recommended Ultimate as a potential transport company. Carmant said Squadrito characterized Ultimate as "our trucking company" or a company that Metro "had used . . . before and were satisfied with."

Mahland was sitting next to Carmant when Squadrito called on the afternoon of August 18, 1995. Carmant said he told Mahland that Metro could accept the product via truck, and that Squadrito recommended Ultimate. Mahland corroborated this statement.

Jurgens was also present when Carmant spoke to Squadrito on the phone. He said it was his understanding that Metro agreed to accept the product and that "they would take it off that night." Specifically, he believed that Metro would supply a truck to offload and transport the product.

Squadrito admitted that he called Carmant, but said he did so only to confirm that Metro Fuel would not accept the product. Squadrito admitted knowing that Ultimate did not have vacuum trucks.

On the morning of August 18, Carmant told Jurgens to pump water from a different tank on THE CLARA P., using a portable hand pump stored on the Poling yard. He later told Jurgens to have the crew of THE ANTHONY J. help remove the product from the slop tanks, and said a vacuum truck would arrive later that day.

Discussions with Ultimate

Carmant said Henson told him a truck would come to the Poling Transportation yard later that afternoon. Carmant said he assumed that Metro Fuel would pay for the truck, and that he never discussed payment with anyone at Ultimate.

Yuri Schemelzman, the owner of Ultimate, gave a different version of the sequence of events. He said the first call to Ultimate regarding the transaction was not from Carmant but from Squadrito to Henson. Squadrito allegedly asked if Ultimate could help Poling Transportation and asked Henson to contact Carmant directly. Henson then spoke to Carmant, arranged for Poling to "lease" a truck for the afternoon, and negotiated a price, according to Schemelzman.

Schemelzman said he understood that Metro Fuel needed the truck to pump an unidentified substance from a boat into the truck and transport it to barrels to be stored on the Poling yard. But later in his deposition, Schemelzman said he thought that the product was to be transported to Metro Terminal.

It is undisputed that Ultimate did not have vacuum trucks, and that Squadrito knew this before recommending Ultimate to Carmant. Squadrito maintains that he did not know a vacuum truck was needed, although he admits knowing that fuel of some sort was to be pumped from THE CLARA P.

Ultimate eventually dispatched a regular tanker truck, not a vacuum truck. The truck was driven by Etvern O. Nugent, an Ultimate employee. Nugent was accompanied by Calver Leslie, whom he characterized as a visiting friend rather than an Ultimate employee. Jurgens and Becker testified that Leslie appeared to be Nugent's assistant and helped in the pumping operation.

Nugent said that Ultimate's dispatcher gave him the following instructions. He was to drive first to a storage facility in Brooklyn to pick up a piece of equipment called a coupler, which is typically used to link two lengths of hose. Nugent was then instructed to drive to the Poling yard, where he would pick up "something" and take it to Metro Terminal. While at Poling, Nugent was to follow instructions from Poling's employees.

The Fire

Nugent arrived at Poling's yard at approximately 4:00 p.m. on August 18, 1995. Mahland left the Poling yard just as Nugent was arriving.

Jurgens said that when he discovered that Ultimate had not sent a vacuum truck, he discussed with Becker, Nugent and Leslie how they should to remove the product from the boat. He said that together the men decided to use the portable pump Jurgens and Becker had used earlier to remove water from a different tank on THE CLARA P.

Nugent testified that he played no part in this decision and, per his instructions from Ultimate's dispatcher, he merely did what Poling's employees told him to do.

George Reid, a master mariner retained by Jurgens as an expert, stated in an affidavit that the pump used by plaintiffs was not designed to pump combustible products, and that such a use of the pump posed a significant risk of fire or explosion.

Jurgens said that he, Becker, Leslie and another Poling employee set up the pump using the coupler that Nugent had picked up. The pump sat on the deck of THE CLARA P., which was moored to a small tugboat. The tugboat, in turn, was moored to the dock. The men ran an intake hose from the pump through a cargo hatch into THE CLARA P.'s slop tank, and ran an output hose from the pump across the deck of the tugboat and to the truck. Such an arrangement is known as an "over-the-top transfer."

Jurgens started the pump and began filling the first of two compartments on the Ultimate truck. When Nugent signaled Jurgens that the compartment was full, Jurgens shut the pump off and transferred the hose to the truck's other compartment.

When Jurgens restarted the pump, an explosion occurred onboard THE CLARA P. The cause of the explosion has not been definitively identified, but the parties agree it was related to the pumping operation.

The fire quickly engulfed Jurgens and Becker, both of whom jumped into the water. Both men suffered burns over much of their bodies. They were taken by ambulance to Cornell University Medical Center where ...


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