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JURGENS v. POLING TRANSP. CORP.
September 19, 2000
JOHN F. JURGENS, GAIL JURGENS, BRIDGET JURGENS AND KATE JURGENS, PLAINTIFFS,
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.
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
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.
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,
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
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
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 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
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
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
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.
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
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
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
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 ...