him how and where to offload the product.
These facts may indicate, albeit circumstantially, that Metro
had or exercised the right to control the "detailed physical
performance" of the operation. Orleans, 425 U.S. at 814-16, 96
S.Ct. at 1976-77. Summary judgment dismissing plaintiffs' claim
against Metro is thus not appropriate.
Ultimate as Independent Contractor
Plaintiffs argue that even if Metro retained Ultimate only as
an independent contractor, they are vicariously liable for
Ultimate's negligence because the transfer operation was an
"inherently dangerous activity."
An independent contractor, like an agent, is a party hired by a
principal or employer. See Restatement (Second) of Agency § 1
cmnt. e (1958); O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir.
1997). Remuneration to the purported contractor by the employer
is an "essential characteristic" of the independent contractor
relationship. O'Connor, 126 F.3d at 115. "[T]he typical test of
whether one is an independent contractor [as opposed to a servant
or employee] lies in the control exercised by the employer, and
in who has the right to direct what will be done and when and how
it will be done." Makarova v. U.S., 201 F.3d 110, 114 (2d Cir.
2000); see also Restatement (Second) of Agency § 220(2).
One who hires an independent contractor generally is not liable
for the negligence the contractor or its employees. Restatement
(Second) of Torts § 409 (1965). But "where the activity performed
by the contractor is an inherently dangerous one, the negligence
of the contractor may be imputed to the employer." Alva
Steamship Co. v. City of New York, 616 F.2d 605, 610 (2d Cir.
Alternatively, a principal may be liable for hiring a negligent
or unqualified independent contractor "provided that the employer
either failed to exercise reasonable care in the selection of the
contractor or had actual or constructive knowledge of the
contractor's insufficiency." Waite v. American Airlines, Inc.,
73 F. Supp.2d 349, 355 (S.D.N.Y. 1999); see also O'Keefe v.
Sprout-Bauer, Inc., 970 F.2d 1244, 1251 (3d Cir. 1992);
Restatement (Second) of Agency § 411.
It is Metro's position that Squadrito simply suggested that
Poling use Ultimate's services, and thus that Ultimate was
neither their agent nor an independent contractor. But, as noted,
a reasonable jury could conclude that Metro hired Ultimate to
help pump the product from the barge and transport it to Metro
The Court does note the complete absence of documentary
evidence on this issue in the form of invoices, contracts and the
like. Torre, Metro Fuel's treasurer, stated in a deposition that
both Metro Fuel and Metro Terminal typically issue "delivery
tickets" to document fuel transfers made by trucking companies on
their behalf, but that he knew of no records of the transaction
at issue. Nonetheless, summary judgment on the question of
Ultimate's relationship with the Metro defendants is
inappropriate in the face of conflicting affidavits and
deposition testimony. Fed.R.Civ.P. 56(c).
Metro also asserts that the transfer operation was not an
"inherently dangerous activity." Whether an activity is
inherently dangerous "is a question of fact to be determined by
the fact-finder" as long as "reasonable minds" can differ.
McMillan v. United States, 112 F.3d 1040, 1044 (9th Cir. 1997);
see also Rosenberg v. Equitable Life Assur. Socy., 79 N.Y.2d 663,
668, 584 N.Y.S.2d 765, 595 N.E.2d 840 (1992).
A trier of fact could easily find that the removal of the
product from THE CLARA P. was inherently dangerous. Plaintiffs'
expert, George Reid, stated that offloading gasoline without a
vacuum truck posed a risk of fire. The Second Circuit has found
that handling gasoline in analogous circumstances
was inherently dangerous. See Alva Steamship Co. v. City of New
York, 616 F.2d 605, 610 (2d Cir. 1980) (salvage of liquid fuel
from damaged ship); see also 46 C.F.R. § 35.35-20 (requiring
special precautions in loading and unloading flammable liquid
cargo from tank vessels).
Even if the gasoline transfer was not "inherently dangerous,"
Metro may have been negligent in selecting an independent
contractor that lacked the proper equipment. See Restatement
(Second) of Torts § 411, illustration 2 (if employer hires
trucking company to haul logs but knew or should have known that
company's trucks were unsuitable for work, employer is liable to
third party injured by falling logs). It is undisputed that
Squadrito knew that Ultimate had no vacuum trucks and that
offloading the product without such a truck was unsafe.
There are issues of fact as to whether Metro may be liable on
the ground that the offloading was inherently dangerous or for
negligence in selecting Ultimate.
E. Proximate Cause
The Metro defendants argue that their acts did not proximately
cause plaintiffs' injuries because they neither created the
conditions that led to the accident nor set in motion the
over-the-top transfer. Similarly, they argue that the negligence
of Poling and its employees were superseding causes of the
"Proximate cause . . . limits a defendant's liability to those
foreseeable consequences that the defendant's negligence was a
substantial factor in producing." Bonsignore v. City of New
York, 683 F.2d 635, 637 (2d Cir. 1982).
The chain of legal causation is broken by "a later cause of
independent origin that was not foreseeable." Exxon Co. U.S.A.
v. Sofec, Inc., 517 U.S. 830, 837, 116 S.Ct. 1813, 1818, 135
L.Ed.2d 113 (1996) (quoting 1 T. Schoenbaum, Admiralty and
Maritime Law § 5-3, pp. 165-66 (2d ed. 1994)). The foreseeable
intervening negligence of a plaintiff or a third party "may
reduce, but does not bar, recovery for personal injuries, that
is, the plaintiff's recovery is reduced in proportion to his own
fault." Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-09, 74
S.Ct. 202, 98 L.Ed. 143 (1953).
Metro relies on a series of decisions denying recovery to
plaintiffs injured under conditions created because the defendant
supplied defective equipment. Benaquista v. Municipal Housing
Auth., 212 A.D.2d 860, 622 N.Y.S.2d 129 (2d Dept. 1995)
(defendant landlord's defective intercom not the proximate cause
of plaintiff's fall in stairwell); see also Ferguson v. Callanan
Ind., 223 A.D.2d 862, 636 N.Y.S.2d 207 (3d Dept. 1996)
(defendant's inoperative equipment not the proximate cause of
injuries sustained when plaintiff used alternative means of
accomplishing task); McMahon v. ConAgra, Inc., 1992 WL 131115
(W.D.N.Y. 1992) (same).
These decisions support the proposition that a defendant is not
liable who "merely furnished the condition or occasion upon which
plaintiff's injuries were received but did not put in motion the
agency by which the injuries were inflicted." Benaquista, 622
N YS.2d at 129. In Ferguson, for example, the defendant
supplied defective equipment to plaintiff's employer, but "took
no part in the decision" to have plaintiff perform a task usually
made less dangerous by defendant's equipment. 636 N.Y.S.2d at
But plaintiffs seek to hold Metro vicariously liable for
Ultimate's negligence. And Ultimate's employees allegedly did not
merely create the conditions under which plaintiffs were injured,
that is, the absence of a vacuum truck. They also allegedly
helped plaintiffs "put in motion the agency" causing plaintiff's
injuries, namely, the over-the-top transfer. Cf. Benaquista,
622 N.Y.S.2d at 129.
Moreover, the Metro defendants themselves allegedly had a hand
with the transfer despite the lack of proper equipment.
Plaintiffs contend that Squadrito knew that THE CLARA P.'s pumps
were inoperative and that Ultimate had no vacuum trucks, but
nonetheless requested that Ultimate help offload and transfer the
product. Cf. Lopez v. A/S/D/S Svendborg, 581 F.2d 319, 325 (2d
Cir. 1978) (defendant ship owner is liable where he knew of
danger but had plaintiff stevadore continue working or joined in
their decision to do so); Restatement (Second) of Torts §
413 (1965) (employer of independent contractor liable for injuries
caused by dangerous work of which employer was aware and for
which employer failed to take precautions).
Similarly, any intervening negligence on plaintiffs' part was
foreseeable. Plaintiffs' expert testified that a risk of fire was
inherent in any procedure to remove gasoline from the boat
without the proper equipment. Nonetheless, Squadrito allegedly
arranged for Poling and Ultimate to complete the transfer without
a vacuum truck. In these circumstances, it cannot be said that
"the subsequent actor's negligence was `extraordinary' (defined
as `neither normal nor reasonably foreseeable')." Exxon, 517
U.S. at 835, 116 S.Ct. at 1817 (citations omitted).
Since there are triable issues of fact as to Metro's liability,
summary judgment is inappropriate.
IV. MAHLAND'S MOTION
Mahland moves for summary judgment on the grounds that
plaintiffs have no claims against her under either the Jones Act
or the unseaworthiness doctrine; that general maritime law bars
an action by a seaman against a fellow employee; and that her
acts were neither negligent nor the proximate cause of
Jones Act and the Fellow Servant Doctrine
The Jones Act, 46 U.S.C.App. § 688, allows a seaman to seek
recovery from his or her employer for injuries caused by the
employer's negligence. The Jones Act provides a right of action
only against a seaman's "employer." Cosmopolitan Co. v.
McAllister, 337 U.S. 783, 789, 69 S.Ct. 1317, 1321, 93 L.Ed.
1692 (1949); Mahramas v. American Export Isbrandtsen Lines,
Inc., 475 F.2d 165, 170 (2d Cir. 1973).
"[T]he Jones Act provides the exclusive recovery in negligence
for claims by seamen against their employers." Ellenwood v.
Exxon Shipping Co., 984 F.2d 1270, 1283 (1st Cir. 1993).
"Employers" under the Jones Act include "those standing in the
proximate relation of employer," Cosmopolitan Co. v.
McAllister, 337 U.S. 783, 790, 69 S.Ct. 1317, 1321, 93 L.Ed.
1692 (1949), including the employer's "officers, agents, or
employees." Hopson v. Texaco, Inc., 383 U.S. 262, 263, 86 S.Ct.
765, 766, 15 L.Ed.2d 740 (1966).
The Jones Act does not bar negligence actions by seaman against
non-employer third parties under general maritime law. But
general maritime negligence actions against fellow employees are
barred by the fellow servant doctrine. McAleer v. Smith,
57 F.3d 109, 116 (1st Cir. 1995).
Plaintiffs apparently concede that they may not sue Mahland
either for negligence under the Jones Act or for unseaworthiness.
But they contend she may be held liable for negligence under the
general maritime law as a non-employer third party.
Plaintiffs seek to avoid the fellow servant rule by arguing
that the parties worked for different employers. They allege that
Becker and Jurgens were employees of Chester A. Poling, while
Mahland is sued in her capacity as president or corporate officer
of Poling Transport or Motor Vessel Poling Bros. No. 9.
But a seaman employed by one entity may be considered a
temporary or shared employee for purposes of the Jones act under
the doctrines of "borrowed" and "dual" servants. See Kelley v.
Pacific Co., 419 U.S. 318, 324, 95 S.Ct. 472, 476, 42 L.Ed.2d
498 (1974) (applying Federal Employers' Liability Act); Kernan
v. American Dredging Co., 355 U.S. 426, 439, 78 S.Ct. 394, 401,
2 L.Ed.2d 382 (1958) (Jones Act incorporates "the entire
judicially developed doctrine of liability" under the Federal
Employers' Liability Act); Walker v. Braus, 995 F.2d 77 (5th
Cir. 1993) (applying borrowed servant doctrine under Jones Act).
A borrowed servant is one "directed or permitted by his master
to perform services for another." Restatement (Second) of Agency
§ 227; Williamson v. Consolidated Rail Corp., 926 F.2d 1344,
1349 (3d Cir. 1991). A "dual servant" is the servant "of two
masters . . . at one time as to one act, if the service to one
does not involve abandonment of service to the other."
Restatement (Second) of Agency § 226; Williamson, 926 F.2d at
Under either rule, an employee-employer relationship is not
established for Jones Act purposes unless the employer "had the
power to control, manage and direct the servant in the
performance of [the seaman's] work." Addison v. Gulf Coast
Contracting Servs., 744 F.2d 494, 499 (5th Cir. 1984); see
Kelley, 419 U.S. at 324, 95 S.Ct. at 476.
Whether the requisite control was present turns on several
factors, most importantly who exercised "significant supervisory
control" over the operation in which the plaintiff was injured.
Kelley, 419 U.S. at 327, 95 S.Ct. at 477. The Court also looks
to "who selected and engaged the plaintiff to do the work; . . .
and who furnished the tools with which the work was performed and
the place of work." Williamson, 926 F.2d at 1349.
It is unclear on the present record whether Becker and Jurgens,
as crew members of THE ANTHONY J., were employed by Chester A.
Poling or Poling Transportation. But the record clearly shows
that, at the time of the accident, plaintiffs were borrowed or
dual servants of the corporation that controlled the unloading
operation. That entity employer was either Motor Vessel Poling
Bros. No. 9, which owned THE CLARA P., or of Poling
Transportation, its parent corporation.
On the day of the accident, Mahland told Carmant, a Poling
Transportation employee, to have THE CLARA P. cleaned out in
preparation for its sale. Carmant, in turn, told Jurgens to pump
water from a storage tank using a portable hand pump and to
determine how much product was in the slop tanks. He later "left
instructions for the crew of the ANTHONY J. to do whatever . . .
was needed" in the pumping operation.
Even without resort to agency law, the undisputed facts also
show that Mahland, at the time she committed acts charged in the
complaint, was acting as an officer of the same corporate entity
as plaintiffs. She was president of Chester A. Poling, Poling
Transportation, and Motor Vessel Poling Bros. No. 9. She
negotiated the sale of the barge, agreed to have the boat's tanks
cleaned, and instructed Carmant to make the necessary
arrangements. In her capacity as president of Poling
Transportation, Mahland was subsequently indicted and pleaded
guilty for Clean Water Act violations committed in connection
with that cleaning operation.
In short, at the time of the fire, either plaintiffs and
Mahland were fellow servants or Mahland was the agent of
plaintiffs' employer. In either event, plaintiffs may not recover
for Mahland's negligence except through a suit against their
employer under the Jones Act. See Ellenwood, 984 F.2d at 1283
(Jones Act provides "exclusive recovery in negligence for claims
by seamen against their employers"); Hopson, 383 U.S. at 263,
86 S.Ct. at 766 ("employer" under the Jones Act includes
"officers [or] agents" of nominal employer).
Plaintiffs next contend that even if the parties were employed
by the same corporation,
the fellow-servant doctrine in maritime law only bars suits by a
seaman against the master of his vessel or fellow crew members.
Mahland indisputably was not the master of a vessel or a fellow
It is true that the rule as applied to seaman is often phrased
in the language urged by plaintiffs. See, e.g., The Osceola,
189 U.S. at 175, 23 S.Ct. at 487 ("all the members of the crew .
. . are, as between themselves, fellow servants, and hence seamen
cannot recover for injuries sustained through the negligence of
another member of the crew"). But plaintiffs have not cited, and
the Court could not locate, any decision allowing a seaman to
bring a negligence action against a fellow corporate employee, as
distinct from a fellow crew member, without running afoul of the
fellow servant doctrine and the Jones Act.
As noted, the Jones Act allows recovery for the negligence of
"those standing in the proximate relation of employer,"
McAllister, 337 U.S. at 790, 69 S.Ct. at 1321, including the
employer's "officers [or] agents." Hopson, 383 U.S. at 263, 86
S.Ct. at 766.
Under plaintiffs' view of the fellow servant doctrine, a seaman
could recover against the officer of a corporation under both the
Jones Act and the general maritime law. Such a rule would be
contrary to both the Jones Act, which provides the "exclusive
recovery in negligence" for claims against an employer and its
officers or agents, Ellenwood, 984 F.2d at 1283, and the fellow
Mahland's Personal Liability for Corporate Acts
Plaintiffs also argue that Mahland may be held personally
liable under New York law for negligent acts undertaken in her
Under both state and maritime law "a corporate officer who
commits or participates in a tort, even if it is in the course of
his duties on behalf of corporation, may be held individually
liable." Lopresti v. Terwilliger, 126 F.3d 34, 42 (2d Cir.
1997); see also Armada Supply Inc. v. S/T Agios Nikolas,
613 F. Supp. 1459, 1471 (S.D.N.Y. 1985) (applying maritime law).
But this rule does not create a distinct basis for holding any
party liable; it merely allows recovery from a different source.
As seaman injured in the course of their employment, plaintiffs
still must seek recovery for negligence under either the Jones
Act or general maritime law.
In other words, holding Mahland personally liable would not
transform the suit from a Jones Act claim against an employer to
a general maritime action against a non-employer third party. It
simply would place Mahland in the shoes of the corporation that
otherwise may be liable as plaintiffs' employer.
But a Jones Act claim lies only against the employer, and the
employer is liable for corporate acts and the acts of its
officers, agents and employees. See Mahramas v. American Export
Isbrandtsen Lines, Inc., 475 F.2d 165, 170 (2d Cir. 1973).
"[O]nly one person, be it an individual or a corporation, [may]
be sued as the employer." Id.
Unless plaintiffs could establish that Mahland was the alter
ego of plaintiffs' "borrowed" employer, they cannot hold her
liable under the Jones Act. Cf. Williams v. McAllister Bros.,
Inc., 534 F.2d 19, 21 (2d Cir. 1976) (plaintiff may hold parent
corporation liable as alter ego to Jones Act employer); Guillie
v. Marine Towing, Inc., 670 So.2d 1298, 1303 (La. App. 1996)
(corporate officer could not be held individually liable under
Jones Act without piercing the corporate veil); Palladino v. VNA
of Southern New Jersey, Inc., 68 F. Supp.2d 455, (D.N.J. 1999)
(corporate officers were not "employers" for purposes of False
Claims Act in absence of allegations sufficient to pierce
corporate veil). Recovery for Mahland's negligence, if any, must
be sought from the corporate Poling parties. Mahland's motion for
summary judgment is therefore granted.
V. PLAINTIFFS' MOTION
Plaintiffs seek summary judgment on the issue of Mahland's
liability, arguing that her guilty plea in United States v.
Mahland has preclusive effect on the question of her negligence
with respect to the fire on THE CLARA P.
Mahland's motion for summary judgment having been granted,
plaintiffs' cross-motion for partial summary judgment is
dismissed as moot.
The Metro defendants' motion for summary judgment is denied.
Mahland's motion for summary judgment is granted. Plaintiffs'
motion for partial summary judgment is denied.
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