The opinion of the court was delivered by: William C. Conner, Senior District Judge.
Plaintiffs Nancy Lee Smith, Joshua Osborne, Jonathan Osborne,
Thomas Osborne, Kevin McGinn, Erin McGinn, Connor McGinn, Rebecca
McGinn, Dawn Hackett, Joseph Pecoraro, Linda Pecoraro and Michael
Hurewitz*fn1 bring this personal injury action against
defendants Joseph Mitlof, individually and d/b/a: Hudson Valley
Waterways, Tappan Zee Water Taxi and Tours, Tarrytown Water Taxi
and Nyack Water Taxi; Daniel Sheehan, John Does 1-150, ABC
Corporations 1-50 in personam and the M/V Conservator, her
engines, tackle, etc. in rem. Plaintiffs, passengers aboard
Mitlof's pontoon boat, Conservator, who were injured when it
capsized, allege that the boat sank due to the negligence of
Mitlof and Sheehan. Plaintiffs now move for partial summary
judgment as to Mitlof's liability*fn2 pursuant to FED. R. CIV.
P. 56. For the reasons stated below, plaintiffs' motion is
The Maritime Center at Norwalk ("Norwalk Maritime"),
Conservator's prior owner, had the boat certified by the United
States Coast Guard ("USCG") to operate out of Norwalk,
Connecticut and carry a maximum of twenty-one persons. Mitlof
purchased Conservator from Norwalk Maritime in June 1998.
Plaintiffs allege that Mitlof failed to obtain a new USCG
certificate of inspection ("COI") after purchasing Conservator,
and that he operated the boat without a valid COI, or,
alternatively, that if there was a valid COI in effect, he
violated its provisions. Mitlof claims that he received verbal
assurance from the USCG that he would not need to have the vessel
re-inspected and re-certified, but he never sought or secured
this assurance in writing. The USCG investigated the accident,
conducted a formal hearing on August 26 and 28, 1998, and issued
two marine casualty reports. Mitlof and Sheehan invoked their
Fifth Amendment privilege against self-incrimination and refused
to testify at the hearing.
Plaintiffs now move for summary judgment pursuant to FED. R.
CIV. P. 56. They invoke the Pennsylvania Rule, see The
Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1873),
arguing that because Mitlof violated a navigation law statute, he
bears the burden of proving not only that his violation did not
cause or contribute to the casualty, but that his violation
could not have caused or contributed to the casualty. See id.
86 U.S. at 136. Mitlof, appearing pro se, contends that
Conservator in fact possessed a valid COI on August 23, 1998.
Alternatively, he argues that Sheehan was an independent
contractor who violated Hudson Valley Waterways's company
policies by overloading Conservator, and that because Mitlof
was not in physical control of the boat when Sheehan did this,
Sheehan's actions release him from liability. Plaintiffs counter
that Mitlof is liable for Sheehan's actions under respondeat
superior. For the reasons stated hereinafter, plaintiffs' motion
I. Summary Judgment Standard
Under FED. R. CIV. P. 56, summary judgment may be granted where
there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. See FED. R. CIV. P.
56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden rests on the
movant to demonstrate the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). A genuine factual issue exists if
there is sufficient evidence favoring the nonmovant for a
reasonable jury to return a verdict in his favor. Anderson, 477
U.S. at 248, 106 S.Ct. 2505. In deciding whether summary judgment
is appropriate, the court should resolve all ambiguities and
draws all permissible factual inferences against the movant. See
id. at 255, 106 S.Ct. 2505. To defeat summary judgment, the
nonmovant must go beyond the pleadings and "must do more than
simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
The court's role at this stage of the litigation is not to decide
genuine issues of material fact, but to discern whether any
exist. See Gallo v. Prudential Residential Servs., L.P.,
22 F.3d 1219, 1224 (2d Cir. 1994). Summary judgment may not be
granted simply because the court believes the nonmovant will not
be able to meet the burden of persuasion at trial. Danzer v.
Norden Sys., 151 F.3d 50, 54 (2d Cir. 1998).
Although the Pennsylvania Rule arose out of a vessel
collision case, it is not limited to that type of case, and has
been applied to other maritime actions. See, e.g., Kernan v.
American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382
(1958) (fire on a tug caused by open-flame kerosene lamp carried
on scow in statutory violation); In re Seaboard Shipping Corp.,
449 F.2d 132, 136 (2d Cir. 1971), cert. denied, 406 U.S. 949,
92 S.Ct. 2038, 32 L.Ed.2d 337 (1972) (seaman drowned in tug-tow
case where cargo overloading and improper lifeboat storage were
statutory violations); Petition of Long, 439 F.2d 109 (2d Cir.
1971) (cargo overloading in Load Line Act case was statutory
violation); see also Continental Grain Co. v. Puerto Rico
Maritime Shipping Auth., 972 F.2d 426, 436 (1st Cir. 1992)
("Given the policy underlying the rule, that is to assure strict
compliance with rules pertaining to the safe operation of ships,
we see no reason why the rule should not apply to the capsizing
and sinking of a vessel."); Savoie v. McCall's Boat Rentals,
Inc., 491 So.2d 94 (La.App.Ct. 1986) (electrical technician
injured being transported by personnel basket from vessel to dock
where lack of minimum crew members violated USCG regulations).
Because Mitlof's actions allegedly violated both federal
navigation statutes and USCG regulations, we agree with
plaintiffs that the Pennsylvania Rule should apply in this
case. However, to shift to Mitlof the burden of proof on the
issue of causation, plaintiffs must prove that he violated some
navigational statute or USCG regulation.
Plaintiffs claim that Mitlof operated Conservator either
without a valid COI or, if he had a valid COI, in violation of
its terms. All "small passenger vessels" are subject to
inspection pursuant to 46 U.S.C. § 3301(8). Conservator
qualifies as a "small passenger vessel" under
46 U.S.C. § 2101(35)(A) because it is "less than 100 gross tons" and
"[carries] more than 6 passengers, including at least one for
hire." As such, it is controlled by 46 C.F.R. Chap. I, Subchap.
T (§ 176.100 et seq.). 46 C.F.R. § 176.100(b) states that "each
vessel inspected and certified under the provisions of this
subchapter must, when any passengers are aboard during the tenure
of the certificate, be in full compliance with the terms of the
Mitlof contends that the last COI issued was valid through May
2000 (see Def. Mem. Opp. Summ. J., Ex. G) and that "[t]here is
no automatic `revocation' or `deactivation' upon sale of a
currently certified vessel." (Id. at 4.). Under
46 C.F.R. § 176.107(c), a COI "may be suspended or withdrawn by the
cognizant [USCG inspector] at any time for noncompliance with the
requirements of this subchapter." Moreover, the USCG may require
a vessel to be re-inspected and may issue an "amended COI" that
extends the initial COI after changes in, among other things,
vessel ownership. See 46 C.F.R. § 176.120. As previously noted,
Mitlof did not have Conservator re-inspected after purchasing
it from Norwalk Maritime.
Mitlof argues that he called the USCG's New York district and
spoke to Gary Gaugler, who informed him that the USCG would not
be re-inspecting any "currently certified" vessels coming into
the area. He submits a copy of a request Mr. Gaugler made to the
USCG's Philadelphia district inquiring about the files on two
boats, Lenape Seal and Aaron Burr, both of which are also
owned by Mitlof. (See Def. Mem. Opp. Summ. J., Ex. H.) Both
Mitlof's and Gaugler's actions are consistent with
46 C.F.R. § 176.120, which provides for permissive instead of mandatory
reinspections. However, Gaugler's request nowhere mentions
Conservator. (See Def. Mem. Opp. Summ. J., Ex. H.) Mitlof
also claims that he notified the USCG's Hartford district "as ...