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MARCINOWSKI v. MCCORMACK BOYS CORPORATION

September 4, 2001

ALEC MARCINOWSKI, PLAINTIFF,
v.
MCCORMACK BOYS CORPORATION, GREAT LAKES INTERNATIONAL, INC., AND AMBOY AGGREGATES, DEFENDANTS.



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

OPINION AND ORDER

Plaintiff Alec Marcinowski commenced this action against McCormack Boys Corporation (hereinafter "McCormack"), Great Lakes International, Inc. (hereinafter "GLI"), and Amboy Aggregates (hereinafter "Amboy") to recover damages for injuries sustained aboard Scow MC-191, a sand barge owned and maintained by Amboy. Plaintiff, a deckhand aboard the tugboat McCormack Boys, injured his left knee when he fell through a cavity in the asphalt sand while climbing through the cargo area of Scow MC-191. Plaintiff sued McCormack, GLI, and Amboy for negligence under the Jones Act, 46 U.S.C. § 688 et seq. In addition, plaintiff alleged that defendants were strictly liable for the unseaworthiness of both McCormack Boys and Scow MC-191. McCormack and GLI (hereinafter the "cross-claimants") filed cross-claims against Amboy seeking (1) full indemnification for any liability to plaintiff resulting from Amboy's alleged breach of its implied warranty of workmanlike performance and (2) $30,213.72 in maintenance and cure payments they made to plaintiff. On February 27, 1998, plaintiff settled his claims with Amboy. In February of 2001, plaintiff settled his claims with GLI and McCormack. Therefore, GLI and MeCormack's cross-claims against Amboy to recover (1) their $84,410.50 settlement with plaintiff and (2) $30,213.72 in maintenance and cure payments made to plaintiff were the only issues remaining for trial.

From April 23, 2001 through April 25, 2001, the Court conducted a bench trial regarding the disputed issues in this case, and the parties have subsequently submitted post-trial briefs further addressing these issues. Having considered the parties' post-trial submissions and the evidence presented at trial, the Court sets forth herein its findings of fact and conclusions of law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

On October 10, 1994, Amboy employees loaded Scow MC-191 with 1,011 cubic yards of asphalt sand at Amboy's facility in South Amboy, New Jersey. See Trial Transcript (hereinafter "Tr.") at 90-91; Amboy Ex. B. Pursuant to a contract with Amboy, GLI agreed to tow and deliver Amboy's scows from Amboy's facility to its customers in the tri-state area. See Towage Agreement between GLI and Amboy, signed Sept. 13, 1990, Amboy Trial Ex. C. On October 10, 1994, Amboy placed Scow MC-191 in the care, custody, and control of GLI for towage to a customer in Norwalk, Connecticut. See Letter from Thomas A. Newton, Chief Financial Officer of Amboy, to Joseph J. Perrone, Esq., dated July 14, 1997, Amboy Ex. B. On October 12, 1994, Scow MC-191 was affixed to a floating mooring buoy in the Long Island Sound off the coast of Port Chester, New York. See Deposition Transcript of Alec Marcinowski, dated Aug. 26, 1997 (hereinafter "Marcinowski II"), at 9.

On October 12, 1994, plaintiff was employed as a deckhand on the tug McCormack Boys, which was owned by McCormack and operated and staffed by plaintiff's employer, GLI. See id. at 6. As a deckhand, plaintiff was considered a "seaman" pursuant to the Jones Act.*fn1 Plaintiff was a highly experienced deckhand, having worked on tugboats since 1969. See Deposition Transcript of Alec Marcinowski, dated Nov. 13, 1996 (hereinafter "Marcinowski I"), at 10-11. On the evening of October 12, 1994, the tug McCormack Boys towed unloaded barges to the Port Chester mooring and exchanged them for loaded barges, including Scow MC-191. See id. at 14. Since it was dark, the tug was required to place two navigation lights on the loaded scows. See id. at 14. GLI's procedure for transferring the navigation lights between the unloaded and loaded scows required placing one deckhand on an unloaded scow and one deckhand on a loaded scow. See id. at 12-15. To transfer the lights, the deckhand on the unloaded scow would throw the navigation lights onto the sand in the cargo load of the loaded scow. See id. At that point, the deckhand on the loaded scow would climb into the sand load to pick out the navigation lights and place them in their proper position on the loaded scow. See id. Cross-claimants' procedure for transferring navigation lights between scows is the custom and practice in the tugboat industry. See id. at 37; Tr. 50.

After McCormack Boys arrived at the Port Chester mooring buoy, deckhand Todd Dady got off the tug and onto an unloaded barge. See Marcinowski II at 15. After transferring the mooring lines from the loaded scow to the light scow, Dady retrieved the navigation lights and threw them into the sand load of Scow MC-191. See id. at 29. In order to retrieve the navigation lights, plaintiff went to the side of Scow MC-191 and climbed over the rail of the cargo area into the sand load. See id. at 26-29. Before climbing the rail, plaintiff did not check to see whether he was in the vicinity of a freeing port. See id. at 68. The navigation lights were located on the sand a couple of feet from the rail, and plaintiff attempted to walk across the sand load to the lights. See id. at 29. Before plaintiff reached the lights, he stepped into a cavity in the sand — known as a washout — and severely injured his left knee. See id. at 29.

This was not the first time plaintiff had encountered washouts. He testified that every deckhand is well aware that washouts occur routinely on sand barges, and that he himself had fallen into at least ten washouts previously. See id. at 35-36 In fact, plaintiff had injured his right knee in a similar washout a year or so before this accident. See id. at 35. Washouts are created when water enters the sand-filled cargo area of the scow, and then is discharged through freeing ports, known as scuppers, at the base of the cargo area. See Marcinowski I at 17. As the water exits the cargo hold through the scuppers, some sand washes out of the cargo hold with the water. See id. This discharge creates a cavity below the surface level of the sand. See id. Because washouts occur below the surface of the sand, they cannot be detected by looking at the top of the sand load. See Marcinowski I at 53-54. It is undisputed that washouts occur only in the area surrounding the scuppers. See Marcinowski II at 66. Therefore, an experienced deckhand should look for the presence of scuppers, as well as discharged sand on the scow's walkway, before climbing into the cargo area of a scow to avoid falling into washouts. See Tr.81-83.

Scuppers are necessary and required on all sand scows, including Scow MC-191. See Tr. 143. Without scuppers to permit the drainage of water from the cargo load, a scow would become unstable and flip over. See Tr. 143-44 Marcinowski I at 16. Therefore, scuppers are compromises by necessity. Large scuppers make the scow significantly more stable by readily relieving the cargo hold of excess water and some sand; on the other hand, small scuppers allow less water and sand out of the cargo hold, thereby making the scow more unstable. See Tr. 144-48. The scuppers on Scow MC-191 were four inches high and twelve inches wide, the typical size and design for sand scows. See Tr. 37, 144. Indeed, it is undisputed that Scow MC-191 itself is of typical design and dimensions. See Tr. 30, 142-43. However, the walkway surrounding the cargo area of Scow MC-191 was twenty eight and one-half (28.5) inches wide, which was wider than normal for sand scows. See Tr. 30. This wider walkway naturally made it safer for deckhands to circumambulate Scow MC-191 when compared to the typical, narrower walkways of other scows. See Tr. 66.

CONCLUSIONS OF LAW

I. Ryan Indemnity

The Second Circuit recently declared that "Ryan indemnity is virtually dead . . . in this Circuit." Lubrano v. Waterman Steamship Co., 175 F.3d 274, 276 (2d Cir. 1999)*fn2 Nevertheless, cross-claimants attempt to resurrect Ryan in this action. Specifically, cross-claimants contend that they are entitled to full Ryan indemnity from Amboy for their $84,410.50 settlement with plaintiff because Arnboy allegedly breached an implied duty of workmanlike performance in loading Scow MC 191.*fn3 Moreover, cross-claimants contend the Lubrano's holding — absent an express indemnification clause, a contract between a shipowner and stevedore does not contain an implied duty on behalf of the stevedore to indemnify the shipowner for liability to injured longshoreman — is strictly limited to an action by longshoremen,*fn4 and therefore inapplicable to this action because plaintiff was a seaman. See Cross-claimants' Trial Memorandum of Law at 15.

A. Standards for Ryan Indemnity

The context in which Ryan v. Stevedoring Co. v. Pan Atlantic S.S. Corp., 350 U.S. 124 (1956), was decided is crucial to understanding its holding and application to this action. In Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), the Supreme Court found that a shipowner could be held strictly liable to longshoremen employed by an independent stevedoring contractor for injuries caused by dangerous conditions aboard the ship. Id. at 99-103. According to Sieracki, the vessel's dangerous conditions caused the ship to be unseaworthy; therefore, the shipowner was subject to strict liability, notwithstanding that the dangerous conditions aboard the ship were likely caused by the stevedoring contractor's own actions. See id. A few years later, in Halvcon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282 (1952), the Supreme Court held that the Longshore and Harbor Workers Compensation Act (hereinafter "LHWCA"), 33 U.S.C. ยง 901 et seq., which limited an employer's liability with respect to its injured employees, precluded shipowners who had been held strictly liable to an injured longshoreman from obtaining contribution from the longshoreman's employing stevedore. Id. at 286-87. Thus, the shipowner was in an "unenviable position: A longshoreman might be injured as a result of an unseaworthy condition caused wholly by the stevedore's ...


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