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May 29, 2002


The opinion of the court was delivered by: Lewis A. Kaplan, United States District Court Judge.


Plaintiff, a deckhand on the JUDY MORAN, a tug boat operated by defendant Moran Towing Corporation ("Moran"), was injured in the course of his employment as the tug broke tow with a barge owned by defendant Seaboard Barge Corporation ("Seaboard"). At the time, plaintiff was at the stern of the tug retrieving cable. He alleges that the mate on the barge let the cable go too fast, causing the cable to yank hard on plaintiff's gloved hands and shoulders and, to some extent, to fall into the water. Plaintiff then pulled quickly on the heavy cable in an effort to prevent it from being caught in the propellers. This yanking and pulling allegedly caused serious injury.

Plaintiff has brought this action under the Jones Act*fn1 and, insofar as the suit is against Moran, on a theory of unseaworthiness.*fn2 Defendants move for partial summary judgment dismissing the unseaworthiness claim which, as limited by plaintiff's brief in opposition to the motion, is based on only two contentions. The first is that the vessel failed to assign two seaman to the task which plaintiff was performing.*fn3 Second, he asserts that the tug captain's alleged failure to warn plaintiff of imminent danger as the stern of the tug slipped out from beneath the bow of the barge constituted unseaworthiness.*fn4


It is significant to note at the outset that plaintiff's Rule 56.1 Statement, although it states that "plaintiff does not agree with numerous of the defendants'statements of `uncontroverted fact,'" does not respond to defendants' Rule 56.1 Statement point-by point, does not identify which of defendants' statements of uncontroverted fact actually are disputed, and does not cite any evidence in support of plaintiff's contention that some of the facts are disputed. Plaintiff's statement therefore does not comply with Local Civ.R. 56.1(b) and (d), so the facts set forth in defendants' Rule 56.1 Statement are deemed admitted.*fn5


The first of plaintiff's unseaworthiness claims is based on the uncontroversial proposition that the seaworthiness of a vessel depends, in part, upon the assignment of sufficient crew members to a particular task.*fn6 Defendants having placed in issue plaintiff's ability to sustain his ultimate burden of proving unseaworthiness, it fell upon plaintiff to come forward on this motion with evidence that at least two seamen should have been assigned to the task plaintiff was performing at the time of his injury.*fn7 In order to avoid summary judgment, moreover, the evidence must be such as would be admissible at trial.*fn8

Plaintiff contends that summary judgment on the understaffing theory would be inappropriate because "Captain Reid, the plaintiff's expert is of the opinion that two seaman [sic] should have been assigned this duty."*fn9 The problem, however, is twofold. First, plaintiff has submitted neither an affidavit nor deposition testimony of Captain Reid, relying instead on his unsworn, unauthenticated letters to plaintiff's counsel. (Def. Notice of Motion, Ex. 7) Hence, there is no admissible evidence of what Captain Reid would say.*fn10 More basically, even if the Court were to overlook the failure to satisfy Rule 56(e), Captain Reid's letters simply do not say what plaintiff's counsel claims they say. The closest he comes is the conclusion in his December 11, 2001 letter, which reads:

"It is my opinion that principal cause of the plaintiff's injury was the bargeman's negligence for either dropping or rapidly slacking-off the bridle (at excessive speed) after casting it off from the barge's forward port bitt. This occurred in spite of orders given by the tug's mate.
"It is also my opinion that the failure of OS Edward Piazza or Asst. Eng. Dave Wasniewski to assist [plaintiff] in retrieving the cable, after the fact, may have aggravated his injuries."

This letter plainly does not support plaintiff's contention that at least two men should have been assigned to the task that plaintiff was performing when the tug broke tow. It does not even address that issue. The questions whether Captain Reid would be permitted to testify at trial that the failure to assign others to help plaintiff in retrieving the cable "may have aggravated his injuries" and, if so, whether such testimony would be sufficient to avoid judgment for Moran as a matter of law is only modestly more difficult.

We start from the proposition that a seaman seeking recovery on the ground of unseaworthiness must establish that the unseaworthy condition proximately caused his injury.*fn11

Further, "[t]he standard of causation for unseaworthiness is more strict than for a Jones Act claim of negligence."*fn12 Thus, in order to defeat Moran's motion for partial summary judgment, plaintiff must adduce evidence from which the trier of fact would be justified in concluding that the failure to assign additional personnel to retrieving the cable from the water rendered the vessel unseaworthy and that this more likely than not contributed to plaintiff's injury.

It is far from clear that Captain Reid's letter should be construed as expressing the view that the failure to assign additional personnel rendered the vessel unseaworthy. But there is no need to rely on that point. Even if it would be sufficient to create a genuine issue of fact ...

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