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Johnson v. Donjon Marine Co.

November 8, 2006

WILLIAM ROLAND JOHNSON, PLAINTIFF,
v.
DONJON MARINE CO., INC., WITTE HEAVY LIFT, INC., WITTE HEAVY LIFT TOWING DIVISION, INC., AND THE TUG ATLANTIC SALVOR, IN REM, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

At approximately 2:15 a.m. on December 12, 2004, the starboard engine of the tugboat Atlantic Salvor exploded as the tug was passing near the Verrazano Bridge. Assistant Engineer William Roland Johnson sued the defendants (referred to here collectively as "Donjon") for his injuries, alleging negligence under the Jones Act, 46 U.S.C. app. § 688 (2000), and alleging the unseaworthiness of the vessel under the general maritime law. Johnson has moved for summary judgment on the issues of unseaworthiness and whether he was contributorily negligent. I heard oral argument on both questions on October 18, 2006.

I conclude that the vessel was unseaworthy as a matter of law, but that there is a genuine factual issue as to Johnson's contributory negligence. Accordingly, I grant plaintiff's motion as to unseaworthiness and deny it as to contributory negligence. Jury selection and trial is set for February 20, 2007 at 9:30 a.m. in Courtroom 6C-South. The parties are directed to appear for a final pretrial conference on February 8, 2007.

BACKGROUND

The tug Atlantic Salvor was returning from dumping a scow when a failure in the power assembly of the tug's starboard engine led to a crank-case explosion. Dep. of Kenneth M. Garside 105:15-19, June 29, 2006; see also Def.'s Report of Marine Accident, Injury, or Death at 2. Just prior to the explosion, Johnson was in the engine room. Pl.'s Dep. 61:2-21, Dec. 14, 2006. He heard a sound coming from the engine, though the parties dispute the type of sound. Compare id. 62:9-20 (describing sound as a "fuel knock") with Dep. of Brendan Matton 23:13-17, November 7, 2005 (describing sound as "somebody pounding on a wheelhouse with a sledgehammer . . . [r]epeatedly"). The parties also disagree about the cause of the explosion. While Johnson points to evidence that the engine was not properly maintained, see, e.g., Dep. of Gabriel Yandoli, Jr. 36 & 45-46, December 1, 2005; Letter Report of Michael J. Clemens at 6, May 5, 2006, Donjon's expert disputes that improper maintenance caused the explosion, see Supplemental Report of Kenneth M. Garside ¶¶ 8, 16.*fn1 Donjon's expert opines that an undetectable latent defect in the piston caused the explosion. See id. ¶ 17.

Johnson retrieved a hammer from a tool box in the engine room and approached the cylinder to remove the cover by loosening the cover's wing nuts. Pl.'s Dep. 87:8-15, 102:17-103:4. He claims he had been trained to execute this procedure upon hearing a fuel knock. Id. 62:21-65:2. Donjon's expert claims that the proper response to the sound Johnson heard was to shut down the engine immediately. Aff. of Kenneth M. Garside ¶¶ 22-23, Sept. 7, 2006.

The engine exploded. Johnson suffered, among other injuries, second- and third-degree burns. Pl.'s Dep. 125:14-128:19. Though the parties do not appear to dispute the fact of injury, they part ways about the extent of the injuries. See Def.'s Br. at 12; Aff. of Raymond R. Wiss ¶ 15, Sept. 15, 2006. The parties also disagree as to whether a defect in the crank-case cover and the presence of flammable materials in the engine room exacerbated Johnson's injuries. See Def.'s Br. at 9-10.

DISCUSSION

A. The Standard of Review

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must demonstrate that no genuine issue exists as to any material fact. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). For summary judgment purposes, a fact is "material" when its resolution "might affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Accordingly, the test for whether an issue is genuine requires "the inferences to be drawn from the underlying facts [to] be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks and citation omitted).

B. Unseaworthiness

The doctrine of unseaworthiness establishes an "absolute" duty on the part of the shipowner "to provide a seaworthy vessel." Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960) (quotation marks omitted). The duty is doctrinally independent from negligence. See id. at 550. Accordingly, so long as an unseaworthy condition exists, the shipowner is liable for the unseaworthy vessel even if "the negligence of the officers of the vessel contributed to its unseaworthiness," Mahnich v. Southern S.S. Co., 321 U.S. 96, 100 (1944), even if the negligence of the plaintiff contributed to its unseaworthiness, Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-09 (1953); Grillea v. United States, 232 F.2d 919, 923 (1956) (opinion of L. Hand, J.), and even if the shipowner lacks notice of the unseaworthy condition, Mitchell, 362 U.S. at 549-50 (holding that shipowner's actual or constructive notice of a temporary unseaworthy condition is not required to support liability for unseaworthiness).

General maritime law holds shipowners strictly accountable for their unseaworthy vessels for at least two reasons. First, such "extensive liability" discourages shipowners from allowing unseaworthy conditions on their ships by "remov[ing] a profitable temptation to add to the hazards of the sea." Mitchell, 362 U.S. at 557 (Frankfurter, J., dissenting); see also Mahnich, 321 U.S. at 103 ("We have often had occasion to emphasize the conditions of the seaman's employment, which have been deemed to make him a ward of the admiralty and to place large responsibility for his safety on the owner.") (citations omitted). Second, liability without fault makes the shipowner an insurer of the risky enterprise of ships at sea, because the shipowner "is in a position, as the worker is not, to distribute the loss ...


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