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Pensiero v. Bouchard Transportation Co.

November 10, 2007

ANTHONY PENSIERO, PLAINTIFF,
v.
BOUCHARD TRANSPORTATION CO., INC. AND JOHN DOE 1, 2 AND 3, DEFENDANTS.



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

MEMORANDUM DECISION AND ORDER

This matter is before the Court upon plaintiff's motion for partial summary judgment, seeking judgment in his favor on his fourth cause of action for maintenance and cure. The action arises from an injury he alleges he received while attempting to return to work on a vessel that defendant Bouchard Transportation Co., Inc. ("Bouchard") operated. The motion is granted.

BACKGROUND

Plaintiff was an Assistant Engineer working on Bouchard's tug, Evening Mist.*fn1 His employment was as a per diem employee pursuant to an arrangement known as "equal time." Under this practice, at least as Bouchard implemented it, plaintiff would work three weeks on the job followed by three weeks off the job, and he was paid only for his time on the job. Bouchard left it to the seamen to determine between them how and when they would relieve each other at the end of their three week terms. In addition, although Bouchard would pay for transportation for its employees, plaintiff instead elected to receive an additional daily stipend from Bouchard reflecting the cost of transportation.

At the end of a period of three weeks off, plaintiff had arranged to relieve another engineer, Jeff Patterson, by returning to work on the Evening Mist on February 7, 2007. The Evening Mist was at anchorage. Therefore, plaintiff had arranged with another tug operated by Bouchard, the Morton S. Bourchard, Jr., to take him to the Evening Mist. The Morton S. Bourchard, Jr. was tied up alongside a row of three docked vessels in Port Jefferson owned by another company, McAllister Transportation. The only way to get to the Morton S. Bouchard, Jr. was to cross over each of the McAllister vessels.

Plaintiff claims that there was an arrangement between McAllister and Bouchard to allow each other's seamen to cross over each other's boats if necessary to get to their own boats. Defendant disputes this, alleging that plaintiff's crossing over the McAllister vessels was not authorized by the company. In any event, it is undisputed that "the Morton S. Bouchard, Jr. had come up against the third McAllister tugboat to board [plaintiff] and two other Bouchard crew members."

When crossing from the second to the third McAllister tugboat, plaintiff fell and broke his foot. He made it to the Morton S. Bouchard, Jr., but because he was obviously unable to work, the Morton S. Bouchard returned him to the dock instead of the Evening Mist, and he was taken to a hospital. He has been unable to work since and has incurred medical expenses.

DISCUSSION

I. Standard for Summary Judgment

In deciding a motion for summary judgment, a court shall render judgment "forthwith 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party has the initial burden of showing that there are no material facts in dispute, Adickes v. S.H. Kress & Co., 398 U .S. 144, 157, 90 S.Ct. 1598, 1608 (1970), and can discharge this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case, Celotex, 477 U.S. at 325. The nonmoving party then must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e).

The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir.1987); see also Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir.1985). However, the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11 (1986). If there is not, summary judgment is proper. See id. at 249-50.

II. Analysis

The general maritime law of the United States grants to seamen who have become ill or injured while in a ship's service the right to maintenance and cure. Ammar v. United States, 342 F.3d 133, 142 (2d Cir. 2003) (collecting cases). "Maintenance" is defined as a shipowner's duty to provide food and lodging to an injured seaman of approximately the same quality as he received aboard ship. Id. "Cure" is defined as "a shipowner's obligation to provide . medical care to such seamen" during the period of rehabilitation from the injury until the point of full recovery or a determination of permanent disability. Calo v. Ocean Ships, Inc., 57 F.3d 159, 162 (2d Cir.1995). A shipowner owes maintenance and cure to an injured seaman even if the shipowner was not negligent. Nor does it matter if the injury was job-related. Ammar, 342 F.3d at 142 (discussing maintenance); Calo, 57 F.3d at 162 (discussing cure).

The no-fault obligation of shipowners to provide maintenance and cure extends only to a seaman who becomes ill or injured while "in the service of the ship." See Aguilar v. Standard Oil Co., 318 U.S. 724, 731-32, 63 S.Ct. 930 (1943) (internal quotation marks omitted). "In the service of the ship" includes injuries incurred while ashore if the seaman is "generally answerable to the call of duty." Farrell v. United States, 336 U.S. 511, 516, 69 S.Ct. 707, 709 (1949). Thus, if a seaman is authorized to be ashore to conduct his own personal business and is injured while returning to ship, he is entitled to maintenance and cure. Aguilar, ...


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