The opinion of the court was delivered by: Debra Freeman, United States Magistrate Judge
In this Jones Act case, before me on consent pursuant to 28 U.S.C. § 636(c), plaintiff Jason N. Scoran ("Plaintiff") alleges that he suffered a compound leg fracture and other injuries when, during the course of his employment aboard a ship (the "Overseas New Orleans") and while attempting to clean one of the ship's fuel tanks, he fell approximately 35 feet into a hole in the tank that was not protected with railings. Plaintiff has moved for partial summary judgment (Dkt. 30), seeking dismissal of the first and sixth affirmative defenses asserted by defendants Overseas Shipholding Group, Inc., OSG Ship Management, Inc., OSG Bulk Ships, Inc., and New Orleans Tanker Corporation (collectively, "Defendants"), and a finding by the Court that the vessel was unseaworthy as a matter of law. For the reasons discussed below, Plaintiff's motion for partial summary judgment is denied.
A. Factual Background*fn1
At the time of his accident in 2006, Plaintiff was serving on the Overseas New Orleans as a Second Mate, a position for which he had held a United States Coast Guard ("U.S.C.G.") license since 1999. (See Plaintiff's Amended Local Rule 56.1 Statement, dated Apr. 1, 2009 ("Pl. Rule 56.1 Stmt.") (Dkt. 31), at ¶¶ 1, 2; Defendants' Local Rule 56.1 Counterstatement of Material Facts, dated May 18, 2009 ("Def. Rule 56.1 Stmt.") (Dkt. 39), at ¶¶ 1, 2, 172.) Plaintiff reported to Captain Walter Maznio ("Maznio") and Chief Mate Todd Crane ("Crane"). (See Pl. Rule 56.1 Stmt., at ¶¶ 30, 32, 34; Def. Rule 56.1 Stmt., at ¶¶ 30, 32, 34.) According to Plaintiff, Crane, as the Chief Mate, was "responsible for supervising the junior deck officers, the third mate and the second mate, and the ship's crew, during cargo operations and maintenance operations, including tank washing, tank entry, tank repairs and tank cleaning." (Pl. Rule 56.1 Stmt., at ¶ 36.)
On January 4, 2006, after completing several early-morning assignments, Plaintiff was directed by Crane to take breakfast, which lasted about 20 minutes.*fn2 (See Pl. Rule 56.1 Stmt., at ¶¶ 48-51; Def. Rule 56.1 Stmt., at ¶¶ 48-51.) After breakfast, Crane next assigned Plaintiff to the task of entering the starboard tank, in order to position the machine used to clean that tank. (See Pl. Rule 56.1 Stmt., at ¶¶ 22, 52-53; Def. Rule 56.1 Stmt., at ¶¶ 22, 52-53.) The starboard tank was one of the three main "bunker tanks" on the Overseas New Orleans, and was used for the storage of fuel burned by the ship's engines. (See Pl. Rule 56.1 Stmt., at ¶¶ 14-16; Def. Rule 56.1 Stmt., at ¶ 14-16.) The bunker tanks were cleaned every few years -- generally prior to the ship's entry into a shipyard for repairs and inspection -- in order to remove any residual fuel films. (See Pl. Rule 56.1 Stmt., at ¶¶ 18, 21; Def. Rule 56.1 Stmt., at ¶¶ 18, 21.)*fn3 Tank cleaning was accomplished by positioning a so-called "Butterworth machine" at various points inside the tanks to spray the inside areas of the tanks with heated saltwater. (See Pl. Rule 56.1 Stmt., at ¶¶ 22-23; Def. Rule 56.1 Stmt., at ¶¶ 22-23.) The Butterworth machine weighed approximately 30 to 40 pounds and had to be moved across the four levels of the starboard bunker tank in order to clean the tank. (See Pl. Rule 56.1 Stmt., at ¶¶ 25, 27-28; Def. Rule 56.1 Stmt., at ¶ 25, 27-28.)
The parties do not dispute that Crane initially supervised and instructed Plaintiff as to how to enter the tank to position the Butterworth machine (see Pl. Rule 56.1 Stmt., at ¶¶ 52-54; Def. Rule 56.1 Stmt., at ¶ 52-54), although Plaintiff suggests that Crane continued to supervise the cleaning effort even after Plaintiff entered the tank, while Defendant asserts that, at that point, Plaintiff took charge of the operation (see Pl. Rule 56.1 Stmt., at ¶ 58; Def. Rule 56.1 Stmt., at ¶ 58).
In any event, in order to perform his assigned task, Plaintiff entered the starboard bunker tank through a manhole and descended the ladder to the first level of the tank. (See Pl. Rule 56.1 Stmt., at ¶ 69; Def. Rule 56.1 Stmt., at ¶ 69.) The only way to enter the starboard bunker was through the manhole, which also provided the only source of daylight in the tank. (See Pl. Rule 56.1 Stmt., at ¶¶ 70-71; Def. Rule 56.1 Stmt., at ¶¶ 70-71.) Samuel Duah ("Duah"), the boatswain on the vessel, was assigned to the task with Plaintiff, and entered the starboard bunker tank shortly after Plaintiff did. (See Pl. Rule 56.1 Stmt., at ¶ 78; Def. Rule 56.1 Stmt., at ¶ 78.) Plaintiff had a headlamp and a small flashlight, while Duah had a headlamp and a larger flashlight -- which Duah described as being "like a spotlight" -- that had been issued to him on the job. (See Pl. Rule 56.1 Stmt., at ¶¶ 73-74; Def. Rule 56.1 Stmt., at ¶¶ 73-74, 185-86; O'Neill Decl., Ex. 4 (Transcript of deposition of Samuel Duah, conducted December 10, 2008 ("Duah Dep.")), at 85-86.) Though Plaintiff and Duah were both given harnesses, hoists and other safety equipment, neither used this equipment, but rather left it on top of the tank. (See Pl. Rule 56.1 Stmt., at ¶ 120; Def. Rule 56.1 Stmt., at ¶ 120.*fn4
The "swash hole" in the starboard bunker tank was not surrounded by railings, although railings had previously been installed around the swash hole in another bunker tank on the same ship, and the decision had been made to install such railings in the tank at issue while the ship was docked for maintenance. (See Pl. Rule 56.1 Stmt., at ¶¶ 63-65, 68, 140; Def. Rule 56.1 Stmt., at ¶¶ 63-65, 68, 140.) In the course of attempting to position the Butterworth machine in the starboard tank, Plaintiff fell into the swash hole opening, "estimated at about 8 feet by 8 feet, that went all the way down to the bottom level of the tank." (Pl. Rule 56.1 Stmt., at ¶¶ 67, 82; Def. Rule 56.1 Stmt., at ¶¶ 67, 82.) Plaintiff fell between 35 and 40 feet, and "ended up in four to five feet of 'slops' at the bottom of the tank, a mixture of saltwater and oil that is produced" in the course of cleaning the tanks. (Pl. Rule 56.1 Stmt., at ¶¶ 84-85; Def. Rule 56.1 Stmt., at ¶¶ 84-85.) Plaintiff claims, and Defendants do not dispute, that his fall "caused, among other injuries, a compound fracture of his left leg." (Pl. Rule 56.1 Stmt., at ¶ 91; Def. Rule 56.1 Stmt., at ¶ 91.)
There were no eyewitnesses to Plaintiff's accident (see Pl. Rule 56.1 Stmt., at ¶ 83; Def. Rule 56.1 Stmt., at ¶ 83),*fn5 and there is some conflicting evidence in the record as to Plaintiff's own statements recounting how the accident took place. Operations Manager Gregory Doyle ("Doyle") states in a declaration made under penalty of perjury that Plaintiff told him that he "stepped" into the swash hole (see O'Neill Decl., Ex. 8), and Captain Maznio has submitted a sworn declaration in which he similarly states that Plaintiff told him that "he accidently stepped off the third floor of the starboard bunker deep tank" (O'Neill Decl., Ex. 9). Chief Mate Crane testified that, while he was helping Plaintiff out of the fuel tank following the accident, Plaintiff was "apologizing" and "blaming himself saying, you know, my fault, my fault." (O'Neill Decl., Ex. 2 (Transcript of the deposition of T. Crane, conducted May 13, 2008 ("Crane Dep.")), at 136.) On the other hand, at his own deposition, Plaintiff testified that "[his] foot slipped" and the next thing he remembered was "falling . . . [a]pproximately 35 feet." (Riggs Aff., Ex. 1 (Transcript of the deposition of Jason N. Scoran, conducted Aug. 6, 2008 ("Scoran Dep.")), at 130-31), which matches the description of the accident contained in the accident report prepared by Maznio the day after the accident occurred (see Reply Affidavit of Peter Riggs in Further Support of Motion for Summary Judgment, sworn to June 18, 2009 ("Riggs Reply Aff.") (Dkt. 40), Ex. S ("It was reported that . . . Mr. Scoran slipped and fell thru deck opening.")).
There is also conflicting testimony as to the condition of the floor of the starboard tank level on which Plaintiff was walking when he fell. Plaintiff testified that the surface was "wet with fuel oil" and difficult to walk on, although he was able to get traction, while Crane testified that the surface had a "sticky residue" on it from the fuel. (See Riggs Aff., Ex. C (Scoran Dep.), at 126-27; id., Ex. D (Crane Dep.), at 95-96.) Duah testified that the floor was clean, not slippery, and contained no fuel residue, and Maznio testified that he did not recall having any problems with his footing on the first level of the tank. (See O'Neill Decl., Ex. 4 (Duah Dep.), at 110-12; Ex. 3 (Transcript of deposition of Walter J. Maznio, conducted May 15, 2008 ("Maznio Dep.")), at 151.)
Finally, there is some conflicting evidence in the record regarding the number of hours Plaintiff worked in the 72 hours prior to his accident. Under Coast Guard regulations, seamen are generally limited to working 36 hours within a 72-hour period. See 46 U.S.C. § 8104 (2008); 46 C.F.R. § 15.710 (2009); see also Riggs Reply Aff., Ex. R (Coast Guard's G-MOC Policy Letter 4-00, Rev.1, dated Apr. 26, 2001), at 7). Plaintiff states that he worked more than 36 hours in the 72 hours preceding his fall, and, as discussed further below, he suggests that this likely made him tired, which, in turn, likely contributed to his fall.
In support of his position that he worked excessive hours, Plaintiff points to a "Crew Work Hours" sheet, which served as a rough record of his time on the job, and on which he logged 41 hours in the relevant 72-hour period. (See Pl. Rule 56.1 Stmt., at ¶ 127; Def. Rule 56.1 Stmt., at ¶ 127; see also Riggs Aff., Ex. L.) Plaintiff states that this log was signed by Captain Maznio and -- as Defendants admit -- was prepared for the Coast Guard (see Pl. Rule 56.1 Stmt., at ¶¶ 128-29; Def. Rule 56.1 Stmt., at ¶¶ 128-29), and argues that Defendants should not now be permitted to challenge its accuracy (Mar. 16, 2010 oral argument; see also Plaintiff, Jason N. Scoran's Reply Memorandum of Law in Further Support of Motion for Summary Judgment, dated June 18, 2009 ("Pl. Reply Mem.") (Dkt. 41), at 4-6). Defendants, however, contend that, if all breaks, including meal time, coffee breaks, clothing changes, etc., taken by Plaintiff during the 72-hour period preceding his accident were subtracted from his recorded time, then it would be evident that Plaintiff's actual working hours during that period were under the maximum permissible limit. (See Def. Rule 56.1 Stmt., at ¶ 130.)
Plaintiff commenced this action on November 14, 2007, by filing a Complaint seeking damages for the injuries he sustained as a result of his fall. (See Complaint, dated Nov. 13, 2007 ("Compl.") (Dkt. 1).) The Complaint asserts three claims: (1) that Defendants were negligent under the common law and/or the Jones Act, 46 U.S.C. § 30104; (2) that the vessel was unseaworthy; and (3) that Plaintiff is entitled to maintenance, cure, and medical expenses for any period for which he has been rendered disabled and unable to work as a result of the accident. (See generally Compl.)
On January 7, 2008, Defendants filed an Answer asserting seven affirmative defenses. (See Answer (Dkt. 8), at ¶¶ 150-56.) Two of those affirmative defenses are at issue here, specifically Defendants' first defense, which asserts that:
[i]f Plaintiff was injured in the manner and for the reasons alleged in the Complaint, which is denied, [then] Plaintiff's injuries were caused and or brought about in whole or in part by his own negligence, fault, or lack of care, or by the negligence, fault or lack of care of others for whose negligence, fault or lack of care, Defendants are not responsible[;] and Defendants' sixth defense, which asserts that:
[w]hatever injuries Plaintiffs may have sustained at the time and place alleged in the [C]omplaint were caused solely, or contributed to, by acts or omissions of third parties over whom Defendants exercised no control. (Answer, at ¶¶ 150, 155; Plaintiff, Jason N. Scoran's Amended Memorandum of Law in Support of Motion for Summary Judgment, dated Apr. 1, 2009 ("Pl. Mem.") (Dkt. 34), at 1.)
On August 29, Defendants sought leave to implead a third party, Camden First Aid Associates, on the ground that Plaintiff was jostled in an ambulance following his accident, and that this may have contributed to the severity of his injury. (See Letter to the Court from James E. Forde, Esq., dated Aug. 29, 2008 (Dkt. 17).) The Court denied Defendants' application, finding that Defendants had not shown good cause for impleading a new party at such a late stage of the litigation, and that allowing Defendants to do so would cause Plaintiff undue prejudice and substantially delay the resolution of the case. (Dkt. 22.)
On March 16, 2009, Plaintiff filed a motion for summary judgment (Dkt. 25), but, after a conference with the Court and Defendants' counsel, Plaintiff voluntarily withdrew that motion and, instead, on April 1, 2009, submitted an amended motion. (Amended Motion for Summary Judgment, dated Apr. 1, 2009 (Dkt. 30); Pl. Rule 56.1 Stmt. (Dkt. 31); Riggs Aff. (Dkt. 32); Pl. Mem. (Dkt. 33).) In his amended summary judgment motion, Plaintiff argues that the Court should dismiss Defendants' first and sixth affirmative defenses as raising no genuine triable issues of fact. (See Pl. Mem., at 1.) Additionally, Plaintiff asks the Court to find that, without railings around the swash hole in the starboard bunker tank, the Overseas New Orleans was unseaworthy as a matter of law. (Id.)
On May 18, 2009, Defendants filed their opposition to Plaintiff's amended summary judgment motion. (Def. Mem. (Dkt. 35); O'Neill Decl. (Dkt. 37); Def. Rule 56.1 Stmt. (Dkt. 39).) Plaintiff filed a reply memorandum on June 18, 2009. (Riggs Reply Aff. (Dkt. 40); Pl. Reply Mem. (Dkt. 41).)
In a telephone conference with counsel on March 16, 2010, the Court invited oral argument from counsel as to the legal issues raised on Plaintiff's motion, and the Court heard and considered the arguments made. In addition, the Court has now considered a letter submitted by Plaintiff's counsel, dated March 18, 2010, responding to certain remarks made by the Court during that conference.