United States District Court, E.D. New York
[Copyrighted Material Omitted]
For Gerald Peter Lepp, Mediator: Gerald Peter Lepp, LEAD ATTORNEY, U.S. District Court, Brooklyn, NY.
For Christian Von Rabenstein, Plaintiff: Jacob Shisha, Tabak, Mellusi & Shisha, New York, NY; Kenneth Fenelon, Vuk S Vujasinovic, PRO HAC VICE, Vujasinovic & Beckcom PLLC, Houston, TX.
For Sealift, Inc., Sagamore Shipping, Inc., Sagamore Shipping LLC, Defendants: Gordon S. Arnott, LEAD ATTORNEY, Hill, Betts & Nash LLP, New York, NY; Thomas M. Rittweger, LEAD ATTORNEY, Hill Betts & Nash, New York, NY; Francis Turner, Gregory W. O'Neill, Hill, Betts, & Nash, LLP., New York, NY.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge.
Plaintiff commenced the above-captioned action against Defendants Sealift, Inc., Sagamore Shipping, Inc., and Sagamore Shipping LLC alleging negligence, unseaworthiness and unpaid maintenance and cure in violation of the Jones Act, 46 U.S.C. § 30104 et seq. On February 28, 2014, Defendants moved for summary judgment on all claims and the parties cross-moved for sanctions due to spoliation of evidence. The Court heard oral argument on April 23, 2014. For the reasons discussed below, Defendants' motion for summary judgment is granted. The parties' cross-motions for sanctions are denied.
a. Employment history
Defendant Sagamore Shipping LLC is the owner of the M/V Sagamore vessel (the " Sagamore" ). (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) Sagamore Shipping Inc. was merged into Sagamore Shipping LLC. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) Sealift, Inc. is the managing agent of the Sagamore. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) Plaintiff started working for Defendants in 1999. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2.) Plaintiff served for 11/2 years as master of a different Sealift vessel, the M/T Montauk. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2.) As master, Plaintiff was Defendants' representative in many international ports and was responsible for satisfying all laws and regulations necessary for the vessel's entrance to countries throughout the world. (Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17.) In November 2006, the M/T Montauk was sold and Plaintiff was offered a position as chief mate aboard the Sagamore. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2.) As chief mate, Plaintiff was second in command to the master and was qualified to take over command of the Sagamore if the master were to become ill or injured. (Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17.)
b. November 10, 2007 incident
On November 10, 2007, Plaintiff fractured bones in both feet while serving as first mate aboard the Sagamore. (Def. 56.1 ¶ 3; Pl. 56.1 ¶ 3.) According to Defendants, Plaintiff " jumped" from a " hatch cover" to a cargo container, which was fixed in position. (Def. 56.1 ¶ 3.) Plaintiff asserts that he " stepped" or " tripped,"
rather than jumped, from the " hatch cover" to the cargo container. (Pl. 56.1 ¶ ¶ 3, 29.) Plaintiff " shattered his feet" upon landing, could not walk and was carried to his quarters, where he stayed for four days while the Sagamore continued to make its cargo stops. ( Id. ¶ 40.) Plaintiff underwent surgery in Dubai, United Arab Emirates, (Def. 56.1 ¶ 3; Pl. 56.1 ¶ 3), which included the installation of " disposable hardware on [Plaintiff's] feet," (Pl. 56.1 ¶ 30).
c. Payment of maintenance and cure
James Hannon, crewing manager and claims manager for Sealift, handled the " payment and cure for Plaintiff's injury."  (Def. 56.1 ¶ 4; Pl. 56.1 ¶ 4.) Plaintiff was paid at a rate of $8 per day from November 29, 2007, through December 31, 2007, pursuant to a collective bargaining agreement. (Def. 56.1 ¶ 4; Pl. 56.1 ¶ 4.) Plaintiff was also paid for " all unearned wages he was owed through December 4, 2007."  (Def. 56.4 ¶ 1; Pl. 56.1 ¶ 4.) According to Defendants, Hannon and Plaintiff spoke almost weekly, (Def. 56.1 ¶ 5), while Plaintiff remembers speaking with Hannon about once every two weeks, (Pl. 56.1 ¶ 5). Hannon told Plaintiff multiple times that Sealift would pay all his maintenance, cure and unearned wages. (Def. 56.1 ¶ 6; Pl. 56.1 ¶ 6.) According to Defendants, Hannon told Plaintiff to submit to him any medical expenses. (Def. 56.1 ¶ 7.) Plaintiff does not recall being told to submit his medical expenses. (Pl. 56.1 ¶ 7.)
On January 3, 2008, New York State notified Defendants that Plaintiff had applied for unemployment benefits. (Def. 56.1 ¶ 8.) Hannon understood Plaintiff's application for unemployment benefits to mean that Plaintiff was " ready, willing and able to work" and " fit for duty." ( Id.) On February 15, 2008, Defendant received a second notice from New York State concerning Plaintiff's application for unemployment
benefits and again, Hannon took this to mean that Plaintiff was ready, willing, able and fit to work. ( Id. ¶ 9.) Plaintiff asserts that he was not fit for duty on either January 3, 2008 or February 15, 2008 and never told Defendants that he was " fit for duty" until March 24, 2008. (Pl. 56.1 ¶ ¶ 8-9; Pl. Aff. ¶ 6.)
d. Settlement discussions
During a conversation in February 2008, Hannon told Plaintiff that Defendants would like to reach a settlement for all claims and any outstanding expenses that he might have related to his foot injuries. (Def. 56.1 ¶ 11.) The settlement was to include all claims Plaintiff had against Defendants, inclusive of any outstanding expenses for maintenance and cure. ( Id. ¶ 12.) Defendants offered to settle Plaintiff's claims for $15,000.00. ( Id. ¶ 13.) Plaintiff contends that he told Hannon explicitly that he did not wish to make a " final settlement." (Pl. 56.1 ¶ 11.)
By letter dated February 27, 2008, Hannon sent Plaintiff a " Red Letter Release." (Def. 56.1 ¶ 14; Pl. 56.1 ¶ 14; Hannon Decl. Ex. D.) The letter stated in pertinent part:
As per our agreement Sealift will pay you $15,000.00.00 as full and final settlement for any/all claims as a result of your broken ankles and other injuries on board the M/V Sagamore on November, 10, 2007. I have enclosed a release form for you to fill out and return to Sealift. Upon receipt of this completed form I will forward a check.
(Hannon Decl. Ex. D.) According to Defendants, Plaintiff called Hannon and acknowledged receiving the letter and release and told Hannon that he wanted to settle but did not feel comfortable signing the release. (Def. 56.1 ¶ 15.) John Raggio, Vice President of Sealift, contacted Plaintiff by telephone and later told Hannon that Plaintiff represented that he was happy with the $15,000.00 settlement and wanted to get back to work. ( Id. ¶ 19.) According to Raggio, although Plaintiff did not want to sign the release, Plaintiff represented that he would be " content" with the $15,000.00 and would not sue. ( Id.) Given their long relationship, Raggio trusted Plaintiff. ( Id. ¶ 20.)
Plaintiff asserts that Hannon told him that Plaintiff had to sign the release in order to obtain past due maintenance and cure payment. (Pl. 56.1 ¶ 15.) It was Plaintiff's understanding that when Hannon and Raggio began talking to him about writing Plaintiff a check, the payment concerned money already owed for maintenance and cure. ( Id. ¶ 19.) Plaintiff made clear to both Hannon and Raggio that he would not sign any release or do anything else to permanently forfeit his legal rights with respect to his injury as he had a " number of concerns regarding the uncertainty of [his] future condition." ( Id. ¶ ¶ 20, 32.)
According to Defendants, Raggio directed Hannon to send Plaintiff a check in the amount of $15,000.00 based on Plaintiff's representations that in exchange for that amount, Plaintiff would not sue Defendants for anything " relating to this matter." (Def. 56.1 ¶ 21.) By letter dated March 10, 2008, Hannon sent Plaintiff a check for $15,000.00 (the " Settlement Check" ). (Def. 56.1 ¶ ¶ 22-23; Pl. 56.1 ¶ ¶ 22-23.) The letter stated, " Enclosed please find a check for $15,000.00 as full and final settlement for any/all claims during your employment on board the MV Sagamore." (Letter dated March 10, 2008 (" Settlement Letter" ), annexed to Hannon Decl. as Ex. E.) Plaintiff cashed the check on March 14, 2008. (Hannon Decl. Ex. F.)
e. Subsequent work history
According to Defendants, on January 2, 2008, Sealift offered Plaintiff a promotion
to master; Plaintiff initially accepted but shortly thereafter changed his mind, preferring to " stay in the more physical position of Chief Mate." (Def. 56.1 ¶ 27.) Plaintiff contends that he was still in a wheelchair when offered the promotion and chose to remain as chief mate as it would be " less pressure, less stress."  (Pl. 56.1 ¶ 27.) On March 24, 2008, Plaintiff submitted to Hannon a " fit for duty report from [Plaintiff's] doctor" and returned to work on April 1, 2008, as chief mate of the Sagamore. (Def. 56.1 ¶ ¶ 24-25; Pl. 56.1 ¶ ¶ 24-25.)
Until January 2010, Plaintiff worked his normal rotation, and missed no time from work. (Def. 56.1 ¶ 26.) Plaintiff contends that his pain became progressively worse throughout this time, eventually resulting in the removal of " hardware" from his feet which cost him approximately $20,000 for the surgery. (Pl. 56.1 ¶ 26.) Plaintiff does not assert that he told Defendants that he was in pain at any point during the period of April 1, 2008, when he returned to work, and January 2010, when Plaintiff left to work for another corporation. Shortly after January 10, 2010, Plaintiff informed ...