United States District Court, E.D. New York
In re JEFFREY NAGLER, as owner of the Fishing Vessel Midnight Star, O.N. 279584, and BULLET SERVICES LLC, as owner of the Fishing Vessel Lady Midnight, O.N. 524895, for exoneration from or limitation of liability.
MEMORANDUM & ORDER
K. BRODIE, United States District Judge.
Jeffrey Nagler, as owner of the fishing vessel Midnight Star,
and Bullet Services LLC, as owner of the fishing vessel Lady
Midnight, brought the above-captioned Petition on March 19,
2015, for exoneration or limitation of liability pursuant to
the Limitation of Liability Act (the “Limitation
Act”), 46 U.S.C. § 30501 et seq. (Pet.,
Docket Entry No. 1.) This matter arises from injuries that
Respondent Michael Cerillo sustained after falling into an
uncovered hatch aboard the Midnight Star. Prior to this
action, on November 10, 2014, Cerillo commenced an action in
New York State Supreme Court, Kings County, alleging
negligence by the crew and owner of the Midnight
Star. On March 25, 2015, after filing this
Petition to seek exoneration or limitation of liability in
connection with Cerillo's injury, Petitioners removed
Cerillo's state negligence action to the Eastern District
of New York, asserting that the district court has original
admiralty and maritime jurisdiction over the matter.
(See Notice of Removal, Cerillo v. Nagler,
No. 15-CV-1557, Docket Entry No. 1.)
now move for summary judgment on the Petition pursuant to
Rule 56(a) of the Federal Rules of Civil Procedure, arguing
that “nothing in the [record] suggests that there was
any negligence on the part of the [Midnight Star] or her
crew” that caused Cerillo's injury. (Pet'rs
Mot. for Summ. J. (“Pet'rs Mot.”), Docket
Entry No. 26; Pet'rs Mem. in Supp. of Pet'rs Mot.
(“Pet'rs Mem.”) 7, Docket Entry No. 26-3.)
Cerillo cross-moves to dismiss the Petition under Rule
12(b)(6) or, in the alternative, for summary judgment
pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure. (Resp. Cross-Mot. and Opp'n to
Pet'rs Mot. (“Resp. Cross- Mot.”), Docket
Entry No. 24; Resp. Mem. in Supp. of Resp. Cross-Mot.
(“Resp. Mem.”), Docket Entry No. 24-1.) Cerillo
argues that Petitioners have pleaded no set of facts in the
Petition under which they would be entitled to a limitation
of liability. (Resp. Mem. 8.) For the reasons discussed
below, Petitioners' motion for summary judgment is denied
in part and granted in part, and Cerillo's cross-motion
for summary judgment is granted. In addition, the Court
remands the underlying personal injury action, Cerillo v.
Nagler, No. 15-CV-1557, to New York State Supreme Court,
following facts are undisputed except where otherwise noted.
The Midnight Star and the Lady Midnight are fishing vessels
for hire certified by the United States Coast Guard to carry
fewer than 100 passengers at a time on the coastal waters of
the United States. (Pet'rs Statement of Material Facts
Pursuant to Local R. 56.1 (“Pet'rs 56.1”)
¶¶ 2, 4, Docket Entry No. 26-2.) The vessels take
passengers from Pier 1 in Sheepshead Bay, Brooklyn, to a
fishing area located several miles offshore. (Id.
¶ 5.) Nagler is the sole owner of the Midnight Star.
(Id. ¶ 1.) Bullet Services LLC, a New
York-based company, is the owner of Lady
Midnight. (Id. ¶ 3.) Nagler operates
both the Midnight Star and the Lady Midnight, as well as a
third fishing vessel within the Bullet Services LLC fleet.
(Resp. Statement of Material Facts Pursuant to Local R. 56.1
(“Resp. 56.1”) ¶ 5, Docket Entry No. 24-2.)
September 15, 2014, Cerillo, a seventy-year-old resident of
Staten Island, boarded the Midnight Star with his two sons
and his grandson, all fare-paying passengers. (Pet'rs
56.1 ¶ 7; Resp. 56.1 ¶¶ 1-2.) Cerillo and his
two sons were regular customers who had gone fishing with
Nagler approximately twice per week during each summer
season, May to October, for the previous five years.
(Pet'rs 56.1 ¶ 16; Resp. 56.1 ¶ 6.) On
September 15, 2014, the Midnight Star departed from Pier 1 at
approximately 8:00 AM to fish for fluke at the “Tin Can
fishing grounds.” (Pet'rs 56.1 ¶ 6.) Nagler
was the captain of the Midnight Star that day. (Resp. 56.1
¶ 4.) The parties agree that, in addition to Nagler,
there were two mates aboard the Midnight Star on the day of
Cerillo's accident. (See Dep. of Michael Steven
Cerillo (“Cerillo Jr. Dep.”) 19:8-20, Docket
Entry No. 26-11; Dep. of Jeffrey Nagler (“Nagler
Dep.”) 24:10-12, 24:24-25, 66:2-8, Docket Entry No.
24-7.) One of these mates, Kyle White, seems to have been a
relative veteran with Petitioners' vessels, while the
other, Curtis Pervis, was new to Petitioners'
vessels.(Nagler Dep. 24:10-12; 24:24-25; Cerillo
Jr. Dep. 19:21-25.)
approximately 12:30 or 1:00 PM, Cerillo attempted to use the
restroom on board the vessel but found no toilet paper.
(Resp. 56.1 ¶ 7.) He then walked into the cabin of the
Midnight Star and toward the galley area to find toilet
paper, aware from his prior trips on the vessel that toilet
paper was stored in the galley. (Id. ¶ 8.) It
was dark in the cabin of the Midnight Star and the exterior
windows leading to the cabin were tinted. (Id.
¶ 15.) As he walked behind the galley counter to find
the toilet paper, Cerillo fell into an opening in the floor
created by an open hatch door that was approximately three
feet wide by four feet long. (Id. ¶ 8;
Pet'rs 56.1 ¶ 10.) Cerillo had not observed that the
hatch cover was open. (Pet'rs 56.1 ¶ 11; Resp. 56.1
¶ 15.) The hatch cover had been opened to allow the
boat's generator to cool while it was not in use.
(Pet'rs 56.1 ¶ 15.) According to Cerillo, the hatch
cover was either opened by Nagler himself or at his express
direction. (Resp. Counter-Statement of Material Facts
Pursuant to Local R. 56.1 (“Resp. Counter-56.1”)
¶ 15, Docket Entry No. 24-3.) After the incident,
Cerillo's son told Nagler that his father had been
injured “pretty badly” and that he would like to
return to the dock to seek medical attention. (Id.
¶ 18.) Nagler continued to fish and returned to the dock
at the scheduled time, (id.), between 3:00 and 4:00
PM, (Pet'rs 56.1 ¶ 6).
result of the fall, Cerillo sustained several injuries. His
left femur was fractured, which required him to undergo
surgery to implant a titanium rod in his left leg. (Resp.
56.1 ¶ 17.) Cerillo was hospitalized for fifty-four
days, spent several months in a rehabilitation facility and
still experiences pain from the incident. (Id.)
hatch in the galley was approximately twelve square feet in
area and contained a generator that operated the toilets,
lights and everything electric on the vessel. (Nagler Dep.
41- 43.) The hatch cover could be lifted and hinged to the
side by pulling a sunken handle. (Id. at 42:10-21.)
The generator hole was deep enough that a person accessing it
would have to climb down a ladder, after which he or she
could walk around the generator room, about fourteen feet of
space, and access other parts of the vessel's engine.
(Id. at 45:11-46:12.)
morning of a sail, Nagler or whichever mate arrived at the
dock first on any given day would open the hatch cover and
enter the hatch to turn on the electricity and check the oil.
(Id. at 42:22-25, 43:13-44:10.) According to
Nagler's deposition testimony, on the day of
Cerillo's accident, Nagler was the first to arrive and
had opened the hatch to check the oil and the water that
cooled the generator. (Id. at 44:11-15.) The hatch
was opened mid-trip to cool the generator because it had been
running for hours that morning. (Id. at 70:5-12.)
Because the generator did not often overheat, there was not
often a reason to open the hatch in the middle of the day.
(Id. at 71:8-16.) Nagler did not recall whether he
had opened the hatch himself that afternoon but typically, he
“would notify the crew to do it.” (Id.
at 71:2-3.) A mate would only open the hatch at Nagler's
direction. (Id. at 72:3-6.)
parties dispute the nature and use of the galley area in the
cabin. Petitioners claim that the area behind the galley
counter is used by the crew only, to store fishing rods,
sinkers, tackle, coffee, soft drinks, and other items that
fare-paying passengers may purchase. (Pet'rs 56.1 ¶
12.) At his deposition, Cerillo testified that passengers
used the galley to store their own food and drinks in a
refrigerator and to retrieve hooks, fishing rods, sinkers and
toilet paper. (Resp. 56.1 ¶ 10; Resp. Counter-56.1
¶¶ 12-13.) According to Cerillo, the galley area is
“simply the forward[-]most area of the cabin behind a
partial counter.” (Resp. 56.1 ¶ 9.) Photographs
annexed to Petitioners' papers reflect a counter that
stretches halfway across the entrance to the galley area.
(Pet'rs Photographs, annexed as Ex. 8 to Decl. of Matthew
M. Gorden (“Gorden Decl.”) at 7, Docket Entry No.
26-4.) The photographs also reflect a rope blocking the open
area next to the counter and a paper plate placed over the
rope. (Id.) On the back wall of the galley, near the
ceiling, is a dark red sign that reads, “Employees
Only” and on the next line, “Keep Out.”
(Id. at 8.) Petitioners state that fare-paying
passengers were not permitted to enter the area behind the
galley counter. (Pet'rs 56.1 ¶ 13.) Cerillo disputes
that passengers were told the galley was off-limits. (Resp.
Counter-56.1 ¶ 13.) In fact, Cerillo asserts that,
“[i]n over 100 trips on Jeffrey Nagler's fishing
boats, neither [Cerillo] nor his son . . . ever saw the
string and paper plate device that appears in the photograph,
” and the string and paper plate were not present on
the date of the incident. (Id.; Resp. 56.1 ¶
Standard of review
judgment is proper in a maritime limitation-of-liability
proceeding only when, construing the evidence in the light
most favorable to the non-movant, “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
Davis v. Shah, 821 F.3d 231, 243 (2d Cir. 2016);
see also Cortes v. M.T.A. N.Y.C. Transit, 802 F.3d
226, 230 (2d Cir. 2015); Tolbert v. Smith, 790 F.3d
427, 434 (2d Cir. 2015); Zann Kwan v. Andalex Grp.
LLC, 737 F.3d 834, 843 (2d Cir. 2013). The role of
the court “is not to resolve disputed questions of fact
but only to determine whether, as to any material issue, a
genuine factual dispute exists.” Rogoz v. City of
Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (first
quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537,
545 (2d Cir. 2010); and then citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A genuine
issue of fact exists when there is sufficient “evidence
on which the jury could reasonably find for the
plaintiff.” Anderson, 477 U.S. at 252. The
“mere existence of a scintilla of evidence” is
not sufficient to defeat summary judgment. Id. The
court's function is to decide “whether, after
resolving all ambiguities and drawing all inferences in favor
of the nonmoving party, a rational juror could find in favor
of that party.” Pinto v. Allstate Ins. Co.,
221 F.3d 394, 398 (2d Cir. 2000).
The Limitation Act
the Limitation Act, “the liability of the owner of a
vessel for any claim, debt or liability . . . shall not
exceed the value of the vessel and pending freight, ”
provided that such liabilities “aris[e] from any . . .
act, matter, or thing, loss, damage, or forfeiture, done . .
. without the privity or knowledge of the owner.” 46
U.S.C. § 30505(a)-(b). Congress enacted the Limitation
Act “to encourage ship-building and to induce
capitalists to invest money in this branch of
industry.” In re Petition of Germain, 824 F.3d
258, 263 (2d Cir. 2016). The Limitation Act “creates
‘a form of action peculiar to the admiralty and
maritime context, ' allowing the owner of a vessel to
file a petition in federal court seeking total exoneration or
limitation of liability for ‘damages caused by the
negligence of his captain or crew.'” Id.
at 263- 64 (quoting Tandon v. Captain's Cove Marina
of Bridgeport, Inc., 752 F.3d 239, 243-44 (2d Cir.
2014)); see also Fed. R. Civ. P. Suppl. Rule F
(“Rule F”). Thus, “[i]nstead of being
vicariously liable for the full extent of any [damages]
caused by the negligence of the captain or crew employed to
operate the ship, the owner's liability is limited to the
value of the ship unless the owner himself had ‘privity
or knowledge' of the negligent acts.” Otal
Investments Ltd. v. M/V CLARY, 673 F.3d 108, 115 (2d
Cir. 2012) (quoting In re City of New York, 522 F.3d
279, 283 (2d Cir. 2008)).
assert the right to limit liability, the owner of the vessel
must bring a civil action in federal district court under the
Limitation Act within six months of receiving written notice
of a claim. 46 U.S.C. § 30511(a); Rule F(1). The
limitation of liability petition must state the facts on
which the right to limitation is asserted, as well as any
facts the court would need to consider in determining the
amount of limited liability. Rule F(2). Typically,
“once the owner files a petition for limitation, all
other claims and proceedings against the owner related to the
matter in question shall cease.” Id. at 264
(alterations and internal quotation marks omitted) (quoting
Tandon, 752 F.3d at 244); see also 46
U.S.C. § 30511(c). The court must then issue notice to
all persons asserting claims that the owner seeks to limit,
and those persons may file claims and challenge the
owner's right to limitation or exoneration. Rule F(4);
Germain, 824 F.3d at 264.
in admiralty, without a jury, the court must conduct a
concursus proceeding, during which the court determines
whether there was negligence, whether the negligence was
without the privity and knowledge of the owner and, if
limitation is granted, how the limitation fund should be
disbursed. In re Complaint of Dammers & Vanderheide
& Scheepvaart Maats Christina B.V., 836 F.2d 750,
755 (2d Cir. 1988). Specifically, a court sitting in
concursus undertakes a two-part analysis.
“First, the court must determine what acts of
negligence caused the accident. Second, the court must
determine whether the ship owner had knowledge or privity of
those same acts of negligence.” Otal, 673 F.3d
at 115 (alterations and internal quotation marks omitted)
(quoting In re Moran Towing Corp. (“Moran
I”), 166 F.Supp.2d 773, 775 (E.D.N.Y. 2001)). The
claimant “bears the initial burden of proving
negligence, ” after which the burden shifts to the ship
owner to “prove lack of knowledge or privity.”
Id. (quoting Moran I, 166 F.Supp.2d at
775). “The court must determine whether the accident
was caused by conduct that is actionable, for if there was no
fault or negligence for the shipowner to be privy to or have
knowledge of within the meaning of the statute, there is no
liability to be limited, and the owner would then be entitled
to exoneration.” In re Messina, 574 F.3d 119,
126 (2d Cir. 2009) (quoting The 84-H, 296 F. 427,
432 (2d Cir. 1923)). If the petition for limitation of
liability is granted, “the owner can be liable on the
covered claims only up to the total value of his vessel and
its pending freight; that amount will then be distributed pro
rata among the proven claims.” Germain, 824
F.3d at 264 (quoting Tandon, 752 F.3d at 244).
and Cerillo cross-move for summary judgment based on the
other's inability to meet their burden of proof in the
two-step analysis. That is, Petitioners argue that Cerillo
has not met his burden of proving negligence, and Cerillo
argues that Petitioners cannot meet their burden of proving
lack of privity or knowledge. The Court discusses each prong
of the analysis below.
Negligence - ...