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Schnapp v. Miller's Launch, Inc.

Supreme Court of New York, First Department

March 23, 2017

Wayne Schnapp, Plaintiff-Appellant,
v.
Miller's Launch, Inc., Defendant-Respondent

         Plaintiff appeals from the order of the Supreme Court, New York County (Lucy Billings, J.), entered June 2, 2016, which to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint.

          Hofmann & Schweitzer, New York (Paul T. Hofmann of counsel), for appellant.

          Rubin, Fiorella & Friedman, LLP, New York (Michael Evan Stern and Joseph R. Federici of counsel), for respondent.

          Rolando T. Acosta, J.P., Angela M. Mazzarelli, Richard T. Andrias, Paul G. Feinman, Troy K. Webber, JJ.

          OPINION

          ACOSTA, J.P.

         This action seeks damages for personal injuries allegedly suffered by plaintiff Wayne Schnapp when he embarked upon a vessel by jumping from a bulkhead approximately 40 inches from the deck of the vessel. The appeal raises issues about the various duties that a vessel owner owes a harbor worker asserting a claim pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA) (33 USC § 901 et seq.) (see Scindia Steam Nav. Co. v De Los Santos, 451 U.S. 156 [1981]). We find that under the circumstances of this case, there are issues of fact as to whether defendant violated the turnover duty as well as the duty to intervene.

         Plaintiff was employed by nonparty Weeks Marine, Inc., as a surveyor at a project working on the Spuyten Duyvil Bridge. Since portions of the bridge were only accessible by water, Weeks's employees were transported by launch owned by defendant Miller's Launch, Inc. and operated by its crew.

         Under the terms of the charter agreement between Weeks and Miller's, Miller's would provide Weeks with a dedicated launch boat and a survey boat for up to 10 hours of continuous operation a day. The boats would be available for the exclusive use of Weeks. Weeks agreed to indemnify and hold Miller's harmless from any and all claims for personal injury, except those claims "arising from the negligence or willful misconduct of [Miller's] or the unseaworthiness of the vessel(s) provided."

         On April 14, 2008, plaintiff took the launch (the Marguerite Miller, a 42 foot vessel), captained by Martin Plage, from the Spuyten Duyvil Bridge to Weeks's facility at Greenville, New Jersey, to transport two port-a-johns for cleaning. He and Plage were the only people on board the Marguerite for that trip. Plaintiff's responsibilities on that trip included "get[ting] ahold" of Eric, a person in charge of the Greenville yard, and letting Eric know that he had arrived and that he was there to "swap out toilets and whatever [he] may have had to bring back and to get [Eric] to get a forklift and unload it." The actual loading and unloading of the port-a-johns were to be handled by other workers.

         When docking at the Greenville facility, Plage would always bring the Marguerite to the same slip. Plaintiff testified that he did not need to instruct Plage where to go; Plage "pretty much knew" because they had done it before. When Plage docked at the facility, he would not tie up the vessel to the bulkhead dock. Instead, he would leave the engines running in reverse to keep the stern of the Marguerite against the bulkhead. When they arrived on the day of the accident, plaintiff told Plage that he would be "right back, " and disembarked the Marguerite by climbing up the bulkhead wall. He located Eric, and they both returned to where the Marguerite was docked.

         Upon reaching the Marguerite, Eric boarded the vessel by jumping down off the bulkhead onto the boat's deck. That day the distance between the bulkhead and the boat deck was a little more than it was at other times, about four feet. Plaintiff asked Eric to help him board by standing still, so he could place his hands on Eric's shoulders while he jumped down. Plaintiff jumped, and when he landed, he fractured his tibia and fibula. Plaintiff remained on the boat until Walter, a Weeks yard man, brought over a gangway, and plaintiff was assisted off the boat. Plaintiff assumed that the gangway was owned by Weeks; it did not come off the Marguerite. Plage had no involvement in plaintiff's decision to jump onto the Marguerite, and was not on the deck as plaintiff attempted to board. Plaintiff believed that Plage was in the wheelhouse. While plaintiff knew Weeks had gangways available at the facility, he did not ask to use one to board that day. He testified at his deposition that jumping "was the way you got on and off the boat. They never gave you any means to get on and off the boat anywhere that you were at."

         Captain Plage testified that the location and timing of his trips were decided by Weeks employees. The Weeks facility at Greenville Yard was "kind of run-down." The facility was large, and as Plage was not familiar with it or its dangers, he would not have selected where to dock. When they approached the Weeks facility on the date of the incident, plaintiff contacted "someone as to where the boat should go or there was some determination." Plage's best recollection was that when they docked that day there was a distance of at least two feet, but no more than four feet, between the deck of the Marguerite and the top of the bulkhead dock. Plage did not see plaintiff embark, nor did he have a recollection of watching plaintiff disembark; he had remained in the wheelhouse, awaiting his next order via a VHF channel or cell phone. The next time Plage saw plaintiff was when he was lying on the deck of the vessel.

         On the day of the incident, there was no portable stair or step for use on the Marguerite. In response to the deposition question, "Does the Marguerite... to your knowledge... carry a ladder to assist passengers to get from the higher height down to the deck of the Marguerite when boarding?" Plage responded, "Sometimes."

         Sven Van Batavia, vice-president of operations at Miller's, testified that Miller's policy is to use the gangway provided by the facility where its boat is docking. The vessels cannot carry their own gangways, because a vessel of that size does not have the room to carry one long enough for all situations, and since they were docking at facilities not operated or controlled by Miller's, they had no way of determining the proper gangway. It is Miller's stated policy that the person disembarking is the one who makes the decision as to whether it is safe to get on or off the vessel. In terms of where to dock, while the captain considers whether the location could cause the vessel to run aground, so long as there is ample water under the hull and nothing in the waterway that could harm the vessel, Miller's will dock where directed by its client.

         According to Miller's safety manual, employees are not to climb on and off equipment when the vessel is in motion. Regarding "Dockside Transfers, " the manual provides:

"Should a gangway be unavailable to transfer from or to a shore side installation, transfers may be effected using appropriate alternate means of ingress or egress, the decisions as to whether or not the alternate means is safe and acceptable must be made by the individuals being transferred. Under no circumstances should any transfer be undertaken on any object that is not secured or steady."

         Plaintiff alleged in his complaint that he is a covered employee under the LHWCA who was injured by unsafe and inherently dangerous conditions to the vessel, and by a violation of the International Safety Management Code.

         While the matter was initially removed to federal court pursuant to the maritime Limitations of Liability Act (LOLA), the matter was remanded back to state court, with Miller's retaining the right to return to federal court for LOLA relief upon completion of litigation.

         Miller's moved for summary judgment, arguing that it was not negligent, and that a claim of "unseaworthiness" is precluded by the LHWCA. Miller's provided an affidavit from Sven Van Batavia, who averred consistently with his deposition. Specifically, he stated that plaintiff directed Plage as to where to dock the vessel. Plage, who was in the wheelhouse, was unaware of plaintiff's intention to jump onboard, and it is Miller's policy to allow the passenger to decide whether it is safe to embark or disembark from a vessel. Miller's vessels do not carry their own gangways because there ...


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