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