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In re Complaint of Buchanan Marine, L.P.

United States Court of Appeals, Second Circuit

October 27, 2017

In the Matter of the Complaint of Buchanan Marine, L.P., as bareboat charterer of the Barge B-252, In the Matter of the Complaint of A.P. Franz, Jr., Trustee, as owner, Petitioners-Counter-Defendants-Appellees,
v.
Wayne Volk, Karen Volk, Claimants-Appellants. Tilcon New York, Inc., Claimant-Counter-Claimant-Appellee,

          Argued: May 22, 2017

         On Appeal from the United States District Court for the Northern District of New York

         Appeal from a judgment of the United States District Court for the Northern District of New York (Sharpe, J.), dismissing a barge worker's claims under the Jones Act, 46 U.S.C. §§ 30101-30106, the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, general maritime law, and New York state law for personal injuries sustained while working on a barge, and granting a complaint for exoneration from liability pursuant to the Limitation of Liability Act of 1851, 46 U.S.C. §§ 30501-30512. We conclude that the district court correctly held that the barge worker, who inspected and maintained moored barges used to transport rock from a quarried rock processing facility down the Hudson River, was not a "seaman" for purposes of the Jones Act, but that the district court erred in dismissing certain claims against the owner of the barge and the operator of the rock processing facility.

         Affirmed in part and Vacated and Remanded in part.

          EDWARD P. FLOOD, Lyons & Flood, LLP, New York, New York, for Petitioners-Counter-Defendants-Appellees.

          ERIC M. KURTZ, Cook, Netter, Cloonan, Kurtz, & Murphy P.C., Kingston, New York, for Claimant-Counter-Claimant-Appellee.

          STEVEN M. MELLEY (Richard Nardone, on the brief), Steven M. Melley, P.L.L.C., Rhinebeck, New York, for Claimants-Appellants.

          Before: Kearse, Cabranes, and Chin, Circuit Judges.

          Chin, Circuit Judge.

         In this case, claimant-appellant Wayne Volk worked at a quarried rock processing facility on the Hudson River, inspecting and maintaining barges used to transport rock down the river. In the accident that led to these proceedings, Volk was inspecting a moored barge when he slipped on some loose stone and fell, injuring himself. He asserted claims against the barge company as his employer, the owner of the barge, and the operator of the rock processing facility, under the Jones Act, 46 U.S.C. §§ 30101-30106, the Longshore and Harbor Workers' Compensation Act (the "LHWCA"), 33 U.S.C. §§ 901-950, general maritime law, and New York state law.

         The principal question presented is whether Volk was a "seaman" within the meaning of the Jones Act. The district court (Sharpe, J.) held that Volk was not a seaman and dismissed his claims under the Jones Act. It also dismissed Volk's remaining claims.

         We affirm the dismissal of Volk's Jones Act claims because we agree with the district court that Volk does not qualify as a "seaman" within the meaning of the Jones Act. We hold, however, that the district court erred in dismissing certain of Volk's remaining claims against the owner of the barge and the operator of the rock processing facility. We therefore affirm in part and vacate in part and remand for the district court to conduct further proceedings consistent with our rulings below.

         BACKGROUND

         I. The Facts

         The facts are largely undisputed and are summarized in the light most favorable to Volk, against whom summary judgment was granted.

         Volk worked for petitioner-counter-defendant-appellee Buchanan Marine, L.P. ("Buchanan") at the Clinton Point quarried rock processing facility on the Hudson River, in Dutchess County, New York, as a "barge maintainer" from 1999 until his accident on May 19, 2011.[1] At the Clinton Point facility, claimant-counter-claimant-appellee Tilcon New York, Inc. ("Tilcon") processes quarried rock for use in, e.g., construction work, and loads the rock onto barges supplied by Buchanan. Buchanan then transports the loaded barges, using its tugboats, down the Hudson River to Tilcon's customers.[2]

         The loading process has three steps. First, before an empty barge is loaded, and while it is tied to the dock, it is inspected by a Buchanan barge maintainer. The barge maintainer checks the barge for damage and excess water and repairs any damage so that the barge is in acceptable condition for loading. Second, the barge is moved to the loading facility by Tilcon, where it is loaded with quarried rock. Third, after the barge is loaded, it is moved back to the dock by Tilcon, where a Buchanan barge maintainer conducts a final inspection. During the first and third steps of the loading process, the barge is in the water and secured to the dock, either tied directly to the dock or to barges already tied to the dock. Moored barges may be three or four barges deep, with the closest barge tied to the dock and the outward barges tied to one another. When a barge was tied to other barges - rather than tied directly to the dock - barge maintainers would climb over the barges to get to the one they needed to inspect.

         When Volk was inspecting a barge, he would walk along the perimeter of the barge on the "margin decks, " which ran the length of the barge. App'x at 185. The margin decks were "so narrow [that] they were difficult to walk on or stand on, " id., lacked guard or hand rails, and were often wet and soiled with excess gravel that spilt over from the loading process. When a barge required repairs, Volk would sometimes stand on a pontoon work boat - a flat floatable device powered by a motor - on the barge's water side to do the work.

         Volk was not assigned to any specific barge; rather, he worked on all Buchanan barges that arrived for loading at the Tilcon facility. Volk was not a crewmember of any of Buchanan's tugboats that transported the barges down the Hudson River. He worked an hourly shift, went home at the end of each work day, and did not take meals or sleep on any barge. He was a member of the International Union of Operating Engineers, which represents equipment operators. He did not belong to a maritime union or hold a maritime license.

         On May 19, 2011, Volk was walking along the margin decks of Barge B-252 (the "Barge"), which had been loaded with stone, when he slipped on excess wet stone and injured his right arm and shoulder on the side of the Barge. He filled out an incident report with his dock supervisor, Timothy Conn, the same day. The next day, Conn drove Volk to the local medical clinic, where Volk was diagnosed with a sprained arm and prescribed pain medication. Later that day, Volk saw a chiropractor, who advised him that he could not work. Volk has not worked since the accident and has been receiving workers' compensation benefits under the LHWCA.

         II. The Proceedings Below

         On October 16, 2012, Volk and his wife Karen Volk commenced a personal injury action against Buchanan and Tilcon in New York State Supreme Court, Ulster County. On April 15, 2013, A.P. Franz, Jr., the owner of the Barge, and Buchanan, as bareboat charterer of the Barge, [3] commenced this action in the district court pursuant to the Limitation of Liability Act of 1851, 46 U.S.C. §§ 30501-30512, seeking exoneration from or limitation of liability.[4] In accordance with Rule F of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure, the court approved a $47, 420.77 security bond, representing Franz and Buchanan's interest in the Barge, directed issuance of notice to all persons asserting claims affected by the limitation proceeding, ordered that any claim related to the incident be filed with the court within a specified time period, and enjoined the filing or prosecution of any suits related to the incident.[5]

         Tilcon and the Volks answered the complaint and asserted counterclaims. Tilcon asserted claims against Franz and Buchanan for indemnification or contribution. The Volks asserted claims against Franz, Buchanan, and Tilcon under the ...


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