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,
Wayne Volk, Karen Volk, Claimants-Appellants. Tilcon New York, Inc., Claimant-Counter-Claimant-Appellee,
Argued: May 22, 2017
Appeal from the United States District Court for the Northern
District of New York
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
in part and Vacated and Remanded in part.
P. FLOOD, Lyons & Flood, LLP, New York, New York, for
M. KURTZ, Cook, Netter, Cloonan, Kurtz, & Murphy P.C.,
Kingston, New York, for Claimant-Counter-Claimant-Appellee.
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.
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.
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.
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.
facts are largely undisputed and are summarized in the light
most favorable to Volk, against whom summary judgment was
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. 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.
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.
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.
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.
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.
The Proceedings Below
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,  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. 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.
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