Tsaropoulos v. State
| Decision Date | 13 April 2004 |
| Docket Number | 3334. |
| Citation | 2004 NY Slip Op 02689,9 A.D.3d 1,775 N.Y.S.2d 23 |
| Parties | DIMITRIOS TSAROPOULOS et al., Respondents-Appellants, v. STATE OF NEW YORK, Appellant-Respondent. (Claim No. 93902.) |
| Court | New York Supreme Court — Appellate Division |
CROSS APPEALS from a judgment of the Court of Claims (Alan C. Marin, J.), entered on or about March 26, 2003. The judgment awarded damages to claimant. The appeals bring up for review an interlocutory judgment of that court apportioning liability for claimant's injury under the Longshore and Harbor Workers' Compensation Act.
Eliot Spitzer, Attorney General of State of New York (Robert M. Goldfarb and Andrea Oser of counsel), for respondent.
DiJoseph & Portegello, P.C. (Arnold E. DiJoseph, III of counsel), for appellants.
This is an appeal from a judgment of the Court of Claims against the State of New York, which, after trial, awarded damages to claimant, Dimitrios Tsaropoulos, for injuries he sustained during the course of repairs to the ship on which he was working. Claimant was the employee of an independent contractor under contract to the United States, which owned the ship, the Empire State, and furnished it to the State University of New York Maritime College (SUNY Maritime) for training purposes. The State's appeal brings up for review (see CPLR 5501 [a]) the court's prior interlocutory judgment, which pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA), held the State 35% liable for the injury, ascribing 65% of the liability for the accident to claimant and his employer.
At the time of the accident, the Empire State was docked at the SUNY Maritime facility in the Bronx. The ship was furnished to SUNY Maritime pursuant to a federal statute permitting the Secretary of Transportation, in conjunction with the United States Maritime Administration, to provide vessels to state maritime academies for use as training vessels (see 46 USC Appendix § 1295c; 46 CFR 310.4). Under the program, the United States retained title to the ship, which the state operated, supplying the crew. Before the United States furnishes a ship to a state, it is to be "repaired, reconditioned, and equipped . . . as necessary for use as a training ship" (46 USC Appendix § 1295c [c] [1] [A] [i]; see also 46 CFR 310.4 []). Even after furnishing a vessel to a state, the United States is responsible for maintaining the ship in "good repair" (46 USC Appendix § 1295c [c] [1] [A] [iv]; see also 46 CFR 310.4 [e] [1]). The state is responsible for "usual preventive maintenance" (46 CFR 310.4 [e] [2] [i]), and for "exercis[ing] reasonable care to safeguard the interests of the Administration and avoid (i) injury to any person aboard the Training Ship, and (ii) loss and damage of every nature with respect to the Training Ship" (46 CFR 310.4 [a] [1]).
Pursuant to its statutory duty to maintain the ship, the United States, on November 18, 1993, awarded a contract, to which the State of New York was not a party, to B&A Marine Company, Inc., claimant's employer, to perform repairs to the Empire State. The United States assigned Gerald McNamara of the Department of Transportation/Maritime Administration as the contracting officer's technical representative (COTR) for the contract. To facilitate his oversight responsibilities, McNamara maintained an office on the Empire State during B&A's performance of the contract. The contract provided that "[a] mutual inspection of the entire vessel by the COTR and [B&A] shall be conducted prior to commencement and upon completion of the contract."
The contract further provided that the (emphasis in original). B&A "shall ensure that the facilities, work standards and practices used in the performance of this contract, and those pertaining to employee health and safety . . . comply with all applicable Federal, state and local regulations." B&A agreed that it would "supply safety inspections and hazard preventing measures in line with modern safety principles, and be responsible for the maintenance and safety of vessel and personnel while working onboard." The contract permitted United States representatives "to engage in normal maintenance activities provided such activities do not interfere with the performance of the Contract" with the caveat that "[s]uch persons shall be bound by the work practices and procedures of [B&A] with respect to safety." The agreement required that B&A "provide all labor, material and services to perform work in accordance with specifications incorporated herein" and further provided that "[e]xcept when specified in writing from the COTR, [B&A] shall not use any of the vessel's spare parts, equipage, material, equipment in the prosecuting of the specification" (emphasis in original).
On December 27, 1993, the date of the accident, B&A was performing work on the Empire State, supervised by its president, its technical director and his assistant coordinator. The Empire State has an overhead monorail system, comprised of an I-beam on which a trolley with a hoist attached runs, for moving heavy equipment from the ship to the dock. The I-beam runs through a passageway across the ship, connecting the two side ports; it also turns and enters the engine room over an open area. The system is equipped with extension rails that extend the track some 10 to 15 feet outside of the ship so that materials can be lowered onto the pier. "Stops" are used at the end of the I-beam to prevent the trolley from falling off the track. As the I-beam exits the engine room, it is interrupted by composite doors that, for fire safety reasons, usually remain closed. To accommodate the doors, the I-beam contains a detachable section of the track, a "spool piece" which, when attached, locks and latches into place. The extension is removed to allow the doors to close. Ordinarily, when the trolley is transporting a piece of equipment in or out of the engine room, the doors are opened and the spool piece, which is kept outside the engine room doors in a rack set up specifically for that purpose, is attached.
On the date in question, claimant, a ship mechanic for 27 years, and another B&A employee, Pavlos Velisaris, with 30 years of similar experience, were moving a large pipe, weighing approximately 400 pounds, suspended by the hoist attached to the trolley on the I-beam, from the engine room to the hallway. Without opening the engine room doors and placing the detachable section of the rail in place at the doorway gap, claimant and Velisaris moved the trolley with the pipe attached to the hoist toward the end of the rail on the engine room side of the closed doors. Velisaris was holding the pipe at the back end. Claimant opened one of the doors and placed one hand on the handle of the other door while he reached with his other hand to pull a butterfly latch to enable him to open the unopened door. Without the spool piece in place to extend the rail, however, the trolley and hoist fell off the end of the I-beam just inside the doors. The pipe landed on claimant's right hand, still on the handle of the unopened door. As a result, claimant had to undergo a surgical amputation of a finger. He subsequently underwent a second surgery to excise a neuroma and months of physical therapy.
In his testimony, claimant acknowledged the need to put the extension piece of rail in place to provide a continuous track to clear the engine room doorway. Insofar as is relevant, Velisaris testified that he had used the same type of hoist "many times." He knew that there should be a stop at the end of a track and that, with his experience, he should have ensured that there was a stop before he used a hoist. He did not check that day to see whether there was a stop; nor did he explain why he and claimant did not attach the extension piece to the track, which would have obviated the need for a stop.
Claimant's expert testified that a trolley track should have a stop to prevent the trolley from overrunning the end of the track. He acknowledged that "[i]n this particular case, the rail could be extended so you couldn't put up a permanent stop" because "when you added [the connector] to extend the rail outside the sides of the vessel through a hatchway, you would have a permanent stop in its way." Notwithstanding, he believed that a temporary stop could have been placed on the end of the track inside the doors when the extension was not in place.
The deposition testimony of SUNY Maritime's chief engineer on the Empire State, read in evidence, revealed that he did not supervise any of B&A's work; only the United States COTR, McNamara, was entitled to do so. He testified that under its contract with the United States, B&A was required to have on-site supervisors to oversee the work. While McNamara consulted him as to whether he was satisfied with B&A's work, his judgment had no binding effect since McNamara was responsible for all final decisions.
After a bifurcated trial on liability only, the court found the State 35% liable and attributed the remaining 65% of culpability to claimant and B&A. Specifically, the court found that the trolley and hoist would not have come off the I-beam had a stop been attached at its end. As it stated, "[I]t was negligent not to either use a stopper or link up the two railings on either side of the door with the connecting spool piece." The court failed to apportion any liability to the United States, noting that "it cannot be concluded that McNamara knew or should have known that the large pipe was moved in an unsafe...
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