Anastasiou v. M/T World Trust

• Decision Date: 01 October 2004
• Docket Number: No. 02 CV 1917(ILG).,02 CV 1917(ILG).
• Citation: 338 F.Supp.2d 406
• Parties: John ANASTASIOU, Plaintiff, v. M/T WORLD TRUST, World-Wide Shipping Agency, Garlan Co. S.A., and Moran Shipping Agencies Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

338 F.Supp.2d 406

John ANASTASIOU, Plaintiff, v. M/T WORLD TRUST, World-Wide Shipping Agency, Garlan Co. S.A., and Moran Shipping Agencies Inc., Defendants.

No. 02 CV 1917(ILG).

United States District Court, E.D. New York.

October 1, 2004.

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Stephen I. Weichert, Esq., Poles Tublin Stratakis Gonzalez & Weichert LLP, New York City, for Plaintiff.

Mary T. Reilly, Esq., Hill Betts & Nash LLP, New York City, for Defendants.

MEMORANDUM AND ORDER

GLASSER, District Judge.

INTRODUCTION

Plaintiff John Anastasiou ("Plaintiff" or "Anastasiou") brings this action against Defendants World-Wide Shipping Agency (Singapore) PTE Ltd. ("World-Wide"), Garlan Company S.A. ("Garlan"), Moran Shipping Agencies, Inc. ("Moran") and World Trust (the "Vessel") (collectively, "Defendants"). Plaintiff alleges claims under the general maritime law for breach of the warranty of seaworthiness of the Vessel (World-Trust) and negligence. Specifically, Plaintiff asserts that Defendants are liable to him for injuries he sustained while performing work on the Vessel on January 20, 2001. On that date, Anastasiou, who is the sole employee and owner of a company called Maritech Electronics Corporation ("Maritech"), slipped, fell and broke his left leg on a ramp shortly after boarding the Vessel, where he was supposed to conduct an annual radio safety survey.

Defendants now move for summary judgment on Plaintiff's claims, arguing that they did not owe Anastasiou a duty of seaworthiness because such claim is precluded by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. ("LHWCA" or the "Act"), and there is no evidence in the record to support a finding that Defendants were negligent with respect to Plaintiff's injuries.

For the reasons that follow, Defendants' motion is granted.

FACTUAL BACKGROUND

The following facts are undisputed.¹ Plaintiff, through his company, Maritech, services marine electronic equipment, including radios, and had more than sixteen years of experience in this field at the time of the events giving rise to this action. Anastasiou Dep. at 7-13 (attached as Exhibit D to the affidavit of Terence Gargan). Approximately seventy percent of the work that Plaintiff performs for Maritech involves servicing marine electronic equipment on board vessels. Id. at 14-15.

In January 2001, defendant Moran, an agent for the Vessel, engaged Plaintiff to perform an annual radio safety survey on the Vessel.² Anastasiou Dep. at 16-18. At that time, the Vessel was less than one year old and it and its machinery was built in accordance with the requirements set forth in the rules of the American Bureau of Shipping ("ABS"). Defs. Rule 56.1 Statement ¶¶ 9-10. ABS, as a member of the International Association of Classification Societies, adopts and applies the rules, among others, delineated in the International Convention for the Safety of Life at Sea, 1974, 32 U.S.T. 47 ("SOLAS"). Georgas Aff. & Exp. Rept. ¶ 6.

On January 20, 2001, Plaintiff boarded the Vessel, which was anchored in the waters near the Verrazano Narrows Bridge in Brooklyn, to perform the survey. Anastasiou Dep. at 18-24. At about 1:00 pm, when Plaintiff embarked the Vessel, it was drizzling and the air temperature was close to freezing. Id. at 24-25. Plaintiff was wearing rubber-soled shoes and he testified that he did not have any difficulty walking on the deck of the Vessel after boarding. Id. at 23-24. He was carrying one bag with him which weighed approximately 25 pounds. Id. at 19-20.

The able bodied seaman on duty, Florante Baldonado ("Baldonado"), met Plaintiff when he boarded the Vessel to take him to the Captain's office. Anastasiou Tr. at 24-25. Anastasiou observed that the Vessel was new based on its condition, including glossy paint on the deck. Id. at 21-22. Plaintiff also recognized that in light of the precipitation, the deck was wet. Id. at 21-22. Shortly after arriving on board the Vessel, Baldonado and Plaintiff reached a ramp that was welded to the Vessel. Id. at 31-32. As with the rest of the ship, Plaintiff noticed that the ramp was wet from the drizzle, and testified that there were no other substances on the ramp. Id. at 31-32. The ramp was constructed of a solid diamond steel plate, and for traction, there were four horizontal bar cleats on each side of the ramp up and down which did not extend the entire width of the ramp. Id. at 27-29. The ramp did not have any hand or guard rails. Id. As Plaintiff started to walk down the ramp, he slipped suddenly, fell to the ground and ended up in a sitting position with his left leg under him. Id. at 29-30. Plaintiff was close to the end of the ramp after his fall. Id. at 30. Baldonado, who did not see Plaintiff's fall because he was walking ahead of him, turned back after hearing Plaintiff scream, and sought assistance for Plaintiff after he told him that his injury was serious — there was a noticeable bruise on Plaintiff's left leg. Id. at 30-31.

After his fall, the crew assisted Plaintiff to the Vessel's hospital room. Anastasiou Dep. at 37-40. Plaintiff waited in the hospital room for two hours because he initially hoped that after resting his left leg, he would be able to conduct the radio survey. Id. Plaintiff left the hospital room after it was determined that his injury would prevent him from conducting the radio survey. Id. at 37, 40. An independent launch took Plaintiff from the Vessel to the shore, and he drove his car home. Id. at 43-44. After eating a meal, Plaintiff drove himself to the hospital where he had surgery for his broken left leg. Id. The Plaintiff did not have any complaints about how the crew on board of the Vessel treated his leg injury. Id. at 42.

DISCUSSION

A. Summary Judgment Standard

The standard for granting summary judgment is well established. Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A genuine issue as to a material fact exists when there is sufficient evidence favoring the nonmoving party such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law governing the case will identify those facts which are material. Id. at 248, 106 S.Ct. 2505. Therefore, the nonmoving party "may not rest upon the mere allegations or denials" of its pleadings; rather, its response must go beyond the pleadings to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993) (the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible"). However, in determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).

B. Warranty of Seaworthiness

Plaintiff asserts a claim for breach of the warranty of seaworthiness against Defendants. (Compl.¶¶ 20-22). The general maritime duty of seaworthiness obligates a vessel owner to furnish a vessel and appurtenances reasonably fit for their intended use. GTS Indus. S.A. v. S/S "Havtjeld", 68 F.3d 1531, 1535 (2d Cir.1995). While not quite a standard of strict liability, the warranty of seaworthiness is completely divorced from negligence principles. See, e.g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).

In this case, the critical aspect of the duty of unseaworthiness involves to whom that duty is owed. Defendants contend that, because Plaintiff is covered by the LHWCA, he is unable as a matter of law to assert a cause of action for unseaworthiness. 33 U.S.C. § 905(b); see also Marroquin v. American Trading Transportation Co., 711 F.Supp. 1165, 1166 (E.D.N.Y.1988) ("If an employee is covered by the LHWCA, his exclusive legal remedy, other than workers' compensation benefits received from his employer, is an action in negligence against the owner of the ship on which he was injured"). Therefore, as a threshold issue, the Court must determine whether Plaintiff is covered by the LHWCA.³ If he is covered by the LHWCA, then Plaintiff's claim for breach of the warranty of seaworthiness must be dismissed.

Plaintiff argues that he is not covered by the 1972 amendments to the LHWCA because his engagement as a marine radio technician did not involve the loading or unloading of cargo. Pl. Mem. at 8. Therefore, Plaintiff contends, he does not satisfy an occupational status test as has been applied to the 1972 amendments to the Act. Id. The Court finds, however, that Plaintiff satisfies the test for coverage under the LHWCA both prior and subsequent to the 1972 amendments to the Act. Thus, Plaintiff's cause of action for breach of the warranty of seaworthiness is barred by the LHWCA.⁴

Prior to 1972, when Congress amended the LHWCA, coverage existed under the Act only for injuries sustained upon the "navigable waters of the United States (including any ... dry dock ...)." 33 U.S.C. § 903 (1970 ed.); see also Fleischmann v. Director, Office of Workers' Compensation Programs, 137 F.3d 131, 135 (2d Cir.1998) ("Before 1972, the LHWCA covered only employees who were injured on actual navigable waters;...