Colon v. Apex Marine Corp.

• Decision Date: 20 September 1993
• Docket Number: Civ. A. No. 90-0632L.
• Citation: 832 F. Supp. 508
• Parties: Daniel COLON, Jr., Plaintiff, v. APEX MARINE CORPORATION c/o Westchester Shipping Company, Inc., and Westchester Marine, Inc., and Westchester Marine Shipping Co., Inc. and Vertigo, Inc. d/b/a Tillies King, Defendants.
• Court: U.S. District Court — District of Rhode Island

832 F. Supp. 508

Daniel COLON, Jr., Plaintiff, v. APEX MARINE CORPORATION c/o Westchester Shipping Company, Inc., and Westchester Marine, Inc., and Westchester Marine Shipping Co., Inc. and Vertigo, Inc. d/b/a Tillies King, Defendants.

Civ. A. No. 90-0632L.

United States District Court, D. Rhode Island.

September 20, 1993.

B. Mitchell Simpson, III, Palumbo, Glavin & Boyle, Midletown, RI, Carroll E. Ayers, Wakefield, MA, for plaintiff.

Gordon Arnott, Gregory W. O'Neill, Hill, Betts & Nash, New York City, Thomas C. Plunkett, Kiernan, Plunkett & Redihan, Providence, RI, for Apex and Westchester, defendants.

David J. Oliveira, MacAdams & Wieck, Inc., Providence, RI, for defendant Vertigo.

MEMORANDUM AND ORDER

LAGUEUX, Chief Judge.

This matter is now before the Court on a motion filed by defendants Apex Marine Corporation c/o Westchester Shipping Company, Inc., Westchester Marine, Inc., and Westchester Marine Shipping Co., Inc. (the "Apex" defendants) for summary judgment on Count I of the complaint which alleges a claim under the Jones Act. For the reasons stated below, the motion is granted.

I. Background

This suit arises from a knifing incident on December 23, 1987, involving crew members of the S/T Charleston on authorized shore leave in Providence, Rhode Island. Plaintiff Daniel Colon was an engineer aboard the vessel, while Victor DeJesus and Michael McCarthy were able-bodied seamen. Those three members of the crew left the S/T Charleston separately during the afternoon or evening of December 23, 1987. While they had not planned to meet ashore, after finding themselves in the same bar by happenstance they chose to share a taxi in their travels to other bars. Between 9:30 and 10:00 p.m. the sailors were in a bar known as Tillies King Cocktail Lounge, playing video games and drinking. At approximately 10:30 p.m. an altercation broke out between DeJesus and Michael, in which the bartender and plaintiff intervened to restrain the two men. When the combatants were released, DeJesus again attacked McCarthy, who retreated behind plaintiff. The Coast Guard Hearing record outlines the subsequent events: "In an effort to bring the fight to a halt and to calm DeJesus, Colon put out his hands in a gesture of peace and told DeJesus to calm down. At that point DeJesus pulled out his knife and stabbed Colon in the side. Colon fell to the floor and DeJesus pursued McCarthy about the lounge...." Plaintiff's Exhibit "A" at p. 6. Plaintiff was transported to Rhode Island Hospital to undergo surgery for a laceration to his spleen.

McCarthy had reported prior threats made to him by DeJesus to officers of the S/T Charleston. On about four occasions McCarthy, assigned to work with DeJesus, had criticized DeJesus' laziness and asked him to do his share of the work. On these occasions DeJesus became verbally abusive, and threatened McCarthy with a knife.

Plaintiff filed this suit in December 1990 seeking to recover damages from the Apex defendants under the Jones Act (Count I), and from Vertigo, Inc., doing business as Tillies King, under the Rhode Island Liquor Liability Act (Count II). Plaintiff claims that because the officers aboard the ship were aware of DeJesus' behavior on prior occasions, the Apex defendants are liable for the injuries plaintiff received at Tillies King Cocktail Lounge. The Apex defendants move for summary judgment, on the grounds that there is no evidence that they were negligent, and that plaintiff was not injured in the course of his employment as required by the Jones Act. The parties engaged in oral argument on March 10, 1993, and the matter was taken under advisement. It is now in order for decision.

II. Discussion

A. Motion for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure sets forth the standard for ruling on a summary judgment motion:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

In determining whether summary judgment is appropriate, the court must view the facts on the record and all inferences therefrom in the light most favorable to the nonmoving party. Continental Casualty Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 373 (1st Cir.1991). Additionally, the moving party bears the burden of showing that no evidence supports the nonmoving party's position. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). In order for the Apex defendants to prevail on their motion, they must show that no genuine issue of material fact exists to support plaintiff's case. The motion can then be granted if, as a matter of law, defendants are entitled to judgment in their favor.

B. The Jones Act

The Jones Act provides, in relevant part, that "any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury...." 46 U.S.C. § 688.

Prior to 1920, when Congress passed the Jones Act, an injured seaman was entitled to receive wages and expenses of maintenance and cure, essentially financial support for as long as necessary to effect the highest degree of recovery possible, but could not recover damages for personal injury caused by negligence of the shipowner or captain. See The Osceola, 189 U.S. 158, 172-73, 23 S.Ct. 483, 485-86, 47 L.Ed. 760 (1903). The Jones Act granted seamen injured in the course of their employment because of shipowner negligence the right to recover damages. See Merchant Marine Act of 1920, ch. 250, § 33, 41 Stat. 988, 1007 (codified at 46 U.S.C. § 688). In this case, plaintiff claims that the Apex defendants may be held liable in negligence for the attack, on shore in a bar, by his fellow crew member DeJesus.

Two issues are raised by the motion for summary judgment: whether the Apex defendants were negligent in retaining DeJesus as a seaman aboard the S/T Charleston after notice of his violent propensities, and whether plaintiff was injured in the "course of employment" as required for recovery under the Jones Act.

1. Negligence

The Apex defendants argue that they can not be found negligent because they did not know of any dangerous propensities on the part of DeJesus, and they did not have control over the premises where plaintiff was injured.

Plaintiff counters that because McCarthy had reported the prior incidents with DeJesus, the Apex defendants had, or should have had, knowledge of DeJesus' "violent propensity." Possession of that knowledge made harm caused by DeJesus foreseeable, and triggered a duty to protect the crew. Plaintiff argues that this duty to protect the crew makes the Apex defendants liable even for an injury in a bar during shore leave.

Under general maritime law recovery for an assault of this type (one crew member on another) is possible under theories of either unseaworthiness or shipowner negligence. See Benedict on Admiralty, § 31 et seq. The unseaworthiness approach involves a showing that the assailant was a sufficient danger to the crew as to violate the shipowner's absolute duty to maintain a seaworthy vessel. Id.; Kratzer v. Capital Marine Supply, Inc., 490 F.Supp. 222, 229 (M.D.La.1980), aff'd 645 F.2d 477 (5th Cir. 1981) (citing Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960)). That theory has not been argued before this Court.

The theory of shipowner negligence, on the other hand, requires plaintiff to establish one of the following: "1) that the assault was committed by the plaintiff's superior for the benefit of the ship's business; 2) that the master or ship's officers failed to prevent the assault when it was foreseeable." Benedict on Admiralty, at 3-242. See Wiradihardja v. Bermuda Star Line, Inc., 802 F.Supp. 989, 993 (S.D.N.Y.1992). Plaintiff was not assaulted by a superior, foreclosing that branch of negligence recovery.

Under a foreseeability of harm theory, liability is established by showing that the shipowner breached its duty of providing for the crew's reasonable safety. Such liability can arise when "(1) the assailant is a person of known vicious character, and (2) the shipowner knew or should have known of the crew member's violent propensities." Wiradihardja, 802 F.Supp. at 993 (citations omitted). See also Koehler v. Presque-Isle Transp. Co., 141 F.2d 490, 491 (2nd Cir.), cert. denied, 322 U.S. 764, 64 S.Ct. 1288, 88 L.Ed. 1591 (1944) (shipowner liable for damages where "the ship's officers knew, or with ordinary diligence, should have known" of the assailant-employee's character).

The Apex defendants argue that there is no showing that they had sufficient knowledge regarding DeJesus to foresee a danger posed to plaintiff or other crew members. A shipowner can not be found liable for an assault injury where there is no evidence the assailant was a habitual violator of ship discipline or had "engaged in any fights or controversies ... or that he had ever threatened anyone with a knife or other weapon prior to the assault." Connolly v. Farrell Lines, Inc., 268 F.2d 653, 655 (1st Cir.), cert. denied, 361 U.S. 902, 80 S.Ct. 208, 4 L.Ed.2d 158 (1959). In Connolly, the Court held that one assault, without prior threats or violence, was insufficient to establish negligence by the employer. Additionally, in Connolly, there was insufficient evidence to find that the assailant possessed "a savage disposition" or "a vicious nature." Id. at 656.

However, in this case plaintiff has presented evidence that previous incidents of violent behavior by DeJesus were reported to superior officers. Whether those reports gave plaintiff's employer sufficient knowledge to foresee a danger to the crew is a question of fact for the jury. Therefore, the motion for summary judgment cannot be...