Flynn v. American Auto Carriers, Inc.
| Decision Date | 24 February 2000 |
| Docket Number | No. CV 96-4310(RJD).,CV 96-4310(RJD). |
| Citation | 85 F.Supp.2d 158 |
| Parties | Martin FLYNN and Amelia Flynn, Plaintiffs, v. AMERICAN AUTO CARRIERS INC., Are/A Soya, Walleniusrederierna (Wallenius Lines) and International Marine Carriers Inc., Defendants. American Auto Carriers Inc., Are/A Soya, Walleniusrederierna (Wallenius Lines) and International Marine Carriers Inc., Third-Party, Plaintiffs, v. The United States of America, Third-Party, Defendant. The United States of America, Fourth-Party, Plaintiff, v. International Terminal Operating Co., Inc., Fourth-Party, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Martin Lassoff, New York City, for the plaintiff.
John M. Toriello, Haight Gardner Holland & Knight, New York City, for the defendants/third-party plaintiffs.
Arthur Joseph Gribbin, III, U.S. Department of Justice, New York City, for the third-party defendant/fourth-party plaintiff.
Michael N. Cotignola, Kalmus & Martuscello, New York City, for the fourth-party defendant.
Plaintiff1 Martin Flynn, a "checker" foreman who slipped and fell on the slick stern ramp of a seagoing shipping vessel, brings this action against the owners of the vessel, defendants American Auto Carriers Inc., Are/A Soya, Walleniusrederierna (Wallenius Lines) and International Marine Carriers Inc. (hereinafter the "Shipowners") pursuant to the Longshore and Harbor Workers' Compensation Act ("LHWCA" or the "Act"), 33 U.S.C. section 905(b). The Shipowners have impleaded third-party defendant the United States of America ("Government"), the owner of the cargo being loaded at the time of plaintiff's accident. The Shipowners seek indemnification from the Government as a result of personal injury to plaintiff sustained during the cargo-loading process. The Government, in turn, has impleaded plaintiff's employer, fourth-party defendant International Terminal Operating Co., Inc. ("ITO" or the "Stevedore"), asserting that the Stevedore is contractually liable to the Government for any personal injury to longshoremen that is attributable to the Stevedore's negligence. Predictably, the Shipowners, the Government, and the Stevedore all deny responsibility for clearing snow and ice from the stern ramp.
The Shipowners move for summary judgment on plaintiff's personal injury claims and on their own cross-claim for contractual indemnity against the Government. The Government cross-moves for summary judgment on the Shipowners' indemnity claim.
On the issue of negligence, material questions of fact abound. The Shipowners' motion for summary judgment on plaintiff's personal injury claims is therefore denied. As explained below, however, the Court concludes that the Government is required to indemnify the Shipowners for any of the Shipowners' negligent acts or omissions occurring during and in relation to cargo operations that resulted in plaintiff's injury.
The following facts are undisputed. The M/S Faust (hereinafter the "Vessel") is a "Ro-Ro" (roll on/roll off) vessel designed to carry vehicular cargo. The Vessel is equipped with a retractable stern ramp over which vehicular cargo is loaded and unloaded during cargo operations. Rule 56.1 statement of defendant Shipowners in support of summary judgment ("Def. R. 56"), dated September 30, 1998, ¶ 1.
On February 23, 1994 at 9:00 p.m., the Vessel called at the Military Ocean Terminal at Bayonne, New Jersey ("MOTBY") in order to discharge and load a cargo of Government vehicles pursuant to the Military Sealift Command ("MSC") Shipping Agreement and Rate Guide (the "MSC Agreement"), effective June 1, 1993, entered into between the Shipowners and the Government. The MSC Agreement sets out the terms and conditions of various ocean liftings of Government cargoes by vessels owned or operated by the Shipowners. Def. R. 56 ¶ 2.
Pursuant to § C-8(e) of the MSC Agreement, "the Government or the consignee shall bear all expenses of loading, stowing, and discharging the cargo, such as lighterage (including loading and discharging costs in connection therewith), stevedoring, [and] checking...." MSC Agreement, Exh. H, attached to affidavit of Arthur J. Gribbin, attorney for the Government ("Gribbin Aff."), dated October 1, 1998.
At the MOTBY facility, the Government contracted with fourth-party defendant ITO to provide all stevedoring services for the United States (hereinafter the "stevedoring contract"). The stevedoring contract provides that the Stevedore shall be "[r]esponsible for, and hold the Government harmless from bodily injury and death of persons, occasioned either in whole or in part by the negligence or fault of the contractor [ITO] ... in the performance of work under this contract [to perform the stevedoring services]." Exh. D, Gribbin Aff.
The Government also contracted with Backhoe Services, Inc. to provide snow and ice removal services at MOTBY (hereinafter the "Backhoe" contract). Def. R. 56 ¶ 4. Section C.1 of the Backhoe contract provides that "the contractor [Backhoe] shall furnish equipment and operators to perform emergency snow plowing and removal services at Military Ocean Terminal, Bayonne, New Jersey, as and when required by the government." Exh. 10, affidavit of John Toriello, attorney for the Shipowners, dated September 30, 1998 ("Toriello Aff."). The Government asserts that under the Backhoe contract, Backhoe was responsible for salting and plowing only the terminal area at MOTBY, not the stern ramp of the Vessel. Government's Rule 56.1 Statement in support of summary judgment, dated October 1, 1998 ("Gov. R. 56") ¶ 21.
Plaintiff became a marine carpenter in 1962 and acted in that capacity until 1978, when he became a checker. From 1978 until the present he has been employed as a checker, and, on February 24, 1994, he occupied the position of checker foreman. Def. R. 56 ¶ 12.
As a checker foreman, plaintiff was responsible for compiling and verifying various paperwork associated with the carriage of ocean cargoes, such as bills of lading, warehouse receipts, and trucking documents. He also supervised other checkers who would periodically check the cargo to be loaded or unloaded from vessels against these various documents. Def. R. 56 ¶ 13.
Plaintiff testified that at approximately 11:00 a.m., he began to disembark the Vessel after giving orders to workers under his supervision. Flynn Dep. at 28, 32. The ramp was visibly covered with snow and ice when he began his descent along the stern ramp. Id. at 34. When he reached an area approximately 15 to 20 feet down the ramp, he moved to the port side of the ramp in order to avoid tanks being loaded at that time. Id. at 35. Upon doing so, he "did a flip" and landed on his knees. He thought he "must have kicked one of them black ice or whatever it's called, you can't really see it, which sometimes it gets dirty." Id.
Employees of ITO and the Government testified during depositions that the Shipowners are responsible for clearing the stern ramp, while employees of the Shipowners testified that the Government or the Stevedore was responsible for clearing it. For example, Mr. Robert Kochanski, the "safety man" employed by ITO, testified that he would perform his own inspection of the Vessel for the safety of ITO employees. Kochanski Dep. at 24. Kochanski acknowledged that he was required to make sure that slippery conditions in the areas being used by longshoremen were eliminated as they occurred. Id. However, Kochanski asserts that if there were rain or an accumulation of snow or ice on the ramp, he would have the ship's crew clean it up. Id. at 38-39. "It's up to the ship to keep the ramp clean." Id. at 34.
In contrast, Crew member Steven Kayser, Chief Officer of the Vessel, denied that it was the Vessel's duty to clear ice and snow from the stern ramp. Kayser Dep. at 80. Kayser acknowledged that during cargo operations part of his job is to see that the ramp is safe for the longshoremen to go on and off. Id. at 29-30. However, he testified that this duty is limited to checking for prior defects and to make sure that the ramp was secured and functioning properly. Id. at 80-82. When asked "if you had hot water and you had snow and ice on the ramp, would you use that hot water to melt the snow and ice to clear the ramp," Kayser answered "no." Id.
The Ship Superintendent employed by the Stevedore, Anthony Caputo, testified that Government contractor Backhoe salted the stern ramp on at least two occasions on February 24, 1994 at the request of Government employees. Caputo Dep. at 36. Caputo testified that between 6:00 a.m. and 6:30 a.m., longshoremen were complaining that the stern ramp was slick. Caputo approached the crew of the Vessel, who explained to Caputo that the Vessel did not have de-icing materials. Id. at 35. According to Caputo, the crew approached Marine Cargo Specialist Tim O'Sullivan, an employee of the Government, about the icy stern ramp. At Mr. O'Sullivan's direction, Backhoe's salt truck spread salt on the stern ramp. Id. at 36.
Mr. Caputo inspected the ramp after Backhoe had finished and found the ramp to be in good condition. Id. at 68-70. He testified that if he had found anything which would lead him to believe that there was an unsafe condition, he would not allow cargo operations to commence. Id. at 23. Instead, he would "go to the ship's crew and tell them to correct the situation until such time that we can work." Id.
At 6:15 a.m. on the day of the accident, the Vessel was "turned over" to the Stevedore. Exh. 5, M/S Faust deck log dated February 24, 1994, Toriello Aff. At around 9:00 a.m., a second request was made to Mr. O'Sullivan to ask the truck to salt the ramp. As a result, either Mr....
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