Gravatt v. City of NY

• Decision Date: 01 August 2000
• Docket Number: Docket No. 99-7898
• Citation: 226 F.3d 108
• Parties: (2nd Cir. 2000) STEVEN GRAVATT and DELORES GRAVATT, Plaintiffs-Appellees, v. THE CITY OF NEW YORK, Defendant-Cross-Claimant, SIMPSON & BROWN, INC., Defendant-Cross-Defendant-Appellant, N. MASSAND, P.E., L.S., P.C., a/k/a/ Nanik Massand, P.C., Defendant-Cross-Claimant-Cross-Defendant, BARGE "ABC" and BARGE "DEF", their Engines, Boilers, Tackles, etc. in rem, Defendant-Cross-Defendant
• Court: U.S. Court of Appeals — Second Circuit

Page 108

226 F.3d 108 (2nd Cir. 2000)

STEVEN GRAVATT and DELORES GRAVATT, Plaintiffs-Appellees, v. THE CITY OF NEW YORK, Defendant-Cross-Claimant, SIMPSON & BROWN, INC., Defendant-Cross-Defendant-Appellant, N. MASSAND, P.E., L.S., P.C., a/k/a/ Nanik Massand, P.C., Defendant-Cross-Claimant-Cross-Defendant, BARGE "ABC" and BARGE "DEF", their Engines, Boilers, Tackles, etc. in rem, Defendant-Cross-Defendant.

Docket No. 99-7898

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: April 27, 2000

Decided: September 18, 2000

Plaintiff, employed as a dock builder, was injured on a barge while working on a mid-river bridge repair project. His employer on the construction project was also the statutory owner of the barge. He and his wife brought a personal injury suit against his employer in its capacity as vessel owner under section 5(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), as amended 33 U.S.C. § 905(b). After bench trial, the United States District Court for the Southern District of New York (Robert W. Sweet, Judge) entered judgment in favor of both husband and wife plaintiffs for $2,024,529.73 and $230,327.75 respectively. The employer appealed.

The Court of Appeals, Leval, J., holds: (1) employee covered by LHWCA may recover in a 905(b) negligence suit against his employer who is also the vessel owner, but only to the extent that the employer was negligent in its capacity as a vessel; (2) because the negligence of the employer was in its capacity as employer and not in its capacity as vessel, the employer is not liable in tort under section 905(b).

Judgment REVERSED.

[Copyrighted Material Omitted] JOHN J. WALSH, Freehill, Hogan & Mahar, LLP, New York, NY, for Appellant.

NICHOLAS P. GIULIANO, Waesche, Sheinbaum & O'Regan, P.C., (William R. Bennett, III and Claurisse C. Orozco, on the brief), New York, NY, for Appellees.

Before: JACOBS, LEVAL and SACK, Circuit Judges.

LEVAL, Circuit Judge:

Defendant Simpson & Brown, Inc. ("S&B") appeals from the final judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge) entered against it on July 6, 1999. Plaintiff Steven Gravatt ("Gravatt") was employed as a journeyman dock builder by defendant S&B-the sole appellant-a construction contractor retained by the City of New York to repair one of its bridges. Gravatt was injured while working on a barge chartered by S&B at this mid-river construction site. Gravatt's employment made him a "harbor-worker"-a person covered by the terms of the Longshore and Harbor Workers' Compensation Act of 1972 ("LHWCA"), as amended, 33 U.S.C. §§ 901 et seq. Under the definitions of the LHWCA, S&B acted in two capacities-first, as Gravatt's employer, see 33 U.S.C. § 902(4), and second, as the owner of the vessel on which Gravatt was injured, see id. § 902(21).

We must decide whether S&B's conduct renders it liable to Gravatt in tort given that it acted in this dual capacity of employer and vessel owner. The LHWCA provides that as Gravatt's employer, S&B was required to pay Gravatt statutory compensation for injuries suffered in the course of his employment, regardless of fault, see 33 U.S.C. § 904, but that an employer's no-fault liability for compensation to its employee under section 904 is "exclusive and in place of all other liability." Id. § 905(a). Therefore, Gravatt has no tort remedy against S&B in its capacity as his employer. On the other hand, the injured employee's receipt of compensation from his employer does not bar him from suing responsible third parties. See 33 U.S.C. § 933(a). In this regard, the LHWCA provides that, with certain exceptions, an injured maritime worker may bring an action for negligence against a vessel as a third party. See 33 U.S.C. § 905(b). The statute implies, and has been interpreted to provide, that an employer that is also a vessel owner can be liable to its employees as if it were a third party for negligence in its vessel capacity. We must decide how to reconcile S&B's section 905(a) immunity as employer to suit in negligence, with its potential liability in negligence as a vessel under section 905(b).

The district court found Gravatt liable under alternate theories. First, relying on its reading of Fanetti v. Hellenic Lines Ltd., 678 F.2d 424 (2d Cir. 1982), it concluded that S&B was liable in negligence to Gravatt regardless "whether the acts of negligence are attributable to the owner-employer in its capacity as [vessel] owner or as employer." Gravatt v. City of New York, 53 F. Supp. 2d 388, 424 (S.D.N.Y. 1999). Second, the district court found that S&B's negligence was in its capacity as vessel owner. See id. at 421-24. In our view, a dual-capacity employer-vessel is liable to its covered employees under section 905(b) only to the extent that it breached its duties of care in its capacity as vessel, and is not liable for negligence committed in its capacity as employer. Accord Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603 (1st Cir. 1996) (en banc); Levene v. Pintail Enters., 943 F.2d 528 (5th Cir. 1991); Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025 (5th Cir. 1985); see also Smith v. Eastern Seaboard Pile Driving, Inc., 604 F.2d 789, 795 (2d Cir. 1979) (holding that the "key issue" in a dual-capacity case was whether negligent employees acted "in their capacity as agents of the vessel on the one hand or as employees performing [LHWCA-covered harbor work] on the other"). Because we find that S&B was not negligent in its vessel capacity, we reverse the judgment against S&B.¹

BACKGROUND

A. Facts

The facts of the case are set out in detail in the several opinions below, in particular the court's opinion on the parties' summary judgment motions, see Gravatt v. City of New York, No. 97 CIV 0354(RWS), 1998 WL 171491 (S.D.N.Y. Apr. 10, 1998), and in two post-trial opinions, see Gravatt v. City of New York, 1999 WL 111922 (S.D.N.Y. Mar. 3, 1999) ("Original Opinion"); Gravatt v. City of New York, 53 F. Supp. 2d 388 (S.D.N.Y. 1999) ("Revised Opinion"). The following facts relevant to this appeal are as found by the district court.

Gravatt and his wife Delores sued the City of New York (the "City"), N. Massand, P.C. ("Massand"), and S&B for injuries that Gravatt sustained in an accident on January 31, 1996, while he was working on a construction project repairing the 145th Street Bridge across the Harlem River. The City owned the bridge. Massand-a New York professional corporation-was the engineering firm retained by the City to design the bridge repair project, supervise the construction, and monitor that the repair work was carried out safely. S&B was the construction contractor hired to perform the repair work under the supervision and control of Massand and the City. Gravatt was employed by S&B.

The repairs to the 145th Street Bridge involved the demolition and replacement of the bridge's "fender systems"-the wooden, pier-like structures that surround a bridge's mid-river stanchion in order to protect it in case of collision with shipping. The repairs required the removal of the old fender system, the excavation of the river-bed, and the driving of new piles, on which the new fender system could be constructed. This mid-river construction work required the use of several barges, which S&B had chartered to perform the work. A crane barge carried the heavy equipment used to extract the old piles, drive new piles, and excavate the river-bed. Materials barges were used to transport new materials, consisting primarily of piles, braces and whalers to the site from Newark, New Jersey, and to transport debris-primarily old timbers-to Newark for disposal. The crane was used to unload new materials from the materials barges and to load them with debris. When a barge loaded with new materials arrived at the site, it would be lashed to the crane barge. As work progressed, the new materials would be offloaded from the barge and debris loaded in their place. When this was accomplished, the materials barge would be towed back to Newark to dispose of the debris and repeat the cycle.

Gravatt's duties as a dock builder required him to spend nearly all his time working directly on the fender system of the bridge. He spent less than one percent of his time on the barges.² His normal duties did not include handling materials on the barges. The discharging of the new materials and the stowing of the debris on the barges was usually performed by a "deck man."

On January 31, 1996, however, Gravatt, together with a fellow dock builder, Liming, was instructed by the site foreman Holzheuer to go onto a materials barge to help move old piles so as to clear access to new materials. The debris had been loaded on top of new materials, obstructing access to them. The loading of debris on top of new materials violated S&B's safety policies as set out in its safety handbook. This storage decision had been Holzheuer's. It is not disputed furthermore that Holzheuer instructed Gravatt and Liming to move the old piles in an unsafe and negligent manner. Standard industry practice requires the use of a "choker" to move piles. A "choker" is a chain, which is wrapped around the pile, the noose tightening as the crane lifts the chain. "Timber tongs" are used to raise the pile two or three feet onto a "sleeper," which provides enough clearance from the deck to allow the choker to be attached around the pile. Holzheuer, however, instructed Gravatt and Liming to use the timber tongs, rather than the choker, to move piles. There was evidence that S&B routinely engaged in this misuse of timber tongs, in violation of industry-wide safety standards.³

Gravatt and Liming stood on the material barge. The crane operator and deck man were on the crane barge. The crane barge was secured to the fender system; the material barge was lashed to the crane barge. The crane operator could not see Gravatt who stood on the debris material some...