Halpin v. Atkinson-Kiewit, JV, Civ. A. No. 92-10632-NMG.

• Decision Date: 12 April 1995
• Docket Number: Civ. A. No. 92-10632-NMG.
• Citation: 894 F. Supp. 486
• Parties: James P. HALPIN, Plaintiff, v. ATKINSON-KIEWIT, J.V., Defendant.
• Court: U.S. District Court — District of Massachusetts

894 F. Supp. 486

James P. HALPIN, Plaintiff, v. ATKINSON-KIEWIT, J.V., Defendant.

Civ. A. No. 92-10632-NMG.

United States District Court, D. Massachusetts.

April 12, 1995.

Order Denying Reconsideration April 12, 1995.

David B. Kaplan, The Kaplan Group, Boston, MA, for James P. Halpin.

Thomas E. Clinton, Arthur P. Skarmeas, Clinton & Muzyka, Boston, MA, for Atkinson-Kiewit, J/V.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR JUDGMENT ON PARTIAL FINDINGS (# 30)

COLLINGS, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff, James P. Halpin, seeks recovery under § 905(b) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (1988) (LHWCA), for injuries sustained on June 13, 1991 during the course of his employment with the defendant as a pile driver/foreman working on the Jamestown Bridge project in Rhode Island. At the conclusion of the plaintiff's case at the nonjury trial,¹ the defendant filed a written motion for judgment on partial findings. The issues have been fully briefed, and the matter is ripe for decision.

II. THE FACTS

The facts adduced at trial in the light most favorable to the plaintiff² are that on June 13, 1991, the plaintiff was assigned to work off a crane barge, designated Barge 852, which had been chartered by the defendant. The barge was located adjacent to a moored supply barge to which it was tied. The supply barge was adjacent to an unfinished granite pier which was in the process of being constructed and which was to be used to support the bridge. As of June 13th, the blocks or panels of the pier were in place but had not yet been secured and the concrete had not been poured. A sixty-foot steel gangplank/catwalk ("catwalk") spanned the distance over water between the supply barge and the pier. The catwalk provided the only means for the workers to move between the concrete pier and the supply barge. The gangway was secured to the supply barge by a "come along," which is a steel wire with hooks.

The defendant operated the M/V Narragansett Eagle, ("the Eagle") to transport men and cargo from the shore to the barges. On June 13th, the Eagle was approaching the area in order to deliver grout to the supply barge. At the time the wind was blowing at 35 knots and the seas were very rough and choppy. (Tr. 25). The Eagle came into the area on the windward side. The Eagle's nose/bow was against the supply barge, and the stern of the vessel was next to the pier. (Tr. 99). The bow was tied off to one end of the supply barge. (Tr. 50). In order to maintain the Eagle's bow against the supply barge, Captain Titus had to continue the Eagle's engine engaged in a forward direction. (Tr. 90). This caused the supply barge and Barge 852 to move, which, in turn, caused the "come along" steel wire which held the catwalk to the supply barge to break. As the barges moved away from the pier as a result of the forward motion of the Eagle, the end of the catwalk which had been attached to the supply barge dropped into the water. (Tr. 91, 98). The catwalk then became wedged against the supply barge just below the water line; the other end continued to be held in place at the pier by angle irons. (Tr. 34).

At this point, plaintiff had several concerns. First, he feared for his own safety and the safety of his men because the stern of the Eagle was "slamming against" the granite panels and since the panels were not secured, they could fall into the pier on top of the men. (Tr. 33). Second, he was concerned that the end of the catwalk under water could poke a hole in the supply barge and sink it. (Tr. 36). He decided that he had to get the catwalk out of the water and back on the supply barge and get the men off of the pier.

Plaintiff decided to use the crane which was secured to Barge 852 to lift the catwalk out of the water and reposition it on the supply barge. At plaintiff's direction, one of his men attached the eye of a "spreader hook" (steel cable with eye in the middle and hooks on each side) on top of the hook from the headache ball of the crane. The crane operator then moved the headache, spreader and choke over to the plaintiff on the pier. The plaintiff gave one hook to a worker, Mark Nealand, who was standing on the pier. The plaintiff took the choke and other hook, and, using another piece of the steel eye, made a loop. He put his foot into the loop and held onto the headache ball of the crane with both hands. The crane operator then lifted him over to the water above the catwalk and then lowered him down to the area where the catwalk was in the water. (Tr. 36-7). Plaintiff then tried to hook the catwalk so that it could be lifted by the crane. He made several attempts but was unable to hook the submerged gangway because of the wind and tide conditions and because the Eagle was creating such a big wake/backwash. (Tr. 38).

Plaintiff came to believe that he could not safely complete the job, so he signaled the crane operator to lift him up to the deck of the supply barge. While he was being raised up on the ball, the other end of the spreader hook, which was still being held by the fellow worker Mark Nealand on the pier, was pulled out of Mr. Nealand's grasp. This caused the hook to swing out and to strike plaintiff in the side of his face seriously injuring him. (Tr. 38).

At this point, the Eagle was stuck. Another vessel, the "Go-Between" had to be called out to the site to pull the Eagle from its stuck position, wedged between the granite panels and the supply barge. (Tr. 102).

III. THE PROCEEDINGS TO DATE

Plaintiff commenced this action on March 13, 1992 seeking recovery for alleged negligence under the Jones Act (Count I), unseaworthiness under general maritime law (Count II), an award for maintenance and cure (Count III), negligence under the LHWCA, 33 U.S.C. § 905(b)³ (Count IV), and negligence under general maritime law (Count V). Prior to trial, however, plaintiff agreed to dismiss all counts except for the claim under the LHWCA (Count IV). (See # 20, ¶ II.a.)

Counsel agreed that the trial would be bifurcated with the issue of liability being tried first. (See # 28) The parties also stipulated that, for purposes of § 905(b) of the LHWCA, the Eagle and Barge 852 were "vessels", that the defendant "owned the vessel" sic and that plaintiff was a "maritime worker". (See # 20) The trial commenced. The plaintiff presented his case; the defendant called Captain Titus, and the plaintiff called Joe Voccola as a rebuttal witness to Captain Titus' testimony. The Court then suspended the trial pending a ruling on defendant's motion for judgment on partial findings.⁴

IV. A DISPUTE OVER THE PLEADINGS —DOES COUNT IV ALLEGE NEGLIGENCE IN CONNECTION WITH THE OPERATION OF THE EAGLE?

The first issue presented by the defendant's motion is whether Count IV of plaintiff's complaint can fairly be said to allege negligence not only as to Barge 852 but also as to the Eagle. Defendant argues that Count IV is against Barge 852 only. Count IV reads as follows:

COUNT IV

(Negligence/33 U.S.C. § 905(b))

16. Paragraph 1-15 are realleged and incorporated herein.

17. The injuries sustained by the plaintiff were due to no fault of his, but were caused by the negligence of the operators of the Barge 852.

18. As a result of said injuries, plaintiff has suffered great pain of body and anguish of mind, incurred medical and hospital expenses, lost a great deal of time from his usual work, and has suffered and will suffer other damages as will be shown at the trial, all in the sum of FIVE HUNDRED THOUSAND ($500,000.00) DOLLARS.

19. This cause of action is brought based upon negligence pursuant to 33 U.S.C. § 905(b).

WHEREFORE, the plaintiff demands judgment against the defendant in the sum of FIVE HUNDRED THOUSAND ($500,000.00) DOLLARS, together with interest and costs.

Defendant contends that the evidence presented at trial only related to the negligence of the Eagle and not that of Barge 852. However, defendant argues that Count IV does not allege negligence of the Eagle but only of Barge 852. Thus, defendant claims that it is entitled to judgment as a matter of law on Count IV.

Plaintiff, however, points out that Count IV incorporates by reference all previous paragraphs of the complaint and that prior paragraphs allege the negligence of both Barge 852 and the Eagle. After sections entitled "Introduction" and "Jurisdiction," the numbered paragraphs of the complaint begin. The first four are under the heading "The Parties." Paragraph 5 is under the heading "Factual Allegations" which reads:

5. On or about June 13, 1991, the plaintiff was in the employ of the defendant as a maritime worker, and member of the crew of the BARGE 852 and while in the exercise of due care and in the performance of his duties, he sustained severe and painful personal injuries due to the negligence of the operators of the BARGE 852 and/or unseaworthiness of the said BARGE 852. In addition, these injuries also resulted from the negligence of the operators of the NARRAGANSET (sic) EAGLE.

Emphasis supplied.

The complaint then continues with Count I, the first paragraph of which is numbered "6." Consequently, plaintiff argues that the defendant had "fair notice" that his claim under the LHWCA was based, in part, upon the alleged negligence of the operators of the Eagle. Even if the complaint is found not to state a claim under the LHWCA on the basis of the negligence of the operators of the Eagle, plaintiff argues that, in all the circumstances, he should be permitted to amend the complaint to conform to the evidence pursuant to Rule 15(b), Fed.R.Civ.P., since there was no undue delay, bad faith, dilatory motive or prejudice to the opposing party.

The Court finds Count IV of the complaint to be ambiguous. The ambiguity probably did not matter when Count V, a separate count alleging a cause of action under "General Maritime Law" and "Negligence" explicitly directed at the operators of the Eagle, was also in...