Haney v. Miller's Launch Inc.

• Decision Date: 15 November 2010
• Docket Number: No. 08–CV–5225.,08–CV–5225.
• Citation: 773 F.Supp.2d 280
• Parties: Robert HANEY,v.MILLER'S LAUNCH, INC., et. al., Defendants.
• Court: U.S. District Court — Eastern District of New York

773 F.Supp.2d 280

Robert HANEY,

v.MILLER'S LAUNCH, INC., et. al., Defendants.

No. 08–CV–5225.

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

Nov. 15, 2010.

Steven L. Barkan P.C. and Gerald P. Goldsmith, Esq., Melville, NY, for Plaintiff.Rubin, Fiorella & Friedman LLP, by: Michael E. Stern, New York, NY, for Defendants.

MEMORANDUM AND ORDER

JACK B. WEINSTEIN, Senior District Judge.

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                ¦Table of Contents¦
                +-----------------+
                

                I.  Introduction                                                        283
                II. Facts and Procedural History                                        283
                

    A.   Incident                                                       284
                    B.   Maintenance and Repair Policy                                  284
                    C.   Subsequent Remedial Measure                                    285
                    D.   Proceedings                                                    285
                

                III. Contentions of the Parties                                         285
                IV.  Law and Application of Facts to Law                                285
                

    A.   Summary Judgment Standard                                      285
                    B.   Negligence                                                     286
                

         1.  Duty to Provide Competent Crew                             286
                         2.  Duty to Follow Internal Policies on Maintenance and Repair 287
                         3.  Duty to Provide Medical Care                               287
                

    C.   General Maritime Law                                           288
                    D.   Limitation of Vessel Owner's Liability Act                     289
                    E.   Maintenance and Cure                                           290
                

         1.  Generally                                                  290
                         2.  Pain                                                       291
                         3.  Additional Treatment                                       293
                

                V.  Conclusion                                                          294
                

I. Introduction

Claimed are injuries to a sailor due to unseaworthiness and negligence of the vessel owner. The case raises standard issues of limited liability, cause of injury, and maintenance and cure.

One new question is posed: Does medical treatment to reduce pain and suffering come within the definition of “cure?” While the law of this circuit is unclear, and the law of other circuits as well as tradition suggest the answer is “no,” changes in the view of the medical profession and the public on the subject of pain amelioration answer “yes.” The cost of palliative medical attention to reduce pain, even after physical injuries have been corrected to the extent practicable, should be included in treatment and cure of injured seamen.

II. Facts and Procedural History

Robert Haney sues Miller's Launch, Inc. (“Miller”) for negligence, alleging that defendants failed to properly maintain and operate the vessel, Marguerite Miller (“Marguerite”); that the vessel was unseaworthy; and that defendants failed to provide him with prompt medical care for injuries he sustained when the vessel hit a pier. He seeks additional maintenance and cure payments for back and neck pain and surgery.

Miller moves for summary judgment, or in the alternative, a limitation on liability. For the reasons stated below defendant's motion for summary judgment and limitation on liability is denied. For purposes of this motion, the plaintiff's well-supported factual allegations are accepted as true, with reasonable inferences drawn in his favor.

A. Incident

Miller is a New York corporation that owns the 42–foot crew boat Marguerite. Complaint (“Compl.”) at ¶ 1; Defendants' Local Rule 56.1 Statement of Undisputed Material Facts (“Defs.' St.”) at ¶ 1. The Marguerite provides water taxi service throughout the New York ports' waterways, constantly stopping and starting at various shore locations and shipsides. Robert Haney was a deck hand aboard the Marguerite captained by Mike McCabe.

The vessel was traveling from its base on Staten Island to a pier in Manhattan. Compl. at ¶ 10; Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment (“Pl's. Opp.”) at 1. Prior to departure, Captain McCabe visually inspected the vessel to check the oil and water levels. Id.; Defendants' Reply Memorandum of Law (“Defs.' Reply”) at 3. He turned the wheel and moved the throttle's control levers on each of the two engines to verify that the vessel could move forward and astern. Pl's. Opp. at 1. He did not examine the engines or transmission controls. Id.

Wind and tide made the water choppy. Plaintiff's Rule 56.1 Statement of Undisputed Facts (“Pl.'s St.”) at ¶ 23. When the vessel ran into the pier and then a bulkhead while docking at 34th Street, Haney was thrown to the deck. Compl. at ¶ 13. He sustained injuries to his back and neck and sought immediate medical attention. Id. at ¶¶ 16, 18; see also Pl. Ex. A at 74–79.

Captain McCabe contacted Miller's port office to request medical attention for Haney. Pl.Ex. A at ¶¶ 90–94. Vice President of Operations for Miller, Sven Van Batavia, instructed the captain to return to Staten Island before providing aid because he believed there was too large a difference in height between the Manhattan pier and the vessel's deck to safely offload Haney. Pl.Ex. D at 32–33; Defs.' Reply at 4–5. Yet, during his deposition, Batavia testified that he did not then know what the difference was. Pl.Ex. D at 34–38. And he did not check with New York's Emergency Medical Services to see if it would have had undue difficulty removing Haney from the vessel to a nearby Manhattan hospital. Id. Four hours after the accident, Haney arrived at the vessel's home port in Staten Island where he received his first medical treatment. Pl.'s St. at ¶ 29; Pl.Ex. A at 93; Pl.Ex. D. at 40–42.

B. Maintenance and Repair Policy

Amilcar Matos, Miller's Port Engineer, was in charge of the maintenance and repair of all ship equipment. Pl.Ex. B. at 5–7. Miller had a full service repair facility at Staten Island. Id.; Defs.' Mem. at 4; Def. Ex. 5 at 43 (deposition testimony of Haney). Preventative maintenance is conducted as a matter of company policy. Pl.Ex. B at 22. When a repair is needed the captain completes a maintenance sheet and places it in Matos' folder. Pl.Ex. B. at 17. It is the captain's responsibility to report any problems regarding transmission controls on a vessel. Id. at 27–28. Reliance is placed by Miller on the captain's performing daily inspections, completing safety sheets each morning, and executing a maintenance report for each needed repair.

Matos has only inspected the Marguerite once every two years over the past sixteen years. Id. at 29–30. He testified that a transmission issue is a serious “non sail item, you can't leave the dock” without its being in good order. Id. at 28.

It is agreed that the accident was caused by the failure of a cotter pin (never recovered by Miller) on the transmission's control lever. The company's maintenance repair program does not specifically provide for inspection of this pin. See Defs.' Mem. at 4.

A few months prior to the incident, a complaint had been made relating to a cable failure on the Marguerite's transmission; a repair order was submitted to Matos. Pl.Ex. A at 43–49. Before the accident, the Marguerite also experienced a mechanical throttle problem that involved ability to control speed. Pl.Ex. A at 43–49 (testimony of Haney that he reported a problem with the Marguerite involving the throttle to his captain and other personnel in the maintenance department a few months before the collision). There was no record in the vessel's maintenance file relating to these deficiencies in the vessel's control system or of their repair. Pl.'s St. at ¶ 32; Pl.Ex. B at 43–49 (Testimony of Amilcar Matos); Pl.Ex. D at 45 (Testimony of Sven Van Batavia); Pl.Ex. E. (relevant portions of vessel's maintenance records). The vessel's logbook did not refer to a broken cotter pin or any problem in the engine room. Pl.'s St. at ¶ 49; Pl.Ex. H (logbook page for the Marguerite dated April 4, 2007). To date, the allegedly guilty cotter pin has not been produced or inspected.

C. Subsequent Remedial Measure

The first reported repair on the vessel was twelve days after Haney was injured. See Pl.'s St. at ¶ 33. Matos and Batavia testified that, after the accident, on instruction from the Coast Guard, a system-wide change was made on all of Miller's vessels; the cotter pin was replaced with a screw and locknut to better secure the cable to the transmission. See Pl.'s St. at ¶ 35.

Evidence of this subsequent remedial measure will not go to the jury. It is arguably inadmissible as a subsequent remedial measure. See Fed.R.Evid. 407 (subsequent remedial measures); but see, Dan M. Kahan, The Economics—Conventional, Behavioral, and Political—of “Subsequent Remedial Measures” Evidence, 110 Colum. L. Rev. 6, 1616–1653 (2010) (arguing that the categorical ban on subsequent remedial measures evidence should be replaced with a case-by-case analysis of whether such proof should be admitted). It is also excluded under Federal Rules of Evidence 401–403 (relevance and exclusion on grounds of confusion and waste of time), since the claim is not predicated on a design defect, but on lack of seaworthiness and failure to inspect and repair.

D. Proceedings

Jurisdiction is based on the Jones Act. 46 U.S.C. App'x § 688 et. seq. and 28 U.S.C. § 1333. Summary judgment is sought on the following grounds:

(1) The vessel was not negligently operated;

(2) The vessel was not negligently maintained and was seaworthy; and

(3) Haney is not entitled to additional maintenance and cure payments because he had obtained “maximum medical improvement,” and residual pain and suffering is not compensable.

See Memorandum of Law in Support of Defendant Miller's Launch, Inc. Motion for Summary Judgment (“Defs.' Mem.”) at 1.

Defendants also move to limit their liability to $75,000, the claimed...