O'Hara v. Weeks Marine, Inc.

Decision Date01 April 2002
Docket NumberDocket No. 00-7872.
Citation294 F.3d 55
PartiesGerard O'HARA and Lisa O'Hara, Plaintiffs-Appellants, v. WEEKS MARINE, INC. and Collazo Contractors, Inc., Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Paul C. Matthews, New York, NY, for Plaintiffs-Appellants.

David R. Hornig, Nicoletti Hornig Campise & Sweeney (Julia M. Moore, of counsel), New York, NY, for Defendant-Appellee Weeks Marine, Inc.

William M. Kimball (James P. O'Connor, of counsel), New York, NY, for Defendant-Appellee Collazo Contractors, Inc.

Before: LEVAL and SACK, Circuit Judges, and RAGGI, District Judge.*

SACK, Circuit Judge.

The plaintiffs, Gerard O'Hara, a dock-worker, and his wife Lisa,1 appeal from a judgment of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge) granting the defendants' motion for summary judgment and denying the plaintiff leave to amend his complaint to allege additional causes of action under New York State law.

O'Hara brought suit under the Jones Act, 46 App.U.S.C. § 688 (Supp.2001), and the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. ("LHWCA"), for injuries he sustained while employed by Defendant Collazo Contractors, Inc. ("Collazo") to help repair piers along the waterfront in Staten Island, New York. Defendant Weeks Marine, Inc. ("Weeks"), the general contractor on the pier-reconstruction project, deployed two barges to assist with the reconstruction, and engaged O'Hara's employer Collazo as a subcontractor. O'Hara alleges that he sustained personal injuries while working aboard one of these barges.

We affirm the dismissal of O'Hara's Jones Act claims because we agree with the district court that he does not qualify as a "seaman" within the meaning of the Act. We hold, however, that the evidence suffices to create a triable issue of fact with respect to O'Hara's LHWCA claim against Weeks, and also should be factored into the district court's analysis of whether to permit O'Hara leave to replead to add state law claims. We therefore vacate and remand in part for the court's further consideration of these issues.

Central to our analysis is O'Hara's allegation, which we must credit on appeal from the grant of summary judgment, that he had been working under the direct supervision of a Weeks employee at the time of his injury. We conclude that if the trier of fact ultimately credits this allegation, it could render Weeks liable for O'Hara's injury under the federal common-law duties of care articulated by the Supreme Court in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 165-78, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), and, perhaps, under New York State law also.

BACKGROUND

On June 18, 1990, Weeks entered into a general contract with the New York City Department of Transportation to repair and reconstruct certain parts of the Staten Island Ferry Maintenance Facility. On November 9, 1990, Weeks subcontracted with Collazo for the latter to repair stone bulkheads on a wharf at the Facility's ferry terminal. In April 1991, Collazo hired O'Hara, a member of the dockbuilder's union, to work as a dockbuilder on the project.

Weeks deployed two barges to be used in connection with the project: a "materials barge" used to store supplies and equipment, and a "crane barge," which held and transported the crane used at the construction site. Neither was self-propelled; Weeks initially transported them to the site with tugboats. Subsequently, workers on the pier, including O'Hara, moved the barges short distances within the construction site using winches and pulleys in order to place them where needed. On the date of O'Hara's accident, both barges were moored to bulkheads on the pier; neither had been moved for some two months.

O'Hara alleges that he was "assigned to" the crane barge during the five months in which he worked on the pier-reconstruction project. He testified that "[m]ore than half of [his] working time was spent working on either the crane barge or the materials barge." Pl.'s Aff. dated Dec. 14, 1995, ¶ 7. O'Hara's duties, ordinarily carried out at the direction of his foreman, a Collazo employee, included transporting and assembling construction supplies.

On or about September 16, 1991, a bundle of "stay-in-place forms" — steel partitions used for poured concrete — fell into the water when a sling on the crane that had been transporting them broke. The next day, according to Weeks's statement of undisputed material facts, O'Hara helped divers recover and clean these forms.

O'Hara testified that because of the substantial weight of the forms, the crane would ordinarily have been used to lift them, but on the day he was injured, September 17, 1991, "[t]he crane was not available."2 Pl.'s Aff. dated Jan. 27, 1999, ¶ 6. Leo Nobiger, a Weeks employee supervising the construction, therefore "told [O'Hara] to move [the stay-in-place forms] by hand." Id. O'Hara alleges that while performing this job without assistance, he strained himself severely and sustained "a hernia with serious complications." Id.

On September 14, 1994, O'Hara filed suit against Weeks and Collazo under the Jones Act and the LHWCA in the United States District Court for the Eastern District of Ney York.3 On June 12, 1996, the court (I. Leo Glasser, Judge) granted Weeks's motion for summary judgment on O'Hara's Jones Act claim because it concluded that the barges did not constitute "vessels in navigation" and that O'Hara did not qualify as a "seaman" under the Jones Act. O'Hara v. Weeks Marine, Inc., 928 F.Supp. 257, 261 (E.D.N.Y.1996) ("O'Hara I"). Weeks and Collazo subsequently moved for summary judgment on the LHWCA claims. O'Hara submitted a memorandum in opposition to that motion in which he raised for the first time the possibility that Weeks might be liable to him under New York labor law. The district court construed this passing reference to state law as a motion seeking leave to amend the complaint. On October 25, 1999, the court granted summary judgment to Weeks on O'Hara's LHWCA claim and denied O'Hara leave to amend his complaint. O'Hara v. Weeks Marine, Inc., No. 94-CV-4322, 1999 WL 1129620, 1999 U.S. Dist. LEXIS 18551 (E.D.N.Y. Oct.25, 1999) ("O'Hara II").4 This appeal followed.

DISCUSSION
I. Standard of Review

We review de novo the district court's grant of summary judgment, construing the evidence in the light most favorable to the nonmoving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999), cert. denied, 529 U.S. 1098, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000). A district court must grant summary judgment if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is "genuine" where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

II. Overview of the Statutory Scheme
A. The Jones Act

The Jones Act confers a cause of action on "[a]ny seaman" who suffers a "personal injury in the course of his employment." 46 App.U.S.C. § 688(a) (Supp. 2001). Congress enacted the Act in 1920 in order to remove then-existing barriers to the right of seamen to recover damages for injuries caused by their employers' negligence. Chandris, Inc. v. Latsis, 515 U.S. 347, 354, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995); see also McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 341-42, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991) (chronicling congressional attempts to create a negligence action for seamen, culminating in the Jones Act). The Jones Act provides "heightened legal protections [to] seamen... because of their exposure to the `perils of the sea.'" Chandris, 515 U.S. at 354, 115 S.Ct. 2172 (citations omitted). While land-based employees — including land-based maritime workers — typically can recover from their employers for work-related injuries only through scheduled no-fault compensation schemes, the Jones Act gives seamen an express right of action in tort because of their status as "`wards of the admiralty'" who "`are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour.'" Id. at 354-55, 115 S.Ct. 2172 (quoting Harden v. Gordon, 11 F. Cas. 480, 485, 483 (C.C.Me.1823) (No. 6,047) (Story, J.)).

B. The LHWCA

The LHWCA "establishes a comprehensive federal workers' compensation program that provides longshoremen and their families with medical, disability, and survivor benefits for work-related injuries and death." Howlett v. Birkdale Shipping Co., 512 U.S. 92, 96, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994); accord Gravatt v. City of N.Y., 226 F.3d 108, 115 (2d Cir.2000). Employees eligible for LHWCA benefits include "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker...." 33 U.S.C. § 902(3). But the LHWCA expressly excludes, inter alia, "a master or member of a crew of any vessel." Id. § 902(3)(G). Under the LHWCA, an "employer" is one "whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States." Id. § 902(4).

The LHWCA entitles employees to no-fault compensation payments for work-related injuries. As with most other workers' compensation schemes, this entitlement displaces the employee's common-law right to bring an action in tort against his or her employer. The LHWCA limits employer...

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