Harrington v. Atl. Sounding Co.

• Decision Date: 07 January 2013
• Docket Number: No. 06–CV–2900.,06–CV–2900.
• Citation: 916 F.Supp.2d 313
• Parties: Frederick J. HARRINGTON Jr., Plaintiff, v. ATLANTIC SOUNDING CO., INC. Weeks Marine, Inc., and The MV Candice her engines, equipment, and tackle, in rem, Defendants.
• Court: U.S. District Court — Eastern District of New York

916 F.Supp.2d 313

Frederick J. HARRINGTON Jr., Plaintiff,

v.ATLANTIC SOUNDING CO., INC. Weeks Marine, Inc., and The MV Candice her engines, equipment, and tackle, in rem, Defendants.

No. 06–CV–2900.

United States District Court,

E.D. New York.

Jan. 7, 2013.

Jacob Shisha, Stephen B. Roberts, Tabak, Mellusi & Shisha, New York, NY, for Plaintiff.

Todd P. Kenyon, Betancourt, Van Hemmen, Greco & Kenyon, New York, NY, for Defendants.

OPINION & ORDER

GERSHON, District Judge:

Plaintiff Frederick J. Harrington Jr. (“Harrington”) brings this action against defendants Atlantic Sounding Co., Inc. and Weeks Marine, Inc. (“Weeks”), pursuant to the Jones Act, 46 U.S.C. § 30104, for injuries sustained on April 10, 2005, allegedly as a result of defendants' negligence while he was employed as a seaman aboard the defendant vessel MV CANDACE (“Candace”). Plaintiff also asserts claims for unseaworthiness under general maritime law. See28 U.S.C. § 1333. The case was tried by the court, without a jury.

Standard for Jones Act and Unseaworthiness Claims

Under the Federal Employers Liability Act (“FELA”), incorporated by reference into the Jones Act, see Wills v. Amerada Hess Corp., 379 F.3d 32, 47 n. 7 (2d Cir.2004),

Every common carrier by railroad while engaging in commerce between any of the several States ... shall be liable in damages to any person suffering injury ... or ... death ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier ....

45 U.S.C. § 51. In order to recover under the Jones Act, plaintiff must establish, by a preponderance of the evidence, three elements: (1) that at the time of his injury, he was acting in the course of his employment as a member the vessel's crew, McCall v. Overseas Tankship Corp., 222 F.2d 441, 443 (2d Cir.1955); (2) that the defendant was negligent, Rosenquist v. Isthmian S.S. Co., 205 F.2d 486, 488–89 (2d Cir.1953); and (3) that the negligent act caused plaintiffs injury, Oliveras v. United States Lines, Co., 318 F.2d 890, 893 (2d Cir.1963). Although Jones Act claims sound in negligence, the applicable burdens of proof differ. Regarding causation, under the Jones Act, an employer is liable to its employee if “employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” See Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) (emphasis in the original). In the Second Circuit, this relaxed standard also applies to proving a breach of the duty of care. See Williams v. Long Island R.R., 196 F.3d 402 (2d Cir.1999) (“While some circuits have limited the application of the ‘in whole or in part’ language to the element of causation and apply traditional standards to the duty of care owed, this Circuit has explicitly stated that it construes the statute, in light of its broad remedial nature, as creating a relaxed standard for negligence as well as causation.” (citations omitted)). But see, e.g., Gautreaux v. Scurlock Marine, 107 F.3d 331, 335 (5th Cir.1997) (“[T]he phrase ‘in whole or in part,’ as set forth in the statute, ... modifies only the causation prong of the inquiry. The phrase does not also modify the word ‘negligence.’ ”). Nevertheless, “FELA is not a strict liability statute and the fact that an employee is injured is not proof of negligence.” Williams, 196 F.3d at 406. Therefore, to prevail, plaintiff bears a reduced burden of proof with regard to negligence and causation.¹

With regard to plaintiff's unseaworthiness claim, a vessel is seaworthy when it “is reasonably fit to carry the cargo which she has undertaken to transport.” The Silvia, 171 U.S. 462, 464, 19 S.Ct. 7, 43 L.Ed. 241 (1898). In other words, “[s]eaworthiness is defined as the ability of a vessel adequately to perform the particular services required of her on the voyage she undertakes.” GTS Indus. S.A. v. S/S “Havtjeld”, 68 F.3d 1531, 1535 (2d Cir.1995). Under the principles of seaworthiness, “an owner has an absolute duty to furnish a ship, crew, and appurtenances reasonably fit for their intended service.” Oxley v. New York, 923 F.2d 22, 24 (2d Cir.1991). A ship is considered unseaworthy when it is “insufficiently or defectively equipped.” Waldron v. Moore–McCormack Lines, Inc., 386 U.S. 724, 726, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967). Liability for unseaworthiness does not depend on negligence or the owner's notice of the condition, see Martinez v. United States, 705 F.2d 658, 660 (2d Cir.1983), and has therefore been characterized as “liability without fault” or strict liability. Oxley, 923 F.2d at 25;Martinez, 705 F.2d at 660. Nevertheless, the “standard is not perfection,” and the ship need not use the “best possible ship, gear, or equipment.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Morton v. Berman Enterp., Inc., 669 F.2d 89, 91 (2d Cir.1982). All that is required is that the ship be reasonably fit for its designated purpose. Determining seaworthiness is a “broad, fact-specific determination that the district court must make.” Mobil Shipping & Transp. Co. v. Wonsild Liquid Carriers Ltd., 190 F.3d 64, 69 (2d Cir.1999). Traditional standards of causation apply. Barlas v. United States, 279 F.Supp.2d 201, 208 (S.D.N.Y.2003).

Under the Jones Act and the general maritime law that governs unseaworthiness claims, the doctrine of comparative negligence applies.²Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408–09, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Socony–Vacuum Oil Co. v. Smith, 305 U.S. 424, 429, 59 S.Ct. 262, 83 L.Ed. 265 (1939); Ammar v. American Export Lines, Inc., 326 F.2d 955, 959–60 (2d Cir.), cert. denied,379 U.S. 824, 85 S.Ct. 48, 13 L.Ed.2d 34 (1964). Thus, if a seaman's negligence has contributed to the cause of his injury, his recovery should be reduced proportionately. The seaman's negligence does not defeat his right to recover damages unless his negligence is the sole cause of his injury. The burden of showing that the seaman was negligent is on the defendant. Assumption of risk is not a defense to such suits. Socony–Vacuum Oil, 305 U.S. at 428, 59 S.Ct. 262.

Findings of Fact and Conclusions of Law

A trial on liability and damages was held from July 16, 2012 to July 23, 2012. The following witnesses testified: (1) Thomas Sears, a maritime engineer and plaintiff's co-worker on the day of the incident in question; (2) Frederick Harrington, plaintiff, an Able Bodied Seaman; (3) Mitchell Stoller, plaintiff's maritime expert; (4) Andrew Verzilli, plaintiff's economic expert; (5) Michael Scheibe, Captain of the Candace; (6) Corey Posciask, First–Mate of the Candace; (7) Dr. Eric Hausknecht, defendants' neurologist; (8) Edmund Provder, defendants' vocational expert; (9) Dr. Leon Sultan, defendants' orthopedic specialist; Laura Bonanomi, defendants' economic expert; and (10) David Scruton, defendants' maritime expert. In addition, plaintiff's treating physician, Dr. Paul Houle, and defendants' safety director, Richard Voorhees, testified by deposition. Based on the preponderance of the credible evidence, as well as the parties' post-trial memoranda, the following are my findings of fact and conclusions of law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

The Accident and Its Aftermath

At the time of the accident, plaintiff was fifty-two years old with only a high school education. He had, however, taken several maritime-related vocational courses. Over the course of his work history, plaintiff was a hull technician in the United States Navy and had held several additional civilian maritime positions, including jobs that would require line handling.³ By all accounts, plaintiff was an experienced seaman. Prior to plaintiff's injury, he had received exemplary reviews from all of his superiors at Weeks. He was able to do any task assigned to him, with no physical limitations, and his co-workers all knew him to be an ideal shipmate. In addition, immediately prior to joining Weeks, plaintiff had obtained his Merchant Marine license, which required passing an extended series of tests as well as obtaining letters of recommendation from past employers.

On April 10, 2005, the crew of the Candace—which was comprised of plaintiff, Sears, Posciask, and Scheibe ⁴—was tasked with moving underwater pipeline, submerged off the coast of Panama City, Florida. Prior to moving the pipeline, however, the Candace would first have to lift the anchor that was attached to either end of the pipeline, which was used to sink the pipeline when it was first put in position. This was achieved through a process called “anchor pulling” or “line pulling.” In order to lift the anchor, a tugboat is required to position itself near a buoy, floating on the surface of the water, which is connected by a pennant wire to the anchor on the floor of the ocean. Plaintiff's maritime expert, Mitchell Stoller, who, among his extraordinary credentials, was twice appointed by the Secretary of Homeland Security to the National Towing Safety Advisory Council, and whose testimony I credit, testified that a boat should be positioned so as “to minimize[ ] any chance of the vessel moving to cause these people to get jerked or lose their balance or [get] hurt.” Tr. at 243.⁵ Captain Stoller further testified that “the best position [for pulling anchors] would [be] having the bow into the sea instead of abeam, where the vessel was rolling.” ⁶ Tr. at 243. If a boat is rolling or otherwise out of position, “the wire can get taut and jerk the crew members.” Id. Once the boat is in position, one of the seamen approaches the edge of the boat and uses a boat hook to capture the pennant wire, which runs through the center of the buoy and forms an eyelet on top of the buoy through which the boathook can be positioned. Captain Stoller testified that, ideally, a boat should have a bulwark on which the seaman can brace himself while attempting to capture...