In re Complaint of Moran Towing Corp.

• Citation: 984 F.Supp.2d 150
• Decision Date: 18 November 2013
• Docket Number: No. 10 Civ. 4844.,10 Civ. 4844.
• Parties: In the Matter of the Complaint of MORAN TOWING CORPORATION, as Owner and Operator of the Tug Turecamo Girls, for Exoneration from or Limitation of Liability, Petitioner.
• Court: U.S. District Court — Southern District of New York

984 F.Supp.2d 150

In the Matter of the Complaint of MORAN TOWING CORPORATION, as Owner and Operator of the Tug Turecamo Girls, for Exoneration from or Limitation of Liability, Petitioner.

No. 10 Civ. 4844.

United States District Court,

S.D. New York.

Nov. 18, 2013.

Clark Atcheson & Reisert, by: Richard Joseph Reisert, Esq., Frank A. Atcheson, Esq., Stephen K. Carr, Esq., of Counsel, North Bergen, NJ, for Petitioner.

Kreindler & Kreindler, by: Daniel O. Rose, Esq., Megan Wolfe Benett, Esq., New York, NY, for Claimant.

AMENDED OPINION

SWEET, District Judge.

Two actions were tried to the court from May 20, 2013 through June 4, 2013, the petition for exoneration filed by the petitioner Moran Towing Corporation (“Moran” or the “Petitioner”) and a Jones Act and general maritime law action for negligence filed by claimant Avril Young (“Avril Young” or the “Claimant”). These actions arise out of the crushing to death on December 27, 2011 of Ricardo Young (“Young” or the “Decedent”) a deckhand who was entrapped in the capstan of the Turecamo Girls, a Moran tug (the “Tug”), by a towline under great pressure during an improperly conducted swing maneuver.

The horror of this incident has raised difficult issues which were presented with skill by very competent advocates. Upon all the prior proceedings and the facts and conclusions of law set forth below, judgment will be entered on behalf of Avril Young.

Prior Proceedings

On June 22, 2010, the Petitioner filed a Petition for Exoneration from or Limitation of Liability in this district, pursuant to 46 U.S.C. §§ 30501 et seq., and the various statutes supplemental thereto and amendatory thereof, and Rule F of the Supplemental Rules for Admiralty and Maritime Claims (“Admiralty Rules”) arising out of the events surrounding Young's death.

On September 8, 2010, the Claimant, as administrator of the Estate of Young, filed an Answer admitting that the case is within this court's admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333(1), Rule 9(h) of the Federal Rules of Civil Procedure and Rule F of the Admiralty Rules, and demanded a trial by jury. On that same date, the Claimant filed a claim on behalf of the Estate and on behalf of the decedent's minor son, Nicholas Young (“Nicholas”), but at that time the Claimant had not yet been appointed as the legal guardian of Nicholas or the administrator of the Estate.

On July 11, 2011, the Claimant, on behalf of herself, individually and as the administrator and personal representative of the Estate of Young and all other wrongful death beneficiaries and heirs, filed a First Amended Claim under the Jones Act, 46 U.S.C. § 30104 and general maritime law and demanded a trial by jury. Petitioner then moved pursuant to Rules 12(f) and 39(a)(2) of the Federal Rules of Civil Procedure to strike the Claimant's demand for a jury trial on any issues pertaining to exoneration from or limitation of liability. The Claimant then cross-moved pursuant to Rules 38 and 39 of the Federal Rules of Civil Procedure to empanel a jury to hear and render a verdict as to her claims under the Jones Act and general maritime law.

By opinion of April 11, 2013 (the “April 11 Opinion”), it was held that there is no right to a jury trial on issues pertaining to exoneration or limitation of liability, but that there is a right to a jury determination in a Jones Act action.

On April 16, 2013, Moran filed a motion for partial summary judgment. On May 20, 2013, after the Claimant waived her jury demand, a bench trial was commenced on the petition for exoneration and the Jones Act and general maritime law action. Both actions were tried to the court from May 20, 2013 through June 4, 2013, post-trial submissions were completed on August 9, 2013 and the parties presented final arguments on October 1, 2013 at which time the actions were considered fully submitted.

The Facts

In the early morning hours of December 27, 2009, Young, a deckhand, was crushed to death in the capstan of the Tug. (Joint Pretrial Order, Stipulated Facts, “Stipulated Facts”; at ¶ 1.) At the time of the fatal incident, the Tug was pushing the barge Lisa (the “Barge”) on a “sludge run” down the Hackensack River from a waste disposal site in Little Ferry, New Jersey to Wilson Avenue in Newark, New Jersey, (Stipulated Facts at ¶ 5.) The Tug and Barge departed Little Ferry just after midnight and were about an hour into its voyage when Young's death occurred. (Stipulated Facts at ¶ 8.) The crew on board the Tug at the time of the incident consisted of Captain Michael Staszko (“Staszko”), mate Philip Allen (“Allen”), engineer Thomas Best (“Best”), Young and deckhand Charles Taibi (“Taibi”). (Stipulated Facts at ¶ 7.) At the time of Young's death, Allen was in the upper wheelhouse operating the Tug; Young was at the rear (“aft”) deck and Best was in his cabin doing paperwork. Staszko and Taibi were off-duty asleep. (Stipulated Facts at ¶ 12.)

Staszko has been employed by Moran in various capacities since 1978, starting as deckhand and elevated to Captain (or Master) in 1990 or 1991. (Trial Transcript, “Tr. Trans.”; at 1055–1058.) He has been serving as captain of the Tug since 1999 (Tr. Trans. at 1055; Trial Exhibit, “Exhibit”; 339), and was familiar with the Little Ferry to Newark run because the Tug had been performing the service about three to four times every two weeks for the last twelve to thirteen years. (Tr. Trans. at 143; 174; 1033–1034; 1071–1072.) He was qualified to serve as the Tug's master.

Allen was duly licensed as a Master of any towing vessel of not more than 1600 tons, and had been serving as mate of the Tug since 2007. (Tr. Trans. at 66.) He was fully familiar with the Little Ferry to Newark run, given the frequency of the Tug's employment in that service. (Tr. Trans. at 143.) He was qualified to serve as the Tug's mate. (Tr. Trans. at 130–132; 1063–1066.)

Best was a Coast Guard licensed marine engineer who had been the chief engineer of the Tug since 1998. (Exhibit 338.) Best was qualified to serve as the Tug's chief engineer. (Tr. Trans. at 192–196; 1067–1068).

Taibi had been employed as a deckhand by Moran since 2001 and had been a deckhand aboard the Tug for six years, (Tr. Trans. at 1023–1024; Exhibit 340.) Taibi was qualified to serve as a deckhand on the Tug. (Tr. Trans. at 141–142; 1066–1067.)

Young was born in Guyana on April 7, 1951 and had worked as a deckhand and bosun aboard vessels in the Caribbean for several years before he immigrated to the United States in 1999. (Tr. Trans. at 907; Ex 203.) After arriving in the U.S., he worked for a fishing boat company in Florida before he began working for Moran as a deckhand in 2006. (Tr. Trans. at 17; 1122–1123; Exhibit 203; 324.) Young became the deckhand of the Tug in August 2008, and received a vessel orientation on the Tug including its deck machinery. (Exhibit 324 §§ 14–16.) Given the frequency of the Tug's work on the Hackensack River sludge run, he was familiar with and had experienced the Little Ferry to Newark run and performed the trip on the same watch with Allen and was a competent deckhand and qualified to serve on the Tug. (Tr. Trans. at 138–139; 139; 143–144.)

As master or captain, Staszko was “responsible for the safe, economic and efficient operation of the vessel.” (Tr. Trans. at 1132.) As mate, Allen was the “direct representative of Moran and responsible for administering Moran policies and procedures.” (Tr. Trans. at 68.) Aside from the captain, all crewmembers aboard the Tug on the night of the incident, including engineer Best, were subject to Allen's orders. (Tr. Trans. at 67.) Best's primary responsibility on the Tug was to maintain its equipment. (Tr. Trans. at 196.) Best was available to assist on deck if asked by the captain or mate. (Tr. Trans. at 198.) Deckhands aboard Moran tugboats handle lines, act as lookouts and do whatever else is required of them. (Exhibit 313, 104.)

The Tug was constructed in 1965, has two engines and is 91 feet long, 27 feet wide, weighs 199 gross tons and produces approximately 2,000 horsepower. (Tr. Trans. at 68–69; Exhibits 7, 92.) The Barge is approximately 272 feet long and 68 feet wide and has a draft of 13–14 feet, and weighed approximately 15 million pounds on the night of the incident. (Tr. Trans. at 69; 1271; Exhibit 92, 9.) The Barge does not have a “notch” that would link the Tug to the barge. (Tr. Trans. at 71; 296; Exhibit 184, photo 12.) The bow of the Barge has a marker indicating where the tip of the bow of the Tug should line up. (Tr. Trans. at 71.)

The Tug uses “push gear” to secure the Barge to the Tug. (Stipulated Facts ¶ 15.) When pushing down the Hackensack River, the bow of the Tug is aligned against the bow section of the Barge. (Tr. Trans. at 70.) The bow of the Tug is not aligned against the stern of the Barge, and the Barge is instead “pushed backwards” because there is not enough room in the river at Little Ferry to turn the Barge around. (Tr. Trans. at 72.) The “push gear” includes push lines that run from the deck bits on the bow section of the Barge to the aft quarter bitts of the Tug. (Stipulated Facts ¶ 16.) The port (left side) push line is a fixed line. (Stipulated Facts at ¶ 17; Exhibit 184, photo 31.) The starboard (right side) push line passes from the starboard aft quarter bit around the capstan to the H-bitt (so designated presumably because of its shape). (Stipulated Facts at ¶ 19; Exhibit 184, photo 33.) The main towing lines, the push gear or push lines, are the Tug's equipment. (JPTO 15, 16; Tr. Trans. at 18; 1026–127.) The starboard push gear is adjustable by use of the capstan. (Stipulated Facts at ¶ 18; Exhibit 184, photo 33.) The capstan is located on the aft deck. (Tr. Trans. at 1060; Exhibit 384, photo 3.) The Tug has a ten horsepower capstan. A capstan is a mechanical, electrically-powered drum used to bring in the starboard push line. (Tr. Trans. at 74; 227.)

When the Tug and Barge are secured...