Johnson v. Horizon Lines, LLC

• Decision Date: 19 October 2007
• Docket Number: No. 05 Civ. 161(CSH).,05 Civ. 161(CSH).
• Parties: Eddie JOHNSON, Plaintiff, v. HORIZON LINES, LLC, in personam and Horizon Consumer, her gear, tackle, equipment, in rem, Defendants.
• Court: U.S. District Court — Southern District of New York

520 F.Supp.2d 524

Eddie JOHNSON, Plaintiff, v. HORIZON LINES, LLC, in personam and Horizon Consumer, her gear, tackle, equipment, in rem, Defendants.

No. 05 Civ. 161(CSH).

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

October 19, 2007.

Ralph J. Mellusi, Rabak, Mellusi & Shisha, New York City, for plaintiff.

Noreen Dever Arralde, Kenny, Stewarns & Zonghetti, New York City, for defendant.

MEMORANDUM OPINION AND ORDER

HAIGHT, Senior District Judge.

This is an action for personal injury suffered by a seaman on a United States flag, Coast Guard inspected ocean-going container ship. Plaintiff sues the vessel's owner in personam and the vessel in rem. Plaintiff alleges negligence under the Jones Act, 46 U.S.C. § 688, and unseaworthiness under the general maritime law. Trial is scheduled to begin on November 5, 2007. Plaintiff now moves for partial summary judgment on liability, based on the contention that the defendant shipowner's violations of statutory regulations caused or contributed to his injury. Those violations, plaintiff contends, entitle him to partial summary judgments that defendant was negligent and the vessel unseaworthy as a matter of law, and that defendant is precluded from asserting a defense of comparative negligence. Plaintiff's motion follows extensive discovery. Defendant opposes the motion. For the reasons that follow, plaintiffs motion is denied.

I. BACKGROUND

In May 2004, plaintiff Eddie Johnson was a seaman and member of the crew of the M/N HORIZON CONSUMER, the defendant in rem. The defendant in personam, Horizon Lines LLC. ("Horizon Lines"), was the owner pro hac vice and operator of the HORIZON CONSUMER.

Johnson was an electrician and a member of the vessel's engine department. On May 27, 2004, the HORIZON CONSUMER was moored to a pier in the port of Honolulu, conducting cargo operations. Reefer (that is to say, refrigerated) containers were stowed in two tiers on the main deck. In the early morning hours of May 27, Johnson was engaged in unplugging and stowing electric cables used for the refrigeration of reefer containers stowed in way of the number 7 and 8 hatches. These cables connect the reefer containers to the ship's main power system. Preparatory to discharging a reefer container from the vessel to the pier, an electrician (such as Johnson) must unplug the cable, coil it up, and stow it in an area near the container, awaiting the loading of the next refrigerated containerized cargo.

On this occasion, reefer containers on top of the numbers 7 and 8 hatches were stowed in two tiers. The lower tier of containers rested on the main deck. The second tier of containers rested on the tops of the first tier containers. To reach the cables on the second tier containers, Johnson had to use a ladder, which he placed in the deck space between the 7 and 8 hatch coamings. That space also contained what Horizon Line's Incident Investigation Report, Pl.Ex. B, describes as "[a]n approximately 32" by 32" square girder box hatch cover providing access to the tunnel below."

At about 1:00 a.m., Johnson placed the ladder on the deck and climbed up to unplug cables on second-tier reefer containers. Whether these containers were stowed on top of the 7 or the 8 hatch is not clear from the present record, but it is not material to the resolution of this motion. Johnson unplugged the cable on a second-tier container, stowed it away, and started down the ladder to the main deck. He testified at his deposition: "I was coming down the ladder and I was pretty much all the way down the ladder and the next thing I know I was trying to get up." Pl.Ex. L, Tr. 137. The place from which Johnson was trying to arise was the steel deck of a tunnel space some 12 to 14 feet below the main deck. The Horizon Lines Injury Report, Pl.Ex. A, gives the time of the accident as "0106" (1:06 a.m.) on May 27.

It is clear from the evidence that Johnson fell from the bottom or near the bottom of the ladder through the 32" square hatch and into the tunnel space below, suffering the injuries of which he complains. Johnson fell down the hatch because the hatch was open. Its cover was not in place. Johnson seems to argue that the hatch was partially covered by a loose and unhinged hatch cover. Horizon Lines seems to argue that the hatch was entirely open. Any dispute on this point is not material to the present motion.

II. DISCUSSION

A. Plaintiff's Objective on This Motion

While of course the question is for the jury, it seems clear enough from the present record that Horizon Lines is liable in personam and the HORIZON CONSUMER liable in rem to Johnson for providing him with an unsafe place to work. The main deck space between the 7 and 8 hatches, where Johnson had to place his ladder to ascend to the second tier of containers, was unsafe because the smaller hatch leading to the tunnel below was uncovered. This is a common sense conclusion, requiring no particular expertise. The vessel's witnesses have testified that the practice was to leave this hatch covered and dogged down while she was in port. The reason why is obvious: it is dangerous to have an open hatch on a deck where work is going on. Indeed, a photograph of the hatch cover in question, in a closed position during a joint examination on hoard the vessel after the accident, shows that the yellow surface of the hatch cover displays the instructions, in large red capital letters: "KEEP DOGGED CLOSED. KEEP CLOSED IN PORT." The decks of ships are busy places. Seamen, longshoremen, and others come and go. The safe procedure, reflected by these dramatically displayed instructions, is to keep the hatches closed while the vessel is in port, unless it is necessary to open them for the handling of cargo or giving the crew access to below-deck spaces.

But these same circumstances may very well lead the jury to the conclusion that Johnson's own negligence contributed to his injuries, resulting in application of "the longstanding maritime doctrine of comparative fault," Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514, 515 (9th Cir.1996). Johnson seeks by this motion for partial summary judgment to take any contributory negligence on his part out of the case, and with it any reduction of his damages based on comparative fault.

B. Standard of Review

Johnson moves for partial summary judgment on liability under Fed.R.Civ.P. 56. Pursuant to Rule 56, summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); SCS Communications, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir.2004).

A material fact for Rule 56(c) purposes is one that would "affect the outcome of the suit under the governing law," and a dispute about a material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty/Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

C. Plaintiff's Theory of the Case

According to Johnson's theory of the case, the governing law is found in two U.S. Coast Guard regulations promulgated under statutory authority. Johnson contends that Horizon Lines' violations of those regulations caused his injuries.

It is well established that "an employer's violation of a safety statute that was designed to protect its employees precluded the district court, sitting in admiralty, from considering the comparative fault of the injured employee-claimant." Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514, 517 (9th Cir.1996) (citing and following Roy Crook & Sons, Inc. v. Allen, 778 F.2d 1037 (5th Cir.1985)). In Fuszek the Ninth Circuit concluded:

[W]e hold that the district court erred by reducing Fuszek's award for comparative negligence. The ship was in unexcused violation of a Coast Guard safety regulation that was designed not only to protect members of the class to which Fuszek belonged, but also to prevent the type of injury he sustained.

Id. The Ninth Circuit's decision in Fuszek also approved and followed another Fifth Circuit decision, Smith v. Trans-World Drilling Co., 772 F.2d 157, 160 (5th Cir. 1985), which held that a regulatory violation could amount to negligence per se if a plaintiff proved five elements:

(1) a violation of Coast Guard regulations; (2) the plaintiff's membership in the class of intended beneficiaries of the regulations; (3) an injury of a type against which the regulations are designed to protect, (4) the unexcused nature of the regulatory violation, and (5) causation.

(cited and quoted in Fuszek at 98 F.3d at 517).

While the Second Circuit does not appear to have directly addressed the effect upon a shipowner's violation of a Coast Guard safety regulation upon the comparative negligence doctrine, in Jones v. Spentonbush-Red Star Co., 155 F.3d 587, 594-95 (2d Cir.1998), the court indicated its agreement with the Ninth Circuit's holding in Fuszek. Jones involved an injury to a deckhand on a tugboat caused by her owner's violation of an Occupational Safety and Health Administration (OSHA) regulation. The Second Circuit noted that "OSHA regulations apply to working conditions aboard ships not inspected by the Coast Guard," and that because the tug "was a local, uninspected tugboat, it was subject to OSHA regulations." The plaintiff claimed that defendant's OSHA violation "precludes any reduction in a damage award for comparative fault," relying upon Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958), in which a seaman lost his life as the result of his employer's violating a Coast Guard regulation requiring the placing of open-flame kerosene lamps at a specified height above the water. The Second Circuit, rejecting plaintiff's claim, refused to equate the violation of a Coast Guard regulation with an OSHA violation for the purpose of...