Smith v. Mitlof

• Decision Date: 16 February 2001
• Docket Number: No. 99 Civ. 10833(WCC).,99 Civ. 10833(WCC).
• Parties: Nancy Lee SMITH, Joshua Osborne, Jonathan Osborne, Thomas Osborne, Kevin McGinn, Erin McGinn, Connor McGinn, Rebecca McGinn, Dawn Hackett, Joseph Pecoraro, Linda Pecoraro and Michael Hurewitz, Plaintiffs, v. Joseph MITLOF, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

130 F.Supp.2d 578

Nancy Lee SMITH, Joshua Osborne, Jonathan Osborne, Thomas Osborne, Kevin McGinn, Erin McGinn, Connor McGinn, Rebecca McGinn, Dawn Hackett, Joseph Pecoraro, Linda Pecoraro and Michael Hurewitz, Plaintiffs, v. Joseph MITLOF, et al., Defendants.

No. 99 Civ. 10833(WCC).

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

February 16, 2001.

Edward R. Petkevis, P.C., Edward R. Petkevis, of counsel, Roebling, NJ, for plaintiffs Nancy Lee Smith, Joshua Osborne, Jonathan Osborne, Thomas Osborne, Kevin McGinn, Erin McGinn, Connor McGinn, Rebecca McGinn, Dawn Hackett, Joseph Pecoraro and Linda Pecoraro.

Krieger & Wilansky, Wayne M. Wilansky, of counsel, Bronx, for Plaintiff Michael Hurewitz.

Joseph Mitlof, Nyack, NY, defendant pro se.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge.

Plaintiffs Nancy Lee Smith, Joshua Osborne, Jonathan Osborne, Thomas Osborne, Kevin McGinn, Erin McGinn, Connor McGinn, Rebecca McGinn, Dawn Hackett, Joseph Pecoraro, Linda Pecoraro and Michael Hurewitz¹ bring this personal injury action against defendants Joseph Mitlof, individually and d/b/a: Hudson Valley Waterways, Tappan Zee Water Taxi and Tours, Tarrytown Water Taxi and Nyack Water Taxi; Daniel Sheehan, John Does 1-150, ABC Corporations 1-50 in personam and the M/V Conservator, her engines, tackle, etc. in rem. Plaintiffs, passengers aboard Mitlof's pontoon boat, Conservator, who were injured when it capsized, allege that the boat sank due to the negligence of Mitlof and Sheehan. Plaintiffs now move for partial summary judgment as to Mitlof's liability² pursuant to FED. R. CIV. P. 56. For the reasons stated below, plaintiffs' motion is granted.

BACKGROUND³

Mitlof operated a charter and water taxi service on the Hudson River serving Tarrytown, Nyack and Pierpont, New York. On August 23, 1998, Mitlof's pontoon boat Conservator left Nyack allegedly carrying twenty-seven passengers — though Mitlof claims there were only twenty-five — and two crewmen, including the boat's master, Sheehan, and capsized north of the Tappan Zee Bridge. All persons on board were sent into the water, and one passenger was trapped and drowned.

The Maritime Center at Norwalk ("Norwalk Maritime"), Conservator's prior owner, had the boat certified by the United States Coast Guard ("USCG") to operate out of Norwalk, Connecticut and carry a maximum of twenty-one persons. Mitlof purchased Conservator from Norwalk Maritime in June 1998. Plaintiffs allege that Mitlof failed to obtain a new USCG certificate of inspection ("COI") after purchasing Conservator, and that he operated the boat without a valid COI, or, alternatively, that if there was a valid COI in effect, he violated its provisions. Mitlof claims that he received verbal assurance from the USCG that he would not need to have the vessel re-inspected and re-certified, but he never sought or secured this assurance in writing. The USCG investigated the accident, conducted a formal hearing on August 26 and 28, 1998, and issued two marine casualty reports. Mitlof and Sheehan invoked their Fifth Amendment privilege against self-incrimination and refused to testify at the hearing.

DISCUSSION

Plaintiffs now move for summary judgment pursuant to FED. R. CIV. P. 56. They invoke the Pennsylvania Rule, see The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1873), arguing that because Mitlof violated a navigation law statute, he bears the burden of proving not only that his violation did not cause or contribute to the casualty, but that his violation could not have caused or contributed to the casualty. See id. 86 U.S. at 136. Mitlof, appearing pro se, contends that Conservator in fact possessed a valid COI on August 23, 1998. Alternatively, he argues that Sheehan was an independent contractor who violated Hudson Valley Waterways's company policies by overloading Conservator, and that because Mitlof was not in physical control of the boat when Sheehan did this, Sheehan's actions release him from liability. Plaintiffs counter that Mitlof is liable for Sheehan's actions under respondeat superior. For the reasons stated hereinafter, plaintiffs' motion is granted.

I. Summary Judgment Standard

Under FED. R. CIV. P. 56, summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In deciding whether summary judgment is appropriate, the court should resolve all ambiguities and draws all permissible factual inferences against the movant. See id. at 255, 106 S.Ct. 2505. To defeat summary judgment, the nonmovant must go beyond the pleadings and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court's role at this stage of the litigation is not to decide genuine issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir.1994). Summary judgment may not be granted simply because the court believes the nonmovant will not be able to meet the burden of persuasion at trial. Danzer v. Norden Sys., 151 F.3d 50, 54 (2d Cir.1998).

II. Statutory Violations

Although the Pennsylvania Rule arose out of a vessel collision case, it is not limited to that type of case, and has been applied to other maritime actions. See, e.g., Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958) (fire on a tug caused by open-flame kerosene lamp carried on scow in statutory violation); In re Seaboard Shipping Corp., 449 F.2d 132, 136 (2d Cir.1971), cert. denied, 406 U.S. 949, 92 S.Ct. 2038, 32 L.Ed.2d 337 (1972) (seaman drowned in tug-tow case where cargo overloading and improper lifeboat storage were statutory violations); Petition of Long, 439 F.2d 109 (2d Cir.1971) (cargo overloading in Load Line Act case was statutory violation); see also Continental Grain Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426, 436 (1st Cir.1992) ("Given the policy underlying the rule, that is to assure strict compliance with rules pertaining to the safe operation of ships, we see no reason why the rule should not apply to the capsizing and sinking of a vessel."); Savoie v. McCall's Boat Rentals, Inc., 491 So.2d 94 (La.App.Ct.1986) (electrical technician injured being transported by personnel basket from vessel to dock where lack of minimum crew members violated USCG regulations). Because Mitlof's actions allegedly violated both federal navigation statutes and USCG regulations, we agree with plaintiffs that the Pennsylvania Rule should apply in this case. However, to shift to Mitlof the burden of proof on the issue of causation, plaintiffs must prove that he violated some navigational statute or USCG regulation.

Plaintiffs claim that Mitlof operated Conservator either without a valid COI or, if he had a valid COI, in violation of its terms. All "small passenger vessels" are subject to inspection pursuant to 46 U.S.C. § 3301(8). Conservator qualifies as a "small passenger vessel" under 46 U.S.C. § 2101(35)(A) because it is "less than 100 gross tons" and "[carries] more than 6 passengers, including at least one for hire." As such, it is controlled by 46 C.F.R., Chap. I, Subchap. T (§ 176.100 et seq.). 46 C.F.R. § 176.100(b) states that "each vessel inspected and certified under the provisions of this subchapter must, when any passengers are aboard during the tenure of the certificate, be in full compliance with the terms of the certificate."

Mitlof contends that the last COI issued was valid through May 2000 (see Def. Mem. Opp. Summ. J., Ex. G) and that "[t]here is no automatic `revocation' or `deactivation' upon sale of a currently certified vessel." (Id. at 4.). Under 46 C.F.R. § 176.107(c), a COI "may be suspended or withdrawn by the cognizant [USCG inspector] at any time for noncompliance with the requirements of this subchapter." Moreover, the USCG may require a vessel to be re-inspected and may issue an "amended COI" that extends the initial COI after changes in, among other things, vessel ownership. See 46 C.F.R. § 176.120. As previously noted, Mitlof did not have Conservator re-inspected after purchasing it from Norwalk Maritime.

Mitlof argues that he called the USCG's New York district and spoke to Gary Gaugler, who informed him that the USCG would not be re-inspecting any "currently certified" vessels coming into the area. He submits a copy of a request Mr. Gaugler made to the USCG's Philadelphia district inquiring about the files on two boats, Lenape Seal and Aaron Burr, both of which are also owned by Mitlof. (See Def. Mem. Opp. Summ. J., Ex. H.) Both Mitlof's and Gaugler's actions are consistent with 46 C.F.R. § 176.120, which provides for permissive instead of mandatory reinspections. However, Gaugler's request nowhere mentions Conservator. (See Def. Mem. Opp. Summ. J., Ex. H.) Mitlof also claims that he notified the USCG's Hartford district "as a courtesy," and offers copies of his phone records as evidence thereof. (See id. at 4, Ex. I.) However, these records do not indicate to whom the calls were made or for what purpose.

Although Mitlof may have contacted the USCG about his other boats, he has presented no convincing evidence that he sought to have Conservator inspected and certified after purchasing it from Norwalk Maritime. However, plaintiffs only offer facts from the USCG's marine casualty...