Torres v. City of New York

• Decision Date: 24 February 1992
• Citation: 581 N.Y.S.2d 194,177 A.D.2d 97
• Court: New York Supreme Court — Appellate Division
• Parties: , 1994 A.M.C. 1814 Angel TORRES, et al., Appellants, v. CITY OF NEW YORK, et al., Defendants-Third-Party Plaintiffs-Respondents; Coastal Dry Dock & Repair Corp., Third-Party Defendant-Respondent.

Page 194

581 N.Y.S.2d 194

177 A.D.2d 97, 1994 A.M.C. 1814

Angel TORRES, et al., Appellants, v. CITY OF NEW YORK, et al., Defendants-Third-Party Plaintiffs-Respondents Coastal Dry Dock & Repair Corp., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

Feb. 24, 1992.

Schneider, Kleinick & Weitz, P.C., New York City (Brian J. Shoot, Ivan S. Schneider, and Gary Ehrlich, of counsel), for appellants.

O. Peter Sherwood, Corp. Counsel, New York City (Kristin M. Helerms and Margaret G. King, of counsel), for respondent City of New York.

Morris & Duffy, New York City (Irwin H. Haut, Patricia D'Alvia, and Joseph T. Glynn, of counsel), for defendant third-party plaintiff-respondent Brooklyn Navy Yard Development Corp.

Marchisello & Doody, New York City (Herzfeld & Rubin, P.C. [Herbert Rubin and David B. Hamm], of counsel), for third-party defendant-respondent Coastal Dry Dock & Repair Corp.

Before THOMPSON, J.P., and BRACKEN, SULLIVAN and LAWRENCE, JJ.

BRACKEN, Justice.

In determining whether or not this personal injury action falls within Federal maritime jurisdiction, we must resolve two issues. First, we must decide whether the wrong "occurred on navigable waters" (Executive Jet Aviation v. City of Cleveland, Ohio, 409 U.S. 249, 253, 93 S.Ct. 493, 497, 34 L.Ed.2d 454). Second, we must assess whether there is "some relationship between the tort and traditional maritime activities" (Executive Jet Aviation v. City of Cleveland, Ohio, supra, at 256, 93 S.Ct. at 498; see also, Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292; Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300). Our decision as to the first issue proceeds from our conclusion that the Supreme Court of the United States has neither explicitly nor implicitly overruled the holding of the New York State Court of Appeals, announced in Butler v. Robins Dry Dock & Repair Co., 240 N.Y. 23, 147 N.E. 235, that a "graven dock", similar to the one in the present case, "is to be regarded as navigable water instead of land" (Butler v. Robins Dry Dock & Repair Co., supra, at 27, 147 N.E. 235). We decide the second issue by referring to a substantial body of State and Federal case law which holds that "the making of repairs to a ship is a traditional maritime activity" (Executive Jet Aviation v. City of Cleveland, Ohio, supra ). We therefore conclude that the present case falls within Federal maritime jurisdiction and that the provisions of the New York State Labor Law may not be applied.

I

On September 8, 1983, the third-party defendant Coastal Dry Dock & Repair Corp. (hereinafter Coastal) was engaged in the repair of the USS Stump, a United States warship. As described by the plaintiffs' counsel in his opening, the "dry dock" in which these repairs were being made consisted of an enclosure containing sea water, into which the ship was floated, and from which the water was later drained.

The repairs to the USS Stump were being carried out in what is alternatively described as a "graven dock" (see, Butler v. Robins Dry Dock & Repair Corp., supra ) or a "graving dock" (see, e.g., J.J. O'Leary v. Puget Sound Bridge & Dry Dock Co., 349 F.2d 571 [9th Cir.]. According to a document prepared by the Department of the Navy, Bureau of Yards and Docks, cited in J.J. O'Leary, supra, at 573-574, a "graving dry dock is a permanently fixed basin with entrance enclosures constructed at or near the water's edge into which a ship can be floated and which can be pumped dry of water". This allows the exposure of those areas below the ship's water line which are in need of repair.

The repairs being made to the USS Stump necessitated the removal of a propeller bearing. While the bearing was being removed, an eyebolt, which had been used to connect the bearing to a land-based crane, snapped, causing the bearing to swing into a scaffold. The scaffold collapsed, and three Coastal employees, Angel Torres, Rene Jeantine, and Emile Rousseau, fell to the floor of the dock, sustaining personal injuries. These men were, at the time of this incident, standing on the scaffold approximately 35 feet above the floor and under the stern of the USS Stump.

These workers and their wives brought the instant action against the defendant City of New York, as owner of the property where the accident occurred, and against the Brooklyn Navy Yard Development Corporation, as the holder of a long-term lease of the property. These parties were concededly free of negligence, and would be liable, if at all, only pursuant to the provisions of Labor Law §§ 240 and 241. The evidence tends to support the conclusion that the accident was due entirely to the negligence of the third-party defendant Coastal, the employer of the injured plaintiffs. However, Coastal is immune from liability to the plaintiffs pursuant to the terms of the Longshore and Harbor Workers' Compensation Act (see, 33 U.S.C. §§ 901, 905[a], and the plaintiffs have not directly sued Coastal.

The present appeal is from an order of the Supreme Court, Kings County (Vaccaro, J.), which, after a jury trial, vacated its prior ruling granting the plaintiffs judgment as a matter of law on the issue of liability, and granted the motions of the defendants and the third-party defendant for summary judgment dismissing the plaintiffs' complaint. The Supreme Court held that the Labor Law may not be applied in this case, because it has been preempted by Federal law, i.e., the Longshore and Harbor Workers' Compensation Act (33 U.S.C. § 901, et seq.). We affirm on a different ground, to wit, that the plaintiffs' action is governed by traditional Federal maritime law.

II

The Constitution of the United States, article III, § 2, clause 1, provides that "[t]he judicial power [of the courts of the United States] shall extend * * * to all Cases of admiralty and maritime Jurisdiction". This provision of the Constitution has been implemented by 28 U.S.C. § 1333(1), which states that "[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases, other remedies to which they are otherwise entitled". The maritime jurisdiction of the Federal courts was further defined by Congress in the Admiralty Jurisdiction Extension Act of 1948 (46 U.S.C.App. § 740) which states that "The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land". The "saving to suitors" clause contained in 28 U.S.C. § 1333(1) permits state courts to adjudicate admiralty claims, provided that they apply Federal maritime law (see, Offshore Logistics v. Tallentire, 477 U.S. 207, 223, 106 S.Ct. 2485, 2494, 91 L.Ed.2d 174; Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239; Lerner v. Karageorgis Lines, 66 N.Y.2d 479, 497 N.Y.S.2d 894, 488 N.E.2d 824; Ugarte v. United States Lines, 64 N.Y.2d 836, 486 N.Y.S.2d 934, 476 N.E.2d 333, cert. denied 474 U.S. 848, 106 S.Ct. 142, 88 L.Ed.2d 118; Alvez v. American Export Lines, 46 N.Y.2d 634, 415 N.Y.S.2d 979, 389 N.E.2d 461, affd. 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284).

The only question to be decided on this appeal is whether "admiralty or maritime jurisdiction" within the meaning of the foregoing statutes exists in this case. The plaintiffs recognize that "[w]ith admiralty jurisdiction comes the application of substantive admiralty law" (East River Steamship Corp. v. Transamerica Delaval, 476 U.S. 858, 864, 106 S.Ct. 2295, 2298, 90 L.Ed.2d 865), and they also recognize that application of substantive maritime law would require them to prove that the defendants were at fault. Being unable to prove that defendants were in any way negligent, the plaintiffs concede that the application of Federal maritime law would warrant dismissal of their complaint.

The scope of Federal maritime jurisdiction in tort cases was, until relatively recently, defined with reference to one single test, that is, a test based upon "the locality of the wrong" (Executive Jet Aviation v. City of Cleveland, Ohio, 409 U.S. 249, 253, 93 S.Ct. 493, 497, 34 L.Ed.2d 454, supra; see also, Victory Carriers v. Law, 404 U.S. 202, 205, 92 S.Ct. 418, 421, 30 L.Ed.2d 383). According to this test, the border between State tort law jurisdiction and Federal maritime jurisdiction was as easy to trace as the border between the land and the sea. Admiralty jurisdiction encompassed only those torts which were "committed on the high seas, or on the waters within the ebb and flow of the tide" (Executive Jet Aviation Inc. v. City of Cleveland, supra, 409 U.S. at 253, 93 S.Ct. at 497. Victory Carriers, Inc. v. Law, supra, 404 U.S. at 205, 92 S.Ct. at 421. Thomas v. Lane, 23 Fed.Cas. 957, 960 [C.C.Me.1813; No. 13,902]. The scope of Federal maritime jurisdiction in tort cases was later expanded to cover "not only tidewaters, but all navigable water including lakes and rivers" (Executive Jet Aviation v. City of Cleveland, supra, 409 U.S. at 253, 93 S.Ct. at 497, citing The Propeller Genesee Chief v. Fitzhugh, 12 How. [53 U.S.] 443, 13 L.Ed. 1058). In contract cases, by way of contrast, Federal maritime jurisdiction has been traditionally defined not with reference to the locality of the wrong, but instead with reference to the nature of the transaction (see, Exxon Corp. v. Central Gulf Lines, 500 U.S. ----, 111 S.Ct. 2071, 114 L.Ed.2d 649; Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476, 42 S.Ct. 157, 158, 66 L.Ed. 321; Danielsen v. Morse Dry Dock & Repair Co., 235 N.Y. 439, 442, 139 N.E. 567, cert. denied, 262 U.S. 756, 43 S.Ct. 703, 67 L.Ed. 1217).

In applying the "locality of the wrong" test, the Supreme Court of the United States has consistently deemed piers and docks to be...