Opinion
No. 01-CV-2938 (ILG)
April 30, 2002
MEMORANDUM AND ORDER
SUMMARY
This action arises out of parallel state court actions, commenced by Karen Walker ("Walker") in the New York Supreme Court, Kings County, for injuries she allegedly sustained while walking on plaintiff James Miller Marine Services, Inc.'s ("Marine Services") barge. Marine Services commenced this admiralty and maritime action against VIP and Walker, seeking to limit its liability under 46 U.S.C. § 183 (the "Limitation of Liability Act" or the "Act"), for any loss, injury, or damage arising out of said accident. VIP now moves, under Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings, arguing that the barge in question is not a vessel and, therefore, plaintiff cannot maintain this action. For the reasons that follow, the motion is denied.
On December 15, 1999, Walker filed her first action against V.I.P. Yacht Cruises, Inc. ("VIP") and Miller's Launch, Inc. ("Miller's Launch"). On April 25, 2001, she filed a second action against Marine Services and Miller Marine, Inc. ("Miller Marine"). VIP then filed a third-party complaint against Marine Services and Miller Marine, seeking indemnity from any judgment in Walker's favor.
BACKGROUND
According to VIP's motion, on June 24, 1999, Walker attended a dinner cruise, hosted by the Visiting Nurses Association ("VNA") of Staten Island, New York, aboard the M/V Royal Princess, a ship owned and operated by VIP. The VNA chartered the vessel from VIP, and also arranged and paid for the use of Miller Launch's, Marine Services's, and Miller Marine's pier facility as the point of embarkation and disembarkation. This pier is known as Pier 7-1/2, which consists of three deck barges secured together end to end with a ramp to shore.
For purposes of this motion, the following relevant facts alleged in the complaint are assumed to be true. Marine Services is a New York corporation, and, at all relevant times, was the owner of the deck barge known as Docking Barge No. 1. (See Compl. ¶ 2.) Docking Barge No. 1 is a 90 foot by 30 foot flat deck barge, which was made seaworthy by plaintiff prior to and during the time Walker was allegedly injured. (Id. ¶ 3.) At all relevant times, Docking Barge No. 1 was "tight, staunch and strong, well equipped and supplied and in all respects seaworthy and fit for the service in which [it] was engaged." (Id. ¶ 4.) On or about June 24, 1999, Docking Barge No. 1 formed part of the floating dock at Pier 7-1/2. (Id. ¶ 5.) Walker allegedly injured herself after disembarking from the M/V Royal Princess while traversing said docking barge. (Id.)
The Court notes that the complaint does not explicitly allege that Docking Barge No. 1 is a vessel.
On May 10, 2001, Marine Services filed the instant complaint, seeking a declaratory judgment. In its complaint, Marine Services seeks alternative forms of relief. First, it seeks a declaration that it is not liable to any extent for any loss or damage or for any claims whatsoever arising out of the alleged accident. Second, it seeks a declaration that, if any liability is found to exist, the amount thereof should be limited to the value of Marine Services's interest in said barge. VIP filed an answer, asserting, inter alia, that the complaint fails to state a claim upon which relief may be granted. VIP now moves, pursuant to Fed.R.Civ.P. 12(c), for judgment on the pleadings, arguing that Docking Barge No. 1 is not a "vessel" within the meaning of maritime law and the Limitation of Liability Act. Marine Services opposes the motion, arguing that fact issues remain as to (a) whether Docking Barge No. 1 is practically capable of navigation, and (b) the purpose for which Docking Barge No. 1 was designed. Marine Services asserts that these issues, which go to the heart of determining vessel status, are better reserved for summary judgment or trial.
DISCUSSION
A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is analyzed under the same standard as a motion under Fed.R.Civ.P. 12(b)(6) to dismiss for failure to state a claim. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Under that standard. "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Id. Judgment on the pleadings is rarely granted and is not proper unless the movant clearly establishes that no material issue of fact remains to be resolved. 5A Wright, Miller Kane, Federal Practice Procedure, Civil 2d § 1368 (2d ed. 1990). If matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(c). Otherwise, only those facts alleged in the complaint may be considered in deciding the motion.
As a preliminary matter, the Court will review the present motion under Rule 12(c) and will not convert the motion into one for summary judgment. Only one document outside the pleadings was filed — namely, an affidavit from VIP's counsel, who averred that Marine Services's deck barge was not documented with the United States Coast Guard. Because the fact of documentation does not appear dispositive of vessel status, the Court is not compelled to convert the motion into one for summary judgment and will not consider the affidavit.
The Limitation of Liability Act provides, in pertinent part, that:
[t]he liability of the owner of any vessel . . . for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, or damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.
46 U.S.C. § 183(a) (emphasis added). Based on the plain language of this statute, only the owner of a "vessel" may seek to limit his liability. The only issue before the Court is whether or not Docking Barge No. 1 is a vessel under the Act.
The Limitation of Liability Act itself offers little guidance as to what constitutes a vessel. The Act simply provides that limitation of liability of owners applies "to all seagoing vessels, and . . . all vessels used on lakes or rivers or in inland navigation, including canal boats, barges, and lighters." 46 U.S.C. § 188. The general definition of a vessel set out by Congress "includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 1 U.S.C. § 3. However, the mere fact that a structure floats on water is not determinative of its status as a vessel. In re United States Air Force Tex. Tower No. 4, 203 F. Supp. 215, 217-18 (S.D.N.Y. 1962). Because any contrivance that will float on water is conceivably capable of being used as a means of transportation on water, courts have read the word "capable" in the statutory definition to mean "practically capable." Evansville Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19, 22 (1926); accord United States Air Force Tex. Tower No. 4, 203 F. Supp. at 218; Kan. City Bridge Co. v. The Quarter Boat No. 130, 19 F. Supp. 419, 419-20 (W.D. Mo. 1937).
The most important criteria in determining whether a watercraft constitutes a vessel is (a) the purpose for which it was constructed, and (b) the business in which it was engaged. 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 3-6 (2d ed. 1994). Thus, by way of example, a floating drydock that is more or less permanently affixed to the land and used for the repair and construction of boats and ships does not constitute a vessel; however, a drydock that is built to be mobile and is towed for long distances from place to place and is thus "committed to navigation" may constitute a vessel under the "purpose" test. Id.; see also, e.g., In re P. Sanford Ross, 196 F. 921 (1912) (barge with a pile driver mounted thereon was vessel under limitation statute); J.M.L. Trading Corp. v. Marine Salvage Corp:, 501 F. Supp. 323 (E.D.N.Y. 1980) (drydock that had been towed all over the world and was temporarily harbored in fixed location held to be vessel); compare with Leonard v. Exxon Corp., 581 F.2d 522 (5th Cir. 1978) (construction platform consisting of four flat-deck barges was neither designed for or in navigation at the time of the accident, and thus held not to be a vessel under Jones Act); Cook v. Belden Concrete Prods., Inc., 472 F.2d 999 (5th Cir. 1973) (floating construction platform held not to be a vessel for maritime jurisdictional purposes).
Whether a structure is a vessel also depends on the particular statute at issue. For example, a vessel under the Jones Act, which is subject to liberal construction consistent with the purposes of that Act, is not necessarily a vessel under other Acts. See, e.g., McCarthy v. The Bark Peking, 716 F.2d 130, 134 n. 2 (2d Cir. 1983) (noting that courts apply different test for determining what is a vessel under the Jones Act than for purposes of the Longshoresmen's and Harbor Workers' Compensation Act); United States Air Force Tex. Tower No. 4, 203 F. Supp at 222 ("The fact that a tower may be regarded as a vessel under the Jones Act does not necessarily make it a vessel under the limitation statute.").
The seminal case discussing the ancient rule of limited liability is Evansville Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19, 22 (1926). In Evansville, the Supreme Court explained that the "statutes establishing the rule were enacted to promote the building of ships, to encourage the business of navigation, and in that respect to put this country on the same footing with other countries." 271 U.S. at 21. The Court stated that the rule should always be applied with these purposes in mind. Id.
Defendant principally relies on Evansville in asserting that Docking Barge No. 1 is not a vessel under the Act. In that case, the district court held that the "wharfboat" was not a vessel based on the evidence adduced at trial going to the character of the structure. Id. at 20. The evidence included the following: The wharfboat remained in Evansville for three seasons a year, and was towed to Green River Harbor each winter to protect it from ice. While in use at Evansville, it was secured to the shore by four or five cables, and remained in the same place, except when moved to conform to the stage of the river. The wooden wharfboat had no machinery or power of propulsion, and was not subject to government inspection. The wharfboat had its own plumbing, was connected to the city water system, obtained current for electric light from the city plant, and had telephone connections. Finally, the wharfboat was used to transfer freight between steamboats and land and from one steamboat to another, and it was also used to store goods. Id. at 21. On appeal, the Supreme Court considered the following factors in determining whether the wharfboat was in fact a vessel under the Act: (1) its use to carry freight from one place to another; (2) its use as a means of transportation; (3) the permanence of its location; and (4) the perils of navigation to which crafts used for transportation are exposed. Id. at 22; see United States Air Force Tex. Tower No. 4, 203 F. Supp. at 219 (examining Evansville). In affirming the lower court decision, the Supreme Court held that, although the wharfboat was an aid to river traffic, it did not carry freight from one place to another and, therefore, was not practically capable of being used as a means of transportation. Evansville, 271 U.S. at 22. It also concluded that its connections with water, electric light, and telephone systems on land evidenced a permanent location, and it performed no function that might not have been performed as well as any appropriate structure on the land or by a floating stage or platform permanently attached to the land. Id. Finally, the Court concluded that it did not encounter the perils of navigation. Id.
Defendant also cites to several Jones Act cases; however, as noted supra, the test for determining what constitutes a vessel under the Jones Act is not the same for purposes of limiting liability under 46 U.S.C. § 183 et seq.
Defendant here argues that Docking Barge No. 1 is equivalent to the wharfboat in Evansville. Although there may be similarities between the deck barge in this case and the wharfboat in Evansville, the Court has far too few facts to make a proper determination at this time. In this motion for judgment on the pleadings, all that may be ascertained about Docking Barge No. 1 is that, at the time Walker sustained her alleged injuries, it was "tight, staunch and strong, well equipped and supplied and in all respects seaworthy and fit for the service in which [it] was engaged." (Compl. ¶ 4.) However, there is no indication whether Docking Barge No. 1 was, at other times, used to carry persons or freight from one place to another; whether it was designed to be mobile; whether, and to what extent, it was permanently affixed to the land; and whether, and to what extent, it was ever placed in navigable waters for any purpose.
In addition, defendant argues that its motion should be granted because the complaint fails to state that Docking Barge No. 1 was engaged upon a voyage at the time of the alleged accident, as required under Supplemental Rule E of the Federal Rules of Civil Procedure for complaints in admiralty and maritime law. Defendant is simply incorrect in its assertion. First, a complaint seeking to limit an owner's liability must comply with the pleading requirements set out in Supplemental Rule F; Supplemental Rule E is not relevant to this inquiry. See Fed.R.Civ.P., Supp. F. Second, nothing in Rule F requires that the vessel be engaged upon a voyage at the time of the alleged injury. Rule F(2) merely states, in pertinent part, that such complaint "shall state the voyage if any, on which the demand sought to be limited arose. . . ." (Emphasis added). Thus, the rule, on its face, makes plain that a complaint must allege the particular voyage only if the vessel was engaged on a voyage at the relevant time. Thus, Marine Services's failure to allege that Docking Barge No. 1 was on a voyage at the time Walker sustained her alleged injuries is not fatal to its action.
If one were to look only at the business in which Docking Barge No. 1 was engaged at the time of the alleged accident, one may be inclined to conclude that it was not a vessel under the Act, as it seems more akin to a floating drydock than a barge transporting cargo over navigable waters. See, e.g., Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279, 282-83 (5th Cir. 1969) (floating drydock generally held not to constitute a vessel). However, current business usage is only part of this Court's inquiry. Based solely on the allegations in the complaint, the Court cannot determine the status of Docking Barge No. 1 as a vessel or otherwise, and to do so would be premature at this time.
The Court also notes that none of the relevant cases cited by defendant, in which courts held that the structures at issue were not vessels, made such determinations on Rule 12 motions. Rather, such determinations were made upon stipulated facts, or on summary judgment or at trial.