Opinion
05 Civ. 9831 (CSH).
March 11, 2008
MEMORANDUM OPINION AND ORDER
This is a personal injury action falling within the Court's admiraltyjurisdiction. The plaintiff is Thomas Murray, who at the pertinent times was an acting sergeant of the New York Police Department ("NYPD"), assigned to the Harbor Unit. The Harbor Unit operates a series of NYPD launches that patrol the waters of New York harbor.
Murray sues to recover for injuries he suffered during the evening of November 22, 2002, while NYPD Launch 37, on which Murray was serving, rendered assistance to the tug RACHEL-MARIE in the waters of New York harbor. In this action Murray sues his employer, the City of New York ("City"), alleging negligence under the Jones Act, 46 U.S.C. § 688, and the unseaworthiness of Launch 37. Murray also claims against the City for maintenance and cure under the general maritime law. Murray sues the RACHEL MARIE in rem, and Island Towing Salvage, Inc., the corporate owner of the tug, and Robert Henry, the president of Island Towing and captain of the RACHEL MARIE at the time of the incident in suit in personam (collectively "the Tug Defendants"), alleging negligence and unseaworthiness of the RACHEL MARIE. The City and the Tug Defendants filed answers denying any liability and asserting cross-claims aginst each other.
Following discovery, all defendants now move for summary judgment under Rule 56, Fed.R.Civ.P., dismissing the complaint and all cross-claims.
I. BACKGROUND
According to his deposition testimony, Murray was born in 1966. He was 36 years old on the date of the incident in suit. Murray joined the NYPD in 1986 and retired in 2004. In December 1995 he applied for and obtained a full time assignment to the NYPD Harbor Unit. Murray engaged in "maritime patrol," which he described as "[s]ame as in a radio car except on the rivers and surrounding waters." Murray Deposition ("Murray Dep.") at 13. The Harbor Unit used a number of launches for that purpose. Murray was promoted to sergeant and was assigned to the 6th Precinct in January 1999. In May 2001 he returned to the Harbor Unit as a temporary sergeant, with supervisory responsibilities. Those responsibilities included inspecting other NYPD launches. He testified: "You go out on a boat, you go around the city and generally inspect. . . . You board their boat, check their memo books and visually." Id. at 22. If the sheltered waters of a marina were available, Murray would direct the other launch to there and "we could either pull them up to the boat, walk across the dock to the boat." Id. at 65. If no marina was available, Murray and his inspecting crew would "step from one boat to the next" in the open water. Id. at 66. Murray testified: "Q. And from your knowledge, was it often that you had to step from one boat to the next? A. Sure." Id.
On November 22, 2002, Murray reported to a Harbor Unit marine stationhouse at 3:00 p.m. He was working the night shift. At about 5:30 p.m. the stationhouse received through an NYPD dispatcher a request for assistance from an NYPD vessel, Launch 38, "because their equipment was unable to keep up with the inflow of water on a commercial boat." Murray Dep. at 37. Murray activated Launch 37, boarding it together with Police Officer Bryan Kenny as pilot and two NYPD scuba divers. Launch 37 steered for the designated location, in waters near Gravesend Bay. The natural lighting was "not dusk" but "dark." Id. at 73. Murray testified: "We had heavy intermittent storms and heavy winds preceding the job . . . It was raining very heavily intermittent preceding the job." Id. at 72.
The deposition transcript reads "proceeding" instead of "preceding." This is clearly a typographical error.
The distressed tug was the RACHEL MARIE. On board were Henry, the president and sole owner of Island Towing and captain of the tug, and a deckhand, James Hennessey. On November 22, 2002, the RACHEL MARIE had been engaged in moving barges loaded with dirt to a location in Jamaica Bay. Henry Deposition ("Henry Dep.") at 35-36. In the late afternoon the tug was navigating without a tow north of Norton's Point, between Raritan Bay and Gravesend Bay. Id. at 36. Henry observed water on the deck plates where it should not have been. Henry turned on the tug's bilge pump. He theorized that the packing in the engine room "was leaking excessive amount of water." Id. at 44. Henry shone a light into the engine room and observed that "as the propeller was turning, it was spitting water" into the engine room, confirming Henry's theory about where the water was coming from. Id. at 45. Henry explained that the packing in the engine room "isolates the water that's outside the boat that we're floating in from leaking into the engine room where the propeller shaft goes through the hull." Id. at 95. Henry went into the engine room and tried to adjust the packing gland "as best I could while I was getting wet." Id. at 71.
Hennessey was in the RACHEL MARIE's pilot house, steering the tug with her engine on slow ahead. Hennessey told Henry that "he had seen a police launch passing by, he called them on the radio and asked them if they had a portable pump on board, to give us assistance." Henry Dep. at 50. That was Launch 38, which came alongside the RACHEL MARIE and handed over aportable pump which, after a momentary confusion when the pump was reversed and sucked water from the ocean onto the tug rather than vice versa, began to augment the tug's bilge pump in removing water from the engine room. The police officers on Launch 38 radioed for additional assistance; neither Henry nor Hennessey did so. Id. at 61. Launch 37, with plaintiff Murray on board, responded to that call initiated by Launch 38.
When Launch 37 arrived at the scene, Launch 38 was lying alongside the tug's starboard side. Murray Dep. at 73. Launch 37 positioned herself along the tug's port side. Id. at 46. All three vessels were on the same heading. The RACHEL MARIE is longer than Launch 37. The two vessels' stems were next to each other. A pump was transferred from Launch 37 to the tug to assist in the pumping out of water. Two members of Launch 37's crew boarded the tug from a midships area. Murray boarded by stepping "across from the stem of Launch 37, the starboard stem to the port stem of the tug boat." Id. at 50. Once on the stern of the RACHEL MARIE, Murray slipped — he did not fall — twisted his back, and suffered the injuries complained of. He testified:
Henry testified at his deposition that "the second launch" (that would be Launch 37) came up alongside the tug's starboard side, which conflicts with Murray's testimony on the point. Henry Dep. at 63. I do not think this discrepancy makes any difference.
Q. [by counsel for the City]: So you were already on the tug boat when you slipped?
A. Right, I stepped right across and then down. . . . Yes, there was a raised part of the back of the tug boat and I stepped across to the raised part and down into the stern.
Q. Oh, okay and as you stepped down is when you slipped?
A. Correct.
Q. And you believe you slipped because of the slippery floor?
A. The slippery floor in combination with the lines and equipment strewn about the stern of the boat.
Q. On the lower level?
A. Correct.
Q. The slippery floor and the material that was on the lines?
A. Correct.
Q. What is a line?
A. Tug boat line, rope.
Q. Did you completely fall or did just your body lower and you gained —
A. No, I slipped and landed, almost fell but I didn't fall.
* * * * * * * *
Q. [by counsel for the Tug Defendants]: I believe you described twisting your body as you boarded the RACHEL MARIE?
A. Okay.
Q. Is that correct?
A. I slipped and twisted, correct.
Okay, slipped and twisted, okay. Did you slip and twist on this raised portion of the deck?
A. No, on the dack itself.
Q. When you actually stepped onto the RACHEL MARIE you initially landed on the raised portion, correct?
A. That was uneven, it was an uneven surface so I quickly in one motion went down onto the deck so I wouldn't fall into the water.
Q. Okay, when you went from the raised portion of the deck on to the lower or unraised portion of the deck did you land on your feet?
A. Yes, I did.
Q. And was it immediately on getting to this lower or unraised portion of the deck that you slipped?
A. That's correct.
Q. And your testimony is that the deck where you slipped was wet, correct?
A. That's correct, sir.
Q. And are you aware of what caused it to be wet?
A. The weather and probably combined with the seas and the fact that the tug boat was taken [sic, should read "taking"] on water and it was too close to — the deck was very close to the level of the water.
Murray Dep. at 51-52; 85-86.
Police Officer Kenny, who piloted Launch 37 to the scene, also boarded the RACHEL MARIE. At his deposition he described the conditions on the tug:
Q. When you yourself boarded the RACHEL MARIE, what was the condition of the deck?
A. It was definitely wet and slippery, due to the fact it was windy, mist from the sea, it was blowing, it was rainy out. I did testify earlier there were lines on the deck, the commercial tug lines, the big, big lines that were in the stern of the tug. The lighting was — there was lighting, I don't know to the extent how bright or sufficient they were, but there was some lighting.
Q. Did you have difficulty in observing the condition of the deck when you boarded the RACHEL MARIE?
A. I wouldn't say I had that much difficulty.
Kenny Dep. at 94-95.
With the assistance of NYPD personnel and the additional pumps, the RACHEL MARIE's engine room stuffing box was repacked, the water pumped out, and the tug returned safely to her berth. Henry testified that the tug was able to proceed on her own without assistance "[l]ess than an hour from the arrival of the first launch." Henry Dep. at 71.
All defendants, moving for summary judgment, contend that on the facts revealed by discovery, none of plaintiff's theories of liability are viable.
II. DISCUSSION
A. Standard of Review
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 (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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact exists if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
In the case at bar, plaintiff's claims against the City are governed by the Jones Act and the general maritime law of unseaworthiness and maintenance and cure. Plaintiff's claims against the Tug Defendants are governed by the general maritime law of negligence and unseaworthiness. I discuss plaintiff's claims against these defendants separately.
B. Plaintiff's Claims Against the City
1. Jones Act Claim for Negligence and Claim for Unseaworthiness
Plaintiff's Jones Act and unseaworthiness claims against the City, as limited by his brief in opposition to the City's summary judgment motion, are based upon a single contention: that the City did not sufficiently train Murray and the other members of Launch 37's crew. "In the action at bar, it is clear that neither plaintiff, nor other members of the New York Police Harbor Unit was trained to respond to a marine casualty such as that being experienced by the RACHEL MARIE at the time of the accident." Pl.'s Br. at 5. In support of that contention, plaintiff proffers the unsworn written opinion of Captain R. Russell Johnson, who holds a 1600 ton master of oceans license with a master of towing vessels certificate and is currently employed as the director of safety and training for Dunlap Towing Co., in Everett, Washington State. Focusing on Murray, Johnson's opinion says: "The unsafe condition of the Tug because of slippery decks, lack of lighting, equipment and lines cluttering the deck, and unstable condition due to water ingress, made this boarding hazardous. P.O. Murray was never trained to assess these potential hazards and was simply responding as any Police Officer would." Johnson Op. at 7.
In Johnson's further view, the captain of the RACHEL MARIE and the NYPD Harbor Unit officers should have called for the professional assistance of the United States Coast Guard. Johnson opines: "It is clear that the degree of training received by NYPD Launch personnel is inadequate to respond to marine casualties, rescue operations, or a salvage operation." Id. at 3-4. Johnson reasons that had the NYPD called the Coast Guard to assist the RACHEL MARIE, instead of responding with NYPD launches, the injury to Murray would not have occurred. Johnson ascribes the NYPD's failure to call the Coast Guard to a culpable insufficiency of training. Plaintiff contends that Johnson's opinions create a genuine issue about facts material to the City's liability, and consequently preclude summary judgment.
With respect to Captain Johnson's opinions, I note at the outset that "Fed.R.Civ.P. 56(c) requires that evidence in support of and in opposition to summary judgment motions must be admissible in evidence." Sadler v. Moran Towing Corp., 204 F.Supp.2d 695, 696 n. 8 (S.D.N.Y. 2002) (citations omitted). In Sadler, Judge Kaplan said dismissively of just such an opinion: "[P]laintiff has submitted neither an affidavit nor deposition testimony of Captain Reid, relying instead on his unsworn, unauthenticated letters to plaintiff's counsel. Hence, there is no admissible evidence on what Captain Reid would say."
I think it preferable, however, not to disregard Captain Johnson's opinions in their present form entirely, but consider whether they are admissible at trial. Johnson's opinions would be admissible in evidence at trial if they satisfied Fed.R.Evid. 702, which allows a qualified expert to testify in the form of an opinion "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue" and, inter alia, "the testimony is based upon sufficient facts or data." Rule 702 grants the trial judge discretionary authority "to determine [the] reliabilty [of an expert's testimony] in light of the particular facts and circumstances of the particular case." Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 158 (1999).
I conclude that Captain Johnson's opinions would not be admissible because they disregard or distort the evidence upon which they are purportedly based. The deposition testimony makes it plain that when Murray boarded the RACHEL MARIE from Launch 37, the tug's stern deck was slippery with rainwater and seawater. Murray's feet slipped on this slippery deck and he twisted his back. Murray did not testify that he tripped over a line or any other obstruction. His testimony ascribes his accident to slipping on the wet deck. Officer Kenny's testimony described the "definitely wet and slippery" condition of the deck.
I accept that boarding the RACHEL MARIE in those conditions presented Murray with some hazards, but it is an unacceptable stretch for Captain Johnson to opine that the NYPD is at fault because Murray "was never trained to assess those potential hazards." Murray had spent several years in the Harbor Unit, frequently boarding one boat from another in open waters. What additional training did he require to "assess" the hazards of boarding the RACHEL MARIE from Launch 37 in the conditions then prevailing? It is unfortunate that Murray, engaged in an effort to assist other mariners, injured himself, but that injury cannot be blamed upon the NYPD's failure to adequately train Murray or the other members of the Launch 37 crew in carrying out that effort. Johnson's opinion with respect to insufficient training in this regard fails to pass muster under Rule 702 because it is not "based upon sufficient facts or data" in the record. I reach that conclusion in the performance of my duty as gatekeeper for preferred expert opinion testimony. See Daubert v. Merrell Dow Pharmacies, Inc., 509 U.S. 579 (1993); Kumho, cited supra.
I reach the same conclusion with respect to Captain Johnson's opinion that the NYPD's training of Harbor Unit officers is "inadequate to respond to marine casualties, rescue operations, or a salvage operation." I accept the proposition that certain marine casualties — a large vessel aground and leaking oil, or disabled by a collision, or drifting with an engine failure, or on fire — requires the services of professional, highly trained salvors. Salvage companies maintain offices and salvage vessels around the world to deal with such casualties, and the Coast Guard — as Johnson stresses in his opinion — has marine rescue and salvage capabilities. But what befell the tug RACHEL MARIE on the evening in question cannot reasonably be characterized as a marine casualty requiring the services of trained salvors, or indeed the Coast Guard. A small tug began to take water in her engine room from a loosely packed stuffing box or gland that Henry, her captain, was able to fix himself and in fact did. The tug needed some extra pumping capacity and the two police launches supplied that need, one pump from each launch. The RACHEL MARIE's engine room packing was adjusted and she was pumped out and underway with no further need for assistance less than an hour after the first NYPD launch responded to deckman Hennessey's radioed request for help with the pumping. Johnson exaggerates the nature and severity of the RACHEL MARIE's situation when he opines that the NYPD should have called in the Coast Guard rather than undertaking this simple operation itself. The NYPD acted properly in doing so. It was not obligated in the circumstances to call in the Coast Guard. It follows that the NYPD's conduct cannot be condemned as the result of insufficient training of Harbor Unit personnel. Again, Johnson's opinion is based upon insufficient or exaggerated facts.
Since the plaintiff's Jones Act and unseaworthiness claims against the City depend entirely upon the asserted inadequate training of Harbor Unit officers, and the record developed on discovery shows that no reasonable jury could return a verdict in plaintiff's favor on that ground, the City is entitled to summary judgment dismissing those claims.
2. Maintenance and Cure
Plaintiff also asserts claims against the City for maintenance and cure." The general maritime law of the United States provides seamen who have become ill or injured while in a ship's service with the right to maintenance and cure." Wills v. Amerada Hess Corp., 379 F.3d 32, 52 (2d Cir. 2004) (citation omitted). "`Maintenance' refers to a shipowner's duty to provide food and lodging to an ill or injured seaman, comparable to the kind and quality received aboard ship, while `cure' refers to a shipowner's obligation to provide such medical care to such seamen during the period of recovery or rehabilitation from the illness or injury to the point of maximum recovery." Id. (citations and internal quotation marks and brackets omitted).
The City accepts in principle that Murray's service on a City-owned police launch employment qualifies him to assert these claims. However, the City moves for summary judgment dismissing them because, following his disability retirement from the NYPD in 2004, Murray "has received pension benefits, including income over $4,600/month and health benefits with an optional rider." Main Brief at 10. In view of those benefits, the City contends, it has no obligation to pay maintenance and cure arising out of the November 22, 2002 injury. For that proposition the City cites Moran Towing Transportation Co. v. Lombas, 58 F.3d 24 (2d Cir. 1995). Lombas held that the availability of free surgical care to an injured seaman under Medicare satisfied the shipowner's obligation to furnish cure.
The district court in Lombas did not address the question of maintenance because "[t]he briefs of counsel have resolved any dispute as to maintenance. The remaining issue relates to cure." 843 F. Supp. 885, 886 (S.D.N.Y. 1994).
In the case at bar, plaintiff accepts in principle that his NYPD benefit payments operate to satisfy the City's maintenance and cure obligations under the general maritime law. Plaintiff's Brief at 10 acknowledges that "[t]o date, appropriate maintenance and cure benefits have been provided by the City." But plaintiff goes on to say that "if medical treatment is necessary that is related to the injuries sustained by plaintiff on Tug RACHEL MARIE, plaintiff should be entitled to maintenance and cure benefits if the City, or any of its departments, seek reimbursement for expenses." Id. (emphasis in original). Plaintiff observes correctly that Lombas "did not address the requirement of paying maintenance and cure when reimbursement is sought." Id.
Given plaintiff's acknowledgment in his brief, he has no presently viable claims for maintenance and cure against the City. The City will be granted summaryjudgment dismissing those claims, without prejudice to their reassertion in the event that the City seeks reimbursement of any benefit amounts previously paid to plaintiff on account of this injury.
The Court intimates no view in this opinion as to the resolution of that question, should it arise in the future.
C. Plaintiff's Claims Against the Tug Defendants
Plaintiff's claims against the Tug Defendants allege negligence, recklessness and carelessness on the part of Island Towing and Henry, the in personam defendants, and unseaworthiness on the part of the RACHEL MARIE, the in rem defendant. These claims are based on the general maritime law. Plaintiff does not assert a Jones Act negligence claim against the Tug Defendants; nor could he, since plaintiff was not employed by these defendants.
The Jones Act provides in pertinent part: "A seaman injured in the course of employment . . . may elect to bring a civil action at law, with the right of trial by jury, against the employer." 46 U.S.C. § 30104(a) (emphasis added).
Plaintiff does assert that the in personam Tug Defendants breached the implied warranty imposed by the general maritime law that the RACHEL MARIE was seaworthy at the time of plaintiff's injury. If a shipowner breaches that warranty and as a result a seaman is injured, the seaman may sue the shipowner for unseaworthiness. The obligation of seaworthiness "is essentially a species of liability without fault," Sieracki v. Seas Shipping Co., 328 U.S. 85, 94 (1946). A shipowner's liability for unseaworthiness "extends to those doing a seaman's work and incurring a seaman's hazards, although not in the employ of the owner of the vessel." Flanagan v. The Scow H.F. GILLIGAN, 170 F. Supp. 217, 219 (S.D.N.Y. 1959) (citation and internal quotation marks omitted). The test is "whether the work is of a kind that traditionally the crew has been accustomed to do." Id. (citation and internal quotation marks omitted). The cases deciding whether a particular plaintiff was injured on a "vessel" or was doing "a seaman's work" for purposes of applying the unseaworthiness protection are legion.
In the case at bar, Murray contends that the in personam defendants' warranty that the RACHEL MARIE was seaworthy extended to him, a public officer and member of NYPD Launch 37's crew, engaged in rendering assistance to the tug when in distress. This seems counterintuitive; the NYPD launch crew may be analogized to salvors, and the owner of a salved vessel is not regarded as giving salvors a warranty that the imperiled vessel is seaworthy for them.
However, in Nikiforow v. Rittenhouse, 277 F.Supp. 608 (E.D.Pa. 1967), the district court held that the seaworthiness warranty extended to a crew member of a Coast Guard vessel, engaged in trying to free defendant's vessel from a strand, who was injured when a stanchion on the vessel to which a tow line was attached broke free and struck him. The coast guardsman in Nikiforow may certainly be anaolgized to the police officer plaintiff in the case at bar. In Klarman v. Santini, 503 F.2d 29 (2d Cir. 1974), the Second Circuit distinguished Nikiforov in a case where an auxiliary trainee on a police launch was injured when a winch on a stranded vessel to which a tow line was attached broke free and struck him. The Second Circuit summarized Nikiforov as holding that "under Sieracki the plaintiff was entitled to the warranty of seaworthiness, since he was performing a service for the defendant's vessel that traditionally would have been done by the crew of defendant's vessel," 503 F.2d at 35 (internal quotation marks omitted). A divided panel in Klarman distinguished Nikiforov on the ground that the injured trainee was not a member of the police launch's crew and hence not a "seaman." Id. at 36. Judge Hays dissented, reasoning that "seaman includes anyone engaged to serve in any capacity on board," and under Sieracki "the duty of seaworthiness extends not only to those directly employed by the shipowner but to all who perform the ship's services with his consent or by his arrangement." Id. (citation and internal quotation marks omitted). In the case at bar, Murray was undoubtedly a "seaman" for unseaworthiness analysis.
The Second Circuit does not appear to have squarely addressed the question of a shipowner's warranty that its vessel is seaworthy extends to an officer from a public vessel engaged in assistance, rescue or salvage operations. There is also a question, raised by the Tug Defendants, of whether at the time he was injured Murray was engaged in work "that traditionally would have been done by the crew of defendant's vessel." Murray, asked at his deposition "what did you actually do in rescuing," said: "I just had the guys, made sure all personnel were there, they were doing what they were supposed to be doing, getting the pumps across and that's it." Murray Dep. at 53. This may be more accurately characterized as the work of a NYPD sergeant-supervisor, rather than work traditionally performed by the crew of the RACHEL MARIE.
However, in the view I take of the case I need not resolve these questions. It is apparent in any event that the Tug Defendants are entitled to summaryjudgment on plaintiff's unseaworthinness claim because plaintiff's injury was not caused by an unseaworthy condition. As demonstrated in Part II.B.1., supra, plaintiff injured his back when his feet slipped on the RACHEL MARIE's wet stern deck. The deck was wet from rainwater and seawater. Neither condition rendered the tug unseaworthy. See Santamaria v. The SS OTHEM, 272 F.2d 280, 281 (2d Cir. 1959) ("[A] deck made slippery by rainwater does not constitute an unseaworthy condition."); Garrison v. United States, 121 F.Supp. 617 (N.D. Cal. 1954) ("The evidence showed that at the time of the accident high seas intermittently washed over the part of the deck on which libelant slipped. . . . The temporary presence of water upon the deck does not constitute unseaworthiness — to hold otherwise would make the shipowner an insurer.").
While the evidence makes it clear that equipment of the RACHEL MARIE's stern played no part in plaintiff's slipping, the presence of towing lines on the stern of a tug does not render her unseaworthy in any event: that is where one would expect to find a tug's lines. The testimony of officer Kenny establishes that the tug's stern lighting was adequate.
This analysis also disposes of plaintiff's claims against the Tug Defendants based upon negligence.
III. CONCLUSION
For the foregoing reasons:1. The amended motion of defendant City of New York for summary judgment [doc. #57] is GRANTED. The Clerk is directed to dismiss plaintiffs claims against that defendant with prejudice; provided, however, that the dismissal is without prejudice to a reassertion by plaintiff of his claims for maintenance and cure if at a subsequent time the City seeks reimbursement of amounts previously paid to plaintiff on account of the incident in suit.
2. The motion of defendants Island Towing Salvage, Inc. and Robert Henry in personam, and defendant Tug RACHEL MARIE in rem [doc. #40], is GRANTED. The Clerk is directed to dismiss plaintiff's claims against those defendants with prejudice.
3. The defendants' cross-claims are DISMISSED as moot.
It is SO ORDERED.