Opinion
99 Civ. 11282 (LMM)(AJP).
January 9, 2001.
REPORT AND RECOMMENDATION
To the Honorable Lawrence M. McKenna, United States District Judge:
Plaintiff William Wright has sued defendant Maersk Line for negligence and unseaworthiness as a result of the decision of the vessel's Captain and Chief Mate to put Wright ashore on the island of St. Helena for medical treatment, which, plaintiff claims, resulted in him receiving poor medical treatment and being stranded on the island for a considerable period of time.
Defendant Wright has moved for summary judgment. For the reasons set forth below, defendant's summary judgment motion is DENIED on the negligence claim but GRANTED on plaintiff's unseaworthiness claim, and the parties are to file the Joint Proposed Pretrial Order by February 9, 2001.
FACTS
In December 1996, Wright was employed as an electrician on defendant's vessel the PFC James Anderson Jr. (hereafter, the "Vessel"). (Wright Aff. at 1; Hyde Aff. ¶ 2.) On December 26, 1997, while the Vessel was at sea proceeding from the Indian Ocean island of Diego Garcia to Puerto Rico, Wright informed the Vessel's Chief Mate (and Medical Officer) Paul Hyde that he was jaundiced and had abdominal pain. (Wright Aff. at 2; Hyde Aff. ¶ 2; medical log for 12/26/97 (attached as Hyde Aff. Ex. A at 1 Wright Aff. Ex. C at 1).) Hyde monitored Wright's condition and consulted with Medical Advisory Systems ("MAS"), an on-call medical service staffed by medical doctors to provide medical advice to ships at sea. (Hyde Aff. ¶¶ 3-5; Wright Aff. at 2; see also medical log and record of communications with MAS (attached as Hyde Aff. Ex. A Wright Aff. Exs. C, D).) Wright does not complain about the medical care he received on the Vessel. ( See generally Wright Aff.)
Dr. Babaturk of MAS recommended that Wright be landed, i.e., put ashore, on the island of St. Helena, and he contacted the Hospital there to make arrangements for Wright's medical care. (Philips Aff. ¶ 2; Hyde Aff. ¶ 5.)
Defendant Maersk contends that the decision to land Wright at St. Helena was proper because "St. Helena was . . . the nearest location with medical facilities and the Vessel could arrive there sooner than any other location . . . [while] Ascension Island had a sailing time of approximately forty additional hours past St. Helena." (Maersk Br. at 3, citing Phillips Aff. ¶ 2 Hyde Aff. ¶ 5.) Plaintiff Wright, in contrast, claims that the Vessel was negligent in putting him ashore at St. Helena rather than Ascension Island:
St. Helena has no airport and the only way off the island was by a boat which came every 28 days, and which had just left. I, like Napoleon, was in exile. I was confined to a "hospital" with facilities probably dating back to his stay on the island. The horror of my "imprisonment" on St. Helena was matched only by the [poor] quality of the medical care. . . . I was discharged from the hospital on January 2, 1998 after an ultrasound found me to be fit for duty, this ultrasound is particularly significant because it is absent.
I then waited until January 24, 1998 until the boat came to take me to Ascension Island where there is a United States Airforce base. I was flown back to the United States by way of Antigua and arrived home on February 2nd very, very sick.
It is apparent that the Captain should have put me ashore on Ascension Island which was only about 700 miles further, 24 to 48 hours sailing time. The maritime expert hired by my attorneys advises me of what I already knew and what the Captain should have known: that Ascension not only has a USAF base, but also an RAF base, and above all real medical facilities and an airport. I would have received literally "top flight" medical evaluation and been flown home to the proper and much needed care. . . . I lost my health and the ability to work at sea at my job. . . .
(Wright Aff. at 2-3; see also 10/22/00 Report of Plaintiff's Expert, Dr. Lucak.)
ANALYSIS
For a discussion of the relevant summary judgment legal standards,see, e.g., Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *4 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Djonbalic v. City of New York, 99 Civ. 11398, 2000 WL 1146631 at *3-4 (S.D.N.Y. Aug. 14, 2000) (Peck, M.J.).
The negligence legal standard is not in dispute. As defendant expressed it, a "vessel owner does have the duty to provide proper medical treatment to seamen falling ill or suffering injury in the service of the ship. . . . The scope of the duty in an individual case depends on the 'circumstances of each case — the seriousness of the injury or illness and the availability of aid.'" (Maersk Br. at 6, citing The Iroquois, 194 U.S. 240, 241-43, 24 S.Ct. 640, 641-62 (1904), quotingDeZon v. American President Lines, Ltd., 318 U.S. 660, 667-68, 63 S.Ct. 814, 819 (1942); see also Wright Br. at 3-5.)
There are disputed issues of fact as to whether the decision to land Wright at St. Helena as opposed to Ascension Island was negligent or prudent. Indeed, in justifying why it was not necessary to helicopter Wright off the Vessel, Maersk notes that Wright's "symptoms were in no way life threatening and . . . [h]is condition did not deteriorate during the December 26 through December 29 time period," i.e., the period from his first complaint of illness until arrival at St. Helena. (See Maersk Br. at 8.) Since the Vessel felt that Wright "was suffering from an apparent non-life threatening, flu-like illness" (Maersk Br. at 8-9), it is not clear why Maersk could not have waited the one to two days until the Vessel reached Ascension Island. Because of conflicting testimony and the paucity of evidence, defendant's summary judgment motion should be denied as to plaintiff's negligence claim.
Defendant is, however, entitled to summary judgment on plaintiff's unseaworthiness claim. Plaintiff's only claim of unseaworthiness is the claimed negligence of the Captain and Chief Mate in putting plaintiff Wright ashore at St. Helena instead of Ascension Island. (Wright Br. at 6-8.) The Supreme Court has recognized the distinction, however, between claims of negligence and unseaworthiness:
[T]he Court has repeatedly taken pains to point out that liability based upon unseaworthiness is wholly distinct from liability based upon negligence. The reason, of course, is that unseaworthiness is a condition, and how that condition came into being — whether by negligence or otherwise — is quite irrelevant to the owner's liability for personal injuries resulting from it.
* * *
What caused the petitioner's injuries in the present case, however, was not the condition of the ship, her appurtenances, her cargo, or her crew, but the isolated, personal negligent act of the petitioner's fellow longshoreman. To hold that this individual act of negligence rendered the ship unseaworthy would be to subvert the fundamental distinction between unseaworthiness and negligence that we have so painstakingly and repeatedly emphasized in our decisions.Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 500, 91 S.Ct. 514, 517, 518 (1971) (fns. omitted); see also, e.g., Oxley v. City of New York, 923 F.2d 22, 25 (2d Cir. 1991) ("Unlike the law of unseaworthiness, which focuses on the condition of the vessel, the Jones Act places a separate and distinct duty on the owner to provide a reasonably safe workplace. Under the Jones Act, a 'plaintiff is entitled to go to the jury if "the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury . . . for which damages are sought."'") (citations omitted, ellipsis in original); Campbell v. Seacoast Prods., Inc., 581 F.2d 98, 99 (5th Cir. 1978) ("The allegation of a single, isolated incident of operational negligence gives rise to a cause of action based on negligence but not to one based on unseaworthiness."); Marchese v. Moore-McCormack Lines, Inc., 525 F.2d 831, 834 (2d Cir. 1975) (an isolated negligent act will not render a vessel unseaworthy unless the negligent act brings into play an unseaworthy condition); Conceicao v. New Jersey Exp. Marine Carpenters, Inc., 508 F.2d 437, 442-43 (2d Cir. 1974), cert. denied, 421 U.S. 949, 95 S.Ct. 1680 (1975); Clark v. Solomon Navigation, Ltd., 631 F. Supp. 1275, 1278-79 (S.D.N.Y. 1986) (the unseaworthiness doctrine "will not give rise to a remedy for some one-time act of negligence");Feehan v. United States Lines, Inc., 522 F. Supp. 811, 818 (S.D.N.Y. 1980).
The Court notes that defendant Maersk's original statement of undisputed facts, erroneously denominated a "Rule 3(g) Statement," violates S.D.N.Y. Local Civil Rule 56.1(d), which provides that "Each statement of material fact by a movant or opponent must be followed by citations to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(c)." S.D.N.Y. Local Civil Rule 56.1(d). Defendant Maersk's original "Rule 3(g) Statement" did not cite to any evidence. Plaintiff Wright requested that the Court deny Maersk's summary judgment motion on the basis of this rule violation. Maersk's counsel in reply submitted a Rule 56.1 Statement with citations to evidence. The Court declines to deny Maersk's motion on the basis of its violation of the Local Rule, although it has the authority to do so, see S.D.N.Y. Local Civil Rule 56.1(a), but warns defendant's counsel about the need to follow the Federal and Local Rules in the future.
In any event, plaintiff's unseaworthiness claim here is redundant to and adds nothing to his negligence claim. See, e.g., Campbell v. Seacoast Prods., Inc., 581 F.3d at 99. Defendant Maersk should be granted summary judgment dismissing plaintiff's unseaworthiness claim.
CONCLUSION
For the reasons set forth above, the Court should (1) deny defendant's summary judgment motion on plaintiff's negligence claim because of disputed issues of fact as to whether it was negligent to put plaintiff Wright ashore on St. Helena rather than Ascension Island, and (2) grant defendant's summary judgment motion on plaintiff's unseaworthiness claim. The parties are to file the Joint Proposed Pretrial Order by February 9, 2001.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lawrence M. McKenna, 500 Pearl Street, Room 1640, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge McKenna. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).