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Federal Maritime Law Preempts State Law Remedies For Incident Occurring On A Vessel On Navigable Water

September 1, 2010

New York - Maritime

Key Points:

  • Choice of law--federal maritime or state labor law--can have profound effect.
  • Structure on navigable water can be classified as "vessel" if capable of being used as a means of transportation.
  • If incident occurred on a "vessel," Long Shore Harbor Workers' Compensation Act preempts state labor law. 

 

Whether a case falls within the purview of admiralty jurisdiction, either in state or federal court, can have a significant impact on remedies available to an injured employee. The threshold test is whether the structure on navigable water can be classified as a "vessel." If so, the federal Longshore and Harbor Workers' Compensation Act ("LHWCA") will apply. If not, the New York State Labor Law §§240(1) and 241(6) will apply. The standards utilized, the burden of proof needed and the applicability of comparative negligence are all effected.

These issues were raised and determined in a case entitled Lee v. Astoria Generating Co., et. al., 13 NY.3d 382 (Court of Appeals 2009), 2010 AMC 206, cert. pending.

The Gowanus Gas Turbines electric generation facility in Brooklyn, New York, owned and operated by Astoria Generating Company and Orion Power, maintained four barges on the Gowanus Canal that supported gas turbine generating units. The barges were attached to a power grid but were moved approximately once per decade for maintenance. Two had been moved for use as additional power sources.

Elliott Turbomachinery Co., Inc. and Elliott Company ("Elliot") were hired to overhaul the turbines at the Gowanus facility and employed the plaintiff. The plaintiff was injured when he slipped off of a ladder entering a hatch on barge number one, and he subsequently received benefits under the LHWCA as a land-based maritime employee.

The plaintiff commenced suit against Astoria/Orion alleging New York Labor Law §§200, 240(1) and 241(6) claims and common law negligence claims. Astoria/Orion filed a third-party complaint against Elliott for indemnification. The defendants both moved for summary judgment on the basis that the state labor law claims were preempted by the LHWCA and federal maritime law. The New York Supreme Court granted summary judgment in favor of the defendants on the basis that 33 U.S.C.S. §905(a) precluded the claims against them as an employer (Elliot) and via preemption (Orion). The Appellate Division reversed and granted summary judgment for the plaintiff, holding that the barge did not constitute a vessel and the New York Labor Law claims were therefore not preempted. The Appellate Division awarded summary judgment as to Labor Law §240(1). The Appellate Division granted the defendants' leave to appeal to the Court of Appeals. The Court of Appeals reversed, and the order of the trial court was reinstated.

The Court of Appeals first examined whether the barge in controversy could be classified as a vessel in order to determine if the LHWCA was applicable law in this case. Under the LHWCA, an injured person cannot assert an action directly against his employer, but the Act allows for negligence claims against third parties or any vessel involved in the injury. To evaluate whether the barge in question could be classified as a vessel, the court looked to the U.S. Supreme Court's definition of a vessel, a "watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." Using this description, the court reasoned that because the barge was located on navigable waters, was capable of being moved for maintenance and in emergencies and was not permanently anchored or moored, it fell within the Supreme Court's definition of a vessel. The court therefore held that the LHWCA was applicable law.

The court then analyzed the second issue, whether the LHWCA, as federal law, preempted the New York labor law claims asserted by the plaintiff. Under the Supremacy Clause, a state law is preempted by a federal law by "express provision, by implication, or by a conflict between federal and state law." The court found that 33 U.S.C.S. §905(b) expressly preempted the New York labor laws because the LHWCA explicitly states that any remedy derived from an action brought against a vessel under the LHWCA "shall be exclusive of all other remedies." The court consequently held that because the LCWCA was applicable federal maritime law, the plaintiff's state law claims were preempted and the order of the trial court was to be reinstated. This decision holds great importance because New York Labor Law §240(1) (so called "scaffold law") imposes strict liability on contractors and property owners for elevation-related injuries at construction sites.

The court distinguished its holding in this case from Cammon v. City of New York, 95 NY 2d 583 (2000), which involved an injured worker receiving benefits under the LHWCA against a defendant landowner (City of New York). The distinction was based on the fact that Cammon did not involve §905(b)'s "Negligence of Vessel" as set forth in the LHWCA. The court stated, "While it is true that Federal maritime law does not generally supersede state law, in this case, where Congress explicitly limited claims against the vessel owner to that Federal Act, state law claims are preempted."

Judge Ciparick was the sole dissent in this opinion. In the dissent, Judge Ciparick focused on whether the plaintiff could assert a maritime tort under the LHWCA by using the second prong of the maritime situs/status test, "Whether the wrong bore a significant relationship to traditional maritime activity," (See, Executive Jet Aviation, Inc. v. City of Cleveland, 93 S. Ct. 493). Judge Ciparick reasoned that while the barge could be classified as a vessel, the work the plaintiff conducted had no connection with maritime activity but rather with land-based activity because the gas turbines were part of a power-generating operation that includes land-based structures. Further, because the plaintiff, therefore, appeared to have no cause of action for vessel negligence under maritime law based on the above reasoning, the LHWCA, as discussed in Cammon, preserves state law causes of action against third parties, including vessel owners who are not also employers.

Plaintiff's counsel recently filed a Petition for Writ of Certiorari in the U.S. Supreme Court. He has requested the Maritime Law Association to submit an amicus brief, which is presently under consideration.

*Dan, a shareholder who works in our New York City office, can be reached at (212) 376-6432 or dgmcdermott@mdwcg.com. Laura, an associate in or New York City office, can be reached at (212) 376-6466 or lvblock@mdwcg.com.

Defense Digest, Vol. 16, No. 3, September 2010

Affiliated Attorney

Daniel G. McDermott
Chair, Maritime Litigation Practice Group
(212) 376-6432
dgmcdermott@mdwcg.com

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