No. 98-9368.United States Court of Appeals, Second Circuit.Argued March 29, 1999.
Decided: December 13, 1999.
Appeal from judgment of the United States District Court for the Southern District of New York (Schwartz, Judge) granting summary judgment to defendants in seaman’s lawsuit, alleging negligence under the Jones Act and unseaworthiness. The Court of Appeals (Leval, J.) vacates the grant of summary judgment.
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ELIZABETH BLAIR STARKEY, Capiello, Hofmann Katz, New York, NY, for Plaintiff-Appellant.
JOHN J. WALSH, Freehill, Hogan Mahar, New York, NY, for Defendants-Appellees.
Before: LEVAL and POOLER, Circuit Judges, MORAN, District Judge.[*]
Judge Pooler dissents by separate opinion.
LEVAL, Circuit Judge:
[1] Plaintiff Jose B. Reyes appeals from the judgment of the United States DistrictPage 628
Court for the Southern District of New York (Schwartz, J.) granting summary judgment to defendants and dismissing his case.
BACKGROUND
[2] Plaintiff was permanently disabled on July 10, 1989, while working aboard the S.S. Andrew Fletcher (the “Fletcher”), a New York City tour boat. Reyes was employed as a porter, by Delta Dallas Alpha Corp., which operated a restaurant aboard the Fletcher. His duties included transporting supplies from his employer’s shoreside restaurant and loading them aboard the ship. He suffered a shoulder injury when he fell while carrying a 150-pound container of ice up a flight of stairs on the Fletcher. He apparently lost his balance when the ship moved and fell backward down the steps. The evidence most favorable to the plaintiff, which we must accept as true on defendant’s motion for summary judgment, showed that, for safety reasons, two men were normally assigned to carry the 150-pound container, but that on the day in question, Reyes’s usual partner was absent and he was thus obligated to carry the container by himself. A deckhand aboard the Fletcher, Tomas Guity, attempted to steady the container on Reyes’s shoulder, but did not share the burden of the weight.
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here (in that case, the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq.) we find it instructive as to the circumstances under which a seaman will have been deemed to have waived his Jones Act claims as a matter of federal law. In this case, Reyes accepted voluntary payments from the New York Workers’ Compensation Board but never received a formal award settling the matter.[1] Following Gizoni and the maritime authorities upon which it relies, the benefits Reyes received are best analogized to the traditional maritime remedy of “maintenance and cure.” As receipt of “maintenance and cure” has not historically barred subsequent tort actions by injured seamen, Gizoni held that receipt of compensation payments also does not. See id. at 91; Simms v. Valley Line Co., 709 F.2d 409, 412 nn. 3 5 (5th Cir. 1983); Grant Gilmore Charles Black, Law of Admiralty 435 (2d ed. 1975); 4 Larson, Workmen’s Compensation Law § 90.51, at p. 15-507 (1989). Thus, federal law does not treat Reyes’s mere receipt of interim compensation payments as a waiver of his Jones Act claim.
[8] Nor does New York law make his receipt of compensation payments a waiver of federal maritime rights against his employer. In reaching its decision, the district court relied, at least in part, on section 113 of the New York Workers’ Compensation Law, which provides in relevant part:[9] N.Y. Work. Comp. Law § 113 (McKinney 1998). If Reyes’s actions triggered waiver of federal maritime rights under section 113, we would be required to consider whether the state statute as applied conflicts with important federal regulatory interests. See South Buffalo Ry. Co. v. Ahern, 344 U.S. 367, 370-71 (1953) (inquiring whether, under facts of that case, section 113 “invade[d] a field foreclosed by governing federal legislation”). As we read that statute and the governing authorities interpreting it, the New York courts would not consider Reyes’s actions as a waiver under section 113, because (viewing the evidence in the light most favorable to him) Reyes never “evince[d] an intention to waive redress under the Jones Act.” Dacus v. Spin-Nes Realty Constr. Co., 22 N.Y.2d 427, 430 (1966); see also Pedersen v. Manitowoc Co., 25 N.Y.2d 412, 417 (1968) (no waiver under section 113 “unless there is an express waiver of maritime rights.”); Dacus, 22 N.Y.2d at 431 (waiver must be “unequivocal”). [10] Both the employer and the court below rely heavily upon this court’s decision in Heagney v. Brooklyn Eastern District Terminal, 190 F.2d 976 (2d Cir. 1951). Heagney, however, was decided in 1951, fifteen years before the New York Court of Appeals interpreted section 113 in Dacus and a full four decades before the Supreme Court decided Gizoni. Whether read as a decision interpreting section 113 or as an opinion laying out the standard for establishing waiver as a matter of federal law, Heagney‘s finding of waiver was based on a different standard than we are now required to apply. Heagney is therefore superseded authority.awards according to the provisions of this chapter may be made by the board in respect of injuries subject to the admiralty or other federal laws in case the claimant, the employer and the insurance carrier waive their admiralty or interstate, commerce rights and remedies, and the state insurance fund or other insurance carrier may assume liability for the payment of such awards under this chapter.
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[11] As the employer did not establish as a matter of law that the plaintiff’s acceptance of compensation payments constitutes a waiver of his federal maritime remedies, the district court should not have granted summary judgment on the plaintiff’s Jones Act claim. [12] II. Reyes’s Claims Against Other Defendants [13] The complaint also alleged negligence and unseaworthiness against the owner and operator of the Fletcher. The district court granted summary judgment in their favor. As the defendants never came forward with evidence demonstrating their entitlement to judgment, this was error. [14] In rejecting the unseaworthiness claim, the district court relied on the Supreme Court’s decision, in Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 500 n. 18 (1971), that an isolated act of negligence does not establish unseaworthiness. In our view, the court misunderstood Usner in its application to these facts. The negligent act in Usner involved a coworker’s negligent operation of a winch and boom. Id. at 495. Because the injury resulted from an “isolated, personal negligent act of the [plaintiff’s] fellow longshoreman” and not from “the condition of the ship, her appurtenances, her cargo, or her crew,” the Supreme Court ruled that the claim did not fall within the bounds of unseaworthiness. Id. at 500. Here, in contrast, Reyes’s best claim does depend on the “condition of the ship, . . . her cargo, [and] her crew.” [15] In Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 724 (1967), the Supreme Court held that a vessel can be found unseaworthy if “too few crewmen [are assigned] to perform a particular task in a safe and prudent manner.” See Waldron, 386 U.S. at 725, 728 (assignment of two crew members to uncoil rope, a job properly performed by three or four crew, supports unseaworthiness claim); see also Anderson v. Great Lakes Dredge Dock Co., 509 F.2d 1119, 1120-21 (2d Cir. 1974) (assignment of one crew member to operate winch supports claim for unseaworthiness if plaintiff can establish task required two men); Belle v. Waterman Steamship Co., 1998 WL 9386 (S.D.N.Y. Jan. 13, 1998), at *5-*6 (proper for jury to find unseaworthiness when defendant reduced crew assigned to carry boxes from three to two and required that remaining crew members carry two boxes at a time instead of one). The assignment of a seaman by himself to carry an excessively heavy load up a ship’s stairs would fall easily within these precedents. Nor are the defendants helped by the fact that the understaffing was merely temporary as it was customary to assign two porters to the ice detail. Usner made clear that unseaworthiness may be found as to a transitory condition. See Usner, 400 U.S. at 497 n. 8.[2] [16] The same contentions that are sufficient for a claim of unseaworthiness also support a negligence claim. If the assignment of Reyes to carry the 150-pound container up the stairs of the moving ship subjected him to an unreasonablePage 631
risk of harm, that staffing decision could be the basis for a claim of negligence.[3]
Plaintiff also alleged unseaworthiness based on the absence of an elevator or dumb waiter to transport supplies onto the vessel. As the plaintiff presented no evidence as to the unsuitability of the vessel’s equipment or of the need for mechanical equipment (as opposed to manpower), the district court’s dismissal of this allegation was appropriate.
CONCLUSION
[17] The district court’s grant of summary judgment for the defendants is hereby vacated. Case remanded to the district court.
dealt with the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), a different compensation scheme. The section upon which the majority relies did not hold that no Jones Act waiver is effected until a claimant receives a formal award. Rather, the Supreme Court’s holding is more limited. Gizoni merely states that where a claimant’s seaman status — and Jones Act eligibility — remains an open issue, his receipt of voluntary payments under the LHWCA is not a waiver, particularly because the LHWCA “does not comprehend such a preclusive effect” and specifically contains an offset provision in the event that a claimant receives Jones Act recoveries. Gizoni, 502 U.S. at 91-92. The state workers compensation scheme does not contain a similar offset provision but instead contains language regarding the preclusive effect of receiving benefits. See N.Y. Work. Comp. L. § 113 (McKinney 1998). [21] The majority disregards federal precedent directly on point. The district court correctly relied on Heagney v. Brooklyn E. Dist. Terminal, 190 F.2d 976, 977-78 (2d Cir. 1951). In that case, an injured seaman filed a workers compensation claim, had counsel appear on his behalf at four out of six benefits hearings, and accepted benefits. We held on these facts that:
[22] Id. at 978. The facts of Heagney, in which the claimant made no Jones Act claim until[i]f there is ever to be any settlement of legal claims we feel that it must be in a case such as this where a claimant before an administrative board is adequately represented by counsel over a long period, during which the rights, potential and actual, of the client are perfectly obvious to anyone with the slightest legal training, and where there is no suggestion of fraud or concealment from the lawyer on the part of the employer.
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two years after his injury, are strikingly similar to the undisputed facts that Reyes presents because (1) Reyes litigated his workers compensation claim with the assistance of counsel over a period of two years; (2) Reyes did not file his federal claim until three years after making a workers compensation claim and two years after he began receiving benefits; and (3) Reyes did not notify his employer of his intent to sue under federal law until two years after making a workers compensation claim and one year after he began receiving benefits.
[23] I disagree with the majority’s notion that subsequent decisions of the New York State Court of Appeals supersede Heagney. If anything, these decisions reinforced Heagney because they employed the same analysis. The New York Court of Appeals held that “unqualified acceptance of compensation payments over a period of years may constitute a waiver of Federal rights and remedies [but] not every award and acceptance of compensation benefits prevent a claimant from pursuing his Federal rights.”Dacus v. Spin-nes Realty Constr. Co., 22 N.Y.2d 427, 430-31 (1968). See also Pedersen v. Manitowoc Co., 25 N.Y.2d 412, 417 (1969). In each case, the Court of Appeals found that the waiver question raised issues of fact because the injured seamen accepted benefits but also provided their employers with some notice of their federal claims within months of their accidents. Pedersen, 25 N.Y.2d at 417; Dacus, 22 N.Y.2d at 431. The only difference between the New York State cases and Heagney were the facts, which of course resulted in different outcomes. But the standard remained the same. It is this standard that the district court applied correctly to hold that Reyes waived his Jones Act claims as a matter of law. [24] I also would affirm the decision of the district court dismissing Reyes’ negligence and unseaworthiness causes of action. The majority opinion declines to acknowledge the deposition testimony of plaintiff himself, who stated that deckhand Tomas Guity could not have done anything to prevent the accident, that the ship’s captain could not have prevented the accident because he did not see Reyes below deck, and that the carpet on the stairs was “fine.” This testimony precludes recovery both for an unseaworthy condition based on the assignment of crew and common law negligence. I am unpersuaded by the majority’s attempt to salvage Reyes’ claims in footnote 2 of its opinion based on the fact that Guity was not assigned to the task of helping Reyes. Plaintiff’s own testimony clearly shows his belief that the accident would have occurred whether Guity or one of Reyes’ coworkers was present. [25] For the foregoing reasons, I respectfully dissent from the majority opinion.