Seaman injured while clearing debris from beach.
Verdict (P) Liability only: James M. v. Costello Marine Contracting Corporation, No. 14802/98
James M. and Elizabeth M. v. Manhasset Bay Yacht Club v. Costello Marine Contracting Corporation, No. 6236/98
Court: Queens Supreme Judge: Mark H. Spires Date: 6/23/2003
Plaintiff Attorney(s): Daniel P. Buttafuoco, Daniel P. Buttafuoco & Associates, Woodbury, NY.
Defense Attorney(s): John G. lngram, Healy & Baillie, L.L.P., New York, NY ( Manhasset Bay Yacht Club) William M. Kimball, New York, NY (CostelIo Marine Contracting Corporation).
Facts & Allegations: This is a trial of two separate actions in a joint trial on the issue of liability.
Action No.1 was brought by James M. against Costello Marine Contracting Corp. under the Jones Act for injuries he sustained due to the negligence of his employer in a construction operation. Action No.2 was a labor law case brought against the owner of the property on the same facts pursuant to § 241(6) of the Labor Law.
The accident occurred on Sept. 4, 1997, on the beach at the Manhasset Bay Yacht Club in Port Washington, N. Y. At the time, plaintiff James M., 35, a licensed captain of boats not exceeding 100 tons, had been employed for approximately one year by Costello Marine Contracting, involved in marine contracting, construction and demolition. Testimony indicated that Costello Marine Contracting’s primary business is to install docks, bulkheads and marine- waterfront structures. Construction was typically performed with a tugboat and a crane mounted on a barge.
Testimony indicated that a barge with a mobile crane set atop it was partially beached on the shoreline of the Manhasset Bay Yacht Club, and the tug was moved into the water offshore. M. testified that as a result, there was no imminent boat piloting to be done, and he was instructed by his boss, John Costello, to help some construction workers who were clearing debris off the beach. He did so for the two days before his accident.
On the accident date, a crane was engaged in pulling bundles of timbers off the beach and onto a barge with the use of a chain and hook wrapped onto each bundle, which was then hoisted onto the barge for disposal. M. testified that he and another worker gathered the timbers into a pile. M. wrapped the chain around the pile, and then, proceeding at the direction of his employer, on a signal to the crane operator by M., the bundle was hoisted up. M. claimed that he was injured when a bundle pivoted in the sand, hit him, and knocked him to the ground, pinning him in the soft mud of the wet beach.
M. claimed that the yacht club, as owner, violated New York’s Labor Law § 241 (6) because the hoisting operation was not in compliance with Industrial Code 12 NYCRR § 23 in that improper lifting devices were used. He contended that the load was not boxed, was not secured and properly balanced, and there were no tag lines to prevent the rotation or swinging of the load. He testified that the operation was negligently performed in that there were no devices used to properly secure the bundles, which were of uneven lengths, and different weights and sizes, making it impossible to gauge the center of the pile. He added that the crane operator was unlicensed and was operating without any direct supervision. Costello Marine Contracting claimed that M. was a laborer and not a seaman.
Both defendants claimed that M. was negligent in that he wrapped the bundles improperly by standing between the crane and the bundle. The defendants further claimed that M. was negligent in that when the “hoist” signal was given, he failed to get out of the way. Costello Marine Contracting and Manhasset Bay Yacht Club both claimed that the crane was being properly operated by a supervised apprentice crane operator, and that the operation was not being done negligently.
The yacht club contended that it did not own the property where the accident occurred since it happened on the beach below the high water mark and was actually owned by the Town of North Hempstead, and, therefore, it was not liable under Labor Law § 241(6). The judge ruled, however, that the yacht club was the “owner” for Labor Law § 241(6) purposes, because it put the construction contract in motion.
The defendants also claimed that M. was not engaged in construction, excavation or demolition, and that the operation, which was being performed at the time of the accident, done at the direction of the New York State Department of Environmental Conservation, was a simple beach clean-up. The defendants claimed that, as such, it was not part of a construction or demolition project. M. countered that it was all one construction project, and though required by the New York Department of Environmental Control, it was part and parcel of a $2 million waterfront restoration project.
The defendants argued that Industrial Code 12 NYCRR § 23 did not apply to cranes mounted on barges, and that OSHA regulations governed. M. argued, as a matter of law, that NYCRR did apply because the accident occurred in New York, which has a legitimate state interest in regulating construction activity on or near land.
Injuries/Damages: Herniated disc at L4-L5; knee; loss of services; lower back
M. claimed that he suffered multiple torn and ruptured ligaments in the right knee, requiring six reconstructive surgeries. He claimed that his injuries are permanent and that he can no longer work as a sea captain. M. claimed that the knee injury affected his gait, creating low back problems, which led to a herniated disc at L4-5.
Result: The jury found in action No.1 that M. was a seaman acting in the course of his employment and acting under the Jones Act. It found that Costello Marine Contracting was negligent in its performance of the hoisting operation.
The jury in action No.2 found that M. was engaged in the activities of construction, excavation and demolition, and found multiple violations of the industrial code. It also found that Manhasset Bay Yacht Club was liable under Labor Law§ 241(6) for the negligence of M.’s employer, Costello Marine Contracting, in that Costello failed to use reasonable care in conducting its operations. The jury found for Manhasset Bay Yacht Club on the indemnification question, allowing for complete pass-through from the yacht club to Costello Marine Contracting.
Damages will be tried at a later date.
Insurer(s): State Insurance Fund for Costello Marine
The Hartford for Costello Marine
Royal Insurance for Manhasset Bay Yacht Club
Trial Length: 3 weeks
Jury Deliberations: 2 days
Jury Composition: 2 male, 4 female
Expert(s): Joseph Cannizzo, p .E., engineering, Mineola, NY
Expert(s): John Coletti, engineering, Pittsburgh, PA (maritime crane expert/certified crane inspector) Post-Trial CPLR 4406 motions are pending.