Lee v. Astoria Generating Co.

920 N.E.2d 350, 13 N.Y.3d 382

• Court: New York Court of Appeals
• Decided: November 23, 2009
• Status: Published

Opinions

OPINION OF THE COURT

Jones, J.

In this appeal, we are called upon to determine whether a barge containing an electricity generating turbine is a vessel under the Longshore and Harbor Workers’ Compensation Act (LHWCA) (33 USC § 905 [b]) and whether that provision preempts New York State Labor Law § 240 (1) and § 241 (6) claims. We hold that the barge is a vessel and plaintiffs Labor Law § 240 (1) and § 241 (6) claims are preempted.

The Gowanus Gas Turbine electric generation facility in Brooklyn is a facility owned and operated by defendants Astoria Generating Company, L.E, Orion Power New York GP, Inc., Orion Power New York, L.P. and Orion Power New York UP, LLC (Astoria/Orion). The site, located on navigable waters in the Gowanus Canal, is comprised, in part, of four barges that are each 80 feet wide by 200 feet long that collectively house eight individual gas turbine generating units. While stationed, the barges are afloat in the bay and connected to a power grid. Periodically, approximately once a decade, the barges are moved to dry dock for maintenance. They are also capable of being moved for the purpose of providing electric power at other locations. Two of the barges had been so moved on at least one occasion.

In 2000, Astoria/Orion hired third-party defendants Elliott Turbomachinery Co., Inc. and Elliott Company (Elliott), a company based in Pennsylvania, to perform an overhaul of the turbines at the Gowanus facility. This involved disassembling the entire turbine, shipping parts of it back to Elliott’s shop in Pennsylvania for restoration or replacement, and returning it to the site for Elliott’s millwrights to reassemble. In 2001, plaintiff, a millwright employed by Elliott, injured his back while performing work on a turbine on barge No. 1 at the facility. According to plaintiff, he was ordered by his supervisor to enter the turbine’s exhaust well through a hatch to weld some fixtures inside. To reach the location of the repair, plaintiff used a ladder to access the exhaust well and entered the hatch. From there, he was to climb down the base of the exhaust well, but his feet slipped from under him and he fell eight feet to the base of the exhaust well, injuring his back.

After the accident, plaintiff claimed and was awarded benefits under the LHWCA, which “provides workers’ compensation to Zand-based maritime employees” (Stewart v Dutra Constr. Co., 543 US 481, 488 [2005]). He also commenced this state court action against Astoria/Orion, asserting Labor Law §§ 200, 240 (1) and § 241 (6) claims and common-law negligence claims. Astoria/Orion subsequently filed a third-party complaint against Elliott seeking indemnification.

Elliott moved for summary judgment dismissing the complaint and third-party complaint, arguing, among other things, that 33 USC § 905 (a)¹ precludes lawsuits against it as an employer of the injured worker and that plaintiff’s state claims were preempted by section 905 (b)² and federal maritime law. The barge owners cross-moved for summary judgment, also arguing that the plaintiff’s claims were preempted. In opposition, plaintiff argued that the claims were not preempted because (1) the barge did not constitute a vessel under section 905 (b) and (2) maritime jurisdiction did not apply to his claims against the barge owners.

Supreme Court granted summary judgment dismissing the complaint and third-party complaint (2007 NY Slip Op 34371[U]). It concluded, among other things, that section 905 of the LHWCA preempted the Labor Law § 240 (1) and § 241 (6) claims. The court adopted the Department of Labor’s determination that plaintiff is a covered employee under the LHWCA and concluded the barge is a vessel under recent federal case law. It also dismissed plaintiffs Labor Law § 200 and common-law negligence claims.

The Appellate Division “reversed” the Supreme Court order, reinstated plaintiffs Labor Law § 240 (1) and § 241 (6) claims and granted summary judgment as to the Labor Law § 240 (1) claim in plaintiffs favor.³ It held that the Labor Law claims are not precluded by the LHWCA because the barge is not a vessel. It further stated, “even if the barge were a vessel, federal maritime jurisdiction would not preempt these claims” (55 AD3d 124, 126 [1st Dept 2008]). The Appellate Division granted Astoria/Orion and Elliott leave to appeal and certified the following question to this Court: “Was the order of this Court, which reversed the order of Supreme Court, properly made?” We now reverse and answer the certified question in the negative.

The LHWCA provides compensation to workers injured on navigable waters of the United States in the course of their employment (Director, Office of Workers’ Compensation Programs v Perini North River Associates, 459 US 297, 325 [1983]; see Chandris, Inc. v Latsis, 515 US 347, 360 [1995]).⁴ It operates as a no-fault workers’ compensation scheme for eligible workers and precludes recovery of damages against their employer (33 USC § 905 [a]). The LHWCA also permits an injured employee to recover damages against a third person other than his or her employer (33 USC § 933 [a]). Section 905 (b) of the LHWCA, consistent with section 933 (a), permits an injured person covered under the Act to bring an action in negligence against a vessel, but provides that such remedy “shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” Contrary to the dissent’s position, one need not conclude that plaintiff is entitled to assert a maritime tort claim to invoke section 905 (b) where the worker was injured on navigable waters (see e.g. Stewart, 543 US 481 [2005] [discussing the application of section 905 (b) without any maritime tort inquiry]).⁵ Section 905 (b) of the LH-WCA applies to the “injury to a person covered under this chapter” where the liability of a vessel is at issue. Thus, because the LHWCA covers plaintiff’s injury upon navigable waters, whether section 905 (b) applies in this case hinges upon whether the structure upon which plaintiff was injured is a vessel. Although the LHWCA does not define “vessel,” the United States Supreme Court has provided detailed guidance concerning the definition and characteristics of a vessel, holding that the statutory definition of the term in 1 USC § 3 is applicable in this context.

A “ ‘vessel’ includes every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water” (Stewart v Dutra Constr. Co., 543 US 481, 489 [2005], quoting 1 USC § 3). Structures temporarily stationed in a particular location maintain their status as vessels. However, floating structures that are “not practically capable of being used as a means of transportation” do not qualify as vessels {id. at 493 [internal quotation marks and citation omitted]). Such floating structures (non-vessels) are permanently fixed or moored “to shore or resting on the ocean floor” {id. at 493-494).

Here, the barge, located on navigable waters in Gowanus Bay, is a vessel within the LHWCA. The barges owned by Astoria/Orion have been tugged on water approximately once a decade to a maintenance station and, at least once, to provide energy to another part of New York City in an emergency. Thus, the barge at issue is practically capable of being used as a means of transportation on water. Although the barge is stationed at the Gowanus facility, because it is not permanently anchored or moored, it has not lost its status as a vessel. Accordingly, the barge is a vessel under section 905 (b).

The remaining issue is whether section 905 (b) preempts plaintiffs Labor Law § 240 (1) and § 241 (6) claims. It is well recognized that the Supremacy Clause (US Const, art VI, cl 2) “ ‘may entail pre-emption of state law either by express provision, by implication, or by a conflict between federal and state law’ ” (Balbuena v IDR Realty LLC, 6 NY3d 338, 356 [2006], quoting New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645, 654 [1995]). Congress’ intent to preempt “may be explicitly stated in the statute’s language or implicitly contained in its structure and purpose. In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law” (Cipollone v Liggett Group, Inc., 505 US 504, 516 [1992] [internal quotation marks and citation omitted]). State law will not “be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress” (New York State Conference of Blue Cross & Blue Shield Plans, 514 US at 655).

Here, the LHWCA clearly states in section 905 (b) that an action in negligence may be brought against a vessel and that such remedy “shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” Congress clearly intends that actions maintained against a vessel be brought solely within the confines of the LHWCA and nowhere in the Act does it permit strict liability claims, as provided in Labor Law § 240 (1) and § 241 (6). Therefore, section 905 (b) of the LHWCA expressly preempts plaintiffs Labor Law § 240 (1) and § 241 (6) claims. Contrary to the Appellate Division’s alternative holding, Cammon v City of New York (95 NY2d 583 [2000]) does not support the premise that New York’s Labor Law is not preempted by section 905 (b). Cammon involved an injured worker receiving benefits under the LH-WCA and a defendant landowner. Thus, this case did not involve section 905 (b), “Negligence of vessel,” as set forth in the LH-WCA. While it is true that federal maritime law does not generally supersede state law (see Cammon, 95 NY2d at 587), in this case, where Congress explicitly limited claims against the vessel owner to that federal act, state law claims are preempted.

Accordingly, the order of the Appellate Division should be reversed, with costs, the order of Supreme Court reinstated and the certified question answered in the negative.

1 . “The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee” (33 USC § 905 [a]). Section 904 (a) provides that “[e]very employer shall be hable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title.”

2 . “In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party . . . and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void . . . The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter” (33 USC § 905 M).

3 . It appears that the Appellate Division affirmed the dismissal of plaintiffs Labor Law § 200 and common-law negligence claims. Astoria/Orion did not appeal the denial of that part of their summary judgment motion that sought relief on the third-party complaint.

4 . In Perini North River, the Supreme Court explained the history of the LHWCA. Prior to 1972, the LHWCA applied only to injuries that occurred on navigable waters (Perini North River, 459 US at 313). In 1972, Congress expanded the coverage landward and created a scope of persons covered, which became the situs and status test (id. at 317-318). The Perini North River Court then held that “when a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement . . . and is covered under the LHWCA” (id. at 324). The Court noted that “Congress was concerned with injuries on land, and assumed that injuries occurring on the actual navigable waters were covered, and would remain covered” (id. at 319).

5 . The dissent’s reliance upon Executive Jet Aviation, Inc. v Cleveland (409 US 249 [1972]) and McLaurin v Noble Drilling (US.), Inc. (529 F3d 285 [5th Cir 2008]) is misplaced—neither of those cases involved claims traditionally covered under the LHWCA. The Supreme Court created the maritime tort inquiry in Executive Jet. There, the Court “concluded that maritime locality alone is not a sufficient predicate for admiralty jurisdiction in aviation tort cases” (409 US at 261). In McLaurin, the Fifth Circuit continued the use of such inquiry in the context of a shipyard accident. The court, noting that “[i]njury on navigable waters is a sine qua non of the maritime tort, . . . held that a maritime worker injured on dry land cannot sustain a cognizable injury under § 905 (b) of the LHWCA” (529 F3d at 290 [internal quotation marks and citation omitted]).