New York State Court of Claims

New York State Court of Claims

TSAROPOULOS V. THE STATE OF NEW YORK, #2001-016-033, Claim No. 93902


Synopsis


SUNY-Maritime was found 35% liable for shipboard injury to contract worker under federal maritime law.

Case Information

UID:
2001-016-033
Claimant(s):
DIMITRIOS TSAROPOULOS andSOTIROULA TSAROPOULOS
Claimant short name:

Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93902
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
DiJoseph & Portegello, P.C.By: Joseph P. Giblin, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Hector D. LaSalle, AAG
Third-party defendant's attorney:

Signature date:
May 9, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This decision follows the trial of the claim arising from an injury to Dimitrios Tsaropoulos while working aboard a ship of the Maritime Academy of the State University of New York.
The college is located in the Bronx on a peninsula extending into the Long Island Sound.
SUNY-Maritime was in possession of a ship owned by the United States government, but turned over to it under a federal program to assist state
maritime academies in their training of officers for the merchant marine[1]. The Empire State is usually moored at the Bronx campus, but annually goes out to sea on a training cruise from the middle of May to the end of July.
Claimant[2]
was employed by the B & A Marine Company as a marine mechanic who could "repair and fix...all aspects in [a] ship." B & A Marine had contracted with the federal Maritime Administration to do "refrigeration box deck repairs, tank top coating and bridge deck/wheelhouse front repairs" (def exh A, p. 2).
On December 27, 1993, Tsaropoulos was working on the Empire State while it was docked at SUNY-Maritime. Late that morning, claimant and a co-worker, Pavlos Velisaris, were moving a large pipe, estimated at weighing upwards of 400 pounds, from a third floor "catwalk to the hallway."
To maneuver such a mass, two chains supported the pipe and the chains were affixed to two hoist/trolley devices which were mounted on an overhead I-beam track or monorail (cl exh 1). Tsaropoulos said he suddenly heard a noise; the hoist & trolley had slid off of the I-beam and it struck his hand, which had been on the doorknob that he was about to open. The hoist & trolley would not have come off the I-beam had a stopper been affixed at its end.
The monorail – or that portion of the rail – had ended just before a set of two doors. Beyond these doors, which opened out, the track of the overhead rail resumed its course.
A three- or four-foot extension, known as a spool piece, was needed to connect the rails on either side of the doors as one continuous piece. According to claimant, the break between the end of the I-beam rail and the doorway was some 12 to 15 inches; Steven Miller, the ship's chief engineer, described the rail, without an extension piece, as "within a foot probably" when the doors were closed.
The chief engineer went on to explain
: "The reason it's detachable is because you have to be able to close these double doors... for fire safety reasons. If you were transporting something, obviously you would open the double doors and connect the rail. Then further out....to bring it out on the pier, you would have to extend the extensions out of the side ports." (Cl exh 6, p. 29).
[***]

Injuries to workers, other than seamen[3]
, who are performing repairs on vessels in navigable waters (although invariably working in harbor) are subject to the Longshore and Harbor Workers' Compensation Act, 33 USC §§ 901 et seq. The parties here do not dispute the applicability of the Harbor Workers' Act; see Plotkin v State of New York, Claim # 76147 (Weisberg, J., 1990), affd 197 AD2d 498, 603 NYS2d 40 (1st Dept 1993), upon which both claimant and defendant rely. Potentially tortious actions under the Act are subject to federal maritime law, and it is the standard of ordinary negligence that obtain. Alvez v American Export Lines, Inc., 46 NY2d 634, 415 NYS2d 979 (1979), affd 446 US 274 (1980); Parks v United States, 784 F. 2d 20 (1st Cir 1986).
An act or omission is negligent if it involves a reasonably foreseeable risk which is unreasonable in proportion to such perceived danger. See
Restatement of the Law Second, Torts 2d, §291. In Judge Learned Hand's classic calculus set out in a case involving a barge which broke loose from its moorings and damaged other vessels: liability depends upon whether the burden of taking adequate precautions is less than the probability that the barge will break away multiplied by the gravity of the resulting injury were it to do so. United States v Carroll Towing Co., 159 F. 2d 169, 173 (2d Cir 1947).
The job confronting Tsaropoulos (and Velisaris) was to move a weighty and unwieldy object -- a 400-plus pound pipe - - through the constricted space of a ship by means of a chain hanging from two hoists. There were two methods that would have accomplished the task safely. One, a stopper would be affixed at the end of the rail.
In fact, the defendant's employee, chief engineer Miller, implicitly conceded the necessity for such a stopper; his deposition testimony was that he believed the rail ended close enough to the double doors so that no stopper was needed when they were closed.
Defendant left unchallenged the testimony of claimant and his safety expert, Howard Edelson, on the ease of installing a stopper at the end of the track.
Tsaropoulos allowed as to how a stopper could be installed in a half an hour and removed in a few minutes with a regular wrench, having seen it done on other ships. Edelson asserted that it might take 10 to 15 minutes for a bolt which required drilling, but less time for a C-clamp; in either instance, the cost would have been only a few dollars in everyday hardware parts. Edelson maintained that it was the common practice on a ship or in a factory or warehouse to utilize stoppers on overhead rails.
The other safe method of moving the pipe, alluded to, but not discussed as such, would have been to insert the spool piece and run the trolley & hoist along a continuous track that ran through the doors. Miller testified, without contradiction, that a spool piece was readily available on a rack just outside the double doors in question. Claimant seemed quite familiar with the concept - -
"if you wanted to continue, you would have to use another connection...[called]...a spool piece," although he did not mention its location right outside the doors, or otherwise indicate his awareness of same.
Thus in view of the risk involved, easily avoidable, it was negligent not to either use a stopper or link up the two railings on either side of the door with the connecting spool piece. It is not necessary to reach the issue of whether there was a violation of federal safety law and regulations and if so, what would be the effect.[4]
***

Having determined that Tsaropoulos' injury was a result of negligence, does the defendant bear full responsibility therefor or some lesser percentage? Beyond the claimant's
possible contributory negligence, the contribution of other potential tortfeasors may be considered even though they are not parties to this action. Brown v State of New York, 268 AD2d 548, 702 NYS2d 617 (2d Dept 2000). Such is not inconsistent with the Second Circuit's discussion of contribution in Lubrano v. Waterman Steamship Co., 175 F3d 274 (1999), cert denied 528 US 933 (1999).
At issue before the United States Supreme Court in
Scindia Steam Navigation Co. v De Los Santos, 451 US 156 (1981) were the relative responsibilities of a ship owner and a stevedore company. The latter was the employer of a longshoreman who, while loading 50-pound sacks of wheat, was injured due to a faulty winching mechanism which caused a loaded pallet to drop a few additional feet before stopping. The three-justice concurrence in Scindia spells out the relative duties of the shipowner and the stevedore company:

(1) a shipowner has a general duty to exercise reasonable care under the circumstances; (2) in exercising reasonable care, the shipowner must take reasonable steps to determine whether the ship's equipment is safe before turning that equipment over to the stevedore; (3) the shipowner has a duty to inspect the equipment turned over to the stevedore or to supervise the stevedore if a custom, contract provision, law or regulation creates either of those duties; and (4) if the shipowner has actual knowledge that equipment in the control of the stevedore is in an unsafe condition, and a reasonable belief that the stevedore will not remedy that condition, the shipowner has a duty either to halt the stevedoring operation, to make the stevedore eliminate the unsafe condition, or to eliminate the unsafe condition itself. [451 US at 179][5]

For purposes of the
Scindia standards, the term shipowner comprehends an owner pro hac vice, a charterer or an operator (Plotkin, supra and §905(b) of the LHWCA), and the reference to stevedore clearly includes other kinds of shipboard contractors whose employees are covered by the Harbor Workers' Act. This is not to say that the actual owner of the vessel, the United States, cannot bear a share of tort culpability as in Parks, supra.
But the facts in
Parks related to a relatively permanent feature of the vessel – the improper design or installation of a protective guard over a generator. In our case, what was involved represented more of a procedure, than an unsafe structure or piece of equipment. The federal Maritime Administration did have its employee (Gerard McNamara) on board the Empire State to oversee the performance of the B & A contract work. But from the evidence adduced, it cannot be concluded that McNamara knew or should have known that the large pipe was moved in an unsafe manner.
Chief Engineer Miller, the lead officer on board, maintained in his deposition testimony that he did not supervise any work undertaken by B & A Marine. He testified that he engaged in some inspection which he characterized as input for McNamara. My view of the evidence is that McNamara's role was to ensure that the US government's contract was being fulfilled, and he served as an approving agent or liaison were there to be changes in performance that affected timeliness or cost beyond the original contract terms.

Miller and his assistant, a second engineer, were employees of SUNY-Maritime, and constituted the professional crew assigned by the college to the Empire State. On the summer voyage at sea, the crew was filled out with student-cadets. Bill Crokos, president of B & A Marine, testified that he, his foreman or his technical supervisor had to be cleared by the chief engineer or his assistant in order to board the Empire State.
Crokos described the chief engineer as the "man who's giving all the orders to do on the technical direction.. And he's the man he come down to check...if we have any questions..."
Miller stated that he made hundreds of rounds through
the ship as part of "my normal routine of checking the ship at large for any fractures and things of that nature and general cleanliness... and I would always take a look up at what I was walking around" (cl exh 6, p.39).
Crokos
testified that his technical director, Dan Kofos, was in charge on the job, and B & A Marine assigned an assistant foreman to the ship, also known as a site foreman. In addition, "...we have also, you know, the subcontractors beside[s] B & A employees, which somebody must be on top of this, so Mr. Dan Kofos was in charge in this specific contract that particular time, including myself also back and forth. But not 100 percent myself."
As to Mr. Tsaropoulos: he began working on ships in 1966
and testified that the use of stoppers was customary, he expected such usage and acted in light of that experience. Further, claimant asserted it was not his responsibility to check for their presence, and that with an all-white background, it was difficult to see if a five- or six-inch stopper was in place. Presumably then, because claimant believed that the rail ended with a stopper, he did not consider the other method for transporting the pipe -- using the spool piece to create one continuous track.
However, with respect to the all-white interior, claimant did testify that the trolley was at most a few feet above him. Moreover, claimant presented no evidence as to whether December 27, 1993 was, for example, his first day working on the Empire State or his twentieth day - - and the same for B & A Marine.
Did he, or his company, thus have sufficient time to observe that no stopper was used on the monorail; or, for that matter, that the spool piece was kept in a rack by the door?
Under the Scindia standards, custom may create a duty, and actual knowledge of unsafe equipment or an unsafe condition on the part of a ship's operator will implicate negligence on the part of the operator. As to the failure to use a stopper, there was no testimony that one was unavailable, only that a stopper was not in use when the accident occurred. Had claimant elicited testimony that there were a number of days when the hoist/monorail was used without stoppers, it would have made a stronger case of notice to SUNY-Maritime; Miller explained that he would always look up on his frequent rounds through the Empire State. In addition, the opportunity of inserting the spool piece to create a continuous track must be factored into the culpability equation.
***

In view of the foregoing, the defendant bears some responsibility, but less than that of the claimant and B & A Marine. I find the defendant
35% liable for Dimitrios Tsaropoulos' injury of December 27, 1993 and the damages resulting therefrom to claimants.[6]
All motions not previously ruled upon are deemed denied. The parties will be contacted to schedule a conference prior to the damages phase of trial.


ENTER INTERLOCUTORY JUDGMENT




May 9, 2001
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims



[1] See the Maritime Academy Act of 1958, 46 USC §§1381 et seq and the regulations thereto found at 46 CFR §310.
[2] The claim of Sotiroula Tsaropoulos is derivative; therefore, except where the context indicates otherwise, references herein will be in the singular to the claimant Dimitrios Tsaropoulos.
[3] Covered by the Jones Act, 46 App USC §688.

[4]For example, consider Part 1915 of Title 29 of the US Code entitled, "Occupational Safety and Health Standards for Shipyard Employment." Part 1915 was issued by the Secretary of Labor pursuant to both the Harbor Workers' Act and the Occupational Safety and Health Act, 29 USC §§651 et seq. Edelson, claimant's expert, referenced a more general OSHA regulation to the effect that "[s]tops shall be provided at the limits of travel of the trolley" [29 CFR § 1910.179(e)(1)(i)]. Edelson conceded that, under OSHA, the more specific, industry-related standards prevail over the general, but pointed to no specific portion of the shipyard regulations. Perhaps the opaque language of 29 CFR §1915.114 (c) does not cover a hoist moving on a trolley or rail track: "Straps, shackles, and the beam or overhead structure to which a chain fall or pull-lift is secured shall be of adequate strength to support the weight of load plus gear. The upper hook shall be moused or otherwise secured against coming free of its support."

See Jones v Spentonbush-Red Star Co., 155 F 3d 587 (1998) in which the Second Circuit ruled that a violation of an OSHA regulation was admissible as some evidence of negligence under general maritime law and the Jones Act (see note 3, above).

[5] Compare to Scindia's second, less analytical, concurrence, shared by two justices, which describes the "basic thrust" of the Court's Opinion as "placing the primary burden on the stevedore for avoiding injuries caused by obvious hazards." 451 US at 180. See also Howlett v Birkdale Shipping Co., 512 US 92 (1994).

[6] It is unnecessary to allocate the remaining 65% of culpability between the claimant and B & A Marine. Brown, supra.