In re John Good as Owner of the F/V Alosa

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IN RE COMPLAINT OF JOHN GOOD AS OWNER OF THE F/V ALOSA, FOR EXONERATION FROM OR LIMITATION OF LIABILITY

No. 19-CV-12514-AK

United States District Court, D. Massachusetts

September 30, 2022

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

ANGEL KELLEY U.S. DISTRICT JUDGE

This case arises out of injuries suffered by Claimant Cindy Hurwitz (“Ms. Hurwitz”) when she fell onto the F/V ALOSA, a commercial shipping vessel belonging to Plaintiff and Third-Party Plaintiff John Good (“Good”), while working for Third-Party Defendant Wildfish, LLC (“Wildfish”), unloading totes of fish from Good's ship. Good filed a complaint for exoneration from or limitation of liability, pursuant to 46 U.S.C. §§ 30501 et seq., requesting, among other things, that the Court adjudge him not liable for any injury Ms. Hurwitz sustained.^[1][Dkt. 1 at 4]. After Ms. Hurwitz filed a claim of negligence against Good [Dkt. 21], Good filed a third-party complaint against Wildfish [Dkt. 31] seeking contribution and indemnification and alleging that Wildfish was negligent in hiring, training, and accounting for the safety of Ms. Hurwitz. Pending before the Court are Wildfish's third-party motion for summary judgment [Dkt 64], which Good opposes [see Dkt. 68], and Good's cross-motion for summary judgment as to Ms Hurwitz's claim [id.]. Ms. Hurwitz opposes Good's motion for summary judgment.

[Dkt. 74]. The Court held a motion hearing on February 16 2022. For the reasons set forth below, Good's cross-motion for summary judgment [Dkt. 68] is GRANTED. In accordance with that ruling, Good's third-party complaint [Dkt. 31] against Wildfish is DISMISSED AS MOOT, and Wildfish's motion for summary judgment [Dkt. 64] is DENIED AS MOOT.

I. BACKGROUND

At the center of this matter is whether Good is liable in negligence to Ms. Hurwitz for the injuries she sustained from a fall she suffered while unloading fish from his vessel, the F/V ALOSA. If he is not, his claims for contribution and indemnification against Wildfish are moot. If he is, the Court must examine the many legal and factual arguments Good and Wildfish raise regarding Wildfish's liability. In the interest of efficiency and because the Court finds that Good is not liable in negligence to Ms. Hurwitz, only those facts that are relevant to the resolution of that issue are recited below. The following facts are drawn from the parties' collectively filed unified statement of material undisputed facts [Dkt. 77 (“SOF”)] and are undisputed unless otherwise indicated.

Good is a commercial fisherman and owner of the F/V ALOSA. [Id. at ¶ 148]. That vessel was fitted with a hydraulic “take-out boom” to lift totes of fish off the boat. [Id. at ¶ 15152]. A tote of fish can weigh between 60-180 pounds. [Id. at ¶ 118]. The operator of the vessel-Good, at relevant times here-uses the mechanical boom to lift the totes up, and workers (generally referred to as longshoremen or stevedores, who employ the longshoremen) on the dock, who are not employed by Good, pull the totes toward and land them on the dock. [Id. at ¶ 153; see Dkt. 74-1 at 3 (Good noting that he would raise the totes “[i]nches” above the pier)]. Wildfish is a seller of fresh fish that ships its products interstate and internationally. [SOF at ¶ 95]. Good began selling his fish to Wildfish in 2006. [Id. at ¶ 149]. Ms. Hurwitz was hired by her husband, Scott Hurwitz (“Mr. Hurwitz”), Wildfish's Logistics Coordinator, in April 2018, to work in the shop and later to work as a truck driver and vessel unloader. [Id. at ¶¶ 2, 21, 23, 147]. In the latter role, Ms. Hurwitz was responsible for driving a truck to a job site, unloading totes of fish from vessels while standing on a pier, and loading that catch onto the truck for transportation to its next destination.^[2] [Id. at ¶¶ 26, 72].

On November 18, 2018, while trying to unload totes of fish from the F/V ALOSA, Ms. Hurwitz fell from a public pier in Sandwich, Massachusetts, onto the deck of the F/V ALOSA and sustained personal injuries. [Id. at ¶¶ 1-3]. She had successfully unloaded totes from Good's vessel earlier that day. [Id. at ¶¶ 76-77]. Just prior to Ms. Hurwitz's fall, Good had hooked up two 125-pound fish totes to the F/V ALOSA's take-out boom to lift and transfer them to Ms. Hurwitz, who was standing on the pier to receive and place them on the dock. [Id. at ¶¶ 122, 151-53, 157; see Dkt. 74-2 at 5 (Mr. Hurwitz stating that the F/V ALOSA usually unloaded two or three totes at a time)]. Ms. Hurwitz used a “boat hook,” as trained by Mr. Hurwitz, to guide the totes of fish being lifted off the vessel onto the pier by putting the hook in the handle of the fish totes. [Id. at ¶¶ 47, 57, 72, 77, 132]. Vessels commonly list (tilt) away from the dock when totes are hoisted up and pulling on the totes creates a pendulum effect. [Id. at ¶¶ 81, 123]. Letting go of a boat hook when it pulls away from the dock helps to preserve the safety of the person using the boat hook. [Id. at ¶ 85]. When the F/V ALOSA's take-out boom, its totes, and Ms. Hurwitz's boat hook began to swing away from her and back over the water on this particular occasion, Ms. Hurwitz failed to let go of the boat hook she had attached to the totes, which pulled her over the edge of the dock. [Id. at ¶ 80]. Ms. Hurwitz let go of the hook only when she knew she was falling. [Id. at ¶ 134]. Had Ms. Hurwitz let go of the boat hook earlier, the fall never would have happened. [Id. at ¶ 83]. Ms. Hurwitz had successfully unloaded the F/V ALOSA approximately 10-20 times previously. [Id. at ¶¶ 74-75].

The parties provide many more facts as they relate to Wildfish's training of its employees (and potential negligence) and Ms. Hurwitz's workers compensation claim against Wildfish, among other topics. Good and Wildfish also dispute the impact of the Massachusetts Workers Compensation Act, Mass. Gen. Laws ch. 152, §§ 1 et seq., and the Longshore and Harbor Workers Compensation Act, 33 U.S.C. §§ 901 et seq., on Good's ability to seek contribution and indemnification from Wildfish. The matter, however, can be resolved without reaching these issues. As explained below, the Court finds that Good did not breach a duty and cause Ms. Hurwitz's accident, and it limits its discussion accordingly.

II. LEGAL STANDARD

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). Summary judgment may be granted when the record, viewed in the light most favorable to the non-moving party, presents no “genuine issue of material fact,” and the moving party is entitled to judgment as a matter of law. Paul v. Murphy, 948 F.3d 42, 49 (1st Cir. 2020). The Court must consider (1) whether a factual dispute exists; (2) whether the factual dispute is “genuine,” such that a “reasonable fact-finder could return a verdict for the nonmoving party on the basis of the evidence”; and (3) whether a fact genuinely in dispute is material, such that it “might affect the outcome of the suit under the applicable substantive law.” Scott v. Sulzer Carbomedics, Inc., 141 F.Supp.2d 154, 170 (D. Mass. 2001); see also Napier v. F/V DEESIE, Inc., 454 F.3d 61, 66 (1st Cir. 2006). Courts must evaluate “the record and [draw] all reasonable inferences therefrom in the light most favorable to the non-moving parties.” Est. of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010) (citing Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 183-84 (1st Cir. 1999)). A non-moving party may “defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists.” Paul, 948 F.3d at 49 (citation omitted). “Where, as here, a district court rules simultaneously on cross-motions for summary judgment, it must view each motion, separately, through this prism,” and “may enter summary judgment only if the record, read in this manner, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Hevia, 602 F.3d at 40 (internal citations omitted).

III. DISCUSSION

Good filed his complaint for exoneration from or limitation of liability pursuant to 46 U.S.C. §§ 30501 et seq., formerly 46 U.S.C. §§ 181 et. seq., on December 13, 2019. [Dkt. 1]. When analyzing petitions for exoneration under 46 U.S.C. §§ 181 et. seq., the Court must first “determine whether negligence or unseaworthiness caused the accident.” Carr v. PMS Fishing Corp., 191 F.3d 1, 4 (1st Cir. 1999). The Court must then “determine whether the shipowner was privy to, or had knowledge of, the causative agent (whether negligence or unseaworthiness).” Id. Here, Ms. Hurwitz alleges negligence, not unseaworthiness. [Dkt. 21 at ¶ 5]. The initial burden of persuasion, which requires a preponderance of the evidence, is on the claimant-Ms. Hurwitz-and, if met, the burden shifts to the shipowner to “establish its lack of privity and knowledge.” Id. To establish negligence under general maritime law, the claimant must “demonstrate that there was a duty owed by the [defendant] to the [claimant], breach of that duty, injury sustained by [the claimant], and a causal connection between the [defendant's] conduct and the [claimant's] injury.'” Evans v. Nantucket Cmty. Sailing, Inc., 582 F.Supp.2d 121, 137 (D. Mass. 2008).

A “vessel may be liable to a longshore worker only when the vessel, whether acting jointly with the stevedore or individually, breached a duty it owed the injured worker.” Davis v. Portline Transportes Mar International, 16 F.3d 532, 540 (3d Cir. 1994). The parties define Good's duty differently. ...