Pacelli v. Vane Line Bunkering, Inc.

549 F.Supp.3d 306

Daniel PACELLI, Petitioner,

v.VANE LINE BUNKERING, INC., doing business as Vane Brothers, Respondent.

20 Civ. 9431 (JPC)

United States District Court, S.D. New York.

Signed July 16, 2021

Martin Phillip Skolnick, Martin P. Skolnick, Attorney At Law, Farmingdale, NJ, Scott Howard Bernstein, Skolnick Legal Group, P.C., Roseland, NJ, for Petitioner.

OPINION AND ORDER

JOHN P. CRONAN, United States District Judge:

Daniel Pacelli won an arbitration award against Vane Line Bunkering, Inc. (referred to as "Vane Brothers," the name under which the company does business) for injuries he sustained while working on a barge in New York Harbor. While the arbitrator concluded that the total award was nearly $1 million, he determined that Vane Brothers was responsible for only 30% of it because Pacelli was contributorily negligent.

Before the Court is Pacelli's petition to vacate this arbitration award. In the event that the Court declines to do so, Pacelli asks the Court to confirm the award he received (i.e. , the 30% that Vane Brothers must cover), which equals $296,025. Vane Brothers opposes vacatur but does not oppose confirmation of the award. For the reasons stated below, the Court denies Pacelli's petition to vacate the award and grants Pacelli's petition to confirm the award.

I. Background

A. Underlying Facts

The following facts are undisputed and are taken from the Petition to Vacate Arbitration Award, Dkt. 1 (the "Petition" or "Pet."), and the arbitrator's Final Award, Dkt. 6 ("Skolnick Declaration" or "Skolnick Decl."), Exh. A ("Award").

Pacelli worked as a tankerman for Vane Brothers, a company that "owned and operated barge and tugboat fleets in various parts of the country." Pet. ¶ 6; see Award at 3. In March 2017, he was working on a barge in New York Harbor. Pet. ¶ 7; Award at 4. The barge was scheduled to deliver fuel and oil to another ship on the morning of March 15, 2017. Award at 4.

On March 14, 2017, a nor'easter struck, which caused the harbor to shut down due to "frigid conditions." Id. at 5; see also Pet. ¶ 9. Pacelli worked the early morning shift that day from midnight to 6:00 a.m. Award at 5; see also Pet. ¶ 8. His boss, the barge's captain, Michael J. Mikus, told Pacelli, "they want to get as much product onboard before the blizzard hits." Pet. ¶ 10; Award at 5. When Pacelli pointed out that it had already started snowing, Captain Mikus responded, "Danny, I'm sorry. I don't know what to tell you." Pet. ¶ 10; Award at 5. Captain Mikus went to his room and shut the door. Pet. ¶ 10; Award at 5. Pacelli then filled the cargo tanks with 24,000 barrels of fuel and oil. Pet. ¶ 11; Award at 5. He finished his shift and went to sleep at 6:00 a.m. Pet. ¶ 11; Award at 5.

Pacelli returned to work at noon. Pet. ¶¶ 8, 12; Award at 5. At 12:20 p.m., the barge received word that it would be transported to a terminal at 6:00 a.m. the following morning to deliver the fuel and oil that Pacelli had loaded. Pet. ¶ 12. Captain Mikus and Pacelli shoveled snow on the barge that afternoon in order to make paths for a crew that was scheduled to arrive to transport the barge the next day. Id. ; Award at 5. Pacelli finished his shift at 6:00 p.m. and went to bed. Pet. ¶ 12; Award at 5.

He started his next shift at midnight on March 15, 2017. Pet. ¶ 15; Award at 5-6. Because this shift was his last before a two-week break, Pacelli spent the first few hours performing "basic cleanup" to prepare the barge for the new crew. Pet. ¶ 15; Award at 6. At 3:00 a.m., Pacelli went to throw his dirty mop water over the side of the barge, but noticed that the deck had "turned into a sheet of ice." Pet. ¶ 16; Award at 6. Pacelli anticipated that the lower deck's mooring lines, which were used to tie the barge to the dock, would have to be untied before the barge's departure a few hours later. Pet. ¶ 16. He thus decided to spread salt on the upper and lower decks in an effort to remove the ice. See id. ; Award at 6.

A tugboat was positioned alongside the barge, in the ship's "notch." Pet. ¶ 17; Award at 6. Before placing salt on the decks, Pacelli attempted to get the attention of someone in the tugboat, but was unsuccessful. Pet. ¶ 17; Award at 6. He considered climbing into the tugboat to see if one of the crew members could help him salt the decks, but decided to do it himself. Pet. ¶ 17; Award at 6-7. He also did not wake Captain Mikus or wait for the new crew to arrive to assist him. Award at 7.

Pacelli retrieved several 50-pound bags of salt, poured the salt into a bucket, and spread the salt across the upper deck. Pet. ¶ 18; Award at 7-8. Salting the upper deck was easy because it was very wide. See Pet. ¶ 18; Award at 8. The lower deck, on the other hand, was much narrower, which made for a trickier task. See Pet. ¶ 18; Award at 8. According to Pacelli, the "best way" to salt the lower deck was to lean over the upper deck handrails and throw the salt onto the lower deck. Award at 8; see also Pet. ¶ 19. However, Pacelli could not use this method because he knew that the upper deck handrails needed maintenance. Pet. ¶ 19; Award at 8. He had previously told Captain Mikus that the cables affixing the handrails had broken, but Captain Mikus did not properly fix the problem or report it to anyone. Pet. ¶ 19; Award at 8-9. So Pacelli decided to go down to the lower deck to salt that area of the barge. Pet. ¶ 19; Award at 9.

While salting the lower deck, Pacelli kept his flashlight in his pocket. Pet. ¶ 20; Award at 9. At approximately 4:00 a.m., he slipped and landed on his left arm. Petition ¶ 21; Award at 10. The grab rails on the lower deck were not fully accessible because they were covered by mooring lines. Petition ¶ 20; Award at 9. As he fell, Pacelli grabbed the deck hatch to avoid falling overboard. Petition ¶ 21; Award at 10. As a result of this accident, Pacelli "tore the rotator cuff on both of his shoulders, tore a bicep tendon on one arm and partially tore a bicep tendon on the other arm, and sustained herniation of cervical disks in the neck." Pet. ¶ 22; see Award at 17-19.

B. Arbitration

Pacelli brought a JAMS arbitration action against Vane Brothers. See Award at 2. On August 23, 2017, JAMS informed the parties that Ariel E. Belen had been appointed as the arbitrator. Skolnick Decl., Exh. G. That same day, JAMS provided the parties with a disclosure report, which indicated that JAMS did not have any prior or pending cases involving the parties. Pacelli's counsel, or Pacelli's counsel's law firm. Id. , Exh. I. However, the report disclosed that JAMS had one open case involving Vane Brothers’ counsel and his law firm. Id. On March 13, 2019, JAMS informed the parties that Belen had been selected to serve as the arbitrator in another case involving Vane Brothers, its counsel, and its counsel's firm. Id. , Exh. J.

The arbitration hearing for Pacelli's case was held on September 23 and 24, 2019. See Award at 2. On December 5, 2019, the arbitrator sent a letter to the parties disclosing that he was an "owner panelist of JAMS" but had "never received a profit distribution of more than .1% of JAMS total revenue in a given year." Skolnick Decl., Exh. M. He said that he disclosed this in order "[t]o conform to recent case law." Id. The next day, JAMS sent the parties a document that disclosed that in the previous five years, JAMS had one open arbitration case, four closed arbitration cases, and one closed mediation with Vane Brothers; one open arbitration case and one closed arbitration case with Vane Brothers’ counsel; and one open arbitration case and six closed mediations with Vane Brothers’ counsel's law firm. Id. , Exh. N.

On January 8, 2020, after the submission of final post-hearing briefs, the arbitration was deemed closed. Pet. ¶ 35; see also Skolnick Decl., Exh. O at 12-13. According to Rule 24(a) of the JAMS Comprehensive Arbitration Rules & Procedures, the arbitrator was required to provide a final award within 30 days of this date. Skolnick Decl., Exh. O at 13. However, the arbitrator requested several extensions of this deadline, and all parties consented. See id. , Exhs. P-R. The arbitrator then scheduled oral argument to "seek clarity" on a few issues. Id. , Exh. S. At oral argument, the arbitrator stated he would issue a decision by June 30, 2020. Id. , Exh. FF. He sought several extensions of this deadline too, and no party objected. Id. , Exhs. HH-LL.

On August 14, 2020, the arbitrator issued the award. He determined that Pacelli was entitled to $986,750 based on the damages he sustained, and that Vane Brothers would be responsible for 30% of this. Award at 25. In reaching this decision, the arbitrator noted that Vane Brothers was negligent in several respects. First, he explained that Captain Mikus had "an obligation to ensure that the barge was safe and seaworthy and to protect his crew" and in light of the ice that had developed, "[h]e failed to do so." Id. at 12. Specifically, Captain Mikus did not hold a "Job Safety Analysis" meeting with Pacelli prior to the beginning of Pacelli's shift, as was required by Vane Brothers’ job safety manual. Id. at 12-13. Further, the arbitrator found that Captain Mikus acted negligently when he failed to repair the upper deck handrails after Pacelli told him about their defects. Id. at 14. And the broken handrails "clearly led to [Pacelli's] decision to go down to the lower deck to spread salt." Id.

However, the arbitrator also found that "it was not a reasonable exercise of ordinary care for [Pacelli] to descend to the lower deck." Id. at 16. He explained that Pacelli "knew that the only thing that could prevent his slipping and falling and potentially drowning was a grab rail that was not reliable or accessible." Id. Further, the arbitrator noted that Pacelli could have asked for help in three ways: (1) "he could have called the tugboat that was in the notch of the barge to ask for assistance"; (2) "he could have gone back to the living quarters of the barge, woken up...