Vargas v. APL Ltd.

590 F.Supp.3d 478

Wilfredo VARGAS and Amanda Coluccio Vargas, Plaintiffs,

v.APL LIMITED, American President Lines, Ltd., APL Maritime Ltd., APL Marine Services, Ltd., Osprey Shipmanagement Inc., Neptune Orient Lines Ltd., NOL Liner (PTE) Ltd., Wilmington Trust Company, as Owner Trustee for the Benefit of NOL Liner (PTE) Ltd., and the M/V APL PEARL, her engines, gear, tackle and cargo, in rem, Defendants.

APL Limited, American President Lines, Ltd., APL Marine Services, Ltd., Neptune Orient Lines Ltd., NOL Liner (PTE) Ltd., Wilmington Trust Company, Third-Party Plaintiffs,

v.Maher Terminals LLC, Third-Party Defendant.

15-CV-6981 (ILG) (RML)

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

Signed March 10, 2022

Filed March 11, 2022

Jacob Shisha, Tabak, Mellusi & Shisha, New York, NY, for Plaintiffs.

Daniel Joseph Fitzgerald, Yaakov U. Adler, Freehill, Hogan & Mahar LLP, New York, NY, for Defendants/Third-Party Plaintiffs.

Gino Zonghetti, Kenneth B. Danielsen, Kaufman, Dolowich & Voluck, LLP, Hackensack, NJ, for Third-Party Defendant.

MEMORANDUM AND ORDER

GLASSER, Senior United States District Judge:

Plaintiffs, Wilfredo Vargas ("Wilfredo" or "Vargas") and his wife Amanda Coluccio Vargas, commenced this action pursuant to the Longshoreman's Harbor Workers Compensation Act, 33 U.S.C. § 905(b), for damages arising from an injury that Vargas sustained while performing work as a lasher aboard the MV APL PEARL while the ship was berthed at a marine terminal in Elizabeth, New Jersey. See Compl. [ECF No. 1]. Defendants APL Limited, American President Lines, Ltd., APL Marine Services, Ltd., Neptune Orient Lines Ltd., NOL Liner (PTE) Ltd., and Wilmington Trust Company (collectively, "Defendants") filed a third-party complaint pursuant to Fed. R. Civ. P. 14(c) seeking contractual indemnification or contribution from Maher Terminals LLC ("Maher"), a marine terminal operator that was contracted to provide services to the APL PEARL while it was berthed. Third-Party Compl. [ECF No. 12], at 5.

The Court previously granted in part and denied in part a motion for summary judgment brought by certain of the named Defendants. Vargas v. APL Ltd. , 431 F. Supp. 3d 82 (E.D.N.Y. 2019). Third-party defendant Maher now moves for summary judgment on Defendants’ indemnification and contribution claims. [ECF No. 46]. For the following reasons, the motion is GRANTED .

BACKGROUND ¹

I. Stevedoring and Terminal Services Agreement

Maher is a stevedoring company that provides stevedoring and terminal services to different shipping companies. On or about May 16, 2011, Maher entered into a Stevedoring and Terminal Services Agreement [ECF No. 46-11] (the "Agreement") with American President Lines, Ltd. and APL Co. Pte. Ltd. to provide stevedoring and terminal services to their vessels while the vessels were berthed at Maher's marine terminal. The Agreement requires Maher to provide "all necessary employees, labor, supervision, watchmen service, necessary electrical power supply system connected to public power source, normal cargo handling equipment, machinery and repair capabilities to perform terminal and vessel services" that were "contemplated under the Agreement." Agreement § 2.A. The Agreement foresaw the possibility that Maher would use subcontractors to provide the services it was required to provide. Id. § 1.C.

Maher argues that, although the Agreement provides for indemnification obligations in certain circumstances, it does not require indemnification of the Defendants for the injury that Vargas has alleged. Mem. of Law in Supp. of Third-Party Def. Maher Terminals, LLC's Mot. for Summ. J. [ECF No. 46-14], at 3-4 (citing Agreement §§ 7.M, 8.E, 9.C, and Clause 9.5 of Schedule B). Defendants, on the other hand, argue that the Agreement does contain an indemnification provision that is applicable to this case, pointing to subparagraph H of Section 8. Mem. of Law in Opp'n to Mot. for Summ. J. [ECF No. 49], at 3. That provision provides as follows:

CONTRACTOR and CARRIER agree to use reasonable efforts to give prompt notice to one another of any loss, damage, injury, death, delay or other incident that may give rise to a claim under this Agreement, as soon as it is reasonably practicable to do so under the circumstances. However, failure to give such notice shall in no way bar any subsequent claim of CONTRACTOR or CARRIER for damages, indemnity, contribution or otherwise. The Parties shall reasonably cooperate in exchanging information and evidence as may be required in the defense of cases filed by third party plaintiffs.

Agreement § 8.H.

II. Normal Operating Procedures for Lashing Onboard a Vessel

The APL Pearl is a container vessel, meaning the only thing it carries is containers. Once containers are stored inside the hull of the ship, hatches on the top of the deck are closed and additional containers are stacked above the hatches, up to six high. Those containers are held in place with twist locks.² In addition to the twist locks, the bottom three layers of containers are held in place with metal rods which are tightened with turnbuckles called "lashings."

When a vessel comes into Maher Terminals’ port, lashings must be taken off the containers so that they can be removed. Once the lashings are removed, Maher's cranes will remove the containers from the vessel. The cranes then load new containers on board, requiring the lashers to come back and secure those containers. Maher and its employees, however, do not do any lashings. Rather, Maher subcontracts its lashing work to subcontractors, such as American Maritime Services ("AMS"), the company that employed Vargas. Maher has used AMS as a lashing subcontractor for many years.

Maher does not supervise the lashers. According to Maher's Director of Operations, Larry Monaco, AMS’ lashers are not Maher's employees but are professionals who "know what to do" so "day-to-day supervision of AMS" by Maher is "not necessary." Dep. Tr. of Larry Monaco at 30:7-12. Rather, Mr. Monaco explained that Maher deals directly with the AMS lashing foreman, who in turn supervises the lashers. Id. at 30:1-2. Prior to starting work, the lashing foreman meets with the lashers and gives them their orders. The foreman assigns lashers to a particular location on the ship and instructs them as to the work that needs to be done. Maher does not monitor or control the number of hours the lashers work or monitor their work performance. If Maher is alerted to a problem, it will refer it to the foreman. Id. at 111:12-14. Vargas knows nothing about Maher. Vargas testified that he does not know any Maher employees, never reported his accident to Maher, and does not know if Maher was aware of his accident.

Maher does not provide lashers with any equipment. It is AMS’ obligation to provide its employees with the equipment they need to do their job. Lashers were required to apply to their foreman for any equipment they might need and not to the ship's officers. Protocol discourages those officers from interacting or interfering with the lasher's work.

III. Vargas’ Alleged Injury

Prior to his injury, Vargas lashed an average of four to five ships a week, working on well-over over 200 ships over the course of two years. Vargas considered himself to be an experienced lasher. Thomas Larkin, the chief mate on board the APL PEARL, stated that he had no evidence that AMS’ lashers, including Vargas, were not competent. Dep. Tr. of Thomas Larkin at 131:13-132:4.

According to Vargas’ testimony, on the date of his accident, a mate on the APL PEARL directed him to lash the most forward, outboard container that was located on top of a pedestal. Vargas replied that he could not reach that position, but the mate again directed him to get it done. When Vargas asked how he was to reach that container, the mate obtained a ladder and handed it to him. Although Vargas could have obtained assistance from another lasher or the foreman, he did not; he also did not inspect the ladder prior to using it. Vargas testified that he leaned the ladder against the steel wall and began climbing it. About three-quarters of the way up, the ladder slipped out from under him, causing him to fall and be injured.

Defendants’ experts concluded that Vargas’ injury was caused by his own negligence in failing to ensure the ladder was properly inspected and secured before using it, as well as by failing to request assistance and safety equipment. The experts also placed blame with AMS for failing to properly train Vargas and failing to provide him with the equipment he needed to complete his work safely. Plaintiff's expert, on the other hand, concluded that the fault lies with the APL PEARL for requiring Vargas to access a container located on top of a pedestal through a ladder without the supervision or assistance of the crew's mate, failing to make sure that the ladder was properly secured, and failing to provide safety equipment.

ANALYSIS

I. Summary Judgment Standard

Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is material if it might affect the outcome of the case under governing law." Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of N.Y. , 822 F.3d 620, 631 n. 12 (2d Cir. 2016) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "A dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Id. (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). "In making this determination, the Court ‘must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ " Id. (quoting Beyer v. County of Nassau , 524 F.3d 160, 163 (2d Cir. 2008) ); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, ...