No. 09-1567

IN THE

~mpr~m~ (gmtrt of ~ t~nit~i~| ~

JAMES D. LEE,

Petitioner,

ASTORIA GENERATING COMPANY, L.P., ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THENEW YORK COURT OF APPEALS

REPLY BRIEF

PAUL THOMAS HOFMANNHOFMANN & SCHWEITZER360 West 31 st StreetNew York, New York 10001(212) 465-8840paulhofmann@hofmannlawfirm.com

Counsel for Petitioner

COUNSEL PRESS(800) 274-3321 (800) 359-6859

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................iii

POINT I CONFLICT EXISTS AMONG THECIRCUITS ON WHAT IS THEPROPER TEST FOR VESSELSTATUS ...................................................1

POINT II THE COURT OF APPEALS ERREDIN FINDING MARITIMEJURISDICTION OVERPETITIONER’S TORT CLAIMAGAINST THE LAND-BASEDPOWER PLANT OWNER ....................3

POINT III RESPONDENTS IGNORE THESUPREME COURT’S DIRECTIVESON HOW TO DETERMINE VESSELSTATUS ...................................................9

POINT IV THE CAMMON CASE IS GOOD LAWAS THE MARITIME BUT LOCALDOCTRINE PROHIBITS FEDERALMARITIME LAW PREEMPTION OFSAFETY REGULATIONSPROTECTING NEW YORKCONSTRUCTION WORKERS .........11

ii

POINT V THE NEW YORK COURTSWRONGLY REFUSED TO APPLYSCINDIA TO THE PETITIONER’SCLAIMS .................................................13

CONCLUSION .............................................................14

ooo111

TABLE OF AUTHORITIES

Cases: Page(s)

Anaya v. Traylor Brothers, Inc.,478 F.3d 251 (5th Cir. 2007) ....................................3, 4

Belle of Orleans,535 F.3d 1299 (11th Cir. 2008) ................................1, 2

Cammon v. City of New York,95 N.Y.2d 583 (2000), rearg, denied,96 N.Y.2d 793 (2001) .......................................10, 11, 12

Cooley v. Board of Port Wardens,53 U.S. (12 How.) 299 (1852) .....................................13

Cope v. Vallette Dry-Dock Co.,119 U.S. 625 (1887) .....................................................10

De La Rosa v. St. Charles Gaming Co.,474 F.3d 185 (5th Cir. 2006) ....................................1, 2

Director, OWCP v. Perini North River Associates,459 U.S. 297 (1983) .......................................................3

Evansville & Bowling Green Packet Co. v.Chero Cola Bottling Co.,271 U.S. 19 (1926) ................................................1, 9-10

Foster v. Peddicord,826 F.2d 1370 (4th Cir. 1987), cert. denied,484 U.S. 1027 (1988) ....................................................7

Grant Smith-Porter Ship Co. v. Rohde,257 U.S. 469 (1922) ...............................................11, 12

H20 Houseboat Vacations, Inc. v. Hernandez,103 F.3d 914 (9th Cir. 1996) ........................................7

Howard v. S. Ill. Riverboat Casino Cr,~ises, Inc.,364 F.3d 854 (7th Cir. 2004) ........................................1

Huron Portland Cement Co. v. City oJ’Detroit,362 U.S. 440 (1960) .....................................................13

In Re: Katrina Canal Breaches Litigation,324 Fed. Appx. 370, 2009 U.S. App. Lexis 9342(5th Cir. 2009) ................................................................8

Jerome B. Grubart, Inc. v.Great Lakes Dredge & Dock Co.,513 U.S. 527 (1995) ............................................passim

Kathriner v. Unisea, Inc.,975 F.2d 657 (9th Cir. 1992) ......................................10

Kernan v. American Dredging Co.,355 U.S. 426 (1958) .....................................................11

Pavone v. Mississippi Riverboat Amusement Corp.,52 F.3d 560 (5th Cir 1995) ................................. 1, 2, 10

Robins Dry Dock and Repair Co. v. D~hl,266 U.S. 449 (1925) .....................................................12

Roper v. United States,368 U.S. 20 (1961) .......................................................10

V

Scindia Steam Navigation Co. v. De Los Santos,451 U.S. 156 (1981) ...............................................12, 13

Sisson v. Ruby,497 U.S. 358 (1990) ...................................................7, 9

Stewart v. Dutra Construction,543 U.S. 481 (2005) ...............................................1, 2, 9

Texaco Exploration & Prod. v.Amclyde Engineered Prods.,448 F.3d 760 (5th Cir. 2006) ........................................8

Victory Carriers v. Law,404 U.S. 202 (1972) .......................................................5

Watson v. Indiana Gaming Co., Inc.,337 F. Supp. 2d 951 (E.D. Ky. 2004) ......................5, 6

West v. United States,361 U.S. 118 (1959) .....................................................10

Yamaha Motor Corporation v. Calhoun,516 U.S. 199 (1996) .....................................................12

Statutes:

1 U.S.C. § 3 ..........................................................................1

33 U.S.C. § 901 ....................................................................4

33 U.S.C. § 905(b) .........................................................3, 11

Labor Law § 240 ...............................................................12

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Preliminarily, respondents concede that thestructure involved here has not moved for 41 years,except for painting of its steel bottom in a dry dockabout once a decade. Since painting cannot be doneunder water, the hull has to be floated to and placed ina dry dock. That movement does not constitutenavigation in any true sense. Evansville & BowlingGreen Packet Co. v. Chero Cola Bottling Co., 271 U.S.19 (1926) (structure not vessel in navigationregardless of fact each winter boat was towed to aprotected harbor). This strongly suggests thestructure here is not a vessel in navigation.

POINT I CONFLICTCIRCUITSPROPERSTATUS

EXISTS AMONG THEON WHAT IS THE

TEST FOR VESSEL

Respondents recognize that there is a conflictamong the various Circuits on the issue of whatconstitutes a vessel when that structure is essentiallypermanently moored and is servicing a land-basedcommercial enterprise. Cf. Belle of Orleans, 535 F.3d1299 (llth Cir. 2008), Pavone v Mississippi RiverboatAmusement Corp., 52 F.3d 560, 570 (5th Cir 1995), DeLa Rosa v St. Charles Gaming Co., 474 F.3d 185 (5thCir 2006) and Howard v. S. Ill. Riverboat CasinoCruises, Inc., 364 F.3d 854 (7th Cir. 2004).

Respondents suggest the conflict is irrelevantbecause casino boats should be considered sui generisfrom other floating structures. However, 1 U.S.C. § 3makes no distinction for casino boats, so their status,like all other structures, is ruled by the SupremeCourt’s Stewart decision, and others, which need

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clarification for determining which structures shall beconsidered to be vessels in navigation or simply land-based structures. Resolving that conflict by a grant ofcertiorari is important because the energy barge inissue, using the general contours of the De La Rosaand Pavone analysis, would fail the test for a vessel innavigation, while applying the Bdle of Orleansanalysis might lead to a different result. Since thecasino boat cases informed the reasorLing of Stewart v.Dutra Construction, 543 U.S. 481 (2005) (referencingPavone) and the Appellate Division decision (citingPavone and De La Rosa) resolution of the conflict inthe casino boat cases is relevant.

The Maritime Law Associatior~ ("MLA") also isof the opinion, as stated in its motion seeking tosubmit an amicus brief, that a significant conflictexists among the Circuits.1

1 MLA defines the primary quesl;ion to be whetheran owner’s intention for the structure’s use should beconsidered as a factor in determini~g vessel status.Petitioner asserts that this is insufficient, and contendsthat the extent of use of the vessel as a means of maritimetransportation in the past, as well as proposed, are alsorelevant.

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POINT II THE COURT OF APPEALS ERRED INFINDING MARITIME JURISDICTIONOVER PETITIONER’S TORT CLAIMAGAINST THE LAND-BASED POWERPLANT OWNER

The Court of Appeals made reversible error ona significant issue of federal maritime law in findingthat petitioner’s claim against the power plant ownerwas covered by maritime law, not state law. If theCourt here agrees that maritime jurisdiction wasabsent, then state law applies to the claims, whichwould moot the issue because § 905(b) would not beinvolved.2

Anaya v. Traylor Brothers, Inc., 478 F.3d 251(5th Cir. 2007), cited by respondents, exemplifies thedistinction. That case did not involve a determinationof whether there was general maritime jurisdiction

2 Respondents confuse the statutory grant ofjurisdiction in LHWCA with the general maritime lawjurisdiction where they assert that petitioner takes aninconsistent position here by arguing that no maritimejurisdiction applies to his tort claim, even though heobtained LHWCA benefits. The jurisdictionalrequirements of each are different. Before the ALJ, inseeking LHWCA benefits, claimant contended that "[t]hesole issue here is whether Barge #1 was on navigablewaters at the time of the accident", a showing which wouldbring his compensation claim under the purview ofLHWCA, Director, OWCP v. Perini.North RiverAssociates, 459 U.S. 297 (1983). Petitioner never contendedthat the claim met other requirements to support generalmaritime law jurisdiction.

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under Jerome B. Grubart, Inc. v. Great Lakes Dredge& Dock Co., 513 U.S. 527, 534 (1995) but whetherthere was Longshore and Harbor Compensation Act,33 U.S.C. § 901 et seq. ("LI-IWCA") or state workerscompensation jurisdiction over an injured employee’sworkers compensation claim. Anaya, at 478 F.3d 254,explains:

To receive benefits under the LHWCA,a worker must satisfy both a situs andstatus test. The situs test concernsgeographic areas covered by theLWHCA, whereas the status testconcerns an employee’s type of workactivities. The situs test includ,es injuries"occurring upon the navigable waters ofthe United States (including anyadjoining pier, wharf, dry dock,terminal, building way, marine railway,or other adjoining area custom arily usedby an employer in loading, ~nloading,repairing, dismantling, or ~,uilding avessel)." The status test defines anemployee as "any person engaged inmaritime employment, including anylongshoreman or other person engagedin longshoring operations, and anyharborworker including a shiprepairman, shipbuilder, al~d ship-breaker." (citations omitted).

Under the general maritime law, although thesitus test is similar, that the injury occur on thenavigable waters, the status test is much different. AsGrubart explains, the status test under the general

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maritime law requires that the tort have a connectionto a maritime activity, 513 U.S. at 534, failing that,state law applies. Victory Carriers v. Law, 404 U.S.202 (1972).

Watson v. Indiana Gaming Co., Inc., 337 F.Supp. 2d 951 (E.D. Ky. 2004) explains:

The Supreme Court has held that aparty seeking to invoke federaladmiralty jurisdiction over a tort claimmust satisfy conditions both of locationand of connection with maritime activity.The "locality" prong requires that thealleged tort must have occurred onnavigable water... As to the second"connection" factor, the Court hasestablished a two-part inquiry. First, thecourt must assess the general featuresof the type of incident involved todetermine whether the incident has apotentially disruptive impact onmaritime commerce. Next, the courtmust examine the general conduct fromwhich the incident arose to determinewhether there is a "substantialrelationship" between the activity givingrise to the incident and traditionalmaritime activity. "If the tort producesno potential threat to maritimecommerce or occurs during activitylacking a substantial relationship totraditional maritime activity, Sissonassumes that the objectives of admiraltyjurisdiction probably do not require its

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exercise, even if the locatic.n test issatisfied." (citations omitted).

337 F. Supp. 2d 455.

io Maritime Jurisdiction is Absent BecauseNo Vessel In Navigation Involved, NorWas a Traditional Maritime ActivityInvolved

Respondents misleadingly describe the generalcharacteristics of the work Mr. Lee performed as vesselrepair, by analogizing it to installing ~, ship’s generatoror elevator. It was not. Mr. Lee was overhauling powerplant generators, that for convenience sake weresituated on floating platforms, he ~as not repairingvessel equipment. The turbines did not produce powerfor the barge. As respondents conceded below,"[p]laintiff’s work did not affect the stcuctural integrityof the barge, and his work on the turbine did not affect’an integral part of the barge’s structure"’.(Respondents’ Statement to the Court of Appeals).

As the Appellate Division noted:

Moreover, the turbine facili;y, whosesole purpose is to provide electricalpower to these neighborhoods, ispermanently moored, serves no ancillarymaritime purpose, and was noL intendedto operate as a vessel in navigation. Thefacility receives its utilities from shore,and as noted, provides power via linesthat run from the barge to the Con Edsubstation. The facility is not self-propelled, and was designed and

intended to be a power plant, not ameans of water transportation ormaritime commerce.

Appendix B, 31a.

Mr. Lee’s claim lacks maritime jurisdictionbecause it fails to fulfill the status requirement underthe Grubart/Sisson test for maritime jurisdiction.First, it fails the ’potentially disruptive impact’ threatposed to maritime commerce factor. That threat mustbe more than mere speculation, and must be tied insome part to the incident leading to the injury. H20Houseboat Vacations, Inc. v. Hernandez, 103 F.3d914, 917 (9th Cir. 1996). In the present case, nodisruption to maritime commerce reasonably could beexpected from a fall inside the exhaust well of theturbine, which is fully contained in the factorystructure above the platform. A worker injured insuch manner would walk or be carried off of theplatform via the boarding ramp leading to the pier,which has happened, or could have happened, for thepast 41 years.

Petitioner’s tort claim also fails the secondprong of the "status" requirement because what hewas doing at the time did not constitute a traditionalmaritime activity. Foster v. Peddicord, 826 F.2d 1370(4th Cir. 1987), cert denied, 484 U.S. 1027 (1988)(recreational swimming not a traditional maritimeactivity).

The Supreme Court states that the maritimeactivity test is fulfilled when "a tortfeasor’s activity,commercial or noncommercial, on navigable waters is

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so closely related to activity traditionally subject toadmiralty law that the reasons for applying specialadmiralty rules would apply in the case at hand."Grubart, 513 U.S. at 539-40.

Instructive is Texaco Exploration & Prod. v.Amclyde Engineered Prods., 448 F.3d 760 (5th Cir.2006) where the court analyzed whether claims arisingfrom a construction accident were covered bymaritime law, when a component of a crane situatedon a barge failed, causing a load to fall and damage aplatform structure under construction in the Gulf ofMexico on what is considered in law "on land" becauseit was covered by the Outer Continental Shelf LandsAct, ("OCSLA"). The activities surrounding thedevelopment at the platform were covered by OCSLA,and looking at the general contour,,l of the work inprogress, the court held it was not covered bymaritime law.

Similarly, in In Re: Katrina Canal BreachesLitigation, 2009 U.S. App. Lexis 9342 (5th Cir. 2009),maritime jurisdiction was found laci.~ing over claimsthat a dredging company, through tile use of a bargemounted crane, had negligently cleared a canal whichfailed during Hurricane Katrina. The court found that"the improvement project implicated only local, land-based interests, and the connection, if any, toadmiralty law is ’~holly fortuitous"... To the extentthat Defendants’ dredging implicates connection tomaritime law, that connection is overshadowedgreatly by the canal project’s connection to the localinterest of drainage and flood-preven~ion." Id. at *26.

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In sum, Elliot’s renovation of Orion’s turbinesdid not constitute an activity bearing a substantialrelationship to a traditional maritime activity. Itsimply was a construction project, renovatingturbines, performed for the benefit of a land-basedenterprise, the electric grid network distribution plantwhich supplied electric power to Queens andBrooklyn. There was nothing ’maritime’ about theoperation of that facility, or the work plaintiffperformed. The turbines were removed from theBrooklyn site and sent to a factory in Pennsylvania forrefurbishing. The turbine for the energy plant wasbeing overhauled, not the floating platform uponwhich it fortuitously was located. Accordingly, bothelements of the "maritime activity" prong of theGrubart/Sisson test are lacking here, in addition tothe failure to fulfill the maritime location/situsrequirement (because the structure did not constitutea vessel in navigation), accordingly, there is nomaritime jurisdiction over this claim.

POINT III RESPONDENTS IGNORE THESUPREME COURT’S DIRECTIVESON HOW TO DETERMINE VESSELSTATUS

The Supreme Court’s decision in Stewartexplained how to apply the practically capable ofbeing used as a means of transportation test throughthe incorporated precedents to which it cited, and theprinciples for which those cases stand. There aresimilar characteristics between the structures in thosecases and the power plant involved here, whichsimilarities respondents ignore. See, Evansville &Bowling Green Packet Co. v. Chero Cola Bottling Co.,

10

271 U.S. 19 (1926) (floating wharfboat secured bycables to the shore and connected to onshore utilities’%vas not practically capable of being used as a meansof transportation"); Pavone v. Mississippi RiverboatAmusement Corp., 52 F.3d 560, 570 (5th Cir.1995)(floating casino was no longer a vessel where it’Was moored to the shore in a se~ni-permanent orindefinite manner"); Cope v. Vallette Dry-Dock Co.,119 U.S. 625 (1887) (floating drydock, which duringnormal use would be sunk then raised up under a craftto lift it out of the water to be repafi.~ed, was a "fLxedstructure" that had been "permanently moored" tothe mainland by chains and spars, rather than being avessel that had been temporarily anchored),Kathriner v. Unisea, Inc., 975 F.2d 657 (9th Cir. 1992)(former ship turned into floating fish processing plantnot practicably capable of transpo~:tation over thewater and thus no longer a vessel in navigation); Westv. United States, 361 U.S. 118 (1959) and Roper v.United States, 368 U.S. 20 (1961) (mothballed Libertyships not vessels in navigation where one was in midstof being transported to repair yard to be reactivatedand the other was being used as a floating grainstorage elevator). Respondents simply cannotdistinguish those cases from the present one.

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POINT IV THE CAMMON CASE IS GOOD LAWAS THE MARITIME BUT LOCALDOCTRINE PROHIBITS FEDERALMARITIME LAW PREEMPTION OFSAFETY REGULATIONS PROTECTINGNEW YORK CONSTRUCTIONWORKERS

Elliot asks this court to consider reviewing aprior case of the New York Court of Appeals,Cammon v. City of New York, 95 N.Y.2d 583 (2000),rearg, denied, 96 N.Y.2d 793 (2001). Obviouslyrespondent in this matter has no right to such areview, and has not cross-appealed so that requestmust be denied. However, of note, the Astoria/Oriondefendants concede the New York Court of Appeals"properly determined this case is distinguishable fromCammon v. City of New York (95 N.Y.2d 583 [2000],rearg, denied, 96 N.Y.2d 793 [2001])... inasmuch asCammon involved a claim against a landowner ratherthan a vessel owner, and did not involve a § 905(b)claim." For those reasons alone the request for thecourt to consider analyzing the Cammon case shouldbe outright denied.~

~ New York’s Labor Law claims are not equivalentto general maritime law unseaworthiness claims. They doplace upon contractors and property owners non-delegableduties, the violation of which creates a cause of action forstatutory violations analogous to that permitted bymaritime law. Kernan v. American Dredging Co., 355 U.S.426 (1958). Although Congress did away with the cause ofaction for unseaworthiness for those asserting vesselnegligence claims, it did not prohibit claims for negligence

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Mr. Lee asserts entitlement to benefit fromNew York’s construction protection laws, because hewas a construction worker working upon a land-basedcommercial enterprise. Respondents mis-rely onRobins Dry Dock and Repair Co. v. Dahl, 266 U.S.449 (1925), which held that an injured worker doingrepairs on a ship in navigation cou:[d not rely on apredecessor to New York Labor Law § 240 in issuehere. As stated, the current case dc,es not involve avessel in navigation, and as such, injury claims onstructures not constituting vessels i:a navigation arecovered by state law. Grant Smith-Porter Ship Co. v.Rohde, 257 U.S. 469 (1922).

Equally important the law has evolved from thetime of Rohde that state substanti~e law often willapply to a claim arising out of an inj~ry occurring onthe navigable waters where state in~erests outweighputative federal concerns. See, Yamaha MotorCorporation v. Calhoun, 516 U.S. 199 (1996) andJerome E. Grubart v. Great Lakes Dredge & Dock,513 U.S. 527 (1995), both of which informed thedecision in Cammon v. City of New York, 95 N.Y.2d583 (2000), which held that in maritime constructioninjury matters, New York’s Labor Law was notpreempted by federal maritime law, when the claimwas against a landowner, recognizing that the"maritime but local" doctrine permits significant stateregulation where matters of health and safety,traditional state areas of concern, are involved. Thisdeferral is longstanding and significant. See, e.g.

based on other sources of non-delegable duties ornegligence per se for violations of safety :laws.

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Cooley v. Board of Port Wardens, 53 U.S. (12 How.)299 (1852), Huron Portland Cement Co. v. City ofDetroit, 362 U.S. 440 (1960).

POINT V THE NEW YORK COURTSWRONGLY REFUSED TO APPLYSCINDIA TO THE PETITIONER’SCLAIMS

When petitioner appealed the motion court’sdecision not to apply Scindia4 to his negligence claim,the Appellate Division affirmed, as did the Court ofAppeals. Neither court reviewed petitioner’s claims inlight of Scindia’s rules. As a matter of maritime law, ifthe court finds LHWCA preempts the state lawclaims, this court should order the negligence claimsbe remanded for consideration as to the applicabilityof petitioner’s Scindia based arguments.

As Scindia recognized, custom, practice andstatutes could provide the duties to a maritime entityto intervene or act, but the New York courts ignoredthis court’s ruling on the issue. Petitioner claims thathe can rely on New York’s Labor Laws to provideboth the custom and statutory duty that was breachedby the barge’s owner. Thus, that portion of thedecision should be remanded, if the court finds that avessel in navigation was involved here.

4 Scindia Steam Navigation Co. v. De Los Santos,451 U.S. 156 (1981).

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CONCLUSION

For the reasons stated within the petition andin this reply brief, the Supreme Co’~rt should grantcertiorari in this matter, and ultimately reverse thejudgment of the New York Court of.4.ppeals.

Respectfully submitted,

PAUL THOMAS HOFMANNHOFMANN & SCHWEITZER360 West 31st StreetNew York, New York 10001(212) 465-8840paulhofmann@hofmannlawfirm.com

Counsel for Petitioner