*Is a Non-Permanently Moored Barge a Vessel and Does 33 USC § 905(b) of the Longshore and Harbor Workers’ Compensation Act Preempts New York State Labor Law §§ 240(1) and 241(6) Claims

In Lee v. Astoria Generating**, decided November 23, 2009, in an opinion by Judge Jones the Court of Appeals was

“called upon to determine whether a barge containing an electricity generating turbine is a vessel under 33 USC § 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA) and whether that provision preempts New York State Labor Law §§ 240(1) and 241(6) claims. We hold that the barge is a vessel and plaintiff’s Labor Law §§ 240(1) and 241(6) claims are preempted.

Although the LHWCA does not define “vessel,” the United States Supreme Court has provided detailed guidance concerning the definition and characteristics of a vessel, holding that the statutory definition of the term in 1 USC § 3 is applicable in this context.

A “‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water” (Stewart v Dutra Construction Company, 543 US 481, 489 [2005], quoting 1 USC § 3). Structures temporarily stationed in a particular location maintain their status as vessels. However, floating structures that are “not practically capable of being used as a means of transportation” do not qualify as vessels (id. at 493 [internal quotation marks and citation omitted]). Such floating structures (non-vessels) are permanently fixed or moored “to shore or resting on the ocean floor” (id. at 493-494).
Here, the barge, located on navigable waters in the Gowanus Bay, is a vessel within the LHWCA. The barges owned by Astoria/Orion have been tugged on water approximately once a decade to a maintenance station and, at least once, to provide energy to another part of New York City in an emergency. Thus, the barge at issue is practically capable of being used as a means of transportation on water. Although the barge is stationed at the Gowanus facility, because it is not permanently anchored or moored, it has not lost its status as a vessel. Accordingly, the barge is a vessel under section 905(b).

The remaining issue is whether section 905(b) preempts plaintiff’s Labor Law §§ 240(1) and 241(6) claims. It is well recognized that the Supremacy Clause (U.S. Const., art VI, cl.2) “‘may entail pre-emption of state law either by express provision, by implication, or by a conflict between federal and state law'” (Balbuena v IDR Realty LLC, 6 NY3d 338, 356 [2006], quoting New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645, 654 [1995]). Congress’ intent to preempt “may be explicitly stated in the statute’s language or implicitly contained in its structure and purpose. In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law (Cipollone v Liggett Group, Inc., 505 US 504, 516 [1992]). State law will not “be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress” (New York State Conference of Blue Cross & Blue Shield Plans, 514 US at 655).

Here, the LHWCA clearly states in section 905(b) that an action in negligence may be brought against a vessel and that such remedy “shall be exclusive of all other remedies against the vessel except remedies available under this chapter” (33 USC § 905[b]). Congress clearly intends that actions maintained against a vessel be brought solely within the confines of the LHWCA and nowhere in the Act does it permit strict liability claims, as provided in Labor Law §§ 240(1) and 241(6). Therefore, section 905(b) of the LHWCA expressly preempts plaintiff’s Labor Law §§ 240(1) and 241(6) claims. … While it is true that Federal maritime law does not generally supersede state law (see Cammon, 95 NY2d at 587), in this case, where Congress explicitly limited claims against the vessel owner to that Federal Act, state law claims are preempted.”

Judge Ciparick dissented in an opinion in which Chief Judge Lippman concurred and voted to affirm the lower Court’s decision, permitting the Labor Law claims to survive and granting plaintiff partial summary judgment on the 240 (1) claim. After concluding that plaintiff did not have a cause of action for vessel negligence under maritime law, she wrote that,

“The plain language of section 905 (b) makes recovery under that section the “exclusive remedy” where an injured employee has a cause of action for vessel negligence (33 USC 905 [b]). However, where, as here, the injured employee has no cause of action for vessel negligence under maritime law, section 933 of the LHWCA expressly recognizes and preserves state law causes of actions against third parties, including vessel owners who are not also employers.”

**In the spirit of full disclosure, I must reveal that appellants counsel, Barbara Goldberg is a partner of a good friend of mine, Kenneth Mauro of Mauro Goldberg & Lilling LLP – Update – These appellants were also represented by my old office, known at the time as Robin, Schepp, Yuhas & Harris and handled by Brian Liferidge

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