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Foley v. National Navigation Co.

July 14, 2009

MICHAEL FOLEY, ET AL., PLAINTIFFS,
v.
NATIONAL NAVIGATION COMPANY, DEFENDANT.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION AND ORDER

Plaintiffs Michael Foley ("Foley") and Collette Foley ("Mrs. Foley") ( collectively "the Foleys)," residents of the Commonwealth of Pennsylvania, bring suit against Defendant National Navigation Company ("National Navigation"), a foreign company, located in Cairo, Egypt which qualifies as a "foreign state" under 28 U.S.C. § 1603.*fn1 Foley alleges that due to the carelessness and negligence of National Navigation he sustained serious injuries for which he seeks compensation for medical care and treatment, loss of earnings, benefits and earning capacity. Mrs. Foley claims loss of consortium, services, support, companionship and other losses she may suffer in the future as a result of National Navigation's alleged negligence and carelessness. Jointly, the Foleys claim losses of more than $100,000. All claims are governed by the 1972 Amendments to the Longshore and Harbor Workers' Compensation Act ("LHWCA").*fn2 Before the Court is National Navigation's Motion for Summary Judgment*fn3 and the Foley's Response.*fn4 For the reasons that follow, the Court will grant National Navigation's Motion for Summary Judgment.

I. FACTS AND PROCEDURAL HISTORY

A. The Injury

On or about June 9, 2006, Foley was an employee of Kinder Morgan Terminals ("Kinder Morgan"), a stevedore company.*fn5 He was part of the basic workforce.*fn6 He arrived for his shift at approximately 7 p.m. and participated in a nightly meeting where longshoremen received work assignments.*fn7 Although Foley does not remember the specific hatch number he was assigned to, Kinder Morgan's records indicate that it was "Hatch 2"*fn8 of the ship M.V. Wadi Alarish (the "Ship"), which is owned by National Navigation.*fn9 His duties that evening included discharging steel slabs, a task which he had performed before.*fn10 Somewhere between approximately 8 p.m. and 8:30 p.m., after hooking up a slab for discharge, Foley lost his footing, "stepped on nothing," and fell from the top of the steel slabs to the floor, resulting in fractures of the face, skull, left elbow, left wrist, pelvic bone, right hip, right wrist, left shoulder, right knee and ankle, in addition to later vision problems.*fn11 Neither the fact that Foley fell, nor the extent of his injuries is in dispute, and the facts are largely uncontested. The legal controversy presented hinges primarily on a determination of which party had the legal responsibility to provide light to the longshoremen.

B. The Chain of Command

The crew members of the Ship employed by National Navigation had no control over the operations of the stevedore company Kinder Morgan.*fn12 However, if the longshoremen employed by Kinder Morgan needed a change in the Ship's conditions, a specific chain of communication was in place to ensure that need was met.*fn13 If a longshoreman such as Foley had a concern about conditions in the hatch he would report it to the "lead man."*fn14 The lead man in Hatch 2 on the evening of the accident was Philip Blaine ("Blaine"). Once the lead man was aware of an issue, he was to report it to either a supervisor or "journeyman." Blaine's supervisor that evening was Tom Langle ("Langle").*fn15 It then became the supervisor's responsibility to communicate with the Ships's crew or officers regarding the action needed to address the issue.*fn16 The "lead" supervisor employed by Kinder Morgan that evening was Bruce Kelly ("Kelly").*fn17 The only member of the Ship's crew directly identified or deposed with respect to this action is Hatem Arrif Hahmoud Edris Hayoub ("Hayoub"), who was the third officer of the ship.*fn18 Kinder Morgan had a Terminal Operations Supervisor to overlook stevedore activities throughout the dock, including operations on other ships. Peter Gardzinki ("Gardzinski") was the Terminal Operations Supervisor on June 9, 2006.*fn19

C. The Chain of Communication About Lighting on June 9, 2006

June 9, 2006 was a clear and dry late spring day.*fn20 According to the U.S. Naval Observatory, sunset took place at 8:28 p.m. and civil twilight ended at 9:01 p.m.*fn21

Longshoremen working in Hatch 2 with Foley included Howard Wildey ("Wildey"), Mark Miller ("Miller"), and Keith Williams ("Williams"), with Blaine acting as the "lead man."

Foley, Wildly, Miller, Williams and Blaine boarded the ship shortly after a 7 p.m. meeting regularly held at the beginning of each nightshift. Also around 7 p.m., Gardzinski boarded the ship to "look at the two holds that we would be working that night, the stow of the cargo, make contact with the duty officer, okay, to make sure that there was lighting and preparations and to make sure the hatches were open."*fn22 It was still light out at the time, but Gardzinski was aware that preparations needed to be made to ensure that the longshoreman had appropriate lighting, although there was no set time when lighting was to be in place.*fn23 His impression was that the working conditions were safe.*fn24 Gardzinski made contact with the Ship's duty officer to discuss lighting needs, but did not know the name of the duty officer or make a record of the contact. He testified that the unnamed crew member was reluctant to provide four lights in the Hatch and only wanted to provide two.*fn25 After assessing the lighting situation and speaking with the duty officer, Gardzinski left the ship and returned to the terminal.

Meanwhile, Foley, Wildey, Miller, Williams and Blaine had begun their work for the evening, discharging steel slabs in Hatch 2. Foley alleges that when he started work at approximately 7:30 p.m. that "[i]t was dark, no lights" in the hatch.*fn26 Blaine testifies to the same.*fn27 Miller states that the lighting only became a problem as it got darker out, and Wildey also states that the lighting conditions changed for the worse after they started work.*fn28 All of the longshoremen working in Hatch 2 testify that they informed Blaine in his capacity as lead man that they needed more lighting and that he had passed on that information to his supervisor via radio more than once.*fn29 However, no one identified a specific time that any requests were made. Miller claims that the first call over the radio may have been made "half an hour, 45 minutes before [the accident], maybe an hour."*fn30

Blaine testified that he made at least four requests to his supervisor, Langle, over the radio telling him "that the lighting was poor in our hatch and we needed lights."*fn31 He communicated with Langle through radio channel two, which means that any supervisor tuned to that channel would have heard the request.*fn32 Langle informed Blaine that he was going to "take care of it."*fn33 While there were no lights directly in Hatch 2, the longshoremen were working with the glow of one artificial light, which was hanging from a crane in the area. Blaine stated that, "[t]hey're not bright enough to work under. They shouldn't -- that is basically for the crane operator to see kind of our vests down there, but we shouldn't be just working under that light at all."*fn34 Blaine further testified that he considered it dangerous to continue working, and reported as much to his supervisor Lange, who responded that "they were going to get lighting, and continue to keep working."*fn35

Kelly, who was the "lead," supervisor for Kinder Morgan that evening, though not the one Blaine reported to directly, also testified that there was one light near the hatch where Foley was working. He did not believe that the situation at the time of Foley's accident was dangerous enough to stop working, but moving toward that point. "It wasn't unsafe at the moment. It was progressing, you know, as you know it gets darker as the minutes go by. We had one light in the hold. The sky was still somewhat not bright, but, you know, it wasn't dark yet, so we felt we still had enough light to work under. But we were, I would say we were pretty much ...


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