Why Shipyard Accidents Do Not Qualify For Protection Under New York's Labor LawsIn Lee v. Astoria Generating Co., L.P., a recent decision that was handed down by New York's Court of Appeals, the plaintiff suffered serious personal injuries while he was working on an electrical turbine generator that his employer, the third party defendant, had been hired to overhaul. This generator was attached to a barge that was moored in the Gowanus Canal, where other than once a decade, it remained stationary. More specifically, the accident occurred when the plaintiff slipped and fell roughly 8' while going down a hatch that was located at the top of the 15' high housing that held the generator. Importantly, the plaintiff was not given any safety equipment to descend into the unit, in contravention of New York’s Labor Law §§240(1), 241(6) and 200. (For more on these statutory provisions, please see "Construction Accident Liability Under New York Law"). Or so it seemed to the plaintiff.
In this case, the owners and the plaintiff’s employer eventually moved for to dismiss the complaint, and asserted that plaintiff’s Labor Law strict liability claims were barred because the barge was as a “vessel” under 33 USC §905(b), which limits a third-party recovery to a negligence theory, and that the defendant owners, who lacked supervision and control, were not negligent.
The Appellate Division agreed with the plaintiff's argument that since the barge upon which the generator was stationed was permanently anchored, it should not be considered a "vessel" under the Longshoreman's Workers' Compensation Act. But that is not the end of the story. The Court of Appeals then reversed and dismissed the plaintiff's claim, holding that the plaintiff's claims were pre-empted, or barred, by LHWCA §905(b), which "permits an injured person covered under the Act to bring an action in negligence against a vessel, which “shall be exclusive of all remedies against the vessel except remedies available under this chapter.”