Donjon Marine, Co., Inc. v. S.L.

Lipcon, Margulies, Alsina & Winkleman, P.A

April 13, 2015

Donjon Marine, Co., Inc. v. S.L.

Answer to Limitations Action

This case was filed by the owner of a vessel under a maritime rule that allows an owner to exonerate or limit their liability to the value of the vessel when an incident occurs on such vessel. The maritime attorneys at Lipcon, Margulies, Alsina & Winkleman, P.A. are experienced in defending such claims. In this case, Lipcon, Margulies, Alsina & Winkleman, P.A. filed an Answer and a Counterclaim against the owner.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-20980-CIV-ALTONAGA

Donjon Marine, Co., Inc.,
Petitioner/Counter-Defendant,

v.

S.L.,
Respondent/Counter-Claimant.

_______________________________________________/

CLAIMANT’S 1) ANSWER AND AFFIRMATIVE DEFENSES TOPETITIONER’S COMPLAINT FOR EXONERATION FROM OR LIMITATION OF LIABILITY, AND 2) COUNTERCLAIM AGAINST DONJON MARINE, CO., INC.

ANSWER

Respondent/Counter-Claimant (hereinafter “Claimant”), S.L., answers Petitioner/Counter-Defendant’s (hereinafter “Petitioner”) Complaint for Exoneration from or Limitation of Liability [D.E. 1] as follows:

  1. Admitted
  2. Admitted to the extent that the lawsuits and documents referenced in paragraph 2 were filed.
  3. Denied
  4. Admitted
  5. Admitted
  6. Admitted
  7. Without Knowledge and therefore denied.
  8. Admitted that on or about November 29, 2011, S.L. was working aboard the vessel when the vessel bumped into a barge, causing Claimant to fall down a flight of stairs adjacent to his work station and thereby caused significant, permanent injuries.
  9. Denied
  10. Denied
  11. Denied
  12. Denied
  13. Denied
  14. Without knowledge and therefore denied.
  15. Without knowledge and therefore denied.
  16. Denied
  17. Without knowledge and therefore denied.

AFFIRMATIVE DEFENSES

  1. Petitioner is not the owner of the vessel. As such, Petitioner is not entitled to Exoneration From or Limitation of Liability.
  2. Petitioner is not entitled to exoneration or limitation of liability because the privity or knowledge of the master of the vessel is deemed conclusively the privity of knowledge of the owner. At all times material, the master was with privity or knowledge of any and all negligent conditions and/or defects and/or unseaworthiness of the vessel(s) which may have caused or contributed to Claimant’s injuries. Furthermore, at all times material, the master was with privity or knowledge that he was operating the vessel in a negligent and/or grossly negligent manner.
  3. Petitioner is not entitled to exoneration or limitation of liability because the accident happened – and the losses, damages or injuries resulting therefrom were done, occasioned and incurred – with the privity or knowledge of Petitioner and/or its agents and/or employees and/or servants and/or apparent agents. At all times material, Petitioner could have and should have obtained the necessary information by reasonable inquiry or inspection.
  4. Petitioner is not entitled to exoneration or limitation of liability because the failure of equipment, and any and all resulting loss, damage and/or injury was done or occasioned and incurred with the privity or knowledge of Petitioner and/or its agents and/or employees and/or servants and/or apparent agents. At all times material, Petitioner could have and should have obtained the necessary information by reasonable inquiry or inspection.
  5. Petitioner is not entitled to exoneration or limitation of liability because Petitioner and/or its agents and/or employees and/or servants and/or apparent agents, are now and/or were at the time of the incident, with privity or knowledge of any and all negligent conditions and/or defects of the vessel(s) which may have caused or contributed to Claimant’s injuries. At all times material, Petitioner could have and should have obtained the necessary information by reasonably inquiry or inspection.
  6. Petitioner is not entitled to exoneration or limitation of liability because Petitioner’s negligence and/or the negligence of its agents, was the proximate cause of the Claimant’s injuries.
  7. Petitioner is not entitled to exoneration or limitation of liability because the accident and any and all damages, injuries and losses resulting from the incident were caused or contributed to by the fault, design, neglect, negligence, or want of due care by Petitioner and/or its agents and/or employees and/or servants and/or apparent agents.
  8. Petitioner is not entitled to exoneration or limitation of liability because Petitioner and/or its agents were negligent and/or grossly negligent, causing Claimant’s injuries.
  9. Petitioner is not entitled to exoneration or limitation of liability because it caused these injuries by intentionally and/or recklessly violating its own safety procedures.
  10. Petitioner is not entitled to exoneration or limitation of liability because the vessel was unseaworthy, and such conditions of unseaworthiness caused the incident in question.
  11. Petitioner is not entitled to exoneration or limitation of liability because the vessel was unsafe and unfit, causing the incident in question.
  12. Petitioner is not entitled to exoneration or limitation of liability because the vessel is an inherently defective and ultrahazardous vessel, causing the incident in question.
  13. Petitioner is not entitled to exoneration or limitation of liability because it failed to exercise a high degree of control and supervision so as to avoid the incident in question.
  14. Petitioner is not entitled to exoneration or limitation of liability because the incident occurred as a result of human error.
  15. The value of the limitation fund proposed by Petitioner is insufficient and inaccurate because the value of the subject vessel exceeds four hundred and ninety six thousand dollars ($496,000.00).
  16. Petitioner is not entitled to exoneration or limitation of liability because he failed to file a petition for exoneration or limitation of liability within 6 months of written notice of a claim.
  17. Petitioner is jointly and severally liable for the negligent acts of third parties who are not entitled to exoneration and/or limitation of liability.

CLAIMANT’S COUNTERCLAIM AGAINST PETITIONER

DONJON MARINE, CO., INC.

COMES NOW, Respondent/Counter-Claimant (hereinafter “Claimant”), S.L., and for his Counterclaim states as follows:

GENERAL ALLEGATIONS

  1. Claimant is a citizen of the State of Florida; Petitioner / Counter-Defendant (hereinafter “Petitioner”) is a foreign business corporation registered to do business in the State of New Jersey.
  2. Upon information and belief, the subject vessel’s home port is New York.
  3. This matter is brought under the Court’s diversity jurisdiction. The matter in controversy exceeds, exclusive of interest and costs, the sum specified by 28 U.S.C. § 1332. In the event diversity jurisdiction does not apply, then this matter is being brought under the admiralty and maritime jurisdiction of the court.
  4. Pursuant to Federal Rule of Civil Procedure 13, this claim is subject to this Court’s jurisdiction as a compulsory counterclaim to Petitioner’s Complaint for Exoneration from or Limitation of Liability.
  5. Pursuant to Federal Rule of Civil Procedure 13, this claim arises out of the same transaction and occurrence as does Petitioner’s Complaint for exoneration from or limitation of liability.
  6. Petitioner brought its action for Exoneration from or Limitation of Liability pursuant to the admiralty jurisdiction of this Court. Consequently, this Court also has jurisdiction over the Claimant’s claim.
  7. Petitioner, as owner of the subject vessel, at all times material hereto, personally or through an agent;
    1. Operated, conducted, engaged in or carried on a business venture in this state and/or county or had an office or agency in this state and/or county;
    2. Was engaged in substantial activity within this state;
    3. Operated vessels in the waters of this state;
    4. Committed one or more of the acts stated in Florida Statutes, Sections 48.081, 48.181 or 48.193;
  8. Venue is proper in the United States District Court for the Southern District of Florida where the Petitioner, has brought its claim for exoneration or limitation of liability.
  9. At all times material hereto, Petitioner owned and/or leased and/or controlled and/or operated and/or chartered the Paul Andrew, a 1968, 63’ tugboat, bearing USCG Official Number 517791.
  10. As exclusive owner and/or lessor of the Paul Andrew, Petitioner is in control of all the activities related to the vessel.
  11. On or about November 29, 2011, S.L. was working aboard the vessel when the vessel bumped into a barge, causing Claimant to fall down a flight of stairs adjacent to his work station and thereby caused significant, permanent injuries.

COUNT I

JONES ACT NEGLIGENCE

Claimant re-alleges, incorporates by reference, and adopts paragraphs one through eleven as though they were originally alleged herein and further alleges:

  1. On or about November 29, 2011, Claimant was employed by Petitioner as a seaman and was a member of the vessel, Paul Andrew’s The vessel was in navigable waters.
  2. It was the duty of Petitioner to provide Claimant with a reasonably safe place to work.
  3. On or about the above referenced date, Claimant was injured while aboard the vessel when it bumped into a barge, causing Claimant to fall down a flight of stairs adjacent to the work station he was at.
  4. Claimant’s injuries are due to the fault and negligence of Petitioner, and/or their agents, servants, and/or employees as follows:
    1. Seamen’s work takes place in isolated locations, without the site safety precautions available to workers in other industries; and/or
    2. Petitioner failed to use reasonable care to provide and maintain a reasonably safe place for Claimant to work, fit with proper and adequate machinery, crew and equipment; and/or
    3. Petitioner failed to promulgate and enforce reasonable rules and regulations to ensure the safety and health of the Claimant, while engaged in the course of his employment with Petitioner; and/or
    4. Failing to regularly and adequately inspect the area of Claimant’s fall for hazards; and/or
    5. Failing to regularly and adequately maintain the area of Claimant’s fall; and/or
    6. Failing to promulgate and/or enforce adequate policies and procedures for inspecting and/or maintaining the area of Claimant’s fall; and/or
    7. Failure to utilize adequate safety equipment in the area of Claimant’s fall to prevent him from falling down the stairs; and/or
    8. Failure to warn Claimant of the dangers of working in the area of his fall; and/or
    9. Failure to train Claimant to safely utilize the area he was working in a safe manner; and/or
    10. Failure to provide reasonably safe work station free of falling hazards; and/or
    11. Petitioner failed to provide adequate instruction, andor supervision to the Claimant andor Claimant’s fellow crew-members working with the Claimant andor material to the happening of the incidentaccident which is the basis of this action; and/or
    12. Petitioner failed to provide Claimant reasonable hours of employment so as to not overwork them to the point of not being physically fit to carry out their duties safely. Petitioner’s employees are overworked to the point of fatigue; and/or
    13. Petitioner failed to learn the common and well known principles of industrial ergonomics and to apply them to their industry; and/or
    14. Petitioner failed to use modern work methods and procedures and to employ modern material handling techniques in their industry; and/or
    15. Petitioner failed to properly train and supervise the Claimant and Claimant’s fellow crew members working with the Claimant andor incidental material to the incidentaccident which is the basis of this action, on how to safely accomplish the task they were assigned; and/or
    16. Petitioner failed to provide the Claimant andor Claimant’s fellow crew members working with the Claimant andor material to the incidentaccident which is the basis of this action with proper mechanical aids to be able to perform the job safely. Aids commonly available in other similar industries; and/or
    17. Petitioner failed to ascertain the cause of prior similar incidentsaccidents so as to take measures to prevent their re-occurrence, and more particularly Claimant’s incidentaccident; and/or
    18. Petitioner failed to follow sound management practices with the goal of providing Claimant a safe place to work; and/or
    19. Prior to Claimant’s accident Petitioner failed to investigate the hazards to Claimant and then take the necessary steps to eliminate those hazards, minimize those hazard or warn Claimant of the danger those hazard posed to the Claimant; and/or
    20. Petitioner failed to train its crewmembers in the safe operation of the M/V Paul Andrew, leading to Claimant’s fall; and/or
    21. Petitioner failed to adhere to the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996: with respect to the hours of work and rest as well as other standards such as ILO 147; and/or
    22. Petitioner failed to provide Claimant with enough sleeping time so as to cause Claimant and the other crew-members on the vessel the same physical and mental impairments as being drunk. These types of impairments have been documented in the Journal of Occupational and Environmental Medicine; 57:649-655 (October 2000); and/or
    23. Petitioner failed to properly manage Claimant ‘s medical care after Claimant was injured and up to the time when he was declared at maximum medical improvement; and/or
    24. The vessel or her master failed to warn crewmembers of the maneuvering and/or impending collision which caused Claimant to fall below deck; and/or
  5. Petitioner knew of the foregoing conditions causing Claimant’s incidentaccident and did not correct them, or the conditions existed for a sufficient length of time so that Petitioner, in the exercise of reasonable care, should have learned of them and corrected them.
  6. As a result of the negligence of Petitioner, the Claimant was injured about Claimant’s body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of Claimant’s injuries, suffered physical handicap, lost wages, income lost in the past, and his working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Claimant will suffer the losses and impairments in the future. In addition Claimant in the past and in the future has lost the fringe benefits that come with Claimant ‘s job, including but not limited to found, free food, free shelter, free medical care, free uniforms, vacation, and free airline tickets home and back.

WHEREFORE, Claimant demands all damages entitled by law and demands jury trial of all issues so triable.

COUNT II

UNSEAWORTHINESS

Claimant re-alleges, incorporates by reference and adopts paragraphs one through eleven as though they were originally alleged herein.

  1. On or about the previously stated date, Claimant was a seaman and a member of the crew of Petitioner’s vessel, which was in navigable waters.
  2. At all times material hereto, the vessel was owned, managed, operated andor controlled by Petitioner.
  3. Petitioner had the absolute non-delegable duty to provide Claimant with a seaworthy vessel.
  4. On or about the previously stated date the unseaworthiness of Petitioner’s vessel was a legal cause of injury and damage to the Claimant and was unsafe and unfit due to the conditions created by Petitioner as follows:
    1. Petitioner failed to use reasonable care to provide and maintain a reasonably safe place for Claimant to work, fit with proper and adequate machinery, crew and equipment; and/or
    2. Petitioner failed to promulgate and enforce reasonable rules and regulations to insure the safety and health of the Claimant, while engaged in the course of his employment with Petitioner; and/or
    3. Failing to regularly and adequately inspect the area of Claimant’s fall for hazards; and/or
    4. Failing to regularly and adequately maintain the area of Claimant’s fall; and/or
    5. Failing to promulgate and/or enforce adequate policies and procedures for inspecting and/or maintaining the area of Claimant’s fall; and/or
    6. Failure to utilize adequate safety equipment in the area of Claimant’s fall to prevent him from falling down the stairs; and/or
    7. Failure to warn Claimant of the dangers of working in the area of his fall; and/or
    8. Failure to train Claimant to safely utilize the area he was working in a safe manner; and/or
    9. Failure to provide reasonably safe work station free of falling hazards; and/or
    10. Petitioner failed to provide adequate instruction, andor supervision to the Claimant andor Claimant’s fellow crew-members working with the Claimant andor material to the happening of the incidentaccident which is the basis of this action; and/or
    11. Petitioner failed to provide Claimant reasonable hours of employment so as to not overwork them to the point of not being physically fit to carry out their duties safely. Petitioner’s employees are overworked to the point of fatigue; and/or
    12. Petitioner failed to learn the common and well known principles of industrial ergonomics and to apply them to their industry; and/or
    13. Petitioner failed to use modern work methods and procedures and to employ modern material handling techniques in their industry; and/or
    14. Petitioner failed to properly train and supervise the Claimant and Claimant’s fellow crew members working with the Claimant andor incidental material to the incidentaccident which is the basis of this action, on how to safely accomplish the task they were assigned; and/or
    15. Petitioner failed to provide the Claimant andor Claimant’s fellow crew members working with the Claimant andor material to the incidentaccident which is the basis of this action with proper mechanical aids to be able to perform the job safely. Aids commonly available in other similar industries; and/or
    16. Petitioner failed to ascertain the cause of prior similar incidentsaccidents so as to take measures to prevent their re-occurrence, and more particularly Claimant’s incidentaccident; and/or
    17. Petitioner failed to follow sound management practices with the goal of providing Claimant a safe place to work; and/or
    18. Prior to Claimant’s accident Petitioner failed to investigate the hazards to Claimant and then take the necessary steps to eliminate those hazards, minimize those hazard or warn Claimant of the danger those hazard posed to the Claimant; and/or
    19. Petitioner failed to train its crewmembers in the safe operation of the M/V Paul Andrew, leading to Claimant’s fall; and/or
    20. Petitioner failed to adhere to the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996: with respect to the hours of work and rest as well as other standards such as ILO 147; and/or
    21. Petitioner failed to provide Claimant with enough sleeping time so as to cause Claimant and the other crew-members on the vessel the same physical and mental impairments as being drunk. These types of impairments have been documented in the Journal of Occupational and Environmental Medicine; 57:649-655 (October 2000); and/or
    22. The vessel’s crew was not properly trained, instructed or supervised; and/or
    23. The vessel did not have a fit crew; and/or
    24. The crew and Claimant were overworked to the point of being exhausted and not physically fit to carry out their duties; and/or
    25. The vessel did not have an adequate number of crewmembers; and/or
    26. The vessel failed to utilize procedures aimed at notifying crewmembers of impending collisions and/or maneuvering so as to allow crewmembers the opportunity to brace themselves.
  5. As a result of the unseaworthiness of the vessel, the Claimant was injured about Claimant’s body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of Claimant’s injuries, suffered physical handicap, lost wages, income lost in the past, and Claimant’s working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Claimant will suffer the losses and impairments in the future. In addition Claimant in the past and in the future has lost the fringe benefits that come with Claimant’s job, including but not limited to found, free food, free shelter, free medical care, free uniforms, vacation, and free airline ticket home and back.

WHEREFORE, Claimant demands all damages entitled by law and demands jury trial of all issues so triable.

Respectfully submitted,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By:  /s/ Michael Winkleman                       
MICHAEL A. WINKLEMAN
Florida Bar No. 36719

CERTIFICATE OF SERVICE

I hereby certify that on April 13, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some electronically Notices of Electronic Filing.

LIPCON, MARGULIES,
ALSINA & WINKLEMAN P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 373-3016

By: /s/ Michael Winkleman   
MICHAEL A. WINKLEMAN
FL BAR NO. 36719