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Dias v. TMS Seacod GmbH & Co., KG

United States District Court, D. Rhode Island

February 5, 2015

ANTHONY DIAS, Plaintiff,
v.
TMS SEACOD GmbH & CO., KG, GERMAN TANKER SHIPPING GmbH & CO. KG and T/V SEACOD, Defendants

For Anthony Dias, Plaintiff: Matthew Viveiros, LEAD ATTORNEY, Hunt & Viveiros, LLC, New Bedford, MA USA.

For T/V Seacod, Defendant: Thomas J. Muzyka, PRO HAC VICE, Clinton & Muzyka, P.C., Boston, MA USA.

For Tms Seacod Gmbh & Co., KG, Defendant: Kirby L. Aarsheim, Robert E. Collins, LEAD ATTORNEYS, Clinton & Muzyka, P.C., Boston, MA USA; Thomas J. Muzyka, PRO HAC VICE, Clinton & Muzyka, P.C., Boston, MA USA.

DECISION AND ORDER

Ronald R. Lagueux, Senior United States District Judge.

This case is before the Court on the Motion for Summary Judgment brought by Defendant TMS Seacod GmbH & Co., KG, to dismiss Count I of Plaintiff's Complaint. Plaintiff Anthony Dias was employed as an oil inspector and was injured when he slipped and fell while on shipboard inspecting petroleum cargo. Plaintiff alleges that his injuries resulted from Defendants' negligence. At the time of the accident, Plaintiff was engaged in maritime work as a harbor worker, and is consequently covered by the federal Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § § 901 et seq.

Defendant TMS Seacod GmbH & Co., KG, (" TMS Seacod" ) is the owner of the ocean-going tanker Defendant T/V Seacod. Plaintiff has not asserted in rem jurisdiction over the T/V Seacod. Consequently, Count III, stating a negligence claim against the T/V Seacod, is hereby dismissed. Count II, which asserted a claim for negligence against Defendant German Tanker Shipping GmbH & Co., KG, has been dismissed by joint stipulation of the parties. For reasons explained herein, the Court grants summary judgment in favor of Defendant TMS Seacod, thereby dismissing the only remaining count in the Complaint.

Background

At the time of this event, Plaintiff Anthony Dias was employed by Inspectorate America Corporation as an oil inspector, a position he had held since 1979. In this capacity, Plaintiff routinely boarded docked oil tankers to take samples of their petroleum cargos for laboratory analysis, and to inspect the cargo areas and other conditions on the tankers for regulatory compliance. In his deposition, Plaintiff testified that he inspected cargo on approximately 140 to 150 vessels a year.

On October 31, 2009, Plaintiff boarded the T/V Seacod (" the Tanker" ) in the early evening while it was docked at the ExxonMobil Terminal in East Providence, Rhode Island. It was raining as Plaintiff traversed the Tanker collecting samples from five cargo containers. On the way to the sixth container, Plaintiff slipped, falling forward as his legs went out from under him. In his deposition, Plaintiff described the moment, " And all of a sudden it seemed like I was on an ice skating pond. My feet started to go out from underneath me. I started falling forward." According to the Complaint, Plaintiff fell into the coaming, or raised frame, around the cargo hatch, dislocating his left shoulder and tearing his rotator cuff.

While Plaintiff was on board the Tanker, rain had collected in the channels formed on the deck by what he describes in his memorandum as the Tanker's " higher than normal ribs, rails or risers protruding from the surface of the vessels decking." Photographs of the Tanker supplied to the Court show a system of solid metal dividers, perhaps four feet high, running crosswise and dividing the Tanker's deck into open compartments, almost resembling office cubicles. The deck of these compartments is likewise ribbed with low metal risers, running in the opposite direction from the dividers and which appear to be approximately three to five inches high. The utility of this design is not apparent to this writer; however, it is clear that rainwater would likely be retained in these channels.

According to Plaintiff's Complaint, his accident was caused because:

...conditions aboard the vessel were such that the defendant, through its crewmembers for whose negligence the defendant is legally responsible, knew or should have known about and had a duty to rectify. The defendant negligently failed to rectify the defective condition which proximately caused the plaintiff to slip fall and sustain a dislocated shoulder and torn rotator cuff.

During his deposition, Plaintiff explained that he thought Defendant was at fault because the Tanker lacked both a non-skid surface and clearly-marked entrances to each tank. In his memorandum opposing summary judgment, Plaintiff expands his theory of liability to include the Tanker's unusually-high raised railings, which resulted in an excessive amount of standing water ...


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