Wednesday, December 30, 2009

Longshore “Once a Decade"

The Gowanus Gas Turbines electric generation facility in Brooklyn. The site, located on navigable waters in the Gowanus Canal includes four barges that are each 80 feet wide by 200 feet long that collectively house eight individual gas turbine generating units. While stationed, the barges are afloat in the bay and connected to a power grid. Approximately once a decade, the barges are moved to drydock for maintenance. They are also capable of being moved for the purpose of providing electric power at other locations. Two of the barges had been so moved on at least one occasion.

In 2000, Astoria/Orion (The owner of the facility) hired defendant Elliott Turbomachinery, Co., Inc. to perform an overhaul of the turbines at the Gowanus facility. In 2001, plaintiff, a millwright employed by Elliott, injured his back while performing work on a turbine on barge number one at the facility.

The question became is the barge still a vessel - according to the court 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. Such floating structures (non-vessels) are permanently fixed or moored "to shore or resting on the ocean floor".

Here, the barge, located on navigable waters in the Gowanus Bay, is a vessel within the LHWCA. The barges 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). Thus the employee is entitled to Longshore Benefits.

Lee v. Astoria Generating Co., L.P.