Background:
Plaintiff, James D. Lee ("Lee") was awarded benefits under the Longeshore Harbor Worker's Compensation Act (LHWCA) as a result of injuries sustained while working for defendant Astoria Generating Company (Astoria).

Third party defendant, Elliot Turbomachinery Co. (Elliot) was hired by Astoria to perform maintenance and rebuild turbines at an electric generation facility composed of four barges that house eight individual gas turbine generating engines.

While stationed, the barges float and are connected to a power grid, these barges are moved periodically for maintenance.

Lee employed by one of the defendants injured his back while performing work on a turbine aboard a barge. He was ordered, according to the plaintiff, by a supervisor to enter the turbine's exhause well through a hatch to perform welding. While ascending a ladder to reach his work area his feet slipped and he fell eight feet to the base of the ladder, injuring his back.  

Lee was awarded benefits under LHWCA and commenced this state court action against Astoria asserting labor law claims and common law negligence claim.

Defendants filed a third-party complaint against Elliot seeking indemnification.  Elliot moved for summary judgment asserting that §905 of the LHWCA precluded lawsuits against it as an employer of the injured worker and Lee's state law claims were preempted under §905.

The barge-owners also filed claim asserting that Lee's claims were preempted. Lee argued that the claims were not preempted because the barge did not constitute a vessel and maritime jurisdiction did not apply.

The Supreme Court of NY granted summary judgment concluding that the LHWCA preempted state law claims and adopted the Department of Labor's determination that plaintiff is a covered employee under LHWCA and concluded that the barge is a vessel under recent federal case law.

The Appellate Division "reversed" the Supreme Court order reinstating the state law claim holding the barge was not a vessel and even if it were, maritime jurisdiction did not preempt the claims.

Defendants appealed.

Issue:
Are plaintiff's state law claims preempted by the LHWCA and is the barge a vessel?

Held:
This Court recognized that a "vessel" included every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. Floating structures not practically capable of being used as a means of transportation do not qualify as vessels. This Court found that the barge was a "vessel". Astoria moved it once every 10 years to a maintenance station, and at least once to provide energy to another part of NY. Therefore, it was capable of being used as a means of transportation on water.

This Court also stated that LHWCA, §905(b), allows actions in negligence against a vessel. This action is "exclusive of all other remedies against the vessel except remedies available under this chapter". Therefore, this Court preempted Lee's Lee's state law claims.

Comment:
Section 905(b) of the LHWCA provides a longshore worker the exclusive means in which he may recover for vessel negligence. That is, a plaintiff may not bring an action under 905(b) and then for vessel unseaworthiness under general maritime law.

The plaintiff may, however, elect to recover under an unseaworthiness claim, but cannot recover under the LHWCA.

Steve Gordon