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FOULK v. DONJON MARINE CO.

May 12, 1997

LAYNE B. FOULK and MARJORIE E. FOULK, husband and wife, Plaintiffs,
v.
DONJON MARINE COMPANY, INC., Defendant and Third-Party Plaintiff, v. BREAKWATERS INTERNATIONAL, INC., Third-Party Defendant.



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 Following a commercial diving accident in which plaintiff Layne Foulk became injured, plaintiffs instituted this action sounding in negligence and the general maritime law. The original complaint named as defendants Breakwaters International, Inc. ("Breakwaters") and Donjon Marine Company, Inc. ("Donjon"), respectively, Mr. Foulk's employer and the owner of the barge from which Mr. Foulk was working at the time of the accident. Plaintiffs thereafter amended their complaint to name only Donjon as a defendant. Donjon responded by naming Breakwaters as a third-party defendant and later amended its third-party complaint pursuant to Federal Rule of Civil Procedure 14(c) to add a claim under the Jones Act, 46 U.S.C. § 688, against Breakwaters and in favor of plaintiffs.

 On April 9, 1997, this Court granted Breakwaters partial summary judgment finding that Mr. Foulk is not a seaman within the meaning of the Jones Act. Breakwaters now moves for summary judgment on the remainder of Donjon's third-party complaint and to amend the final pretrial order. Because Donjon's common-law indemnity claim is barred by the Longshore and Harbor Worker's Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950, the Court will grant Breakwaters' motion for summary judgment in part and dismiss that claim. Because Donjon's insurance procurement claim against Breakwaters might not fail for want of damages, the Court will deny Breakwaters' motion for summary judgment in part as to that claim. Because Breakwaters' proposed amendment to the final pretrial order would prove futile, the Court will deny Breakwaters' motion to amend the final pretrial order.

 I. BACKGROUND

 In 1993, the Borough of Avalon, New Jersey hired Breakwaters to install an artificial reef off its coast to prevent beach erosion. On May 13, 1993, Breakwaters contracted with Donjon to provide material barges, tugs, a floating crane barge, a barge crew, and a commercial dive crew for the project. Donjon agreed to maintain insurance coverage for the project, name Breakwaters as an additional insured on its relevant insurance policies, and supply Breakwaters with certificates of insurance certifying that it had obtained the required insurance. See Contract at 14-15, 27-28. Relatedly, Donjon agreed to include in each insurance policy a waiver of each insurer's rights of subrogation against both Donjon and Breakwaters. See id. at 14-15.

 Donjon duly complied with each of these terms. Donjon added Breakwaters as an additional insured to its existing general liability insurance policy and provided Breakwaters with proof of the addition. See Breakwaters' Exs. B, C. As requested, the policy also waived all rights of subrogation against Donjon and Breakwaters:

 
Notwithstanding anything to the contrary contained herein, Underwriters [The London Institute Companies ("London")] hereon waive all rights of subrogation whatsoever against each and every named Assured.

 London Policy at 51.

 On June 30, 1993, Donjon and Breakwaters modified their agreement over the telephone. Since Donjon's divers were non-union and Breakwaters needed to fulfill a union labor project requirement, the parties reversed part of the original arrangement such that Breakwaters rather than Donjon would supply the commercial dive crew. See Creter Dep. at 48-49; Witte Dep. at 62. According to Donjon, the parties also reversed part of the insurance arrangement: Breakwaters agreed to provide insurance covering the divers and name Donjon as an additional insured on its relevant insurance policy. Immediately following this conversation, Donjon sent a letter to Breakwaters confirming this modification:

 
We wish to confirm our telephone conversation of today's date at which time you advised that you would be supplying certain labor for this project. . . . We will also require evidence of insurance including seaman's risks with Donjon named as assured for any and all labor provided by you.

 Construction began on July 10, 1993 under Breakwaters' direction. Donjon's crane barge, the Farrell 256, was to install the artificial reef from the sea with the help of an underwater dive crew. Mr. Foulk and three other commercial divers were to assist in the placement of the artificial reef by spotting its location and unhooking pieces of the reef from the crane once they had been placed. For the duration of the project, the dive crew was to sleep ashore and report each morning to the Farrell 256 by motor launch. In addition to its use as a crane barge, the Farrell 256 was to serve as a dive station for the dive crew, holding air compressors, a communications box, and other diving equipment for the project.

 On the first day of construction, Breakwaters successfully installed three pieces of the artificial reef in this manner. To connect these to each other and to a pre-existing jetty, the barge crew re-rigged the crane with a "clamshell bucket," filled it with several tons of stone, and lowered it into the water near the jetty. Mr. Foulk swam over to the bucket and began to guide the stone drop when he found himself being pushed through the water towards the jetty. Before he could take evasive action, the clamshell bucket pinned Mr. Foulk against the jetty and severely injured him. Once freed, the Coast ...


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