Plaintiff fails to offer factual allegations that establish a plausible claim for relief against TOTE or TMAK under 33 U.S.C. § 905(b). i. Plaintiff’s Claims Fail Because the Vessel Did Not Breach a Duty of Care Under 33 U.S.C. § 905(b) Section 905(b) provides that “[i]n the event of injury to a person covered by this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party . . . .” The Supreme Court has interpreted this provision to mean that “a shipowner must exercise ordinary care to maintain the ship and its equipment in a condition so that an expert and experienced stevedore can load and unload cargo with reasonable safety.” Case 3:17-cv-00046-JWS ocument 17 Filed 04/28/17 Page 13 of 18 TOTE, INC.

As noted above, the immunity provided under 33 USC 905(a) confirms that the exclusive liability of an employer is for longshore benefits under Section 4 of the Act and neither the employee nor his wife is entitled to any recovery for loss of society. 33 USC 905(a). Moreover, even if Matthew Weaver were a Jones Act seaman, which is expressly denied, Sabrina Weaver would have no right to assert a claim for loss of society under the Jones Act or general maritime law.

In Gravatt v. City of New York, 226 F.3d 108, 115 (2d Cir. 2000) the Court of Appeals for the Second Circuit further expounded: [T]he LHWCA provides that the statutory, no-fault compensation payments are the employer's exclusive liability to its employees when they are injured in the course of their employment. “The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee. . . .” 33 U.S.C. § 905(a). The employee is, therefore, barred from suing his employer in tort.

The Hallocks have failed to articulate a single reason why this distinction makes the holding in Kenny any less applicable to the present case. ° The Second Circuit, in its decision certifying the question before this Court, stated in a footnote that "...in Kennv the exclusive remedy provision of the Longshoremen's and Harbor Workers' Compensation Act virtually mirrors the analogous provisions in sections 11 and 29(6): `The liability of an employer prescribed in Section 904 of this title shall be the exclusive and in place of all other liability of such employer to the employee...33 U.S.C. § 905(a). (A-11).

7. The vessel owner’s standard of care under 33 U.S.C. §905(b) towards employees of an independent contractor is set forth in the United States Supreme Court case of Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 68 L.Ed.2d 1, 101 S. Ct. 1614 (1981). The vessel owes the stevedore and his longshoreman employees the duty of exercising ordinary care … to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety… As a general matter, the shipowner may rely on the stevedore to avoid exposing the longshoreman to Case 2:15-cv-00477-EEF-DEK Document 63-1 Filed 08/01/16 Page 4 of 14 5 unreasonable hazards; Section 41 of the Act (33 U.S.C. §941) requires the stevedore, the longshoreman’s employer, to provide a “reasonably safe” place to work… Scindia, supra, 451 U.S. at 166-167, 170-172, 86 L. Ed. 2nd at 12, 14-15.

C-7-04755-JW BIRNBERG & ASSOCIATES 703 MARKET STREET SUITE 600 SAN FRANCISCO CA, 94103 TEL (415) 398-1040 FAX (415) 398-2001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 time for a longshoreman who was injured aboard a ship after the 1972 amendments was only to claim benefits under worker’s compensation. The new 1984 amendments, while removing tort exposure to shipowner employers of ship builders, ship repairers and shipbreakers, (33 U.S.C. § 904(b)) allowed longshoremen to bring a separate tort action (in negligence under 33 U.S.C. § 905(b)) against a Longshore employer (a stevedore) Now, the employer wears two hats, one as shipowner and the other as employer of longshore workers, so they can be liable under the LHWCA, and at the same time can be sued for negligence. See Gravatt v. City of New York, 2000 AMC 2705 (226 F. 3d 108(2nd Cir. 2000)).

Accordingly, Defendants are not liable to the employee, his legal representative, husband or wife, parents, dependents, next of kin or anyone else who may be entitled to recover damages against Defendants as an employer under the LHWCA. 33 U.S.C. § 905(a). 3.

Construing such allegations in the light most favorable to the plaintiff, the court may dismiss the complaint only if it neveliheless appears that the plaintiff will not be able to assert a colorable compensation benefits are the sole remedy available to the estate against APMT as her employer. See, 33 U.S.C. §905(a); see also N.J. Stat. 34: 15-36.

Section 905(b) of the LHWCA provides, in pertinent part, as follows: In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party. 33 U.S.C. § 905(b). Section 905(b) also provides that, “The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred.”

________________________________________/ DEFENDANT POLARSTREAM MARITIME, INC.’S MOTION TO DISMISS Defendant Polarstream Maritime, Inc. (“PMI”), moves under Rules 12(b)(2) and (5) of the Federal Rules of Civil Procedure to dismiss for lack of personal jurisdiction and insuf- ficient service of process. THE COMPLAINT In this personal-injury action, the plaintiff sues for negligence under the Longshore and Harbor Workers Compensation Act, 33 U.S.C. §§ 905 & 933. (Doc.