Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:05-cv-00454-GMS

Document 2

Filed 11/21/2005

Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

MICHAEL ROBERTS

v.

M/V SHINANO REEFER IN PERSONAM

: : : : : : : :

CIVIL ACTION NO. 05-cv-0454 (GMS)

DEFENDANT ALTAIR LINES S.A.'s ANSWER TO COMPLAINT

Defendant Altair Lines S.A. (improperly referred to in the Complaint by plaintiff as "M/V SHINANO REEFER In Personam" and hereinafter referred to as "Altair" or "answering defendant") appearing in personam only by and through its attorneys, Palmer Biezup & Henderson LLP, answers the Plaintiff's Complaint as follows: 1. The averments contained in paragraph 1 of the Complaint are conclusions of law

to which no response is required. 2. Denied as stated. It is denied that plaintiff was at any time a seaman and

answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averment that plaintiff sustained injuries and, therefore, denies said averment; the remaining averments contained in paragraph 2 of the Complaint are conclusions of law to which no response is required. 3. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averments contained in paragraph 3 of the Complaint and, therefore,
PBH: 179774.1

Case 1:05-cv-00454-GMS

Document 2

Filed 11/21/2005

Page 2 of 8

denies the same. 4. Denied as stated. It is admitted that answering defendant Altair was the registered

owner of the M/V SHINANO REEFER when said vessel called at the Port of Wilmington on or about June 30, 2003, and, except as admitted herein, the averments contained in paragraph 4 of the Complaint are denied. 5. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averments contained in paragraph 5 of the Complaint and, therefore, denies the same. 6. Denied. Answering defendant is without knowledge or information sufficient to

form a belief as to the truth of the averments contained in paragraph 6 of the Complaint and, therefore, denies the same. 7. Denied. Answering defendant is without knowledge or information sufficient to

form a belief as to the truth of the averments contained in paragraph 7 of the Complaint and, therefore, denies the same. 8. Denied. Answering defendant is without knowledge or information sufficient to

form a belief as to the truth of the allegations contained in paragraph 8 of the Complaint and, therefore, denies the same.

Negligence Count 9. Answering defendant incorporates herein by reference its responses to paragraphs

1 through 8, inclusive, of the Complaint as if set forth herein at length. 10.
PBH: 179774.1

Denied. To the extent this paragraph is alleging that answering defendant was at 2

Case 1:05-cv-00454-GMS

Document 2

Filed 11/21/2005

Page 3 of 8

any time negligent, said allegations are denied; the remaining averments are conclusions of law to which no response is required. 11. Denied. It is specifically denied that plaintiff was at any time a seaman and it is

further denied that the Jones Act applies in any way to this lawsuit and, except as denied herein, the remaining averments contained in paragraph 11 of the Complaint are conclusions of law to which no response is required. 12. Denied.

12(a). Denied. 12(b). Denied. WHEREFORE, answering defendant Altair Lines S.A. prays that judgment be entered in its favor and against plaintiff, dismissing with prejudice plaintiff's Complaint at plaintiff's cost together with such further relief as this Honorable Court deems appropriate under the circumstances.

"Unseaworthiness" Count 13. Answering defendant incorporates herein by reference its responses to paragraphs

1 through 12(b), inclusive, of the Complaint as if set forth herein at length. 14. 15. Denied. Denied.

15(a). Denied. 15(b). Denied. WHEREFORE, answering defendant Altair Lines S.A. prays that judgment be entered in
PBH: 179774.1

3

Case 1:05-cv-00454-GMS

Document 2

Filed 11/21/2005

Page 4 of 8

its favor and against plaintiff, dismissing with prejudice plaintiff's Complaint at plaintiff's cost together with such further relief as this Honorable Court deems appropriate under the circumstances. FIRST SEPARATE DEFENSE Plaintiff has failed to state a claim against answering defendant for which relief can be granted. SECOND SEPARATE DEFENSE Plaintiff's exclusive remedy is provided by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. THIRD SEPARATE DEFENSE Answering defendant avers upon information and belief that as a result of the injuries alleged in this suit, the plaintiff received compensation benefits through the Longshore and Harbor Workers' Compensation Act from his employer or his employer's insurer. Plaintiff is, therefore, not the real party in interest with respect to that portion of the total claim of damages which represents compensation already paid and/or to be paid the plaintiff under any provisions of the LHWCA to which plaintiff's employer or his employer's insurer has thereby become subrogated. FOURTH SEPARATE DEFENSE Plaintiff is not the real party in interest to the extent that plaintiff's claim(s) or any portion thereof has been statutorily re-assigned to the stevedore employer pursuant to § 933(b) of the LHWCA.

PBH: 179774.1

Case 1:05-cv-00454-GMS

Document 2

Filed 11/21/2005

Page 5 of 8

FIFTH SEPARATE DEFENSE Plaintiff's alleged injuries and/or losses were entirely or substantially caused the negligence of plaintiff's employer and/or the negligence of other parties, persons and/o entities for whom the answering defendant has no responsibility. SIXTH SEPARATE DEFENSE Answering defendant avers that this claim against it is barred by the doctrines of estoppel, borrowed servant, laches and/or waiver. SEVENTH SEPARATE DEFENSE Answering defendant avers that this claim against it is barred by the applicable statute of limitations. EIGHTH SEPARATE DEFENSE Answering defendant claims benefit of all rights and defenses of the Limitation Statutes of the United States, particularly the Limitation of Liability Act, 46 U.S.C. § 183 et seq. NINTH SEPARATE DEFENSE Plaintiff's alleged accident, injuries and/or losses, if they occurred, which is denied, were entirely or substantially caused by plaintiff's own contributory negligence and, therefore, plaintiff's Complaint is barred or any recovery by plaintiff must be reduced by the percentage share of plaintiff's negligence. TENTH SEPARATE DEFENSE At all times material hereto, plaintiff's employer, an expert and experienced stevedoring contractor, had exclusive possession, custody and control of and over the subject vessel, including her cargo, decks, hatches and appurtenances. Moreover, it was the expert stevedore who directed,
PBH: 179774.1

5

Case 1:05-cv-00454-GMS

Document 2

Filed 11/21/2005

Page 6 of 8

supervised, controlled, and performed all cargo operations aboard said vessel. Moreover it was the stevedore who operated, directed and was responsible for any shoreside cranes used in said cargo operations. ELEVENTH SEPARATE DEFENSE This Honorable Court lacks in personam jurisdiction over answering defendant and, therefore, this action must be dismissed. TWELFTH SEPARATE DEFENSE This Complaint must be dismissed due to failure to serve process on answering defendant and improper and inadequate service of process. Moreover there is no in personam jurisdiction over answering defendant due to failure to serve process on answering defendant and improper and inadequate service of process. THIRTEENTH SEPARATE DEFENSE Plaintiff was at no time a seaman and the Jones Act has no application to this case. FOURTEENTH SEPARATE DEFENSE The ship's personnel were at no time involved with the operation of any cranes during the cargo operations conducted by plaintiff and his stevedore employer and, moreover, all shoreside cranes were operated by plaintiff's fellow employees and/or by the servants of plaintiff's stevedore employer, Murphy Marine Services, Inc. FIFTEENTH SEPARATE DEFENSE Answering defendant Altair Lines S.A. is appearing in personam in this matter only and said appearance is on its own behalf only.

PBH: 179774.1

6

Case 1:05-cv-00454-GMS

Document 2

Filed 11/21/2005

Page 7 of 8

WHEREFORE, answering defendant Altair Lines S.A. prays that judgment be entered in its favor and against plaintiff, dismissing with prejudice plaintiff's Complaint at plaintiff's cost together with such further relief as this Honorable Court deems appropriate under the circumstances.

PALMER BIEZUP & HENDERSON

LLP

By: /s/ Michael B. McCauley Michael B. McCauley, Esq. (ID # 2416) Attorneys for Defendant Altair Lines S.A. 1223 Foulk Road Wilmington, DE 19803 (302) 594-0895 Of Counsel: Richard Q. Whelan, Esq. Palmer Biezup & Henderson LLP 956 Public Ledger Building 620 Chestnut Street Philadelphia, PA 19106-3409

Dated: November 21, 2005

PBH: 179774.1

7

Case 1:05-cv-00454-GMS

Document 2

Filed 11/21/2005

Page 8 of 8

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the within Defendant's Answer to Complaint was served on the below-listed counsel by first-class mail, postage prepaid, on the date appearing below:

Peter E. Hess, Esquire Law Offices of Peter E. Hess P.O. Box 514 Wilmington, DE 19803

PALMER BIEZUP & HENDERSON

LLP

By: /s/ Michael B. McCauley Michael B. McCauley

Dated: November 21, 2005

PBH: 179774.1