United States District Court, N.D. Illinois, Eastern Division
September 1, 2004.
IN THE MATTER OF GARVEY MARINE, INC., a Corporation, For Exoneration From, or Limitation of, Liability.
The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
On April 10, 2003, Garvey Marine, Inc. ("Garvey Marine"), was
operating a tugboat pushing two barges on the Calumet/Sag River.
As the tugboat approached the Division Street bridge located in
Blue Island, Illinois, it came into contact with a bucket
suspended from an underbridge boom owned by Equipment Rental
Company ("ERC") and leased to Collins Engineers, Inc.
("Collins"). Collins' employees Jeremy Koonce and Evan Buckhouse
were inside of the bucket at the time of contact. Mr. Buckhouse
died as a result of the accident and Mr. Koonce has claimed
On August 25, 2003, Garvey Marine filed suit under this court's
admiralty jurisdiction seeking "Exoneration From, or Limitation
of, Liability." Along with its Complaint, Garvey Marine filed
third-party complaints against the City of Blue Island ("Blue
Island"), Robinson Engineering, Ltd., Collins and ERC.
Thereafter, the court authorized other interested parties to file
ERC filed cross-claims for damages and contribution against
both Collins and Blue Island on November 25, 2003. Blue Island
answered the cross-claim on December 8, 2003, while Collins
answered on January 12, 2004. Both Collins and Blue Island
defenses. Currently pending before the court are motions by ERC
to strike the affirmative defenses of both Collins and Blue
Island For the reasons stated below, both motions are granted.
ERC's cross-claim against Collins contains two counts. Count I
seeks recovery for the damages sustained to ERC's equipment,
which ERC states was caused by Collins' negligence. In Count II,
ERC seeks damages for contribution from Collins for any liability
ERC may face to the Estate of Evan Buckhouse. With respect to
Count II, in its Answer to the cross-claim Collins asserted
affirmative defenses based on the Illinois Workers' Compensation
Act. Collins states that as the employer of both Buckhouse and
Koonce, its contribution is limited to the amount of workers'
compensation benefits paid to its employees. E.g.,
820 ILCS 305/5; Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155,
165, 585 N.E. 2d 1023, 1027-28 (1991). ERC moves to strike these
affirmative defenses on grounds that because this is a case
brought under admiralty jurisdiction, federal maritime law rather
than Illinois law must be applied. In response, Collins asserts
that although the underlying Complaint may be governed by federal
maritime law, the cross-claims are not and seek damages under
Under 28 U.S.C. § 1333(1), district courts have original
jurisdiction over "[a]ny civil case of admiralty or maritime
jurisdiction. . . ." Moreover, the Admiralty Extension Act, 46
U.S.C.App. § 740, provides that admiralty jurisdiction "shall
extend to and includes all cases of damage or injury, to person
or property, caused by a vessel on navigable waters,
notwithstanding that such damage or injury be done or consummated
on land" A party seeking to invoke this court's admiralty
jurisdiction under 28 U.S.C. § 1333(1) "must satisfy conditions
both of location and of connection to maritime activity." Jerome
B. Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527, 534 (1995). The location test
looks at "whether the tort occurred on navigable water or whether
injury suffered on land was caused by a vessel on navigable
water." Id. (citing 46 U.S.C.App. § 740). The connection test
raises two issues. First, the court assesses the "general
features of the type of incident involved" to determine whether
the incident has "a potentially disruptive impact on maritime
commerce." Id. (citing Sisson v. Ruby, 497 U.S. 358, 363-64
and n. 2 (1990)). Next, the court must determine whether "the
general character" of the "activity giving rise to the incident
shows a substantial relationship to traditional maritime
activity." Id. (citing Sisson, 497 U.S. at 364-65 and n. 2).
At least with respect to Garvey Marine's underlying Complaint,
Collins does not dispute that maritime jurisdiction exists. The
location test described above is easily satisfied insofar as the
activity here either occurred on navigable waters or, to the
extent it did not, was caused by a vessel on a navigable water.
In addition, the connection test is also easily passed. An
incident such as the one in this case could potentially disrupt
maritime commerce through obstruction of the waterway following
the collision. Also, the accident in question was related to
traditional maritime activities because it involved a tugboat's
transporting items over a navigable waterway. See Jerome B
Grubart, Inc., 513 U.S. at 540 ("Navigation of boats in
navigable waters clearly falls within the substantial
relationship.") (citations omitted). Thus, the court is satisfied
that, under the test described above, its admiralty jurisdiction
Collins, nevertheless, states that its affirmative defenses
survive because ERC's claims are brought under state law, and
under Illinois law the Kotecki liability cap that is the
subject of the affirmative defenses does not conflict with, and
therefore is not preempted by, federal maritime law. First, there
is no indication in its pleading that ERC's cross-claims are
under state law. Moreover, as ERC points out, the language of §
740 states that admiralty jurisdiction extends to "all" cases of
damages by a vessel on navigable waters even if the damage was
done on land See also, East River S.S. Corp. v. Transamerica
Delaval, Inc., 476 U.S. 858, 864 (1986) ("With admiralty
jurisdiction comes the application of substantive maritime
law."). The court agrees with ERC that because its Third-Party
Complaint arises from injury to person and damage to property
resulting from a collision or allision by a vessel on navigable
water, federal maritime law, and not state law, controls the
When maritime law controls, state law is preempted if it
defeats existing maritime rights or enlarges existing maritime
liabilities. See Great Lakes Dredge & Dock Co. v. City of
Chicago, No. 92 C 6754, 1996 WL 210081, at *1 (N.D. Ill. April
26, 1996) (citing Kossick v. United Fruit Co., 365 U.S. 731,
741-42 (1961)); see also, Bagrowski v. American Export
Isbrandtsen Lines, Inc., 440 F.2d 502, 506 (7th Cir. 1971)
("federal power is dominant in the maritime field and states may
not deprive a party of a federally created maritime right.").
Under maritime law, damages are generally "allocated among the
parties proportionately to the comparative degree of
fault. . . ." United States v. Reliable Transfer Co., Inc.,
421 U.S. 397, 411 (1975); see also, Cement Div., Nat. Gypsum
Co. v. City of Milwaukee, 915 F.2d 1154, 1159 (7th Cir. 1990);
In re Matrick "Sunset Ltd." Train Crash in Bayou Canot, Ala.,
121 F.3d 1421, 1423-24 (11th Cir. 1997). Conversely, under
Illinois law, an action for contribution by a thirdparty
defendant against an employer of an injured employee is allowed
only to the extent of the employer's workers' compensation
liability. See Kotecki, 146 Ill. 2d at 166,
585 N.E. 2d at 1028. Thus, as ERC points out, application of the Illinois
Kotecki cap would limit ERC's right under admiralty law to have
damages allocated based on the comparative degree of fault.
Illinois law is, necessarily, preempted and the Kotecki cap
does not apply. Cf. Bagrowski, 440 F.2d at 509 ("exclusive
remedy" contained in Wisconsin Workers' Compensation Act could
not bar right to indemnification under federal maritime law).
In response, Collins points to Couch v. CRO-Marine Trans.,
Inc., 725 F. Supp. 978 (C.D. Ill. 1989), where the court held
that Section 905(a) of the Longshoreman and Harbor Workers
Compensation Act was not a procedural bar to a contribution claim
against an employer. Id. at 982-83. The Couch case, however,
did not address the Kotecki liability cap for contribution
claims against employers (indeed, Couch was decided in 1989 and
Kotecki was not decided until 1991). The court in Couch does
state the principle at play in this case: that where state law
either limits or enhances rights under maritime law, the state
law is preempted. Id. at 982. Thus, the court does not believe
Couch advances Collins' case here.
Wherefore, for the reasons stated above, ERC's motion to strike
Collins' affirmative defenses is granted.
B. Blue Island
ERC also moves to strike the affirmative defenses pled by Blue
Island Similar to Collins, Blue Island asserts that state law
controls the cross-claims ERC filed. Thus, in its first two
affirmative defenses Blue Island seeks to invoke the immunity
provided under the Illinois Local Governmental and Governmental
Employees Tort Immunity Act, 745 ILCS 10/1-101. The court strikes
these affirmative defenses based on the analysis applied above.
Since this is an action in which admiralty jurisdiction is
invoked, and since application of the Illinois Local Governmental
and Governmental Employees Tort Immunity Act would limit ERC's
right under federal maritime law to have damages allocated based
on the comparative degree of fault, the
Illinois Local Governmental and Governmental Employees Tort
Immunity Act must be preempted. Several courts have specifically
come to this conclusion. See, e.g., In re Chicago Flood Litig.,
308 Ill. App. 3d 314, 331, 719 N.E. 2d 1117, 1129-30 (1999);
Great Lakes Dredge & Dock Co., 1996 WL 210081, at *2-3; see
also, City of Chicago v. White Transp. Co., 243 F. 358, 358-59
(7th Cir. 1917) ("[A] municipal corporation must respond to a
libel in personam if a cause of action is stated under the
maritime law, although the same acts of its servants would not
constitute a cause of action under the local law of the state.").
As for its third affirmative defense, Blue Island states that
ERC's Third-Party Complaint "has failed to state a claim against
the City of Blue Island upon which any relief can be granted."
Notwithstanding this affirmative defense, Blue Island did not
file a motion to dismiss, see Fed.R. Civ. P. 12(b)(6), and
instead filed an answer to the Third-Party Complaint. This court
agrees with other decisions that have stricken such an
affirmative defense as improper. See, e.g., Riley v.
Blagojevich, No. 04 C 1296, 2004 WL 1745748, at *3 (N.D. Ill.
July 30, 2004); Surface Shields, Inc. v. Poly-Tak Protections
Sys., Inc., 213 F.R.D. 307, 308 (N.D. Ill. 2003) ("This type of
allegation is not an affirmative defense which adds substance to
the litigation; it is clutter.").
Thus, based on the above, ERC's motion to strike Blue Island's
affirmative defenses is also granted.
For the reasons stated above, ERC's motion to strike Blue
Island's affirmative defenses [#72] and motion to strike Collins'
affirmative defenses [#74] are both granted.
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