24-2985-cv Mezzina v. Port Imperial Ferry Corp. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of October, two thousand twenty-five. Present: BARRINGTON D. PARKER, SUSAN L. CARNEY, WILLIAM J. NARDINI, Circuit Judges. _____________________________________ COSMO MEZZINA, Plaintiff-Appellant, v. 24-2985-cv PORT IMPERIAL FERRY CORP., d/b/a NY Waterway,

Defendant-Appellee. _____________________________________

For Plaintiff-Appellant: ANDREW V. BUCHSBAUM, Friedman, James & Buchsbaum LLP, New York, NY.

For Defendant-Appellee: GREGORY W. O’NEILL (Kevin J. O’Donnell, Elizabeth A. McCoy, on the brief), Hill, Betts & Nash LLP, New York, NY.

1 Appeal from a judgment of the United States District Court for the Southern District of

New York (Naomi Reice Buchwald, District Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Cosmo Mezzina appeals from a judgment entered on February 20,

2024, by the United States District Court for the Southern District of New York (Naomi Reice

Buchwald, District Judge) in favor of Defendant-Appellee Port Imperial Ferry Corp., doing

business as NY Waterway (“NYW”). Mezzina is a seaman who brought this action against his

employer, NYW, after he fell into an open hatch and suffered injuries while working on the Garden

State, a passenger ferry owned and operated by NYW. He seeks to hold NYW liable under two

theories: negligence under the Jones Act,

, and unseaworthiness under general

maritime law. The district court granted summary judgment for NYW, concluding (1) that no

reasonable jury could find that NYW was negligent in failing to close the open hatch or install a

physical barrier around it, and (2) that NYW had not furnished an unseaworthy vessel. The court

also refused to preclude NYW from contesting liability, as Mezzina had requested, due to its

purported destruction of photographs taken by the Garden State’s captain. Mezzina now appeals,

arguing that the district court improperly granted summary judgment for NYW and that it erred in

refusing to preclude NYW from contesting liability. We assume the parties’ familiarity with the

case.

2 I. Summary Judgment1

This Court reviews a grant of summary judgment de novo and will affirm only if the record

reveals no genuine issue of material fact for trial. Eaton v. Estabrook,

, 89 (2d Cir.

2025). 2 To establish Jones Act negligence, a plaintiff must show: “(1) that a dangerous condition

actually existed on the ship; (2) that the defendant shipowner had notice of the dangerous condition

and should have reasonably anticipated the plaintiff might be injured by it; and (3) that if the

shipowner was negligent, such negligence proximately caused the plaintiff’s injuries.” Diebold v.

Moore McCormack Bulk Transp. Lines, Inc.,

(2d Cir. 1986). While the “right of

the jury to pass upon the question of fault and causation” in Jones Act cases “must be most liberally

viewed,” Wills v. Amerada Hess Corp.,

(2d Cir. 2004), summary judgment may

be appropriate where “there can be but one conclusion as to the verdict that reasonable men could

have reached.” Diebold,

. In addition, to establish unseaworthiness under general

maritime law, a plaintiff must show that the shipowner furnished a vessel that was “insufficiently

or defectively equipped.” Oxley v. City of New York,

(2d Cir. 1991). “The standard

is not perfection but reasonableness.” Atl. Specialty Ins. Co. v. Coastal Env’t Grp. Inc.,

(2d Cir. 2019). “[T]he vessel must be staunch, strong, well equipped for the intended

voyage and manned by a competent and skillful master of sound judgment and discretion.” Tug

Ocean Prince, Inc. v. U.S.,

, 1155 (2d Cir. 1978).

Here, the district court properly concluded that no reasonable jury could find that NYW

1 Mezzina also argues that the district court erred in disregarding a declaration that he submitted alongside his motion for summary judgment under the “sham issue of fact doctrine.” Appellant’s Br. 25–26. We assume for the purpose of this appeal that Mezzina’s declaration should have been considered and thus will assess the propriety of summary judgment accounting for the statements made in the declaration. 2 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitted.

3 was negligent in failing to close the open hatch or set up physical barriers around it or in any other

way. The undisputed facts in the record establish the following: (1) Mezzina helped the captain

remove the hatch cover; (2) the open hatch was 39 inches long by 32 inches wide; (3) Mezzina

helped the captain set up bright yellow barricades around two sides of the open hatch; (4) Mezzina

saw the barricades set up when he went to speak with a deckhand nearby, who was sitting in the

passenger seats due to a recent injury; (5) Mezzina again saw the barricades set up when the captain

ordered him to retrieve a line located on the stern; (6) Mezzina never saw anyone remove the

barricades; (7) the only other people on board the Garden State were the captain, who left the

vessel after ordering Mezzina to fetch the line, and the injured deckhand; and (8) Mezzina fell into

the hatch approximately six minutes after helping the captain open it. The captain thus warned

Mezzina of the open hatch and erected barricades to notify the crew of this hazard. There is also

no evidence that either the captain or the deckhand removed the barricades. NYW satisfied its

obligation to, as Mezzina’s expert described, “ensur[e] that appropriate barricades were in place.”

App’x at 141.

These facts resemble precedent finding a shipowner not liable for injuries stemming from

a temporarily open hatch where the ship’s crew was provided with effective notice of this hazard.

In Miller v. The Sultana, this Court refused to find negligence where the plaintiff fell into an open

hatch to an empty grain compartment.

, 205–06 (2d Cir. 1949). The Court reasoned

that the plaintiff, “an experienced seaman, had reason to believe that there might be danger from

an open hatch which was plainly visible to him and illuminated by daylight.”

.

Mezzina has failed to establish that the grant of summary judgment for NYW was in error.

He contends that the district court incorrectly found that recovery was barred by his own

negligence in failing to avoid an open and obvious but dangerous condition. However, the district

4 court’s decision rests on a finding that NYW did not act negligently, not on Mezzina’s own fault.

While the district court did acknowledge the “open and obvious” nature of the hatch, this

consideration bore on the notice that NYW provided Mezzina of the open hatch and NYW’s duty

(or lack thereof) to close it, not on whether Mezzina’s own negligence barred recovery.

Moreover, uncontroverted evidence shows that Mezzina helped set up barricades around

the open hatch, at the captain’s behest, and that neither the captain nor the deckhand removed

them. Thus, even assuming that NYW had a duty to set up barricades, it satisfied this obligation.

Mezzina’s remaining arguments miss the mark. Mezzina contends that the captain issued

an improvident order by indicating that Mezzina should retrieve the additional line located aft by

traveling next to the open hatch and through the rear door on the Garden State’s main level.

However, the captain’s order consisted of repeated verbal directives to “get the line,” App’x at 52–

53, along with a vague “point[] out the main deck rear door,”

. In this context, no

reasonable jury could find that the captain ordered Mezzina to walk next to the open hatch to

retrieve the line, especially given that there was an obvious alternative route. Mezzina could have

retrieved the line by ascending the stairwell towards the bow of the Garden State, then walking

aft, and then descending back to the main deck—thereby avoiding the open hatch near the door

towards the stern of the vessel. Finally, NYW cannot be faulted for failing to train Mezzina to use

this safe alternative route to retrieve the line. Mezzina worked for NYW for approximately 20

years, during which his job responsibilities included tying up the Garden State. Given this

experience, no reasonable jury could find that Mezzina required specialized training to complete

this task by using the vessel’s upper level.

Turning to unseaworthiness, Mezzina argues that the district court erred in dismissing his

unseaworthiness claim for the same reasons that it erred in dismissing his negligence claim.

5 However, the district court’s conclusion was again correct. Mezzina has put forth no precedent or

support in the record establishing that the captain’s failure to close the hatch on the vessel rendered

it “insufficiently or defectively equipped.” Thus, even though seaworthiness is ordinarily a jury

question, Savard v. Marine Contracting, Inc.,

(2d Cir. 1972), there was no basis

here for a jury to find that the purported defects in the Garden State rendered it “insufficiently or

defectively equipped.” To the contrary, the use of barricades to warn bystanders of the open hatch

suggested that the vessel was “well equipped for [its] intended voyage.” Tug Ocean Prince, 584

F.2d at 1155.

II. Discovery Sanction

The district court also properly declined Mezzina’s request to preclude NYW from

contesting liability due to its purported discovery violations. Federal Rule of Civil Procedure 37

permits a court to impose certain discovery sanctions where a “party or a party’s officer, director,

or managing agent . . . fails to obey an order to provide or permit discovery.” Fed. R. Civ. P.

37(b)(2)(A). Although case-dispositive sanctions are appropriate if there is a “showing of

willfulness, bad faith, or fault on the part of the sanctioned party[,]” a “drastic remedy” of this

nature “should be imposed only in extreme circumstances, usually after consideration of

alternative, less drastic sanctions.” West v. Goodyear Tire & Rubber Co.,

(2d

Cir. 1999). This Court reviews a district court’s decision about discovery sanctions under Rule 37

for abuse of discretion. Funk v. Belneftkhim,

(2d Cir. 2017).

Here, the district court correctly declined to sanction NYW for purportedly destroying

photographs that the captain took of the Garden State’s exterior because there was no indication

that this evidence was relevant. Mezzina claims that the captain’s photographs would have

provided insight into the existence of barricades around the open hatch at the time of his fall. But

6 the hatch and the barricades were inside the ship, and the record supports NYW’s assertion that

the photographs depicted only the Garden State’s exterior before the hatch was opened. In any

event, even if the photographs had been relevant, Mezzina would still not have been entitled to a

sanction barring NYW from contesting liability because he did not show that NYW acted with

willfulness, bad faith, or fault in destroying these materials. Nor, for that matter, did he request a

lesser sanction before asking the court for a drastic, case-determinative sanction.

* * *

We have considered Mezzina’s remaining arguments and find them unpersuasive. For the

foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

7