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 claims.

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. II. 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 third-
party 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. Accordingly,



CONCLUSION
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.

Enter: Qe A Ve eae
JOAN HUMPHREY LEFKOW
Dated: September 1, 2004 United States District Judge



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.” Jd. (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.” Jd. (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 is invoked.

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 brought



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. Jd. 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. Jd. 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



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Joan H. Lefkow

Sitting Judge if Other
than Assigned Judge

Notified counsel by telephone.
Docketing to mail notices,
Mail AO 450 form.

Copy to judge/magistrate judge.

CASE NUMBER 03 C 5967 DATE 9/1/2004
CASE Garvey Marine, Inc. vs. City of Blue Island, et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
ql) Q Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Qa Answer brief to motion due . Reply to answer briefdue__
(4) a Ruling/Hearing on set for at
(5) a Status hearing[{held/continued to] (set for/re-set for] on set for at
(6) Qa Pretrial conference{held/continued to] [set for/re-set for] on set for at :
(7) im) Trial[set for/re-set for] on at
(8) im {Bench/Jury trial] [Hearing) held/continued to at
(9) ia This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) CLocalRule 41.1 CFRCP41(a)(1) OC) FRCP41(a)(2).
| [Other docket entry) | Enter Memorandum Opinion and Order. For the reasons stated in the
Memorandum Opinion and Order, motion of Equipment Rental Company to strike City of Blue Island’s
affirmative defenses [#72] and motion to strike Collins Equipment Engineers, Inc.’s affirmative defenses
{#74] are both granted.
(il) [For further detail see order attached to the original minute order.)
No notices required, advised in open court.
No notices required
J | Notices mailed by judge's staff.

9f172004

Prey td = dis Nee

date mailed notice
courtroom

deputy’s
initials

Date/time received in

mailing deputy initials

central Clerk’s Office



Illinois Local Governmental and Governmental Employees Tort Immunity Act must be
preempted. Several courts have specifically come to this conclusion. See, e.g., Jn 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, ¢.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.



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
IN THE MATTER OF ) No. 03 C 5967
GARVEY MARINE, INC., a ) Judge Joan H. Lefkow
Corporation, For Exoneration From, or )
Limitation of, Liability. ) 2 x
) “2,
&

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 personal injuries.

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 cross-claims.

ERC filed cross-claims for damages and contribution against both Collins and Blue Island

(0

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 asserted affirmative


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,
A. Collins

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 state law.

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