Beruflich Dokumente
Kultur Dokumente
No. 10-1721
CHARLES H. DISE,
Plaintiff Appellant,
v.
EXPRESS MARINE, INCORPORATED,
Defendant - Appellee,
and
UNIVERSITY OF SOUTH ALABAMA MEDICAL CENTER; JUVONDAS SHUNTA
HODGE, M.D.; AMIN FRONTAN, M.D.; J. DOE # 1; J. DOE # 2; J.
DOE # 3; J. DOE # 4; J. DOE # 5,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:07-cv-01893-CCB)
Argued:
Decided:
Charles
H.
Dise
(Dise)
filed
this
maritime
allided
allegedly
with
negligent
bridge
medical
piling,
and
treatment
he
as
result
received
at
of
the
judgment
unseaworthiness
in
favor
claims,
of
EMI
and
on
on
Dises
EMIs
Jones
property
Act
and
damage
counterclaim. We affirm.
I.
A.
At the time of the relevant events, Dise was a Maryland
resident employed by EMI as an assistant engineer on the Tug
BALTIMORE.
EMI
is
New
Jersey
corporation
engaged
in
the
Coast
2003.
In
locations.
April
2005,
Dise
EMI
began
working
assigned
3
Dise
for
to
EMI
work
in
on
October
the
Tug
Whaler
readings
on
(the
the
skiff)
barge
for
the
associated
purpose
with
the
of
taking
Tug
draft
BALTIMORE. 1
Mobile,
onboard
the
Alabama.
Tug
In
addition
BALTIMORE
to
included
Dise,
Captain
the
crew
Michael
members
Daniels,
readings from the adjoining barge using the skiff. Daniels also
instructed Greggs to deliver a radio to Harper on the barge.
Although
Greggs
had
never
operated
the
skiff
prior
to
that
night, both Daniels and Covil had used the skiff to take draft
readings
on
numerous
occasions.
In
his
deposition,
Daniels
testified that he had taken the skiff out earlier that very
evening
to
measure
the
drafts.
Neither
party
testified
to
and
Greggs
met
on
the
deck
few
minutes
later,
boarded the skiff, and proceeded to the barge to take the draft
readings. Dise operated the skiff, while Greggs sat toward its
bow. Once they had acquired the initial draft readings, Dise and
Greggs decided to pilot the boat down Three Mile Creek. Dise
testified that it was Greggss idea to take the skiff downriver
to see a ship moored nearby, while Greggs testified that Dise
5
set
of
draft
readings
because,
according
to
Greggs,
as
full
speed
ahead.
See
J.A.
151-53.
Greggs
also
the
bridge,
so
he
asked
Greggs
to
shine
the
skiffs
spe[eding]
up
little
bit
more
at
that
point.
J.A.
328.
and
Dise
and
Greggs
were
thrown
into
the
water,
not
make
out
the
contours
of
the
bridge
without
the
dispatched
Mobile
to
Keith
oversee
Kirkeide,
Dises
medical
company
care.
representative,
EMI
paid
all
of
to
the
Medical
discharged
Dise
on
July
23,
2005,
at
which
that
Dises
leg
wound
7
had
severe
bacterial
infection
requiring
an
immediate
operation
and
extensive
transferred Dise to
the University of Maryland Shock Trauma Center the next day for
additional treatment. Over the next two years, Dise underwent
multiple surgeries in an attempt to restore function to his leg.
He
reached
maximum
medical
improvement
on
January
31,
2008,
though he has permanent injuries to his leg. Dise did not return
to work for EMI after the accident.
B.
Dise filed suit in the district court on July 17, 2007,
seeking damages under the Jones Act, 46 U.S.C. app. 688(a),
and
various
maritime
doctrines.
The
complaint
alleged
five
Jones
maintenance
Act
and
for
negligent
cure;
and
provision
(5)
unpaid
of
medical
wages.
EMI
care;
(4)
denied
all
the
close
of
discovery,
the
parties
filed
cross-
moved
for
summary
judgment
on
his
vicarious
liability
for
summary
judgment
on
his
vicarious
liability
of
Dise
on
EMIs
counterclaims
seeking
recoupment
of
Id.
on
Rather
its
than
ruling
counterclaim
on
for
EMIs
damage
motion
to
the
for
summary
skiff,
the
II.
Dise appeals the district courts grant of summary judgment
in favor of EMI on his claims for negligence under the Jones
Act,
unseaworthiness
under
the
general
maritime
law,
and
thereby
according
seamen
rights
parallel
to
those
of
or
in
part
employers
from
the
officers,
negligence
agents,
of
or
their
employer
employees.
45
or
their
U.S.C.
51.
further
eliminated
the
several
traditionally
humanitarian
purpose
common-law
tort
restricted
recovery
by
of
FELA,
defenses
injured
Congress
that
workers.
had
Consol.
abolishes
the
common
law
fellow-servant
rule
and
the
in
favor
of
comparative
negligence,
and
prohibits
compensation
statute
and
that
unmodified
negligence
law
defenses
are
modified
or
abolished.
Id.
at
437
(citations omitted).
In order to establish negligence, a seaman-plaintiff in a
Jones Act action must prove by a preponderance of the evidence
that
his
employer
breached
duty
to
protect
him
against
Cir.
2009)
(citing
Hernandez,
187
F.3d
at
436).
citations
and
quotation
marks
omitted).
This
duty
(4)
argues
defective
that
negligence
applied
an
the
was
steering
district
the
sole
erroneous
of
the
court,
in
proximate
causation
skiff.
In
finding
cause
standard.
addition,
that
of
The
the
Dise
Dises
own
accident,
district
court
of
oral
argument
and
having
carefully
reviewed
the
we
affirm
on
the
basis
of
the
district
courts
well
13
B.
Dises unseaworthiness claim is separate and distinct from
his negligence claim. See Usner v. Luckenbach Overseas Corp.,
400 U.S. 494, 498 (1971). General maritime law imposes a duty
upon shipowners to provide seaworthy vessels, that is, vessels
reasonably
fit
for
their
intended
use.
Mitchell
v.
Trawler
Racer, Inc., 362 U.S. 539, 550 (1960). This duty extends to the
vessel itself, its equipment, and its crew. It is an absolute
duty requiring no knowledge on the part of the shipowner and
exists independently of the duty to exercise reasonable care
under the Jones Act, 46 U.S.C. app. 688(a). Id. at 548-49. In
order to prevail on a claim for unseaworthiness, a plaintiff
must demonstrate that the unseaworthy condition of the vessel
was
the
proximate
or
direct
and
substantial
cause
of
the
undertakes
under
the
Jones
Act.
Id.
(internal
whether
the
steering
was
defective.
Regardless,
it
is
undisputed that the intended use of the skiff, which was new
when delivered to the Tug BALTIMORE only a few months prior to
the
accident,
Defective
was
steering
to
at
take
high
draft
speed,
readings
even
if
from
the
proved,
barge.
would
not
render the skiff unfit for this use as draft readings are not,
and indeed cannot be, taken at high speed. In addition, even if
Dise were able to show that deficiencies in the crew and the
vessel created an unseaworthy condition, he still must identify
admissible facts sufficient to demonstrate that one of these
conditions was the proximate or direct and substantial cause
of his injury. We agree with the district courts conclusion
that neither was. Accordingly, we affirm the district courts
grant
of
summary
judgment
in
favor
of
EMI
on
Dises
unseaworthiness claim.
C.
The admiralty law doctrine of maintenance and cure imposes
upon a seamans employer a non-waivable and non-delegable duty
to
provide
food,
lodging,
and
medical
treatment
to
seaman
has
cause
of
action
15
under
the
Jones
Act
for
his
liable
for
injuries
negligently
inflicted
by
its
doctor
when
it
is
reasonably
necessary
and
the
ship
is
district
court
granted
EMIs
motion
for
summary
some
physician.
affirmative
Id.
at
468.
act
in
Noting
selecting
that
the
or
agency
engaging
standard
the
is
concluded
that
Dise
had
failed
to
present
evidence
of
an
argues
on
appeal
that
the
district
courts
agency
Jones
delegable
Act
context
duty
to
consistent
provide
cure.
with
In
the
the
employers
non-
alternative,
Dise
to
an
agency
relationship
with
the
USA
Medical
parameters.
The
Supreme
Court
has
held
that
when
of
activities
others
of
his
performing,
employer,
under
such
contract,
others
are
operational
agents
of
the
Fitzgerald v. A.L. Burbank & Co., 451 F.2d 670, 680 (2d Cir.
1971) (applying Sinkler in a Jones Act case). Accordingly, for
example, where a ship carries an onboard physician employed by
the ship, vicarious liability attaches to the shipowner for the
physicians negligence. De Zon, 318 U.S. at 668. Courts have
also consistently held that an agency relationship exists when a
shipowner engages the services of an on-shore physician. See,
e.g., Olsen, 176 F.3d at 895-96 ([T]he shipowner is liable for
the negligence of an on-shore physician that it hires to treat
its
crewman.)
Sambula,
405
(collecting
cases);
F.2d
299
291,
Cent.
(5th
Gulf
Cir.
S.S.
1968)
Corp.
v.
(shipowner
who
misdiagnosed
Liability
does
and
not
mistreated
attach,
plaintiffs
however,
when
eye
seaman
physician
selected
by
the
injured
seaman
himself.).
refers
seaman
to
negligent
medical
provider,
the
Consistent
with
Dises
argument,
the
Supreme
Court
has
to
give
liability
of
carriers
to
U.S.
330-31.
Sinkler,
356
vitality
at
to
their
the
standard
workers
Even
governing
injured
given
this
on
the
relaxed
the
job.
agency
liability
under
the
Jones
Act
requires
some
shipowners
treatment
vicarious
arises
from
liability
its
for
non-delegable
negligent
duty
to
medical
provide
maintenance and cure, rather than from any affirmative act taken
in selecting the provider. Neither case supports his position,
however.
In
Sinkler,
the
Supreme
Court
held
that
when
an
contract,
operational
activities
of
the
employer,
such
transport the seaman, as it had done many times before, bore the
responsibility for the negligence of the driver it chose. 383
U.S. at 264. Both cases support the principle that, because a
seamans employer is under an absolute duty to provide medical
treatment
to
sick
or
injured
seaman,
medical
personnel
may
be
an
independent
contractor
or
completely
is
automatically
deemed
an
agent
of
the
shipowner
by
20
instead
argues
that
EMI
constructively
selected
the
USA
Although
it
is
close
question,
we
conclude
that
the
its
non-delegable
duty
to
provide
cure,
and
did
not
establish
that
EMI
selected
or
otherwise
affirmatively
summary
judgment
in
favor
of
EMI
on
Dises
claim
for
D.
We
turn,
finally,
to
the
district
courts
award
of
affirmative relief to EMI. Dise argues that EMI may not assert
its property damage counterclaim because the Jones Act prohibits
counterclaims by employer-shipowners against employee-seamen, as
such actions are incompatible with the principles of maritime
law. The district court acknowledged that neither the Supreme
Court nor this court has directly addressed this question, but
reasoned
applied
that
the
FELA
to
consistency
Jones
Act
with
cases
which
and
these
permitted
courts
have
counterclaims
damages
to
the
skiff
in
the
amount
of
$3,254.96,
the
reaching
this
result,
the
district
court
relied
which
held
that
FELA
does
not
prohibit
employer
that
the
Jones
Act
does
not
bar
employer
431
F.3d
840
(5th
Cir.
22
2005).
Id.
at
560-61.
Dise
that
did
Cavanaugh
not
squarely
address
the
issue
Cavanaugh,
we
held
that
FELA
neither
explicitly
nor
to
employees
assert
property
FELA
suit,
the
damage
compulsory
counterclaim
during
the
counterclaim
requirement
bringing
employee
absolute
negligence.
rejected
the
Id.
the
at
claim,
thereby
immunity
from
291.
contention
Turning
that
unfairly
any
to
Sections
the
5
affording
the
liability
for
his
statute
itself,
we
and
10
of
FELA,
45
23
Section
of
FELA
provides
that
any
contract,
rule,
45
U.S.C.
55.
Section
10
similarly
provides
that
any
for
the
assumption
that
the
possibility
of
could
be
advanced
against
the
admissibility
of
The
holding
First
and
Eighth
that
employer
Circuits
property
have
followed
damage
Cavanaugh,
counterclaims
are
actionable under FELA. See Sprague v. Boston & Maine Corp., 769
F.2d 26, 29 (1st Cir. 1985); Nordgren v. Burlington Northern
R.R.
Co.,
101
F.3d
1246,
1253
(8th
Cir.
1996).
The
Eighth
Interpreting
Sections
preceding
and
the
10,
the
the
phrase,
phrase
any
Eighth
Circuit
namely
device
looked
contract,
whatsoever
to
the
rule,
in
terms
and
impression
in
the
federal
courts
of
appeals
whether
that
allowing
an
employer
counterclaim
would
not
26
to
its
skiff
does
not
act
as
liability-exempting
sought
to
limit
its
liability
to
$7,945.00
under
the
the
lesser
amount
of
$3,254.96,
the
undisputed
cost
of
any
extent,
so
its
property
damage
counterclaim
does
not
another
damage
day,
however,
counterclaims
by
the
question
of
shipowner-employers
whether
against
property
negligent
27
III.
For the reasons set forth, we are persuaded, as was the
district
court,
establish
that
genuine
the
evidence
dispute
of
in
the
material
record
fact
fails
as
to
to
EMIs
action,
the
seaman-employee
must
demonstrate
some
EMI
on
Dises
unseaworthiness
failed
to
Jones
claim
Act
under
establish
that
claims.
the
With
general
either
the
respect
maritime
skiff
or
to
his
law,
Dise
the
crew
whether
employer
actionable
in
Jones
concluding
that
Act
EMIs
liability-exempting
property
counterclaims
we
have
no
counterclaim
does
not
device
cases,
damage
under
the
particular
hesitation
serve
facts
as
of
are
in
a
the
favoring
allowance
of
28
EMIs
counterclaim.
Thus,
we
property
damage
counterclaims
may
be
impermissible
29