USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 96-1217
JAMES FERRARA,
Plaintiff, Appellant,
v.
A. & V. FISHING, INC.,
Defendant, Appellee.
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ERRATA SHEET
The opinion of this Court issued on October 21, 1996, is
amended as follows:
On page 15, after the first full paragraph, add the
following additional two paragraphs:
It may be helpful to add one further word. In the
district court, before the plaintiff moved for summary
judgment on unseaworthiness, a pretrial conference was
held in which defense counsel stated: "This is an
unseaworthiness case, essentially," a point on which he
elaborated at some length without contradiction from
plaintiff's counsel. When plaintiff then moved for
summary judgment on this issue, the district judge
evidently believed that the entire case had been
submitted and that plaintiff had narrowed his entire
case to the unseaworthiness issue.
Having lost on the summary judgment motion, and on
its motion for reconsideration, plaintiff eventually
sought to press again on the negligence claim and on
the maintenance and cure claim. We think that the
subsequent confusion is largely due to the way in which
counsel presented the case at the initial conference
and in subsequent pleadings; but neither is there any
indication that plaintiff's counsel explicitly
abandoned the negligence or maintenance and cure
claims. Under these circumstances, and without
expressing any view whatever on the merits of these
latter claims, we think that they have to be addressed.
[FOR COPY WITH ADDENDUM, PLEASE CONTACT THE CLERK'S OFFICE]
UNITED STATES COURT OF APPEALS
For the First Circuit
____________________
No. 96-1217
JAMES FERRARA,
Plaintiff, Appellant,
v.
A. & V. FISHING, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Joseph M. Orlando with whom Paul L. Lees and Orlando & Associates
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were on brief for appellant.
Leonard H. Kesten with whom Steven C. Sharaf, Deidre Brennan
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Regan, and Brody, Hardoon, Perkins & Kesten were on brief for
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appellee.
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October 21, 1996
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BOWNES, Senior Circuit Judge. The first appeal in
BOWNES, Senior Circuit Judge.
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this admiralty case foundered on the final judgment rule, 28
U.S.C. 1291. That procedural shoal has been cleared and
the case now refloats to us as an appeal by plaintiff-
appellant James Ferrara from summary judgment for defendant-
appellee A. & V. Fishing, Inc. In order to understand the
issues before us we must navigate the procedural history of
the case.
I.
I.
The facts are not in dispute. Plaintiff was the
captain of the fishing vessel Josephine Marie. The vessel
was on an extended fishing trip during January and early
February of 1992. On January 28, 1992, the vessel was
inspected at sea by the Coast Guard; no safety violations or
unsafe conditions were found. On its way home on February 2,
the ship struck an unknown submerged object. It began to
take on water, and after a number of hours, sank. It sank
stern first and as the stern went deeper into the waters, the
bow was raised. As a result, the stairs running from the
pilothouse were pitched at a steep angle. Plaintiff fell as
he descended the stairs and injured his knee. Because of his
injury, he was unable to make it to a life raft and had to
jump into the sea in order to avoid going down with the ship.
The sea at the time was running rough and it took a
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considerable time before he was rescued. Plaintiff suffered
physical and psychological injuries.
Plaintiff filed a three count complaint on March
16, 1993. Count one sounded in Jones Act negligence, count
two alleged unseaworthiness, and count three invoked the
doctrine of maintenance and cure.
On May 5, 1994, after a pretrial conference, the
district court ordered that motions for summary judgment be
filed. Plaintiff filed a motion for summary judgment. The
first paragraph stated:
Now comes the plaintiff, James Ferrara,
in the above-captioned action, and
respectfully requests pursuant to Rule 56
of the Federal Rules of Civil Procedure
that this Honorable Court grant summary
judgment in his favor on the issue of
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unseaworthiness of the F/V JOSEPHINE &
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[sic] MARIE. (Emphasis ours.)
Plaintiff's memorandum in support of his motion for summary
judgment focused solely on unseaworthiness. Negligence and
maintenance and cure were not mentioned. Plaintiff's
statement of facts admitted that the vessel had no mechanical
problems, the pumps were operational and had never
malfunctioned, and there had been no problems with the main
rudder, the steering mechanism, or the main engine.
Plaintiff's theory of unseaworthiness was that, as the vessel
began to sink, "she became entirely unfit for her intended
purpose; that is to float and to fish." He also claimed that
because of the steep angle, the stairs from the pilothouse
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were no longer fit for their intended purpose and this
rendered the vessel unseaworthy.
Defendant filed an opposition to plaintiff's motion
for summary judgment and a cross-motion for summary judgment
in which it argued that the vessel was not unseaworthy.
On May 11, 1995, the district court ordered summary
judgment for defendant. In its three-page memorandum
explaining its judgment, the court found that the sinking of
the Josephine Marie was due to its striking an unknown
submerged object and that this fell within the "perils of the
sea" doctrine. It held:
The court therefore concludes that, on
the facts presented here, the "perils of
the sea" defense covers not only damages
caused by the collision with the sunken
object, but also the resulting injuries
to the plaintiff.2
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2It is important to recognize that
unseaworthiness may sometimes arise after
the ship has left harbor. Mitchell v.
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Trawler Racer, Inc., 362 U.S. 539, 549-50
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(1960). For the purposes of this case,
the crucial issue is the cause of the
unseaworthy condition, not the point at
which the condition arose.
Like the parties, the court did not address either
negligence or maintenance and cure. Nevertheless, the
district court docket shows an entry dated May 12, 1995,
stating: "Case closed."
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On June 12, 1995, plaintiff filed a motion for
reconsideration of the summary judgment order. In his
supporting memorandum, plaintiff claimed that the court had
misunderstood the plaintiff's factual claim on the
unseaworthiness count. Defendant opposed the motion for
reconsideration on the grounds that it was too late for new
theories and the court did not misunderstand plaintiff's
original theory.
The district court denied plaintiff's
reconsideration motion on June 29, 1995. It also denied
defendant's motion for costs and sanctions. Its order
states, "Summary Judgment having been entered with respect to
Counts I and II of plaintiff's complaint the above case is
hereby closed." This was the first mention by the court of
count one.
On July 19, 1995, plaintiff moved to amend the
order of June 29, closing the case. The motion pointed out
that count one (Jones Act negligence) and count three
(maintenance and cure) had not been briefed by either party
for summary judgment disposition. The record shows that this
assertion is correct. The motion also tried to resurrect the
unseaworthi-ness count. Defendant opposed the motion. The
court denied plaintiff's motion on August 19, 1995. The
court's order stated:
This court's May 11, 1995 Memorandum
and Order disposed of all Plaintiff's
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claims. The Plaintiff's Motion to Amend
Order Dismissing and Closing the Case is
therefore DENIED.
IT IS SO ORDERED.
Plaintiff then appealed, referencing the district
court's orders of May 11, 1995, June 29, 1995, and August 19,
1995. There was a flurry of motions, now of no moment,
addressed to the question of whether the appeal was late.
On January 12, 1996, we dismissed the appeal
because it was from orders not meeting the finality
requirements of the final judgment rule. A copy of our order
is attached to this opinion as an addendum. After discussing
the procedural situation, we ended by stating: "If it is the
district court's intention to dismiss all three counts and
enter a final judgment, it should enter a judgment so
providing, from which an appeal may be taken."
The district court responded to our order on
January 19, 1996, by issuing an amended order stating:
"Summary Judgment having been entered with respect to Counts
I, II, and III of plaintiff's complaint, the above-captioned
case is closed."
II.
II.
Before considering the appeal directly, a
recapitulation of the pertinent admiralty law is in order.
It has long been established under admiralty law that claims
for unseaworthiness, Jones Act negligence, and maintenance
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and cure are separate and distinct causes of action, each
with its own unique elements. In fact,
[a] major burden of the [Supreme Court's]
decisions spelling out the nature and
scope of the cause of action for
unseaworthiness has been insistence upon
the point that it is a remedy separate
from, independent of, and additional to
other claims against the shipowner,
whether created by statute [the Jones
Act] or under general maritime law
[maintenance and cure].
Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498 (1971),
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reh'g denied, 401 U.S. 1015; Mitchell v. Trawler Racer, Inc.,
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362 U.S. 539, 550 (1960)("What has evolved is a complete
divorcement of unseaworthiness liability from concepts of
negligence."). The distinctions between these separate
claims retain validity today. See Miles v. Apex Marine
___ ______________________
Corp., 498 U.S. 19, 29 (1990).
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We have consistently held that liability under the
doctrine of unseaworthiness is not dependent upon theories of
negligence. CEH, Inc. v. F/V Seafarer, 70 F.3d 694, 700 n.6
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(1st Cir. 1995)("[A] plaintiff . . . could bring a Jones Act
claim, which required a showing of negligence, and/or a
general maritime unseaworthiness claim, which required no
showing of fault."). We have also distinguished a claim for
maintenance and cure as separate from other maritime causes
of action. LeBlanc v. B.G.T. Corp., 992 F.2d 394, 397 (1st
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Cir. 1993)(Maintenance and cure "is curative in nature and
thus to be distinguished from other admiralty rights, such as
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the right to recover lost wages or the right to recover for a
shipowner's negligence, which are compensatory.").
The distinctions are not purely academic borders
separating the same substantive law for purposes of pleading.
Indeed, a district court's failure to acknowledge the three
doctrines' substantive differences usually requires reversal.
In Vargas v. McNamara, 608 F.2d 15 (1st Cir. 1979), we
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vacated the district court's denial of plaintiff's motion to
amend the complaint to add a count of unseaworthiness after
the court had raised the issue sua sponte. Id. at 19. The
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district court denied leave to amend as futile "because
unseaworthiness had not been established by the evidence,"
which had focused exclusively on the question of negligence.
Id. at 18. We responded that "liability under
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unseaworthiness principles is not dependent upon fault." Id.
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at 19 (citing Mitchell, 362 U.S. at 549). We remanded the
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case for reconsideration of the motion to amend, and if
allowed, trial on the claim of unseaworthiness. Id. at 21.
___
Other circuit courts agree that unseaworthiness,
Jones Act negligence, and maintenance and cure are causes of
action distinct from each other. Stanislawski v. Upper River
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Servs., Inc., 6 F.3d 537, 540 (8th Cir. 1993); Chisholm v.
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Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir.
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1982); Liner v. J.B. Talley and Co., Inc., 618 F.2d 327, 332
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(5th Cir.), reh'g denied 623 F.2d 711 (1980).
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A brief examination of the contours of each cause
of action demonstrates the necessity of maintaining the
distinctions.
A. Unseaworthiness
A. Unseaworthiness
A claim based on unseaworthiness enforces the
shipowner's "absolute duty to provide to every member of his
crew 'a vessel and appurtenances reasonably fit for their
intended use.'" Hubbard v. Faros Fisheries, Inc., 626 F.2d
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196, 199 (1st Cir. 1980)(quoting Mitchell, 362 U.S. at 550);
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McAleer v. Smith, 57 F.3d 109, 112 (1st Cir. 1995). The duty
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includes maintaining the ship and her equipment in a proper
operating condition, and can be breached either by transitory
or by permanent defects in the equipment. Hubbard, 626 F.2d
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at 199. A "temporary and unforeseeable malfunction or
failure of a piece of equipment under proper and expected use
is sufficient to establish a claim of damages for
unseaworthiness." Id. (citing Usner, 400 U.S. at 499).
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Finally, the injured seaman must prove that the unseaworthy
condition was the sole or proximate cause of the injury
sustained. Id. Although the duty is absolute, "[t]he
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standard is not perfection, but reasonable fitness; not a
ship that will weather every imaginable peril of the sea, but
a vessel reasonably suitable for her intended service."
Mitchell, 362 U.S. at 550.
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Most important to this discussion is that a claim
of unseaworthiness is not dependent upon a finding of
negligence. "The reason, of course, is that unseaworthiness
is a condition, and how that condition came into being --
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whether by negligence or otherwise -- is quite irrelevant to
the owner's liability for personal injuries resulting from
it." Usner, 400 U.S. at 498 (emphasis in original).
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B. Jones Act Negligence
B. Jones Act Negligence
A short description of the origins of the Jones Act
illustrates the historical distinction between claims brought
under the Act, and those brought under general maritime law.
Early in this century, the Supreme Court ruled that seamen
could recover under general maritime law for unseaworthiness
and for maintenance and cure, but not for negligence. The
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Osceola, 189 U.S. 158 (1903). In response, Congress passed
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the Jones Act which provided injured seamen with "an action
for damages at law." 46 U.S.C. 688. Seamen may,
therefore, maintain an action where an employer's failure to
exercise reasonable care causes a subsequent injury even
where the employer's negligence did not render the ship
unseaworthy. See Toucet v. Maritime Overseas Corp., 991 F.2d
___ _________________________________
5, 10 (1st Cir. 1993).
Jones Act negligence differs, however, from that of
ordinary common law negligence. Under the Jones Act, a
plaintiff's burden for proving causation is considerably
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lower than what the common law requires. "A plaintiff's
burden of proving causation under the Jones Act is
'featherweight.'" Toucet, 991 F.2d at 10 (citation omitted).
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Liability, therefore, "exists if the employer's negligence
contributed even in the slightest to the plaintiff's injury."
Id.
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C. Maintenance and Cure
C. Maintenance and Cure
"From time immemorial, the law of the sea has
required shipowners to ensure the maintenance and cure of
seamen who fall ill or become injured while in service of the
ship." LeBlanc, 992 F.2d at 396 (citing Benedict on
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Admiralty, 41-42 (6th ed. 1993)); see Aguilar v. Standard
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Oil Co. of N.J., 318 U.S. 724, 730-33 (1943). The term
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refers to "the provision of, or payment for, food and lodging
('maintenance') as well as any necessary health-care expenses
('cure') incurred during the period of recovery from an
injury or malady." LeBlanc, 992 F.2d at 397. The right
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attaches "largely without regard to fault; a seaman may
forfeit his entitlement only by engaging in gross
misconduct." Id. The entitlement attaches until the seaman
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is "so far cured as possible." Id. (quoting Farrell v.
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United States, 336 U.S. 511, 518 (1949)). And finally, the
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right is available only to a "seaman" who is "in service of
the ship" at the time of the injury or onset of illness. Id.
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(citing Aguilar, 318 U.S. at 732); Osceola, 189 U.S. at 175.
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III.
III.
We now examine plaintiff's appeal from summary
judgment for defendant on all three counts. We employ the
well-established standard of review of summary judgments.
Our review is plenary, and the facts are viewed in the light
most favorable to the non-moving party -- here the plaintiff.
Borschow Hosp. and Medical Supplies, Inc. v. Cesar Castillo,
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Inc., No. 96-1113, slip op. at 3 (Sept. 23, 1996). We may
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not affirm an order granting summary judgment unless there is
no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Id. at 8.
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We start with the unseaworthiness claim, count two.
Based on the facts as stated by plaintiff in his complaint
and in his papers filed in the district court on the cross-
motions for summary judgment, we agree with the district
court that the "perils of the sea" doctrine mandated summary
judgment for defendant.
In the context of this case, the perils of the sea
doctrine excuses the owner/operator from liability when
"those perils which are peculiar to the sea, and which are of
an extraordinary nature or arise from irresistible force or
overwhelming power, and which cannot be guarded against by
the ordinary exertions of human skill and prudence" intervene
to cause the damage or injury. R.T. Jones Lumber Co., Inc.
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v. Roen S.S. Co., 270 F.2d 456, 458 (2d Cir. 1959)(citation
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omitted).
Two characteristics of the doctrine inform the
discussion as it relates to the present case. First, a peril
of the sea is an unforeseeable situation. Pace, 838 F.2d at
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577 (peril of the sea described as "unknown and
unascertainable") (quoting Boston Ins. Co. v. Dehydrating
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Process Co., 204 F.2d 441, 443 (1st Cir. 1953)). Second, the
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determination of whether a peril of the sea exists "is wholly
dependent on the facts of each case and is not amenable to a
general standard." Thyssen, 21 F.3d at 539; see Taisho
_______ ___ ______
Marine & Fire Ins. Co., Ltd. v. M/V Sea-Land Endurance, 815
________________________________________________________
F.2d 1270, 1271 (9th Cir. 1987).
The memorandum opinion includes recitation of two
facts important to this analysis: (1) both parties agreed
"that the ship was seaworthy at all times until the ship
struck the submerged object and began to take on water," and
(2) both parties agreed that a submerged object qualifies as
a "peril of the sea."
The court below determined that in striking a
submerged object, the wholly seaworthy Josephine Marie
encountered a peril of the sea which caused the hull to
rupture and the vessel to sink, thereby defeating
plaintiff's claim of unseaworthiness. Ferrara, slip op. at
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3. Certainly, a submerged object lurking below the surface
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of apparently navigable waters satisfies the requirement of
unforeseeability. Applying the perils of the sea doctrine to
the stipulated facts, the collision with the submerged object
was "unknown and unascertainable." Plaintiff himself
stipulated both that the vessel was seaworthy until it struck
the submerged object, and that a submerged object constitutes
a peril of the sea. The district court was, therefore,
correct when it determined that a peril of the sea was the
cause of the vessel's sinking and consequentially the
plaintiff's injuries.
Plaintiff has attempted to change the stipulated
facts and his theory of unseaworthiness after summary
judgment issued. He did this by alleging, in his motion for
reconsideration below and in argument to this court, that the
district court misunderstood his claim of unseaworthiness.
As he put it in his motion for reconsideration:
It is not the plaintiff's contention
that the sinking vessel caused Mr.
Ferrara's injuries. Rather, it is the
plaintiff's position that the collapse of
the bulkhead wall between the lazarette
and the fish hold was the unseaworthy
condition which caused Mr. Ferrara's
injury.
This contention was not made either explicitly or impliedly
in plaintiff's summary judgment submissions. His claim that
the district court "misunderstood" his unseaworthiness claim
is an egregious contrivance to avoid our firmly embedded rule
that we will not consider on appeal theories not timely
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advanced in the district court. United States v. Alzanki, 54
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F.3d 994, 1009 (1st Cir. 1995), cert. denied, 116 S. Ct. 909
_____ ______
(1996); Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st
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Cir. 1990).
As already noted, neither the Jones Act negligence
count nor the maintenance and cure count were submitted to
the court for summary judgment decision or argued to it. Nor
does the record indicate that the court in fact gave any
consideration to either of these issues, before or after our
first remand order in this case. The judgments on counts one
and three must, therefore, be vacated and remanded to the
district court for further proceedings.
It may be helpful to add one further word. In the
district court, before the plaintiff moved for summary
judgment on unseaworthiness, a pretrial conference was held
in which defense counsel stated: "This is an unseaworthiness
case, essentially," a point on which he elaborated at some
length without contradiction from plaintiff's counsel. When
plaintiff then moved for summary judgment on this issue, the
district judge evidently believed that the entire case had
been submitted and that plaintiff had narrowed his entire
case to the unseaworthiness issue.
Having lost on the summary judgment motion, and on
its motion for reconsideration, plaintiff eventually sought
to press again on the negligence claim and on the maintenance
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and cure claim. We think that the subsequent confusion is
largely due to the way in which counsel presented the case at
the initial conference and in subsequent pleadings; but
neither is there any indication that plaintiff's counsel
explicitly abandoned the negligence or maintenance and cure
claims. Under these circumstances, and without expressing
any view whatever on the merits of these latter claims, we
think that they have to be addressed.
Although the district court is free to treat the
remanded counts as it deems best, we note that the record
discloses that discovery was completed as to all counts.
Conclusion
Conclusion
The summary judgment on count one is vacated and
remanded for further proceedings.
The summary judgment on count two is affirmed.
The summary judgment on count three is vacated and
remanded for further proceedings.
No costs to either party.
So Ordered.
So Ordered.
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