In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1716
V INCENT R AY D EERING,
Plaintiff-Appellee,
v.
N ATIONAL M AINTENANCE & R EPAIR, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:09-CV-676-DRH—David R. Herndon, Chief Judge.
A RGUED O CTOBER 29, 2010—D ECIDED D ECEMBER 2, 2010
Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.
P OSNER, Circuit Judge. Deering, employed as a river-
boat pilot by National, sued it for injuries he sustained
in an accident. National counterclaimed for serious
damage that it alleged Deering had caused the
boat—namely, sinking it. The district court dismissed
the counterclaim, precipitating National’s interlocutory
appeal, which presents questions of admiralty law and of
jurisdiction over interlocutory appeals in admiralty cases.
2 No. 10-1716
On the day of the accident (March 11, 2009), with the
Mississippi River at flood stage (Jim Salter, “Towns Along
Mississippi River Prepare for Springtime Flooding,” South-
east Missourian, Mar. 11, 2009, www.semissourian.com/
story/1509416.html (visited Nov. 29, 2010)), Deering
was having trouble controlling the towboat that he was
operating to move barges at a National drydock facility.
He claims that as a consequence of National’s negligence
the steering mechanism on the towboat was defective,
that he warned his supervisor that the defect made the
maneuvers that he had been directed to perform unsafe
in high-water conditions, but that the supervisor
ordered him to continue. Because of the difficulty of con-
trolling a towboat with a defective steering mech-
anism in such conditions, the boat became wedged
at a dangerous angle against the barge that it was
towing. Another boat approached to offer assistance,
but at excessive speed. At the last minute, to avert a
collision, its captain threw its engines into reverse,
which caused a surge of water that swamped Deering’s
boat. The boat sank rapidly with Deering still on board
and he was swept underneath the adjoining barge. He
survived, but suffered injuries that ended his career as
a riverboat pilot.
He sued National in an Illinois state court under the
Jones Act. The admiralty counterpart to the Federal Em-
ployers’ Liability Act, the Jones Act states that “a
seaman injured in the course of employment . . . may
elect to bring a civil action at law, with the right of trial
by jury, against the employer. Laws of the United States
regulating recovery for personal injury to . . . a railway
No. 10-1716 3
employee apply to an action under this section.” 46 U.S.C.
§ 30104. Deering also sought relief under the general
admiralty law—the judge-made law, like common law
(which however is inapplicable to maritime activities),
that unless displaced by statute governs those activities.
General admiralty law entitles an injured seaman to
maintenance (shelter until he recovers) and cure (treat-
ment), plus lost wages—all irrespective of any
negligence on his part—and, if his injury was caused
by the unseaworthiness of the ship on which he was
injured, to damages comparable to those available in
a nonmaritime personal injury suit, The Osceola, 189
U.S. 158, 175 (1903), subject to the (partial) defense of
comparative negligence. Pope & Talbot, Inc. v. Hawn, 346
U.S. 406, 408-09 (1953); Churchwell v. Bluegrass Marine,
Inc., 444 F.3d 898, 908 (6th Cir. 2006); see generally
Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S.
811, 815 (2001). The parties ignore Deering’s general
admiralty claims; we discuss them briefly later.
National filed a petition in federal district court under
the Limitation of Liability Act, 46 U.S.C. §§ 30501 et seq.,
which so far as bears on this case limits a shipowner’s
liability to the ship’s value. 46 U.S.C. § 30505(a). National
contends that the towboat, though worth $800,000
before it sank, has a salvage value of only $30,000, and
it seeks to limit its liability to Deering to that amount.
We take no position on the merits of either the limitation
of liability claim or Deering’s personal injury claim, both
of which remain pending in the district court.
The district judge ordered Deering’s state court
action stayed, and Deering then refiled his Jones Act
4 No. 10-1716
and general admiralty law claims in the district court.
National counterclaimed, seeking damages of $800,000
(the figure should really, one would think, be $770,000,
in recognition of the towboat’s salvage value; but we’ll
ignore that point, as do the parties). National claims that
the accident in which the towboat sank was at least
partially attributable to negligence on the part of Deering.
Deering moved to dismiss the counterclaim. The judge
granted the motion on the ground that counterclaims
in the nature of setoffs to Jones Act claims are forbid-
den. National appeals under 28 U.S.C. § 1292(a)(3), which
allows interlocutory appeals “determining the rights
and liabilities of the parties to admiralty cases in which
appeals from final decrees are allowed.” See Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, 16
Federal Practice and Procedure § 3927 (2d ed. 1995). Before
taking up the merits of the appeal we must satisfy our-
selves that it is within our jurisdiction.
The original and still central purpose of section 1292(a)(3)
is to allow the determination of liability to be appealed
before relief is ordered. The reason is that relief in an
admiralty case is traditionally determined in a separate
proceeding before a special master (called a “commissioner
in admiralty”), and often that proceeding is protracted
and therefore costly, Wingerter v. Chester Quarry Co., 185
F.3d 657, 670 (7th Cir. 1998) (per curiam), though more
commonly so in cases involving collisions, salvage,
towage, insurance, or general average than in cases of
personal injury—but the counterclaim does seek damages
for the destruction of a ship, albeit a small one.
No. 10-1716 5
Although section 1292(a)(3) does not say that all rights
and liabilities of the parties must be decided before an
appeal can be taken, most cases say that its application
should hew closely to the original purpose that we
just described. E.g., id. at 669-70; Evergreen Int’l (USA)
Corp. v. Standard Warehouse, 33 F.3d 420, 424-26 (4th
Cir. 1994). The reason is the disfavor in which inter-
locutory appeals in federal cases generally are held. But
this concern has diminished force in a case in which
an interlocutory admiralty order resembles the kind
of nonmaritime interlocutory order that would be
appealable, albeit only with the consent of the district
court, under 28 U.S.C. § 1292(b) (which also requires the
consent of the court of appeals) or Fed. R. Civ. P. 54(b)—
consent not required by section 1292(a)(3). The issue
presented by National’s appeal is a “controlling question
of law,” 28 U.S.C. § 1292(b), and also an issue that
arises from a separate claim within the meaning of
Fed. R. Civ. P. 54(b); in both respects it is the kind of
interlocutory appeal that is frequently allowed even in
nonmaritime cases.
And note that whether National should be allowed to
counterclaim for property damage is a separate issue from
the merits of either Deering’s personal injury claim or
National’s limitation of liability claim. The facts of the
counterclaim and the facts of Deering’s claim are en-
twined but none of the facts bears on the issue of law
presented by National’s appeal. A number of admiralty
cases allow interlocutory appeals in circumstances such as
these. Continental Casualty Co. v. Anderson Excavating &
Wrecking Co., 189 F.3d 512, 516-18 (7th Cir. 1999); Brother-
6 No. 10-1716
hood Shipping Co. v. St. Paul Fire & Marine Ins. Co., 985 F.2d
323, 324-25 (7th Cir. 1993); Stewart v. Dutra Construction Co.,
230 F.3d 461, 465 (1st Cir. 2000), reversed on other grounds,
543 U.S. 481 (2005); In re Complaint of Nautilus Motor
Tanker Co., 85 F.3d 105, 109-10 and n. 3 (3d Cir. 1996);
Kesselring v. F/T Arctic Hero, 30 F.3d 1123, 1125 (9th Cir.
1994).
There is another jurisdictional issue, however:
National’s notice of appeal was untimely. But it had
filed a Rule 59(e) motion in the district court within the
period for appealing from the dismissal of the counter-
claim, and as the motion contained all the information
that a notice of appeal is required by Rule 3(c) of the
appellate rules to contain—just like the appeal brief held
in Smith v. Barry, 502 U.S. 244, 248 (1992), to do service
for a notice of appeal—National’s motion likewise sufficed.
So we have jurisdiction, and proceed to the merits.
General admiralty law, like common law, creates
liability for negligent damage to property. But ship-
owners, unless they are trying to reduce or eliminate
their liability for personal injuries caused by their negli-
gence, do not sue their employees for property damage
except in the very rare case in which the employee
is so highly paid as to be worth suing. In the case of
seamen, even when they are riverboat pilots rather
than just deckhands, such suits are unknown—unless, as
in this case, the seaman is seeking damages from the
employer. As a practical matter, then, a suit or counter-
claim by a shipowner against a seaman is a setoff
No. 10-1716 7
against the seaman’s personal injury claim; the question
is whether such a setoff is permissible.
Setoffs in personal injury suits by employees are ad-
dressed in section 5 of the Federal Employers’ Liability
Act, 45 U.S.C. § 55, which like the rest of that statute
is incorporated into the Jones Act by reference. Section 5
says that “any contract, rule, regulation, or device what-
soever, the purpose or intent of which shall be to
enable any common carrier to exempt itself from any
liability created by this chapter, shall to that extent be
void: Provided, That in any action brought against any
such common carrier under or by virtue of any of the
provisions of this chapter, such common carrier may set
off therein any sum it has contributed or paid to any
insurance, relief benefit, or indemnity that may have
been paid to the injured employee or the person entitled
thereto on account of the injury or death for which said
action was brought.” National’s counterclaim, the only
purpose of which could be to exempt itself from liability
to Deering (as further shown by its not having sued the
pilot of the boat who contributed to the accident
by approaching National’s towboat at an excessive
speed—and against whom Deering has filed a third-party
complaint for negligence), is a good description of a
“device . . . the purpose or intent of which shall be to
enable [the shipowner] to exempt itself from any
liability created by [the Jones Act].” In a filing in the
district court National itself called its counterclaim a
“setoff.”
The setoff proviso in section 5 supports the inference
that the word “device” embraces all setoffs with the
8 No. 10-1716
exceptions (irrelevant to this case) specified in the
proviso, as otherwise there would be no need for an
express exclusion. Ordinarily we would put little weight
on this point lest we be attributing an unrealistically
high degree of precision and care to legislative drafts-
men in an era in which congressional staffs were rudi-
mentary. But when the FELA was enacted, a railroad’s
right to recover damages from an employee on account
of property damage caused by the employee’s negligence
was limited, either in law or as a matter of custom, to
setoffs (whether or not formally denominated as such)
against claims by employees for unpaid wages. William
P. Murphy, “Sidetracking the FELA: The Railroads’
Property Damage Claims,” 69 Minn. L. Rev. 349, 367-72
(1985). This suggests that the setoff proviso in section 5
may indeed have been based on an understanding that
the courts would deem any property claim by a railroad
that had the effect of a setoff against an employee’s per-
sonal injury claim to be a forbidden “device.” Hence
the need to carve out from the prohibition of setoffs
in section 5 those that Congress wanted to permit.
Moreover, when the FELA was enacted most property
claims by railroads against their employees were based
on the employees’ having expressly assumed in their
employment contracts liability for damaging the em-
ployer’s property, and therefore fell under the “contract”
bar of section 5. Id. It would be surprising if Congress
had meant to countenance an identical result based on a
tort right asserted by employers to which the worker
had not waived objections in his employment contract.
No. 10-1716 9
National argues that the phrase “any device whatso-
ever” must be confined to documents that are just like a
“contract, rule, [or] regulation.” In so arguing it invokes
the rule of interpretation known as eiusdem generis
(Latin for “of the same kind”). But like most rules of
interpretation this one is not so much a rule as an item
in a checklist of considerations bearing on the sensible
interpretation of a document. Words in a string often are
intended to bear similar meanings. But not always—and
not in this instance. The fact that the statute tacks “what-
soever” on to “any device” is a clue that “device” is a
catch-all, cf. Harrison v. PPG Industries, Inc., 446 U.S.
578, 588-89 (1980), in recognition of the incentive of em-
ployers to get around the FELA’s generous provi-
sions—generous relative both to the common law of torts
and workman’s compensation law—for injured employees.
The fact that Congress didn’t think to say that a counter-
claim for property damage was a forbidden device for ex-
tinguishing the employer’s liability for injuries to his
employees confirms the wisdom of including a catch-all.
Anyway National’s “device” is much like the first word
in the string—“contract.” National’s counterclaim has the
same effect as would a provision in its employment
contract with Deering waiving National’s liability under
the Jones Act if he was injured in an accident that caused
property damage to National—and of course such a
contractual provision would be unenforceable. So why
shouldn’t a differently named “device” of identical pur-
pose and consequence likewise be unenforceable?
The destructive effect on an employee’s personal
injury claim of accepting National’s position would be
10 No. 10-1716
magnified by two features of admiralty law that have no
counterpart in a counterclaim in an FELA case: compara-
tive negligence and limitation of liability. Although
the FELA substitutes comparative for contributory negli-
gence as a defense to the employer’s liability to an
injured employee, 45 U.S.C. § 53, defenses against a
counterclaim for property damage are governed by
state law, which may or may not substitute comparative
for contributory negligence as a defense to the counter-
claim defendant’s liability (in this case, Deering’s
liability in negligence for causing the towboat to sink,
were that proved). But an admiralty counterclaim for
property damage would, as we’ll see, always be subject
to a defense of comparative negligence. And under com-
parative negligence National’s damages would merely
be reduced rather than eliminated by proof that its negli-
gence had contributed to the accident.
To appreciate the significance of this point, suppose
that National’s negligence was 96 percent responsible
for the sinking of its towboat and Deering’s negligence
4 percent responsible. Four percent of the loss from the
boat’s sinking ($800,000) is only $32,000. But that’s $2,000
more than National’s liability to Deering on account of
his injury—a liability capped, National claims, at $30,000.
So Deering, although seriously injured (and in the
present posture of the case we must assume seriously
injured because of negligence by National), would end up
not with positive damages or even zero damages but
with negative damages: he would owe National money.
That would be like the outcome in Cook v. St. Louis-San
Francisco Ry., 75 F.R.D. 619 (W.D. Okla. 1976). An injured
No. 10-1716 11
railroad conductor was awarded $46,000 in damages—and
the railroad, which counterclaimed for property damage,
was awarded $1.2 million in damages, leaving the plain-
tiff with no recovery and a large, though doubtless an
uncollectible, debt. See Cavanaugh v. Western Md. Ry., 729
F.2d 289, 297 (4th Cir. 1984) (dissenting opinion).
Ordinarily the effect of the statutory limitation of
liability conjoined with a counterclaim for property
damages would not be so dramatic. The ship would not
be sunk and so the shipowner’s liability to the seaman
would not be limited to a low amount (remember the
limitation is to the value of the ship); and the amount of
property damage caused by the seaman would be small
and so the offset to the plaintiff’s personal injury claim
would also be small. But rarely in such cases would the
shipowner bother to counterclaim for property damage
(other than as a means of pushing up the seaman’s litiga-
tion costs and so forcing him either to abandon his suit
or settle for a nominal amount). This is only the third
reported maritime appeal involving a counterclaim to
a personal injury claim in the 70-year history of the
Jones Act.
In the first, Moore-McCormack Lines, Inc. v. McMahon,
235 F.2d 142 (2d Cir. 1956), the propriety of the counter-
claim was assumed rather than discussed; anyway the
counterclaim was based on a contract rather than on
tort law. The second case is discussed in the next para-
graph. There are a few analogous cases, as we’ll see, under
the FELA, but not many. The poverty of cases should
allay anxiety that seamen who damage their employer’s
12 No. 10-1716
property will seek immunity by filing trivial Jones Act
claims (a claim that the seaman cut his finger and seeks
reimbursement for the cost of a Band-Aid, for example).
The employer will not sue a seaman for damage to prop-
erty except as a setoff to a substantial claim of damages
for personal injury.
National places all its eggs in a basket called Withhart v.
Otto Candies, L.L.C., 431 F.3d 840 (5th Cir. 2005). The
district judge in the present case refused to consider
Withhart because he mistakenly believed that a judge
of this court had criticized him in another case for citing
a decision by a court of appeals other than our court of
appeals. What is true is that district judges are bound by
the decisions of the court of appeals for their circuit
(unless inconsistent with decisions of the Supreme
Court), but when as in this case there is no controlling
decision by their own court of appeals they should of
course give respectful consideration to decisions by
other courts.
Withhart was much like this case (though with an im-
portant distinction, as we’ll see). The court held that a
counterclaim against a seaman for property damages
is not a “device” within the meaning of section 5 of
the FELA. For this conclusion it relied primarily on
Cavanaugh v. Western Md. Ry., 729 F.2d 289 (4th Cir. 1984)
(a decision by a divided panel—we cited Judge Hall’s
dissent earlier). Cavanaugh in turn had relied heavily on
the concern expressed in the House Report on the bill
that became the FELA that railroads were requiring
their employees to sign waivers of liability. H.R. Rep.
No. 10-1716 13
No. 1386, 60th Cong., 1st Sess. 6-8 (1908). Those waivers
exemplify the type of “contract” that section 5 of the
FELA forbids, but section 5 forbids more besides,
including “devices”—a point the court in Cavanaugh
overlooked. It also overlooked the Supreme Court’s
observation in Philadelphia, Baltimore & Washington R.R. v.
Schubert, 224 U.S. 603, 611 (1912), that “the evident pur-
pose of Congress [in enacting section 5, which replaced
a similar provision in a 1906 predecessor statute to the
FELA] was to enlarge the scope of the section and to
make it more comprehensive by a generic, rather than
a specific, description. It thus brings within its purview
‘any contract, rule, regulation, or device whatsoever,
the purpose or intent of which shall be to enable any
common carrier to exempt itself from any liability
created by this act.’ It includes every variety of agree-
ment or arrangement of this nature . . . .” Later the Court
remarked on the “comprehensive phraseology” of
section 5. Duncan v. Thompson, 315 U.S. 1, 6 (1942).
The majority opinion in Cavanaugh was followed in
two subsequent appellate cases, Sprague v. Boston & Maine
Corp., 769 F.2d 26, 29 (1st Cir. 1985), and Nordgren v.
Burlington Northern R.R., 101 F.3d 1246, 1251 (8th Cir. 1996)
(another 2 to 1 decision), but its holding had been
rejected by a prior case, Stack v. Chicago, Milwaukee, St. Paul
& Pac. R.R., 615 P.2d 457, 460-62 (Wash. 1980), and is
in tension with California Home Brands, Inc. v. Ferreira, 871
F.2d 830, 833 (9th Cir. 1989). That case holds that the
shipowner cannot seek indemnity from a seaman whose
negligence caused an injury to a seaman who is suing
the shipowner. In effect, California Home Brands treats
14 No. 10-1716
such an indemnity claim as a “device” forbidden by
section 5. The Sprague and Nordgren opinions do not add
to the analysis in Cavanaugh.
Although we doubt that Cavanaugh and the cases fol-
lowing it—all but Withhart being FELA rather than
Jones Act cases—were decided correctly, the case for
barring an employer’s counterclaim is stronger in the
maritime setting in three important respects. It may
thus be significant that Stark, which is contrary to the
Cavanaugh line of cases (before Withhart), was, unlike
them, a maritime case.
First, comparative negligence, today the law in most
states, had not been clearly recognized in any state when
the FELA was enacted in 1908, and was in force in only
a handful of states when the Jones Act was enacted in
1920. Arthur Best, “Impediments to Reasonable Tort
Reform: Lessons From the Adoption of Comparative
Negligence,” 40 Ind. L. Rev. 1, 17-22 (2007). When con-
tributory negligence was king, the slightest negligence
by the employer would bar his counterclaim against
the employee—yet the employee could recover on his
claim only by proving that the employer had been negli-
gent. So except in the unlikely event that the personal
injury and the property damage, though arising from
the same incident, had been caused by unrelated
negligent acts by the parties, a victory by the employee
would, by establishing the employer’s negligence—and
hence the contributory negligence of the defendant with
regard to his counterclaim for property dam-
age—extinguish the counterclaim.
No. 10-1716 15
The approach in admiralty law was different. Until
the Supreme Court discarded the rule of “divided dam-
ages” in United States v. Reliable Transfer Co., 421 U.S. 397
(1975), in favor of the “pure” comparative negligence
defense illustrated by our arithmetical example, the
rule was “equal division of property damage whenever
both parties are found to be guilty of contributing fault,
whatever the relative degree of their fault may have
been.” Id. at 397. In the present case (had it arisen before
1975), this would mean that National, if it could prove
any degree of fault on Deering’s part, would be entitled
to a $400,000 setoff against whatever damages Deering
could prove, for he’d be liable for half the damage to
the towboat.
So while in the reign of contributory negligence a coun-
terclaim in an FELA suit would rarely have been an
effective “device” for thwarting a railroad worker’s
negligence claim, even at the time the Jones Act was
passed it would have been an effective device in a mari-
time case—indeed, it would have been more effective
then than it is now. For with the replacement of the rule
of divided damages by that of comparative negligence
in 1975, slight negligence by the seaman will result in
his bearing only a slight liability for the damage to the
shipowner’s property (in our example, $32,000, rather
than $400,000 under divided damages), though, as in this
case, his slight residual liability might be quite enough
to make his entire personal injury claim evaporate if
the shipowner invoked the Limitation of Liability Act.
And that is the second difference between the FELA
and the Jones Act: the shipowner but not the railroad can
16 No. 10-1716
file an action for limitation of liability. It is the interaction
of the two differences that produced our absurd but, as
applied to the present case, entirely realistic consequence
of National’s position: Deering’s assumed 4 percent
responsibility for the property damage not only wipes
out his personal injury claim because of the interaction
of the comparative negligence doctrine with the limita-
tion of liability statute, but leaves him owing money to
the shipowner even though his injuries may have
made him unemployable.
Third, it is uncertain whether in 1920 a shipowner
could have sued a seaman for property damage. If such
a suit was possible, it would doubtless have been
governed by the rule of divided damages. But was it
possible? Recall from our earlier discussion of the
general admiralty law that a seaman’s rights under
that law (maintenance and cure, and lost wages, but
damages comparable to those available in common law
tort cases only if the injury was attributable to the
ship’s being unseaworthy) were more limited than the
corresponding rights of negligence victims on land.
Maybe the converse rights of shipowners against
seamen who negligently damaged property were also
limited—the absence of such cases supports such an
inference. It would be odd if in enacting the Jones Act
in order to give seamen the same broad rights that the
FELA had conferred on railroad workers, Congress
had left employers armed to nullify those rights
(albeit only in the small set of unusual cases illustrated
by this case) by filing property-damage counterclaims
the purpose of which was to exempt the shipowner
No. 10-1716 17
from liability for a personal injury caused by the ship-
owner’s negligence.
These critical differences between the FELA and Jones
Act contexts were overlooked in Withhart. There is no
mention of limitation of liability; we assume the ship-
owner did not seek it. When the limitation is not sought,
because the value of the seaman’s claim is less than
the ship’s value, the effect of the shipowner’s counter-
claim is likely to be much less dire than when a limita-
tion of liability is sought. Suppose in the present case
that the loss to National was $100,000 and Deering’s
damages $500,000 and he was deemed 20 percent at
fault for the accident. Then his damages would be
reduced only from $500,000 to $380,000 (his damages
would be reduced by 20 percent, to $400,000, and National
would subtract another $20,000 for Deering’s share of
responsibility for the property damage). That is a lot
more than -$2,000.
Maybe, then, the “device” forbidden by section 5 should
be confined, so far as counterclaims against seamen for
property damage are concerned, to cases in which a
limitation of the shipowner’s liability combines with the
counterclaim to wipe out a personal injury claim no
matter how substantial. In this case, for example, even if
Deering’s damages were $5 million, or for that matter
$5 billion, his recovery could well be a negative $2,000 if
National’s position were correct.
For the present then—and mindful that an implicit
abrogation of a right of action (here a right to obtain
compensation for negligently inflicted damage to prop-
18 No. 10-1716
erty) is unusual—rather than creating a conflict with the
Fifth Circuit we hold merely that the one-two punch
thrown by National by combining a property-damage
counterclaim with a limitation of liability in order to
wipe out a substantial personal injury claim under the
Jones Act is a liability-exempting device forbidden by
the Act. We leave for a future day (which may be long
in coming, given the paucity of cases such as this) the
resolution of the issue whether a shipowner who
does not seek to limit his liability should nevertheless
be forbidden to set off damages for negligent damage
to property against a Jones Act claim.
We also need not decide how far our analysis applies
to seamen’s claims under general admiralty law, as
distinct from the Jones Act; National does not argue that
its counterclaim, if barred by the Jones Act as we hold,
might nevertheless be maintainable against such claims.
(And likewise it has forfeited any argument that it
should be permitted to press its counterclaim if it
drops its limitation of liability claim.) Its silence
suggests awareness of the likely futility of such an argu-
ment. If our interpretation of “device” in the Jones Act
is correct, it would be strange indeed had the Supreme
Court, in determining the rights of seamen under
general admiralty law (judge-made law, as we said), meant
to arm shipowners with a “device” that would thwart
those rights as effectively as it would thwart seamen’s
largely redundant rights under the Jones Act. Deering
complains that the towboat’s steering mechanism was
defective, and if that is right and the defect caused (or
contributed to causing) the accident, he has a claim
No. 10-1716 19
of unseaworthiness that is identical to his claim of negli-
gence under the Jones Act. See, e.g., Mahnich v. Southern
S.S. Co., 321 U.S. 96 (1944); In re Oil Spill by Amoco Cadiz
Off Coast of France on March 16, 1978, 954 F.2d 1279, 1302
(7th Cir. 1992) (per curiam); The City of Camden, 292 F. 93,
95-96 (3d Cir. 1923).
A final possibility would be the shipowner’s filing its
property-damage claim as an independent suit rather
than as a counterclaim to the seaman’s personal
injury claim. (It would not be a compulsory counter-
claim, and so could be filed as a separate suit, if the
Jones Act and general admiralty law bar such a counter-
claim in a suit under the Act or the general law.) But by
the same logic deployed above, such a suit filed
alongside a limitation of liability action would be an
impermissible device, as it would have the identical
purpose and effect of preventing the seaman from obtain-
ing the recovery to which the Jones Act and general
admiralty law entitled him. In any event National has
forfeited any argument that it is entitled to circumvent
in this fashion the interpretation of “device” pressed by
Deering and accepted by the district judge and by us.
The dismissal of National’s counterclaim is
A FFIRMED.
12-2-10