Ferrara v. A. & v. Fishing, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 96-1217

JAMES FERRARA,
Plaintiff, Appellant,

v.

A. & V. FISHING, INC.,
Defendant, Appellee.

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

Joseph M. Orlando with whom Paul L. Lees and Orlando & Associates

were on brief for appellant.
Leonard H. Kesten with whom Steven C. Sharaf, Deidre Brennan

Regan, and Brody, Hardoon, Perkins & Kesten were on brief for

appellee.

October 21, 1996

BOWNES, Senior Circuit Judge. The first appeal in
BOWNES, Senior Circuit Judge.

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

unseaworthiness of the F/V JOSEPHINE &

[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

2It is important to recognize that
unseaworthiness may sometimes arise after
the ship has left harbor. Mitchell v.

Trawler Racer, Inc., 362 U.S. 539, 549-50

(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),

reh'g denied, 401 U.S. 1015; Mitchell v. Trawler Racer, Inc.,

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).

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

(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

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

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

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

unseaworthiness principles is not dependent upon fault." Id.

at 19 (citing Mitchell, 362 U.S. at 549). We remanded the

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

Servs., Inc., 6 F.3d 537, 540 (8th Cir. 1993); Chisholm v.

Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir.

1982); Liner v. J.B. Talley and Co., Inc., 618 F.2d 327, 332

(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

196, 199 (1st Cir. 1980)(quoting Mitchell, 362 U.S. at 550);

McAleer v. Smith, 57 F.3d 109, 112 (1st Cir. 1995). The duty

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

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).

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

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 --

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).

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

Osceola, 189 U.S. 158 (1903). In response, Congress passed

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).

Liability, therefore, "exists if the employer's negligence

contributed even in the slightest to the plaintiff's injury."

Id.

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

Admiralty, 41-42 (6th ed. 1993)); see Aguilar v. Standard

Oil Co. of N.J., 318 U.S. 724, 730-33 (1943). The term

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

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

is "so far cured as possible." Id. (quoting Farrell v.

United States, 336 U.S. 511, 518 (1949)). And finally, the

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,

Inc., No. 96-1113, slip op. at 3 (Sept. 23, 1996). We may

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.

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

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

577 (peril of the sea described as "unknown and

unascertainable") (quoting Boston Ins. Co. v. Dehydrating

Process Co., 204 F.2d 441, 443 (1st Cir. 1953)). Second, the

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

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

F.3d 994, 1009 (1st Cir. 1995), cert. denied, 116 S. Ct. 909

(1996); Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st

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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