Charles Dise v. Express Marine, Incorporated

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:07-cv-01893-CCB Copies to all parties and the district court/agency. [998724841].. [10-1721]

Appeal: 10-1721

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Date Filed: 11/17/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

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:

September 21, 2011

Decided:

November 17, 2011

Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.

Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Wilkinson and Judge Motz joined.

ARGUED: David W. Skeen, WRIGHT, CONSTABLE & SKEEN, LLP,
Baltimore, Maryland, for Appellant.
JoAnne Zawitoski, SEMMES,
BOWEN & SEMMES, Baltimore, Maryland, for Appellee.
ON BRIEF:

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Meighan Griffin Burton, WRIGHT, CONSTABLE & SKEEN, LLP,
Baltimore, Maryland; Lawrence A. Melfa, BUTLER, MELFA & TAYLOR,
PA, Towson, Maryland, for Appellant.
Alexander M. Giles,
SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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DAVIS, Circuit Judge:
Appellant

Charles

H.

Dise

(“Dise”)

filed

this

maritime

action to recover for injuries he sustained when a skiff piloted
by him and owned by his employer, Appellee Express Marine, Inc.
(“EMI”),

allided

allegedly

with

negligent

a

bridge

medical

piling,

and

treatment

he

as

a

result

received

at

of
the

University of South Alabama Medical Center (“USA Medical”) in
the wake of the allision. Dise asserted claims for negligence
and vicarious liability under the Jones Act, 46 U.S.C. app. §
688(a) (recodified at 46 U.S.C. § 30104), and unseaworthiness
under the general maritime law. EMI counterclaimed to recover
for property damage to its skiff. The district court granted
summary

judgment

unseaworthiness

in

favor

claims,

of

EMI

and

on

on

Dise’s

EMI’s

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

a

New

Jersey

corporation

engaged

in

the

business of towing barges and commodities from various East and
Gulf

Coast

2003.

In

locations.

April

2005,

Dise
EMI

began

working

assigned

Dise

3

for
to

EMI

work

in
on

October
the

Tug

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BALTIMORE as an assistant engineer. His duties included standing
watch in the engine room during specified shifts.
During July 2005, the Tug BALTIMORE was assisting with the
loading of a barge near Mobile, Alabama. Around the time of
Dise’s assignment to the Tug BALTIMORE, EMI purchased a 14-foot
Boston

Whaler

readings

on

(“the
the

skiff”)

barge

for

the

associated

purpose

with

the

of

taking

Tug

draft

BALTIMORE. 1

According to First Mate Douglas Covil, prior to the date of the
accident, July 19, 2005, the skiff had been used only for taking
draft readings. After the accident, the skiff was also used to
transport groceries and supplies to and from the tug.
On the evening of July 19, 2005, the Tug BALTIMORE and the
associated barge were docked at a terminal on Three Mile Creek
in

Mobile,

onboard

the

Alabama.
Tug

In

addition

BALTIMORE

to

included

Dise,
Captain

the

crew

Michael

members
Daniels,

First Mate Covil, Chief Engineer Sammy Edwards, Bargeman Jerry
Harper, Assistant Bargeman George Greggs, and the cook, Otis
Foster. Just before midnight, Daniels asked Greggs to take draft

1

“Draft” is “the depth of water required to float a
vessel,” and “draft marks” are “the Arabic numerals on both
sides of the bow and stern of a vessel to show the ship’s
draft.” Thompson Lenfestey & Tom Lenfestey, The Sailor’s
Illustrated Dictionary 142-43 (Globe Pequot ed., 2001). In the
context of this case, taking “draft readings” consists of
recording the draft marks at the waterline on the barge being
towed by the Tug BALTIMORE. See J.A. 128-30.

4

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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

experiencing any problems with the skiff.
Dise was present when Daniels ordered Greggs to take the
draft readings. Dise asked Daniels for permission to drive the
skiff while Greggs took the draft readings. According to the
testimony of Daniels, which was corroborated by Covil, Daniels
replied to Dise with something along the lines of, “it d[oes]n’t
take two people to read drafts.” J.A. 55, 71. After Daniels left
the galley, however, Dise informed Covil that he was planning to
accompany Greggs, and Covil did not explicitly tell him not to
follow through on that plan.
Dise

and

Greggs

met

on

the

deck

a

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 Greggs’s idea to take the skiff downriver
to see a ship moored nearby, while Greggs testified that Dise
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wanted “to run the boat to see how it operated,” J.A. 174. It is
undisputed that Dise was at the helm of the skiff during the
entire incident.
Dise steered the skiff downriver toward the moored ship,
passing under a railroad bridge along the way. Shortly after
passing under the bridge, a call came in to the skiff to take a
second

set

of

draft

readings

because,

according

to

Greggs,

Harper had noticed a “discrepancy” and so wanted a new set of
readings taken. J.A. 175. Dise testified that he heard the word
“emergency” over the call, immediately turned the boat upriver,
and accelerated on a course toward the barge. J.A. 325. In his
deposition testimony, Dise claimed the fastest he drove the boat
was 17 or 18 knots, short of full throttle. However, in his
diary entry made after that night, he described the speed of the
skiff

as

“full

speed

ahead.”

See

J.A.

151-53.

Greggs

also

testified that, when Dise turned the boat around, “he opened up
the boat full throttle,” which Greggs ascertained because he
could see that the throttle was all the way forward. J.A. 602.
Dise claims that when he turned the skiff around, he was
blinded by lights on the ship ahead of him and could not clearly
see

the

bridge,

so

he

asked

Greggs

to

shine

the

skiff’s

spotlight, which he had been using to take the draft readings,
on the bridge. When Greggs did not respond, however, Dise did
not slow down or await Greggs’s compliance; indeed, Dise recalls
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“spe[eding]

up

Date Filed: 11/17/2011

a

little

bit

more”

Page: 7 of 29

at

that

point.

J.A.

328.

Shortly thereafter, the skiff crashed into one of the bridge’s
bulkheads,

and

Dise

and

Greggs

were

thrown

into

the

water,

suffering injuries to their extremities. According to Dise, he
could

not

make

out

the

contours

of

the

bridge

without

the

spotlight illuminating it. Greggs testified that it was a clear
night, he could clearly see the bridge and its bulkheads up
until the moment of impact, and he yelled to Dise to slow down
just before the crash.
After the allision, Dise and Greggs managed to hold onto
the skiff and get to the shore of Three Mile Creek. Once ashore,
Dise located a watchman on the railroad bridge who called 911.
An ambulance responded to the scene and took Dise and Greggs to
USA Medical in Mobile, Alabama. Upon learning of the accident,
EMI

dispatched

Mobile

to

Keith

oversee

Kirkeide,

Dise’s

a

medical

company
care.

representative,

EMI

paid

all

of

to
the

medical expenses that Dise incurred while at USA Medical, which
included treatment of a major injury to his left leg.
USA

Medical

discharged

Dise

on

July

23,

2005,

at

which

point he boarded a flight to travel to Baltimore. During the
course of the flight, Dise became severely ill. An ambulance was
called and transported Dise to St. Agnes Hospital immediately
upon his arrival in Baltimore. Doctors at St. Agnes Hospital
discovered

that

Dise’s

leg

wound
7

had

a

severe

bacterial

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infection

Date Filed: 11/17/2011

requiring

an

Page: 8 of 29

immediate

operation

treatment. As a result, St. Agnes Hospital

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

counts: (1) negligence under the Jones Act; (2) unseaworthiness
under the general maritime law; (3) vicarious liability under
the

Jones

maintenance

Act
and

for

negligent

cure;

and

provision

(5)

unpaid

of

medical

wages.

EMI

care;

(4)

denied

all

liability and counterclaimed for recoupment of maintenance and
cure payments made to Dise, indemnification for payments made to
Greggs, and reimbursement for repairs to EMI’s skiff following
the accident.
After

the

close

of

discovery,

the

parties

filed

cross-

motions for summary judgment. EMI moved for summary judgment or
partial summary judgment as to all claims in the complaint on
the basis that each of Dise’s causes of action lacked merit. In
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the alternative, EMI sought summary judgment on its affirmative
defense that it was entitled to exoneration or limitation of
liability to the value of the skiff at the time of the accident.
Dise

moved

for

summary

judgment

on

his

vicarious

liability

claim, the entirety of EMI’s counterclaim, and EMI’s affirmative
defenses.
The district court granted summary judgment in favor of EMI
as to all five counts in Dise’s complaint, and denied Dise’s
cross-motion

for

summary

judgment

on

his

vicarious

liability

claim. Dise v. Express Marine, Inc., 651 F. Supp. 2d 457, 471
(D. Md. 2009). The district court granted summary judgment in
favor

of

Dise

on

EMI’s

counterclaims

seeking

recoupment

of

maintenance and cure and indemnification for payments made to
Greggs.
judgment

Id.
on

Rather
its

than

ruling

counterclaim

on

for

EMI’s
damage

motion
to

the

for

summary

skiff,

the

district court instructed EMI to advise the court within ten
days if it still wished to pursue the counterclaim in light of
the court’s other summary judgment rulings. Id. In response, EMI
timely moved for summary judgment to resolve its sole remaining
claim. Dise opposed the motion. On June 2, 2010, the district
court granted summary judgment in favor of EMI on its claim for
damages to the skiff. Dise v. Express Marine, Inc., 714 F. Supp.
2d 558, 562 (D. Md. 2010). Dise timely filed the instant appeal.

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II.
Dise appeals the district court’s grant of summary judgment
in favor of EMI on his claims for negligence under the Jones
Act,

unseaworthiness

under

the

general

maritime

law,

and

vicarious liability under the Jones Act for negligent provision
of medical care, as well as EMI’s counterclaim for damage to the
skiff. We review the district court’s grant of summary judgment
de novo. See Wash. Metro. Area Transit Auth. v. Potomac Inv.
Props., Inc., 476 F.3d 231, 234 (4th Cir. 2007).
A.
The Jones Act provides a cause of action in negligence for
“any seaman who shall suffer personal injury in the course of
his employment,” 46 U.S.C. app. § 688(a), and incorporates by
reference the judicially-developed doctrine of liability under
the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51 et
seq.,

thereby

according

seamen

rights

parallel

to

those

of

railway employees. Kernan v. American Dredging Co., 355 U.S.
426, 439 (1958); Hernandez v. Trawler Miss Vertie Mae, 187 F.3d
423, 436 (4th Cir. 1999); see also 46 U.S.C. app. § 688(a)
(providing that “all statutes of the United States modifying or
extending the common-law right or remedy in cases of personal
injury to railway employees shall apply” to a seaman’s Jones Act
action). FELA provides in relevant part that railway employees
enjoy a right of recovery for injury or death resulting in whole
10

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or

Document: 38

in

part

employers’

from

Date Filed: 11/17/2011

the

officers,

negligence
agents,

of

or

Page: 11 of 29

their

employer

employees.

their

U.S.C.

45

or

§ 51.

Accordingly, to prevail on a negligence claim under the Jones
Act, a seaman must show: “(1) personal injury in the course of
his employment; (2) negligence by his employer or an officer,
agent, or employee of his employer; and (3) causation to the
extent that his employer’s negligence was the cause ‘in whole or
in part’ of his injury.” Hernandez, 187 F.3d at 436.
To

further

eliminated

the

several

traditionally

humanitarian

purpose

common-law

tort

restricted

recovery

by

of

FELA,

defenses

injured

Congress

that

workers.

had

Consol.

Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994). Specifically,
FELA

abolishes

the

common

law

fellow-servant

rule

and

the

assumption of risk defense, rejects the doctrine of contributory
negligence

in

favor

of

comparative

negligence,

and

prohibits

employers from contractually exempting themselves from FELA. Id.
at 542-43; see also 45 U.S.C. §§ 51, 53-55. The Supreme Court
liberally construes FELA, but “has cautioned that . . . FELA,
and derivatively the Jones Act, is not to be interpreted as a
workers’

compensation

statute

and

that

unmodified

negligence

principles are to be applied as informed by the common law.”
Hernandez, 187 F.3d at 436-37 (citing Gottshall, 512 U.S. at
543-44)). In sum, “in establishing a Jones Act claim based on
negligence, the elements of duty, breach, and injury draw on
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common law principles; the element of causation is relaxed; and
common

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

a

duty

to

protect

him

against

a

foreseeable risk of harm. Martin v. Harris, 560 F.3d 210, 216
(4th

Cir.

2009)

(citing

Hernandez,

187

F.3d

at

436).

A

shipowner-employer’s duty under the Jones Act is to provide a
seaman-employee with a reasonably safe place to work. Id. at 216
(internal

citations

and

quotation

marks

omitted).

This

duty

extends from the vessel to the shore, provided the seaman is
acting in the course of his employment. 2 Id. (citing O’Donnell v.
Great Lakes Dredge & Dock Co., 318 U.S. 36, 39 (1943)). Turning
to the sufficiency of the evidence in this case, the question is
whether the evidence before the district court on EMI’s motion
for summary judgment, when viewed in the light most favorable to
Dise, rose above the level of mere speculation and conjecture,
2

The district court, having determined that EMI was not
negligent, “assumed without deciding” that Dise was acting in
the course of employment at the time of the accident. Dise, 651
F. Supp. 2d at 465. We note that the parties disagree as to the
scope of this standard, but we likewise find that Dise has
failed to establish a genuine dispute of material fact as to
EMI’s negligence, and that EMI is therefore entitled to judgment
as a matter of law. Accordingly, like the district court, we do
not reach the issue of whether Dise was acting “in the course of
employment” at the time of the accident.
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to the point where a factfinder could reasonably find that the
risk of harm posed was reasonably foreseeable.
Dise argues on appeal that the evidence establishes genuine
disputes of material fact with respect to several theories of
negligence, including: (1) EMI’s poor training and instruction
of Greggs; (2) the absence of written or verbal guidelines for
use of the skiff; (3) Greggs’s failure to shine the spotlight;
and

(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

Dise’s

own

accident,

district

court

addressed each of Dise’s theories of negligence in turn and,
finding no genuine disputes of material fact, concluded that EMI
was entitled to judgment as a matter of law. Having had the
benefit

of

oral

argument

and

having

carefully

reviewed

the

briefs, record, and controlling legal authorities, we reach the
same conclusion. Accordingly, as to Dise’s Jones Act negligence
claim,

we

affirm

on

the

basis

of

the

district

court’s

well

reasoned opinion. 3 See Dise, 651 F. Supp. 2d 457.

3

Given that Dise bears the burden of proof on all elements
of his Jones Act negligence claim, the absence of evidence that
EMI breached a duty to Dise is dispositive, irrespective of the
Jones Act causation standard applied by the district court.
Consequently, we do not reach Dise’s causation argument.

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B.
Dise’s 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

seaman’s injuries.” Hernandez, 187 F.3d at 439 (citing Gosnell
v. Sea-Land Serv., Inc., 782 F.2d 464, 467 (4th Cir. 1986)).
Thus, the “causation burden is more demanding than the one the
plaintiff

undertakes

under

the

Jones

Act.”

Id.

(internal

quotation marks and citations omitted).
Dise argues that “the defective steering of the skiff as
well as a poorly trained and instructed fellow crewman, Greggs,
with regard to use of the skiff, are unseaworthy conditions.”
Appellant’s Br. 16. As set forth supra, however, Dise has failed
to present sufficient evidence to establish a material dispute
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of fact as to whether Greggs was qualified to operate the skiff
or

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 court’s conclusion
that neither was. Accordingly, we affirm the district court’s
grant

of

summary

judgment

in

favor

of

EMI

on

Dise’s

unseaworthiness claim.
C.
The admiralty law doctrine of maintenance and cure imposes
upon a seaman’s employer a non-waivable and non-delegable duty
to

provide

food,

lodging,

and

medical

treatment

to

a

seaman

injured in the course of employment. 5 Robert Force & Martin J.
Norris, Law of Seamen § 26-1 (5th ed. 2003); see also De Zon v.
Am. Pres. Lines, 318 U.S. 660, 667 (1943). A sick or injured
seaman

has

a

cause

of

action
15

under

the

Jones

Act

for

his

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Date Filed: 11/17/2011

Page: 16 of 29

employer’s wrongful failure to provide proper medical attention.
De Zon, 318 U.S. at 667. Because the Jones Act incorporates the
principles of FELA, 45 U.S.C. § 51 et seq., which renders an
employer

liable

for

injuries

negligently

inflicted

by

its

“officers, agents, or employees,” a shipowner can violate its
duty to provide prompt and adequate medical care in two ways:
“directly, such as when the shipowner fails to get a crewman to
a

doctor

when

it

is

reasonably

necessary

and

the

ship

is

reasonably able to do so; and vicariously, when the shipowner
selects a doctor who acts negligently.” Olsen v. Am. Steamship
Co., 176 F.3d 891, 896 (6th Cir. 1999). Dise raises only the
latter type of claim, arguing that EMI is vicariously liable for
the allegedly negligent provision of medical care by USA Medical
providers Drs. Juvondas Shunta Hodge and Amin Frontan following
the accident.
The

district

court

granted

EMI’s

motion

for

summary

judgment and denied Dise’s motion for summary judgment on his
claim alleging vicarious liability under the Jones Act. Dise,
651 F. Supp. 2d at 469. As a preliminary matter, the district
court determined that “in order to be vicariously liable for the
medical malpractice of a treating physician, the shipowner must
take

some

physician.”

affirmative
Id.

at

468.

act

in

Noting

selecting
that

the

or
agency

engaging
standard

the
is

relaxed under the Jones Act, the district court nevertheless
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concluded

that

Date Filed: 11/17/2011

Dise

had

failed

Page: 17 of 29

to

present

evidence

of

an

affirmative act on the part of EMI sufficient to give rise to an
agency relationship with the USA Medical providers as a matter
of law. Id. at 469.
Dise

argues

on

appeal

that

the

district

court’s

agency

analysis is inconsistent with the Supreme Court’s decisions in
Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326 (1958),
and Hopson, et al. v. Texaco, Inc., 383 U.S. 262 (1966), which
he avers establish that agency should be interpreted broadly in
the

Jones

delegable

Act

context

duty

to

consistent

provide

cure.

with
In

the

the

employer’s

non-

alternative,

Dise

contends that even if an affirmative act by EMI is a necessary
predicate

to

an

agency

relationship

with

the

USA

Medical

providers, the district court erred in finding that the evidence
does not establish such a relationship.
EMI’s vicarious liability for the alleged negligence of the
USA Medical providers turns upon the scope of “agency” in the
Jones Act context. The case law is instructive with regard to
these

parameters.

The

Supreme

Court

has

held

that

when

a

railroad employee’s injury is caused in whole or in part by the
fault

of

activities

others
of

his

performing,
employer,

under

such

contract,

others

are

operational

“agents

of

the

employer within the meaning of . . . FELA.” Sinkler, 356 U.S. at
331-32. The same standard applies in the Jones Act context. See
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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
physician’s 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

vicariously liable where its agent brought an injured seaman to
physician
injury).

who

misdiagnosed

Liability

does

and

not

mistreated

attach,

plaintiff’s

however,

when

a

eye

seaman

selects his own physician. See Joiner v. Diamond M Drilling Co.,
688 F.2d 256, 262 n.9 (5th Cir. 1982) (“[W]e can find no case
holding a shipowner vicariously liable for the negligence of an
onshore

physician

selected

by

the

injured

seaman

himself.”).

Similarly, the Seventh Circuit has held that when an employer
merely

refers

a

seaman

to

a

negligent

medical

provider,

the

provider is “neither [an] employee[] of the defendant nor acting
on behalf of [the defendant], thus eliminating any basis for
vicarious liability.” Greenwell v. Aztar Indiana Gaming Corp.,
268 F.3d 486, 489,

492-93 (7th Cir. 2011).
18

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Consistent

Date Filed: 11/17/2011

with

Dise’s

Page: 19 of 29

argument,

the

Supreme

Court

has

advised that “an accommodating scope must be given to the word
‘agents’

to

give

vitality

liability

of

carriers

to

Sinkler,

356

U.S.

330-31.

at

to

their

the

standard

workers

Even

governing

injured

given

this

on

the

relaxed

the
job.”

agency

standard, however, the district court properly determined that,
based upon the case law, an agency relationship giving rise to
vicarious

liability

under

the

Jones

Act

requires

“some

affirmative act [on the part of the shipowner] in selecting or
engaging” an on-shore medical provider. Dise, 651 F. Supp. 2d at
468.
Relying primarily upon Sinkler and Hopson, Dise argues that
a

shipowner’s

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

employee’s injury was caused by the fault of others performing,
under

contract,

operational

activities

of

the

employer,

such

others were “agents” of the employer within the meaning of FELA.
356 U.S. at 331-32. In Hopson, the Supreme Court applied Sinkler
in a Jones Act case to find that a shipowner who had a duty to
bring an incapacitated seaman before the U.S. Consul prior to
discharge in a foreign port, and who selected a taxi service to
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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
seaman’s employer is under an absolute duty to provide medical
treatment

to

a

sick

or

injured

seaman,

medical

personnel

selected by it to render that treatment are deemed to be engaged
in the ship’s business as “agents” despite the fact that the
practitioner

may

be

an

independent

contractor

or

completely

unrelated to the ship. However, these cases do not establish
that every provider of medical services to a sick or injured
seaman

is

automatically

deemed

an

agent

of

the

shipowner

by

virtue of the shipowner’s duty to provide maintenance and cure. 4
In order to survive summary judgment, Dise must present
evidence establishing, at minimum, a genuine dispute of material
fact with respect to whether EMI took some affirmative act to
select or otherwise engage the USA Medical providers. Dise does

4

The circuit and district court cases Dise cites as support
are similarly inapposite. See De Centeno v. Gulf Fleet Crews,
Inc., 798 F.2d 138 (5th Cir. 1986) (shipowner liable where
vessel’s agent arranged for seaman to see local physician who
negligently failed to recognize signs of diabetes and therefore
failed to order blood test, where proper diagnosis could have
avoided diabetic coma and death); Fitzgerald, 451 F.2d 670 (2d
Cir. 1971) (shipowner liable for negligence of doctor it
selects);
Sambula,
405
F.2d
291
(shipowner
liable
for
negligently
selecting
general
practitioner,
rather
than
ophthalmologist, who misdiagnosed and mistreated plaintiff’s
eye).

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not dispute that there is no evidence in the record that EMI
affirmatively engaged the USA Medical providers to treat him,
but

instead

argues

that

EMI

constructively

selected

the

USA

Medical providers by instituting a written emergency response
policy that instructs employees to “call 911 first.” See J.A.
722.

Although

it

is

a

close

question,

we

conclude

that

the

existence of the “call 911 first” policy alone is insufficient
as a matter of law to demonstrate that EMI selected or otherwise
engaged USA Medical and its providers in particular. Instituting
such a policy is essentially the equivalent of providing each
employee with a list of every medical provider in the region.
Such an act does not indicate that the employer selected or
engaged any particular provider.
Dise also contends that EMI acquiesced in USA Medical’s
treatment of him by paying for his care and not moving him to a
different facility, thereby establishing an agency relationship.
EMI was required to pay Dise’s medical expenses in order to
satisfy

its

non-delegable

duty

to

provide

cure,

and

did

not

select or engage USA Medical in doing so. EMI’s failure to move
Dise to another hospital is also insufficient as a matter of law
to

establish

that

EMI

selected

or

otherwise

affirmatively

engaged USA Medical. Thus, we affirm the district court’s grant
of

summary

judgment

in

favor

of

EMI

vicarious liability under the Jones Act.
21

on

Dise’s

claim

for

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Page: 22 of 29

D.
We

turn,

finally,

to

the

district

court’s

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

under FELA weighs in favor of permitting EMI’s counterclaim.”
Dise, 714 F. Supp. 2d at 560. Consequently, the district court
granted EMI’s motion for summary judgment on its counterclaim
for

damages

to

the

skiff

in

the

amount

of

$3,254.96,

the

undisputed cost of repairs. Id. at 562.
In

reaching

this

result,

the

district

court

relied

primarily upon this court’s decision in Cavanaugh v. W. Md. Ry.
Co., 729 F.2d 289, 294 (4th Cir.), cert. denied, 469 U.S. 872
(1984),

which

held

that

FELA

does

not

prohibit

employer

counterclaims against employees in the railroad context, and a
subsequent Fifth Circuit decision which held, largely based upon
Cavanaugh,

that

the

Jones

Act

does

not

bar

employer

counterclaims in the maritime context, Withhart v. Otto Candies,
L.L.C.,

431

F.3d

840

(5th

Cir.
22

2005).

Id.

at

560-61.

Dise

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Page: 23 of 29

contends that Cavanaugh and Withhart were incorrectly decided,
and argues in the alternative that even if we extend Cavanaugh
to this context, considerations unique to the maritime context
militate against extending our decision in that case to Jones
Act actions, as the Fifth Circuit did in Withhart. Although we
recognize

that

did

Cavanaugh

not

squarely

address

the

issue

before us in the instant maritime case, we decline to so readily
discount its relevance given that the Jones Act incorporates the
judicially-developed doctrine of liability under FELA.
In

Cavanaugh,

we

held

that

FELA

neither

explicitly

nor

implicitly proscribes the filing of a counterclaim by a railroad
in a FELA case to recover for property damages sustained by
reason of the sole negligence of a plaintiff-employee. 729 F.2d
at 294. We noted that if the railroad-employer were denied the
right

to

assert

property

FELA

employee’s

a

suit,

the

damage

counterclaim
counterclaim

compulsory

during

the

requirement

under Fed. R. Civ. P. 13(a) would prohibit the employer from
later

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

U.S.C. §§ 55 & 60, implicitly bar employer counterclaims against
employees. Id.

23

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Section

5

of

Date Filed: 11/17/2011

FELA

provides

Page: 24 of 29

that

“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, shall to that extent be void . .
.”

45

U.S.C.

§ 55.

Section

10

similarly

provides

that

“any

contract, rule, regulation, or device whatsoever, the purpose,
intent or effect of which shall be to prevent employees of any
common carrier from furnishing voluntary information to a person
in interest as to the facts incident to the injury or death of
any employee, shall be void . . .” 45 U.S.C. § 60. We reasoned
that Section 5 clearly defines “device” as having the purpose of
exempting the common carrier from liability, and an employer
negligence counterclaim does not exempt the common carrier from
liability; therefore, an employer negligence counterclaim is not
a prohibited device under Section 5. Cavanaugh, 729 F.2d at 29192. With respect to Section 10, we found that “there is no
authority

for

the

assumption

that

the

possibility

of

a

counterclaim being filed creates an unfair advantage in favor of
the defendant or improperly coerces or intimidates the injured
party from seeking redress for his injuries . . . The same
argument

could

be

advanced

against

the

admissibility

of

a

counterclaim in any tort action.” Id. at 293. 5

5

We note that our reasoning in Cavanaugh has not gone
(Continued)
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The

Date Filed: 11/17/2011

and

that

holding

First

Eighth

employer

Page: 25 of 29

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

Circuit held that employer property damage counterclaims are not
“devices” under Section 5 and 10 of FELA because the suits do
not absolve the employers of liability. Nordgren, 101 F.3d at
1251.

Interpreting

Sections
preceding

5

and
the

10,

the
the

phrase,

phrase

“any

Eighth

Circuit

namely

device
looked

“contract,”

whatsoever”
to

the

“rule,”

in

terms
and

“regulation,” and determined that because they refer to legal
instruments that railroads attempt to use to evade liability,

unquestioned. Dissenting from the divided panel’s majority
opinion in Cavanaugh, Judge Hall argued that the majority
construed Sections 5 and 10 too narrowly. 729 F.2d at 295.
According to the dissent, the counterclaim at issue was “a
‘device’ calculated to intimidate and exert economic pressure on
the employee, to curtail and chill his rights, and ultimately to
exempt the railroads from liability under the FELA.” Id. at 296.
The dissent further found that the counterclaim violated Section
10 insofar as it “would prevent employees from voluntarily
furnishing
information
regarding
the
extent
of
their
negligence.” Id. In Stack v. Chi., Milwaukee, St. Paul and Pac.
R.R., 615 P.2d 457 (Wash. 1980), the Washington Supreme Court
similarly found that employer negligence counterclaims violate
Section 5 of FELA because such suits limit employer liability,
as employees would then be reluctant to file FELA actions, id.
at 459. In Yoch v. Burlington N. R.R., 608 F. Supp. 597, 598 (D.
Colo. 1985), the Colorado federal district court adopted Stack’s
rationale in holding that FELA prohibits employer negligence
countersuits.
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the term “devices” should be viewed in the same context. Id. at
1250-51. Therefore, according to the Nordgren court, “any device
whatsoever” is simply a catchall phrase “referring only to any
other creative agreement or arrangements the railroad might come
up with to exempt itself from liability,” and does not include
employers’ negligence countersuits. Id.
In Withhart, the Fifth Circuit considered as a matter of
first

impression

in

the

federal

courts

of

appeals

whether

a

shipowner-employer in a Jones Act action may assert negligence
and indemnity claims against its seaman-employee for property
damage allegedly caused by the employee’s negligence. 431 F.3d
at 840. Relying largely upon Cavanaugh, the court held that “no
statutory authority in FELA, and consequently, in the Jones Act,
prohibits a shipowner-employer from pursuing a claim against its
negligent seaman-employee for property damage.” Id. at 845. The
Withhart court noted that negligence was an actionable wrong
under maritime law prior to enactment of the Jones Act, 431 F.3d
at 842 (internal citation omitted), and reasoned that permitting
employer counterclaims would not exempt employers from liability
or unfairly prejudice employees, id. at 844. The Witthart court
concluded

that

allowing

an

employer

counterclaim

would

not

narrow the remedies available to employees under the Jones Act.
Id. at 845.

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Consistent with the district court’s analysis, the extant
authority weighs in favor of allowing EMI’s counterclaim based
upon the particular facts of this case. EMI’s counterclaim for
damage

to

its

skiff

does

not

act

as

a

liability-exempting

“device” of the sort prohibited by FELA, 45 U.S.C. §§ 55 and 60.
EMI

sought

to

limit

its

liability

to

$7,945.00

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 value of the ship, 46 U.S.C. § 30505(a), but counterclaimed
for

the

lesser

amount

of

$3,254.96,

the

undisputed

cost

of

repairs. In addition, we have found that EMI was not negligent
to

any

extent,

so

its

property

damage

counterclaim

does

not

serve as a set off to liability. For these reasons, we affirm
the district court’s grant of summary judgment in favor of EMI
on its counterclaim for property damage to the skiff. We leave
for

another

damage

day,

however,

counterclaims

by

the

question

of

shipowner-employers

whether
against

property
negligent

seaman-employees are actionable in every Jones Act case. 6

6

Notably, in a decision postdating the district court’s
order granting summary judgment in this case, the Seventh
Circuit held that “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 liabilityexempting device forbidden by the Act.” Deering v. Nat’l Maint.
& Repair, Inc., 673 F.3d 1039, 1048 (7th Cir. 2010) (Posner,
J.). We have no occasion in the case at hand to examine Deering.

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III.
For the reasons set forth, we are persuaded, as was the
district

court,

establish

a

that

genuine

the

evidence

dispute

of

in

the

material

record
fact

fails

as

to

to

EMI’s

negligence or its vicarious liability for the alleged negligence
of the USA Medical providers. In order to establish an agency
relationship for the purposes of vicarious liability in a Jones
Act

action,

the

seaman-employee

must

demonstrate

some

affirmative act on the part of a shipowner-employer in selecting
or otherwise engaging the negligent medical provider. Thus, we
affirm the district court’s grant of summary judgment in favor
of

EMI

on

Dise’s

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

constitutes an unseaworthy condition. Accordingly, we affirm the
district court’s grant of summary judgment in favor of EMI on
the unseaworthiness claim.
Finally, while neither this court nor the Supreme Court has
decided

whether

employer

actionable

in

Jones

concluding

that

Act

EMI’s

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

instant case, and we apply the rule supported by the weight of
authority

favoring

allowance

of
28

EMI’s

counterclaim.

Thus,

we

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Page: 29 of 29

affirm the district court’s grant of summary judgment on EMI’s
counterclaim for damage to the skiff. We acknowledge, however,
that under circumstances not present in the case before us, some
employer

property

damage

counterclaims

may

be

impermissible

under the FELA, Jones Act, and general remedial principles of
maritime law. See Deering v. Nat’l Maint. & Repair, Inc., 673
F.3d 1039 (7th Cir. 2010).
AFFIRMED

29