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

• Citation: 99 F.3d 449,1997 A.M.C. 944
• Decision Date: 06 September 1996
• Docket Number: No. 96-1217,96-1217
• Parties: James FERRARA, Plaintiff, Appellant, v. A. & V. FISHING, INC., Defendant, Appellee. First Circuit. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 449

99 F.3d 449

1997 A.M.C. 944

James FERRARA, Plaintiff, Appellant, v. A. & V. FISHING, INC., Defendant, Appellee.

No. 96-1217.

United States Court of Appeals,First Circuit.

Heard Sept. 6, 1996.

Decided Oct. 21, 1996.

Joseph M. Orlando with whom Paul L. Lees and Orlando & Associates, Gloucester, MA, were on brief, for appellant.

Leonard H. Kesten with whom Steven C. Sharaf, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, Boston, MA, were on brief, for appellee.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

BOWNES, Senior Circuit Judge.

The first appeal in 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.

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 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 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

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."

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 unseaworthiness 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 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.

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 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, 91 S.Ct. 514, 516-17, 27 L.Ed.2d 562 (1971), reh'g denied, 401 U.S. 1015, 91 S.Ct. 1247, 28 L.Ed.2d 552; Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (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, 111 S.Ct. 317, 323-24, 112 L.Ed.2d 275 (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 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 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).

                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, 80 S.Ct. at 932-33).   We remanded the case for reconsideration of the motion to amend, and if allowed, trial on the claim of unseaworthiness.  Id. at 21
                

A brief examination of the contours of each cause of action demonstrates the...