Hernandez v. Trawler Miss Vertie Mae Incorp.

• Decision Date: 02 March 1999
• Docket Number: CA-97-111-4,No. 98-1976,98-1976
• Parties: (4th Cir. 1999) CRUZ O. HERNANDEZ, Plaintiff-Appellant, v. TRAWLER MISS VERTIE MAE, INCORPORATED, Defendant-Appellee. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 432

187 F.3d 432 (4th Cir. 1999)

CRUZ O. HERNANDEZ, Plaintiff-Appellant, v. TRAWLER MISS VERTIE MAE, INCORPORATED, Defendant-Appellee.

No. 98-1976 (CA-97-111-4).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: March 2, 1999.

Decided: August 6, 1999.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News.

James E. Bradberry, Magistrate Judge.

[Copyrighted Material Omitted] COUNSEL ARGUED: Jesse Marden Suit, III, RUTTER, WALSH, MILLS & RUTTER, L.L.P., Norfolk, Virginia, for Appellant. John Early Holloway, HUNTON & WILLIAMS, Norfolk, Virginia, for Appellee.

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Wilkins and Judge Hamilton joined.

OPINION

NIEMEYER, Circuit Judge:

Cruz Hernandez, a captain of a scallop trawler, sustained injury while at sea when he hit his head on the pilothouse doorway while responding to an apparent problem with a winch on the back deck. He sued the shipowner for negligence under the Jones Act, 46 U.S.C. app. § 688(a), and for unseaworthiness under the general maritime law, alleging that he would not have bumped his head were it not for a problem with the winch and a defect in the public-address ("PA") system on the vessel. The district court, concluding that Hernandez failed to establish negligence under the Jones Act and that any un-seaworthiness did not proximately cause his injury, entered summary judgment for the shipowner. We affirm.

I

Trawler Miss Vertie Mae, Inc., ("Vertie Mae, Inc.") owns a scallop trawler, F/V Miss Vertie Mae, which is equipped with a starboard dredge and a port dredge. The vessel tows these dredges along the bottom of the ocean where scallops are caught in chain bags and raised to the deck by winches.

Under the custom of the East Coast scallop fleet, the shipowners turn over operation of their trawlers to a captain in exchange for a percentage of the proceeds from each trip. The captain hires his crew, determines the duration and route for his voyage, and purchases the necessary supplies for the trip. At the completion of the trip, the shipowner and the captain settle their account, and the captain then pays his crew their shares. Hernandez was one of these captains. As of the trip that is the subject of this case, he had worked aboard scallop trawlers for four years and had captained them for two years. He had captained the F/V Miss Vertie Mae on three or four prior trips. Also, he had earlier captained shrimp boats in Texas for 12-15 years.

On September 30, 1994, near the end of the F/V Miss Vertie Mae's voyage, Hernandez was injured when he failed to duck and hit his head on the pilothouse doorway while running to the rear deck to respond to a problem with tangled dredges. Earlier that day, Hernandez testified, he had used the manual steering mechanism to pilot the vessel as the dredges were set out. He was "trying to keep [the trawler's course] as straight as [he] could" because the failure to steer the vessel straight while the dredges are lowered can cause the dredges to cross and tangle. Around 11:30 p.m. on September 30, when the dredges were hauled up, Hernandez, who was piloting the trawler, realized that the dredges were tangled underneath the vessel when he felt a strain on the engine and smelled burning rubber. The standard procedure to rectify the crossed dredges problem requires the vessel's pilot to take the vessel out of gear and the winch operator to take the winches out of gear, thereby allowing the dredges to drop and untangle themselves.

Hernandez testified that the tangled dredges demanded his "immediate attention" because failure to take the winches out of gear could possibly result in losing the dredges to the bottom of the ocean. Hernandez took the vessel out of gear, and, because the PA system was out of order, he ran down the 15-foot corridor leading from the pilothouse to the back deck where the winches were located, yelling to the winch operators to make sure the winches were taken out of gear. Exiting the pilothouse, Hernandez failed to duck and hit his head on the steel frame of the standard, watertight door leading out of the corridor. In the meantime, the winch operator, Mauro Lopez, whom Hernandez had hired and worked with previously, had run to the deck himself and had begun successfully to take the winches out of gear. After bumping his head, Hernandez continued to carry out his duties as captain for the three remaining days of the voyage, although he experienced headaches and pain to his neck and shoulders.

As captain, after each voyage, Hernandez submitted a written list of any mechanical problems that had occurred on the vessel so that Vertie Mae, Inc., could repair them. Hernandez stated that, prior to the voyage in question, he had reported several mechanical problems with F/V Miss Vertie Mae, including a hydraulic leak in the automatic pilot system, the failure of the PA system to function more than 20% of the time, and a sticking winch on the starboard side. A representative of Vertie Mae, Inc., informed Hernandez before the trip in question that the problems had been fixed. Five days into the voyage, however, the automatic pilot again began leaking, forcing Hernandez to switch to manual operation for the remainder of the voyage. In addition, a few days after the voyage began, the PA system stopped working, and, on the day of his injury, Hernandez received notice from a crew member that the starboard winch had begun to stick. Almost three years after the incident, Hernandez filed this action alleging negligence under the Jones Act and un-seaworthiness under the general maritime law. On the motion of Vertie Mae, Inc., for summary judgment, the district court concluded that Hernandez failed to demonstrate that "any negligence on defendant's part has been shown to contribute to his injuries." And on the un-seaworthiness claim, the district court concluded that "the chain of proximate cause is far too attenuated to allow recovery." From the district court's order, dated May 27, 1998, entering summary judgment in favor of Vertie Mae, Inc., Hernandez filed this appeal.

II

In enacting the Jones Act, Congress provided a cause of action in negligence for "[a]ny seaman who shall suffer personal injury in the course of his employment." 46 U.S.C. app. § 688(a). To this end, the Jones Act adopts by reference the "judicially developed doctrine of liability" under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. Kernan v. American Dredging Co., 355 U.S. 426, 439 (1958); 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). Thus, through the mechanism of incorporation by reference, the Jones Act gives seamen rights that parallel those given to railway employees under the FELA. The FELA provides in relevant part that "[e]very common carrier by railroad . . . shall be liable in damages . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C.§ 51. Accordingly, to prevail on a Jones Act negligence claim against his employer, a seaman must establish (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. See Gautreaux v. Scurlock Marine, Inc. , 107 F.3d 331, 335 (5th Cir. 1997) (en banc); Martin J. Norris, The Law of Seamen, § 30:34, at 458-60 (4th ed. 1985).

While the guiding principles for enforcement of the Jones Act draw on principles of common law, there are significant qualifications. To further the humanitarian purpose of compensating at-risk employees, in the FELA, Congress abolished several common law defenses that restrict recovery: the fellow servant rule, the doctrine of contributory negligence (in favor of comparative negligence), the doctrine of assumption of risk, and the ability of employers contractually to exempt themselves. See 45 U.S.C. §§ 51, 53-55; see also Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542-43 (1994). And to further the remedial goals of the FELA, and derivatively the Jones Act, the Supreme Court has relaxed the standard of causation by imposing employer liability whenever "employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Gottshall, 512 U.S. at 543 (quoting Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506 (1957)); see also Estate of Larkins v. Farrell Lines, Inc., 806 F.2d 510, 512 (4th Cir. 1986) (characterizing the burden of proving causation as "light").

At the same time, the Supreme Court has cautioned that the FELA, and derivatively the Jones Act, is not to be interpreted as a workers' compensation statute and that the unmodified negligence principles are to be applied as informed by the common law. See Gottshall, 512 U.S. at 543-44. Thus, the basis of liability under the FELA, and derivatively the Jones Act, remains grounded in negligence and not merely on "the fact that injuries occur." Id. at 543 (quoting Ellis v. Union Pacific R.R. Co., 329 U.S. 649, 653 (1947)). As the Court explained:

And while what constitutes negligence for the statute's purposes is a federal question, we have made clear that this federal question generally turns on principles of common law: The Federal Employers' Liability Act is founded on common-law concepts of negligence and injury, subject to such qualifications as Congress has imported into those terms. . . . Thus, although common-law principles are not necessarily dispositive of questions arising under FELA, unless they are...