Professional Documents
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Ferrara v. A v. Fishing, Inc., 1st Cir. (1996)
Ferrara v. A v. Fishing, Inc., 1st Cir. (1996)
No. 96-1217
JAMES FERRARA,
Plaintiff, Appellant,
v.
__________________
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
in
which defense
In the
counsel
conference was
stated:
"This is
an
at some
plaintiff's
counsel.
summary judgment
evidently
length without
submitted and
When plaintiff
on
believed
contradiction from
this issue,
that
the
the
entire
then
moved for
district
case
had
narrowed his
judge
been
entire
motion
sought
the
for reconsideration,
to press again
maintenance and
plaintiff eventually
on the negligence
cure claim.
We
claim and on
think
that the
the case
at the
initial conference
is there any
the
indication
that
abandoned
the
claims.
Under
expressing
plaintiff's
negligence
these
any view
or
counsel
explicitly
maintenance
circumstances,
whatever on
and
cure
and
without
the merits
of these
No. 96-1217
JAMES FERRARA,
Plaintiff, Appellant,
v.
Defendant, Appellee.
____________________
____________________
Before
____________________
Joseph M. Orlando with whom Paul L. Lees and Orlando & Associa
__________________
____________
_________________
were on brief for appellant.
Leonard H. Kesten with
___________________
Regan,
_____
appellee.
____________________
were
on
brief
this
U.S.C.
the
1291.
case now
That
refloats
appellant James
appellee A. & V.
issues
to us
as
an appeal
by
plaintiff-
Fishing, Inc.
before us we must
In order to
understand the
the case.
I.
I.
captain
was
of the fishing
on an
February
trip during
On January
28,
The vessel
January and
1992, the
the
early
vessel
was
take on
Plaintiff was
extended fishing
of 1992.
inspected
not in dispute.
an unknown
submerged object.
It began
to
It sank
stern first and as the stern went deeper into the waters, the
pilothouse
As
a result, the
the
Plaintiff fell as
Because of his
injury, he was
unable to make it to
had to
jump into the sea in order to avoid going down with the ship.
The
sea at
the
time
was
running
-22
rough
and
it
took
was rescued.
Plaintiff suffered
Plaintiff filed
16, 1993.
two
Count
alleged
a three count
complaint on
unseaworthiness,
and count
March
negligence, count
three
invoked the
On May
district court
filed.
5, 1994,
after a pretrial
Plaintiff filed
conference, the
summary judgment be
the
above-captioned
action,
and
in his
unseaworthiness
of Civil Procedure
Court grant
favor
of
summary
on the issue of
________________
the F/V
JOSEPHINE &
The
_______________
[sic] MARIE.
Plaintiff's memorandum
(Emphasis ours.)
in support of his
judgment focused
solely on unseaworthiness.
maintenance
cure
and
were
not
Negligence and
mentioned.
Plaintiff's
problems,
the
malfunctioned,
rudder,
the
pumps
were
operational
steering
mechanism,
and
had
never
or
the
main
engine.
began to sink,
because of
-33
intended
the pilothouse
were
no
longer
fit for
their
intended
purpose and
this
judgment
for
defendant.
In
its
three-page
memorandum
the
Josephine
Marie
was due
to
its
the sinking of
striking
an unknown
submerged object and that this fell within the "perils of the
sea" doctrine.
It held:
"perils of
caused by
the sunken
the resulting
injuries
to the plaintiff.2
__________
2It
is
important
to recognize
that
has left
harbor.
Mitchell v.
___________
For
crucial issue
is the
cause
case,
of the
the point
at
negligence
or
maintenance
district
court docket
stating:
"Case closed."
and
shows an
-44
cure.
Nevertheless,
entry dated
May 12,
the
1995,
On
June 12,
reconsideration
of
the
supporting memorandum,
misunderstood
the
unseaworthiness
1995,
plaintiff filed
summary
plaintiff's
count.
and the
judgment order.
factual
court
In
the
on
his
not misunderstand
the
motion for
did
for
claim
Defendant opposed
theories
a motion
for new
plaintiff's
original theory.
The
district
reconsideration
defendant's
motion
motion
for
court
on June
costs
denied
29, 1995.
plaintiff's
It
and sanctions.
also denied
Its
order
Counts
I and II of
above case is
hereby closed."
the court of
count one.
On
July 19,
that
count
one
1995,
plaintiff moved
(Jones
Act
negligence)
denied plaintiff's
pointed out
count
motion on
three
either party
August 19,
motion.
The
1995.
The
and
the
unseaworthi-ness count.
court
and
assertion is correct.
The motion
to amend
disposed
11, 1995
Memorandum
of all
Plaintiff's
-55
claims.
therefore DENIED.
IT IS SO ORDERED.
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,
On
because
January
it
was
from
12,
1996,
orders
we
not
dismissed
meeting
the
enter
final
judgment,
"If it is the
it should
finality
After discussing
intention to
appeal
district court's
the
enter
counts and
judgment
so
The
January 19,
district
1996,
by
court
issuing
case is closed."
responded
an
to
amended
our
order
order
on
stating:
II.
II.
Before
recapitulation of
considering
the pertinent
the
appeal
directly,
admiralty law is
for
unseaworthiness, Jones
Act negligence,
-66
in order.
that claims
and maintenance
separate and
distinct causes
of action,
each
In fact,
spelling
of
the
out
cause
unseaworthiness has
the point
that it
claims
whether
Act]
created
or
under
of
action
is a remedy
for
separate
and additional
against
by
and
the nature
the
shipowner,
statute [the
general
to
Jones
maritime
law
362
U.S. 539,
divorcement
of
negligence.").
550
(1960)("What has
evolved is
unseaworthiness liability
The
distinctions
between
from
a complete
concepts of
these
separate
claims
retain validity
today.
See
___
We have
negligence.
(1st Cir.
claim,
which
required a
general
maritime
showing
of fault.").
maintenance and
of action.
showing
of
negligence, and/or
unseaworthiness claim,
required no
Cir. 1993)(Maintenance
which
and cure
"is curative in
nature and
-77
The
distinctions are
not purely
academic borders
Indeed, a
In
Vargas v. McNamara,
___________________
608 F.2d
court
denied leave
unseaworthiness had
not been
Id.
___
at
18.
We
(1st Cir.
1979),
sua sponte.
___ ______
to
amend
after
Id. at 19.
___
as futile
established by the
The
"because
evidence,"
responded
that
"liability
under
at 19 (citing
case for
reconsideration
we
district
15
of the
549).
motion
We
Id.
___
remanded the
to amend,
and
if
Other
Jones
circuit
courts agree
Id. at 21.
___
that unseaworthiness,
1993); Chisholm v.
___________
62 (5th Cir.
1982); Liner v. J.B. Talley and Co., Inc., 618 F.2d 327, 332
___________________________________
-88
A brief
of
action
demonstrates
the
necessity
of each cause
of maintaining
the
distinctions.
A.
A.
claim
based
Unseaworthiness
Unseaworthiness
on
unseaworthiness
enforces
crew
'a vessel
intended use.'"
and appurtenances
reasonably fit
the
of his
for their
F.2d
196, 199
The duty
a proper
or
at
199.
A "temporary
and
unforeseeable malfunction
or
is
sufficient
to
unseaworthiness."
Finally, the
condition
sustained.
was
establish
Id. (citing
___
claim
Usner,
_____
the sole
Id.
___
or
Although
of
400
duty
U.S. at
for
499).
proximate cause
the
damages
of
the injury
is absolute,
"[t]he
standard
is not
perfection, but
reasonable fitness;
not a
ship that will weather every imaginable peril of the sea, but
vessel
reasonably
suitable
-99
for
her intended
service."
Most important
of
unseaworthiness
negligence.
is
to this discussion is
not
"The reason,
is a condition,
_________
and how
dependent
it."
finding
of
the owner's
upon
that a claim
liability for
into being
--
-- is quite irrelevant to
personal injuries
resulting from
B.
B.
under
Early in
that seamen
and
Osceola,
_______
negligence.
The
___
the
for
damages
U.S.C.
at
law."
46
exercise
where
reasonable
the
care
Seamen
may,
causes a
employer's negligence
unseaworthy.
688.
subsequent
did
not
injury even
render the
ship
ordinary
common law
plaintiff's
negligence.
burden for
proving
Under
causation
the
is
Jones Act,
considerably
-1010
lower
than
what the
burden
of
proving
'featherweight.'"
Liability,
common law
causation
requires.
under
the
"A plaintiff's
Jones
Act
is
therefore, "exists
if the
employer's negligence
Id.
___
C.
C.
"From
required
time
immemorial, the
shipowners to
ensure the
law
of
the sea
maintenance and
has
cure of
ship."
Admiralty,
_________
LeBlanc,
_______
992
F.2d
at
396
(citing
Benedict on
____________
U.S. 724,
730-33
(1943).
The term
('cure')
incurred
injury or malady."
during the
period
LeBlanc,
_______
992 F.2d
of
recovery from
at 397.
The
an
right
attaches
"largely
forfeit
his
misconduct."
is
"so
without regard
entitlement
Id.
___
far cured
by
fault;
a seaman
engaging
in
may
gross
as possible."
right
only
to
Id. (quoting
___
is available only to a
And
Farrell v.
__________
finally, the
-1111
Id.
___
-1212
III.
III.
We
now
examine
plaintiff's
appeal
from summary
judgment
well-established
Our review is
standard
three counts.
of review
of
We employ the
summary judgments.
1996).
We
may
Id. at 8.
___
Based
on the facts as
and in his
stated by plaintiff
in his complaint
on the cross-
motions
for summary
judgment,
we agree
with the
district
In
doctrine
excuses
the
owner/operator
from
liability
when
"those perils which are peculiar to the sea, and which are of
an extraordinary
overwhelming power,
and which
irresistible force or
cannot be guarded
against by
injury.
-1313
Cir. 1959)(citation
omitted).
Two
characteristics
of
the doctrine
of the sea
577
(peril
is an unforeseeable situation.
of
unascertainable")
the
sea
(quoting
described
inform
the
First, a peril
as
"unknown
and
Second, the
general standard."
Thyssen, 21
_______
F.3d
amenable to a
at 539;
see
___
Taisho
______
Marine & Fire Ins. Co., Ltd. v. M/V Sea-Land Endurance, 815
________________________________________________________
The
facts
important to
"that
the ship
struck
(2) both
this analysis:
was seaworthy
recitation of two
(1) both
at all
parties agreed
times until
the ship
The
submerged
object,
encountered
rupture
court
and
the
peril of
the
plaintiff's claim
3.
below
determined that
wholly
the sea
vessel
to
seaworthy
which
sink,
of unseaworthiness.
Certainly, a submerged
in
striking
Josephine
caused the
thereby
Ferrara,
_______
Marie
hull to
defeating
slip op. at
-1414
of apparently navigable
unforeseeability.
of
was
"unknown
and
unascertainable."
Plaintiff
himself
peril
of the
sea.
The
cause
of
the
vessel's
district court
that a peril of
sinking
and
was, therefore,
the
consequentially
the
plaintiff's injuries.
facts
and
Plaintiff
has attempted
his
of
theory
to change
unseaworthiness
the stipulated
after
summary
judgment issued.
district
court misunderstood
his claim
of unseaworthiness.
It is not
that
the
Ferrara's
the plaintiff's
sinking
vessel
injuries.
contention
caused
Rather, it
Mr.
is the
the fish
condition
between the
hold
which
was the
caused
lazarette
unseaworthy
Mr.
Ferrara's
injury.
This contention
the
explicitly or impliedly
submissions.
that
we will
not
consider on
appeal
theories not
timely
-1515
F.3d 994,
F.2d 83,
86 (1st
Cir. 1990).
As already
count nor
submitted to
does
the record
consideration to
indicate that
the court
gave any
and three
in fact
Nor
must, therefore,
be vacated and
remanded to
the
district
It may
court,
before
the
judgment on unseaworthiness,
case,
length
plaintiff
moved
for
In the
summary
held
essentially," a point
on which he
elaborated at some
When
district judge
been
evidently believed
submitted and
that plaintiff
had narrowed
case had
his entire
its motion
eventually sought
-1616
and
cure claim.
We
subsequent confusion is
the
initial
neither
is
conference
there any
and
in
subsequent
indication
that plaintiff's
claims.
any
Under these
counsel
or maintenance and
circumstances, and
pleadings; but
merits of these
cure
without expressing
latter claims, we
Although the
remanded counts as
district court
it deems
is free to
best, we note
treat the
that the
record
Conclusion
Conclusion
The summary
judgment on
count one is
vacated and
So Ordered.
So Ordered.
___________
-1717