                               UNPUBLISHED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Affirmed by unpublished opinion.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:
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Unpublished opinions are not binding precedent in this circuit.




                                2
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     with    a     bridge       piling,     and     as    a     result    of

allegedly       negligent        medical        treatment        he    received         at    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      in   favor     of       EMI   on   Dise’s     Jones         Act   and

unseaworthiness          claims,         and         on    EMI’s       property          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    locations.       Dise     began      working      for    EMI      in   October

2003.    In    April     2005,    EMI    assigned         Dise   to    work        on   the   Tug

                                                3
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    (“the   skiff”)    for   the    purpose    of     taking   draft

readings    on     the   barge    associated     with   the     Tug    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,     Alabama.    In   addition     to    Dise,    the   crew    members

onboard    the     Tug   BALTIMORE    included      Captain   Michael      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
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

                                           5
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

                                             6
“spe[eding]     up    a   little    bit    more”          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      Keith    Kirkeide,         a    company            representative,       to

Mobile   to    oversee     Dise’s    medical         care.       EMI      paid     all   of   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          had       a    severe     bacterial

                                            7
infection       requiring       an     immediate        operation    and    extensive

treatment. As a result, St. Agnes Hospital                      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    Act    for   negligent     provision       of   medical    care;     (4)

maintenance      and    cure;    and    (5)     unpaid    wages.    EMI    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

                                           8
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.    Id.     Rather       than   ruling     on    EMI’s   motion     for   summary

judgment      on    its       counterclaim   for       damage   to   the   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.



                                             9
                                  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
or   in     part    from    the    negligence       of    their   employer      or    their

employers’         officers,      agents,    or     employees.      45    U.S.C.        § 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       the    humanitarian       purpose      of    FELA,     Congress

eliminated          several       common-law        tort      defenses         that      had

traditionally           restricted    recovery      by    injured      workers.    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

                                             11
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.


                                              12
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)    defective          steering    of        the    skiff.     In    addition,       Dise

argues      that    the    district      court,         in    finding        that    Dise’s   own

negligence         was    the    “sole     proximate          cause”    of     the    accident,

applied      an    erroneous       causation          standard.        The    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.



                                                 13
                                         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

                                         14
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,     was     to    take    draft        readings        from     the     barge.

Defective       steering    at    high    speed,       even     if     proved,      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          under   the      Jones     Act     for    his

                                               15
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    affirmative          act   in     selecting     or      engaging      the

physician.”     Id.   at      468.    Noting     that   the    agency    standard      is

relaxed under the Jones Act, the district court nevertheless

                                           16
concluded     that     Dise       had   failed     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    Act     context       consistent      with    the      employer’s       non-

delegable     duty     to      provide    cure.     In    the    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     others          performing,       under      contract,        operational

activities     of    his    employer,      such    others      are    “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

                                            17
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.”)       (collecting     cases);      Cent.     Gulf   S.S.    Corp.    v.

Sambula,    405    F.2d      291,      299       (5th    Cir.    1968)      (shipowner

vicariously liable where its agent brought an injured seaman to

physician    who       misdiagnosed        and     mistreated      plaintiff’s       eye

injury).    Liability      does     not     attach,     however,     when    a   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
       Consistent   with      Dise’s       argument,       the    Supreme       Court   has

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

‘agents’    to    give   vitality          to    the    standard         governing      the

liability    of   carriers      to    their      workers    injured        on   the   job.”

Sinkler,    356   U.S.   at   330-31.        Even   given        this   relaxed       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      vicarious         liability        for       negligent        medical

treatment    arises      from        its    non-delegable           duty    to     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

                                            19
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).



                                          20
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   on    Dise’s    claim     for

vicarious liability under the Jones Act.

                                              21
                                               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    that    “the       consistency          with     which   these      courts       have

applied    FELA    to    Jones     Act    cases        and    permitted        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.      2005).       Id.     at   560-61.       Dise

                                               22
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       Cavanaugh         did   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       a    property         damage        counterclaim      during       the

employee’s      FELA       suit,       the    compulsory         counterclaim      requirement

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

later     bringing          the       claim,       thereby       unfairly     affording         the

employee        absolute          immunity          from        any    liability        for     his

negligence.          Id.    at    291.       Turning       to    the    statute    itself,       we

rejected       the    contention         that      Sections       5    and   10   of    FELA,    45

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

employees. Id.



                                                   23
      Section      5    of     FELA   provides   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 291-

92. 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)
                                          24
       The     First      and    Eighth   Circuits        have    followed      Cavanaugh,

holding      that         employer     property      damage        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           the   phrase      “any     device        whatsoever”     in

Sections       5    and    10,   the   Eighth      Circuit       looked    to    the    terms

preceding          the      phrase,       namely     “contract,”            “rule,”       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.


                                             25
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.



                                      26
       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     day,      however,     the    question       of   whether     property

damage       counterclaims      by    shipowner-employers            against   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 liability-
exempting 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.



                                            27
                                              III.

      For the reasons set forth, we are persuaded, as was the

district     court,          that    the    evidence          in    the     record        fails      to

establish        a    genuine       dispute       of     material        fact      as     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      Jones     Act        claims.      With        respect    to        his

unseaworthiness             claim    under    the        general        maritime        law,        Dise

failed      to       establish       that     either          the      skiff      or    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       property          damage       counterclaims             are

actionable           in   Jones     Act     cases,       we      have      no     hesitation          in

concluding           that    EMI’s     counterclaim             does       not     serve        as    a

liability-exempting             device      under       the    particular         facts        of    the

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

authority        favoring       allowance     of        EMI’s      counterclaim.          Thus,       we

                                                  28
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




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