
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                  __________________          No. 96-1217                                    JAMES FERRARA,                                Plaintiff, Appellant,                                          v.                                A. & V. FISHING, INC.,                                 Defendant, Appellee.                                  __________________                                     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  the          following additional two paragraphs:                    It may be helpful to add one further word.  In the               district court, before the  plaintiff moved for summary               judgment on unseaworthiness, a pretrial  conference was               held  in  which defense  counsel  stated:  "This is  an               unseaworthiness case, essentially," a point on which he               elaborated  at some  length without  contradiction from               plaintiff's  counsel.   When plaintiff  then  moved for               summary judgment  on  this issue,  the  district  judge               evidently  believed  that  the  entire  case  had  been               submitted and  that plaintiff had  narrowed his  entire               case to the unseaworthiness issue.                      Having lost on the summary judgment motion, and on               its  motion  for reconsideration,  plaintiff eventually               sought  to press again  on the negligence  claim and on               the  maintenance and  cure claim.   We  think  that the               subsequent confusion is largely due to the way in which               counsel presented  the case  at the  initial conference               and in  subsequent pleadings; but neither  is there any               indication   that    plaintiff's   counsel   explicitly               abandoned  the  negligence  or  maintenance   and  cure               claims.    Under   these  circumstances,  and   without               expressing  any view  whatever on  the merits  of these               latter claims, we think that they have to be addressed.             [FOR COPY WITH ADDENDUM, PLEASE CONTACT THE CLERK'S OFFICE]                            UNITED STATES COURT OF APPEALS                                For the First Circuit                                 ____________________        No. 96-1217                                    JAMES FERRARA,                                Plaintiff, Appellant,                                          v.                                A. & V. FISHING, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Joseph M.  Orlando with whom Paul L. Lees and Orlando & Associates            __________________           ____________     ____________________        were on brief for appellant.            Leonard  H.  Kesten with  whom Steven  C.  Sharaf, Deidre  Brennan            ___________________            __________________  _______________        Regan,  and Brody,  Hardoon,  Perkins  &  Kesten  were  on  brief  for        _____       ____________________________________        appellee.                                 ____________________                                   October 21, 1996                                 ____________________                      BOWNES, Senior Circuit Judge.   The first appeal in                      BOWNES, Senior Circuit Judge.                              ____________________            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.                                          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                                         -2-                                          2            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                                         -3-                                          3            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                      __________                         2It  is  important  to recognize  that                      unseaworthiness may sometimes arise after                      the ship  has left  harbor.   Mitchell v.                                                    ___________                      Trawler Racer, Inc., 362 U.S. 539, 549-50                      ___________________                      (1960).  For  the purposes of this  case,                      the  crucial issue  is the  cause  of the                      unseaworthy condition, not  the point  at                      which the condition arose.                      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."                                         -4-                                          4                      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            unseaworthi-ness 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                                         -5-                                          5                      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.                                         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                                         -6-                                          6            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 (1971),            __________________________________            reh'g denied, 401 U.S. 1015; Mitchell v. Trawler Racer, Inc.,            _____ ______                 _______________________________            362  U.S. 539,  550  (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 (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                                         -7-                                          7            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 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).  We  remanded the                           ________            case for  reconsideration  of the  motion  to amend,  and  if            allowed, trial on the claim of unseaworthiness.  Id. at 21.                                                              ___                      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).                          ____________                                         -8-                                          8                      A brief  examination of the contours  of each cause            of  action  demonstrates  the  necessity  of maintaining  the            distinctions.                                 A.  Unseaworthiness                                 A.  Unseaworthiness                      A  claim  based  on  unseaworthiness  enforces  the            shipowner's "absolute duty to provide to every member  of his            crew  'a vessel  and appurtenances  reasonably fit  for their            intended use.'"  Hubbard v.  Faros Fisheries, Inc., 626  F.2d                             _________________________________            196, 199  (1st Cir. 1980)(quoting Mitchell, 362 U.S. at 550);                                              ________            McAleer v. Smith, 57 F.3d 109, 112 (1st Cir. 1995).  The duty            ________________            includes maintaining the  ship and her equipment in  a proper            operating condition, and can be breached either by transitory            or  by permanent defects in the equipment.  Hubbard, 626 F.2d                                                        _______            at  199.     A "temporary  and  unforeseeable malfunction  or            failure of a piece of equipment under proper and expected use            is   sufficient  to   establish  a   claim  of   damages  for            unseaworthiness."    Id. (citing  Usner,  400  U.S. at  499).                                 ___          _____            Finally, the  injured seaman must prove  that the unseaworthy            condition  was  the sole  or  proximate cause  of  the injury            sustained.    Id.   Although  the  duty  is absolute,  "[t]he                          ___            standard  is not  perfection, but  reasonable fitness;  not a            ship that will weather every imaginable peril of the sea, but            a  vessel  reasonably  suitable  for  her intended  service."            Mitchell, 362 U.S. at 550.              ________                                         -9-                                          9                      Most important  to this discussion is  that a claim            of  unseaworthiness  is  not  dependent  upon  a  finding  of            negligence.  "The reason,  of course, is that unseaworthiness            is a condition,  and how  that condition came  into being  --                 _________            whether by negligence or otherwise  -- is quite irrelevant to            the owner's  liability for  personal injuries  resulting from            it."  Usner, 400 U.S. at 498 (emphasis in original).                  _____                               B.  Jones Act Negligence                               B.  Jones Act Negligence                      A short description of the origins of the Jones Act            illustrates the historical distinction between claims brought            under  the Act, and those brought under general maritime law.            Early in  this century, the  Supreme Court ruled  that seamen            could recover under general  maritime law for unseaworthiness            and  for maintenance and cure,  but not for  negligence.  The                                                                      ___            Osceola,  189 U.S. 158 (1903).   In response, Congress passed            _______            the  Jones Act which provided  injured seamen with "an action            for  damages  at  law."    46  U.S.C.    688.    Seamen  may,            therefore, maintain an action  where an employer's failure to            exercise  reasonable  care  causes a  subsequent  injury even            where  the  employer's negligence  did  not  render the  ship            unseaworthy.  See Toucet v. Maritime Overseas Corp., 991 F.2d                          ___ _________________________________            5, 10 (1st Cir. 1993).                      Jones Act negligence differs, however, from that of            ordinary  common law  negligence.   Under  the  Jones Act,  a            plaintiff's  burden for  proving  causation  is  considerably                                         -10-                                          10            lower  than  what the  common law  requires.   "A plaintiff's            burden  of   proving  causation   under  the  Jones   Act  is            'featherweight.'"  Toucet, 991 F.2d at 10 (citation omitted).                               ______            Liability,  therefore, "exists  if the  employer's negligence            contributed even in the slightest to the plaintiff's injury."            Id.              ___                               C.  Maintenance and Cure                               C.  Maintenance and Cure                      "From  time  immemorial, the  law  of  the sea  has            required  shipowners to  ensure the  maintenance and  cure of            seamen who fall ill or become injured while in service of the            ship."    LeBlanc,  992  F.2d  at  396  (citing  Benedict  on                      _______                                ____________            Admiralty,    41-42 (6th ed.  1993)); see Aguilar v. Standard            _________                             ___ ___________________            Oil  Co. of  N.J., 318  U.S. 724,  730-33  (1943).   The term            _________________            refers to "the provision of, or payment for, food and lodging            ('maintenance') as well as any necessary health-care expenses            ('cure')  incurred  during the  period  of  recovery from  an            injury or malady."   LeBlanc,  992 F.2d  at 397.   The  right                                 _______            attaches  "largely  without regard  to  fault;  a seaman  may            forfeit   his   entitlement   only  by   engaging   in  gross            misconduct."   Id.  The entitlement attaches until the seaman                           ___            is  "so  far cured  as possible."    Id. (quoting  Farrell v.                                                 ___           __________            United States, 336 U.S.  511, 518 (1949)).  And  finally, the            _____________            right  is available only to a  "seaman" who is "in service of            the ship" at the time of the injury or onset of illness.  Id.                                                                      ___                                         -11-                                          11            (citing Aguilar, 318 U.S. at 732);  Osceola, 189 U.S. at 175.                    _______                     _______                                         -12-                                          12                                         III.                                         III.                      We  now  examine  plaintiff's  appeal  from summary            judgment  for defendant on all  three counts.   We employ the            well-established  standard  of review  of  summary judgments.            Our review is  plenary, and the facts are viewed in the light            most favorable to the non-moving party -- here the plaintiff.            Borschow Hosp. and Medical  Supplies, Inc. v. Cesar Castillo,            _____________________________________________________________            Inc., No. 96-1113, slip  op. at 3 (Sept. 23,  1996).  We  may            ____            not affirm an order granting summary judgment unless there is            no genuine issue as to any material fact and the moving party            is entitled to judgment as a matter of law.  Id. at 8.                                                         ___                      We start with the unseaworthiness claim, count two.            Based  on the facts as  stated by plaintiff  in his complaint            and in his  papers filed in the district court  on the cross-            motions  for summary  judgment,  we agree  with the  district            court that the  "perils of the sea" doctrine mandated summary            judgment for defendant.                      In  the context of this case, the perils of the sea            doctrine  excuses  the  owner/operator  from  liability  when            "those perils which are peculiar to the sea, and which are of            an extraordinary  nature or arise from  irresistible force or            overwhelming power,  and which  cannot be guarded  against by            the ordinary exertions of human skill and prudence" intervene            to cause the damage or  injury.  R.T. Jones Lumber  Co., Inc.                                             ____________________________                                         -13-                                          13            v. Roen S.S. Co.,  270 F.2d 456, 458 (2d  Cir. 1959)(citation            ________________            omitted).                      Two  characteristics  of  the doctrine  inform  the            discussion as it relates to the present case.  First, a peril            of the sea  is an unforeseeable situation.  Pace, 838 F.2d at                                                        ____            577   (peril   of  the   sea   described   as  "unknown   and            unascertainable")  (quoting  Boston Ins.  Co.  v. Dehydrating                                         ________________________________            Process Co., 204 F.2d 441, 443 (1st Cir. 1953)).  Second, the            ___________            determination of whether a peril of the sea exists "is wholly            dependent on the facts of each case and is not  amenable to a            general standard."    Thyssen, 21  F.3d  at 539;  see  Taisho                                  _______                     ___  ______            Marine & Fire Ins.  Co., Ltd. v. M/V Sea-Land  Endurance, 815            ________________________________________________________            F.2d 1270, 1271 (9th Cir. 1987).                       The  memorandum opinion includes  recitation of two            facts  important to  this analysis:  (1) both  parties agreed            "that  the ship  was seaworthy  at all  times until  the ship            struck  the submerged object and began to take on water," and            (2) both  parties agreed that a submerged object qualifies as            a "peril of the sea."                        The  court  below  determined that  in  striking  a            submerged  object,  the   wholly  seaworthy  Josephine  Marie            encountered  a  peril of  the sea  which  caused the  hull to            rupture  and   the  vessel   to  sink,     thereby  defeating            plaintiff's claim  of unseaworthiness.  Ferrara,  slip op. at                                                    _______            3.   Certainly, a submerged  object lurking below the surface                                         -14-                                          14            of apparently navigable  waters satisfies the requirement  of            unforeseeability.  Applying the perils of the sea doctrine to            the stipulated facts, the collision with the submerged object            was  "unknown  and  unascertainable."    Plaintiff    himself            stipulated both that the vessel was seaworthy until it struck            the submerged object, and that a submerged object constitutes            a  peril  of the  sea.   The  district court  was, therefore,            correct when it determined  that a peril of  the sea was  the            cause  of  the  vessel's  sinking  and   consequentially  the            plaintiff's injuries.                      Plaintiff  has attempted  to change  the stipulated            facts  and   his  theory  of  unseaworthiness  after  summary            judgment issued.   He did this by alleging, in his motion for            reconsideration below and in argument to this court, that the            district  court misunderstood  his claim  of unseaworthiness.            As he put it in his motion for reconsideration:                         It is not  the plaintiff's  contention                      that  the  sinking   vessel  caused   Mr.                      Ferrara's  injuries.   Rather, it  is the                      plaintiff's position that the collapse of                      the bulkhead wall  between the  lazarette                      and  the fish  hold  was the  unseaworthy                      condition  which   caused  Mr.  Ferrara's                      injury.            This contention  was not made either  explicitly or impliedly            in plaintiff's summary judgment  submissions.  His claim that            the  district court "misunderstood" his unseaworthiness claim            is an egregious contrivance to avoid our firmly embedded rule            that  we will  not  consider on  appeal  theories not  timely                                         -15-                                          15            advanced in the district court.  United States v. Alzanki, 54                                             ________________________            F.3d 994,  1009 (1st Cir. 1995), cert. denied, 116 S. Ct. 909                                             _____ ______            (1996); Sandstrom  v. ChemLawn  Corp., 904  F.2d 83,  86 (1st                    _____________________________            Cir. 1990).                         As already  noted, neither the Jones Act negligence            count nor  the maintenance and  cure count were  submitted to            the court for summary judgment decision or argued to it.  Nor            does  the record  indicate that  the court  in fact  gave any            consideration to  either of these issues, before or after our            first remand order in this case.  The judgments on counts one            and three  must, therefore,  be vacated and  remanded to  the            district court for further proceedings.                      It may  be helpful to add one further word.  In the            district  court,  before  the  plaintiff  moved  for  summary            judgment on unseaworthiness,  a pretrial conference was  held            in which defense counsel  stated: "This is an unseaworthiness            case,  essentially," a point  on which he  elaborated at some            length  without contradiction from plaintiff's counsel.  When            plaintiff then moved for summary judgment  on this issue, the            district judge  evidently believed  that the entire  case had            been  submitted and  that plaintiff  had narrowed  his entire            case to the unseaworthiness issue.                        Having lost on the  summary judgment motion, and on            its motion  for reconsideration, plaintiff  eventually sought            to press again on the negligence claim and on the maintenance                                         -16-                                          16            and  cure claim.  We  think that the  subsequent confusion is            largely due to the way in which counsel presented the case at            the  initial  conference  and  in  subsequent  pleadings; but            neither  is  there any  indication  that plaintiff's  counsel            explicitly abandoned the negligence  or maintenance and  cure            claims.   Under these  circumstances, and  without expressing            any  view whatever on the  merits of these  latter claims, we            think that they have to be addressed.                      Although the  district court  is free to  treat the            remanded counts as  it deems  best, we note  that the  record            discloses that discovery was completed as to all counts.                                        Conclusion                                      Conclusion                      The summary  judgment on  count one is  vacated and            remanded for further proceedings.                      The summary judgment on count two is affirmed.                      The summary judgment on  count three is vacated and            remanded for further proceedings.                      No costs to either party.                        So Ordered.                      So Ordered.                      ___________                                         -17-                                          17
