                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                                                            F I L E D
                          REVISED DECEMBER 20, 2005
                                                                           December 02, 2005
                IN THE UNITED STATES COURT OF APPEALS                   Charles R. Fulbruge III
                                                                                Clerk
                            FOR THE FIFTH CIRCUIT



                                  No. 04-31267



     JEFFREY WAYNE WITHHART,

                                        Plaintiff-Counter Defendant-Appellee,

                               versus

     OTTO CANDIES, L.L.C., ET AL.,

                                        Defendants,

     SEA MAR, INC., NABOR MARINE, L.L.C.,

                                        Defendants-Counter Claimants-Appellants,

      SEA MAR MANAGEMENT, L.L.C.,

                                         Counter Claimant-Appellant


                 Appeal from the United States District Court for
                        the Western District of Louisiana
        _________________________________________________________

Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.

REAVLEY, Circuit Judge:

     Sea Mar, Inc. appeals the district court’s dismissal under Federal Rule of

                                          1
Civil Procedure 12(b)(6) of its counterclaims against Jeffrey Wayne Withhart. The

issue presented in this appeal is whether a shipowner-employer (Sea Mar) may

assert a negligence and indemnity claim against its seaman-employee (Withhart) for

property damage allegedly caused by Withhart’s negligence. The district court

answered this question in the negative, and dismissed Sea Mar’s counterclaim. This

is an issue of first impression in this Circuit and, surprisingly, an issue of first

impression in the federal circuit courts. Because the Federal Employers’ Liability

Act (“FELA”), 46 U.S.C. §§ 51, et seq., and consequently, the Jones Act, 46 U.S.C.

§ 688, contain no prohibition against a general maritime negligence and indemnity

claim by a shipowner-employer against its seaman-employee for property damage,

we reverse the district court’s judgment and remand for further proceedings.

                                             I.

       This matter arises out of an accident at sea. Withhart filed a complaint under

the Jones Act and general maritime law against Defendant Otto Candies, L.L.C.

(“Otto”) and Stolt Offshore, Inc. alleging that on December 3, 2001, he was

employed by Sea Mar as a mate aboard the M/V CAPE HATTERAS, a vessel

owned and operated by Sea Mar, and sustained personal injuries as a result of a

collision between the M/V CAPE HATTERAS and the M/V KELLY CANDIES, a

vessel owned and operated by Otto. Thereafter, Otto filed a third-party complaint

                                             2
against Sea Mar demanding defense, indemnification, contribution and/or recovery.

Pursuant to the demand, Sea Mar paid Otto $26,310 for property damage to its

vessel. Withhart then twice amended his complaint to add Sea Mar and others as

defendants. Subsequently, Sea Mar filed a negligence counterclaim against

Withhart for property damage sustained by the M/V CAPE HATTERAS, as well as

an indemnity counterclaim for the damages paid to Otto for property damage to its

vessel.

      By counterclaim Sea Mar alleged that on December 3, 2001,Withhart, in his

capacity as mate/second captain aboard the M/V CAPE HATTERAS, on watch and

in command of the vessel, negligently left the wheelhouse of the vessel in congested

waters to attend to personal business; and during Withhart’s absence, the collision

between the vessels occurred.

      Withhart moved to dismiss the counterclaims under Federal Rule of Civil

Procedure 12(b)(6). The district court dismissed the counterclaim and certified the

judgment for immediate appeal, and we accepted the certification.

                                         II.

      We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(b). This

court reviews de novo the district court's grant of a Federal Rule of Civil Procedure

12(b)(6) motion to dismiss. See Frank v. Delta Airlines, Inc., 314 F.3d 195, 197

                                          3
(5th Cir. 2002). The district court's interpretation of a statute is also subject to de

novo review. Lara v. Cinemark USA, Inc., 207 F.3d 783, 786 (5th Cir. 2000).

However, in this interlocutory appeal permitted under 28 U.S.C. § 1292(b), our

review is limited. See Malbrough v. Crown Equip. Corp., 392 F.3d 135, 136 (5th

Cir. 2004). Our appellate jurisdiction under § 1292(b) extends only to interlocutory

orders involving a “controlling question of law.” 28 U.S.C. § 1292(b); Malbrough,

392 F.3d at 136. Accordingly, we review only whether the district court erred in

concluding that Sea Mar cannot assert a negligence and indemnity counterclaim for

property damage against Withhart.

                                           III.

      The district court heard this case pursuant to 28 U.S.C. § 1333(1), which

grants district courts original jurisdiction over admiralty and maritime suits. In

determining the rights and duties of parties to a maritime action, this Court must

look to the general rules of maritime law or specific enactments of Congress.

      We turn first to whether general maritime law recognizes suits by vessel

owners for property damage caused by negligent seamen, an issue the parties failed

to address and the district court did not discuss. General maritime law negligent-

property-damage actions by shipowner-employers against its seaman-employees are



                                            4
few and far between.1

      Nevertheless, negligence is an actionable wrong under general maritime law.

In Leathers v. Blessing, 105 U.S. (15 Otto) 626, 26 L.Ed. 1192 (1882), the Supreme

Court recognized the maritime tort of negligence which exists as a counterpart to

state law negligence. Id. at 630 (“[T]he term ‘tort,’ when used in reference to

admiralty jurisdiction, ... includes wrongs suffered in consequence of the negligence

or malfeasance of others, where the remedy at common-law is by an action on the

case.”). From its inception, the maritime tort of negligence has matured into a multi-

purpose maritime law cause of action that cuts over a large area of admiralty law

including, among others, salvage, see, e.g., The Sabine, 101 U.S. (11 Otto) 384, 25

L.Ed. 982 (1879), towage, see, e.g., Stevens v. The White City, 285 U.S. 195, 52 S.


      1
         Our own research uncovered a few cases permitting a shipowner-employer
to sue a negligent seaman-employee for property damage. In Moore-McCormack
Lines v. McMahon, 235 F.2d 142 (2d Cir. 1956), the Second Circuit specifically
recognized a suit styled a “cross libel” under the old admiralty rules by a vessel
owner in a limitation action against the negligent officers of the ship. The
McMahon court specifically recognized a claim for indemnity, and not merely a
property damage claim. Id. at 143-44. In Carstens v. Great Lakes Towing Co., 71
F.Supp. 394, 395 (N.D. Ohio 1945), a district court permitted a counterclaim for
property damage caused by a negligent seaman-employee when the initial action
was brought under the Jones Act. Cf. Security Barge Line Inc. v. McCray, 582
F.2d 13 (5th Cir. 1978) (reviewing errors assigned in an action by a shipowner-
employer for property damages to its vessel caused by a negligent seaman-
employee, but not addressing the issues involved in the instant case).


                                          5
Ct. 347, 76 L.Ed. 699 (1932), and loss of the use of a vessel, see, e.g., Canal Barge

Co., Inc. v. Torco Oil Co., 220 F.3d 370, 376-77 (5th Cir. 2000). The elements of a

maritime negligence cause of action are essentially the same as land-based

negligence under the common law. Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 409, 3 L.Ed.2d 550 (1959);

Canal Barge Co., Inc., 220 F.3d at 376-77; 1 THOMAS J. SCHOENBAUM,

ADMIRALTY AND MARITIME LAW 182-93 (4th ed. 2004) (discussing the elements in

depth). Accordingly, we hold that Sea Mar’s claims are consistent with general

maritime law.2

                                        IV.

      The next question is whether the Jones Act or FELA precludes Sea Mar from

asserting its counterclaims for property damage against Withhart.

                                          A.

      We begin with a review of the history of the Jones Act.3 It was enacted in

      2
        A comparative fault regime would govern Sea Mar’s counterclaims. See
United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 411, 95 S. Ct. 1708,
1715-16, 44 L.Ed.2d 251 (1975); Lewis v. Timco, Inc., 716 F.2d 1425, 1428 (5th
Cir. 1983) (en banc) (“comparative fault has long been the accepted risk-allocating
principle under the maritime law”).
      3
          The Jones Act provides as follows:

                    Any seaman who shall suffer personal injury in the course of

                                          6
1920 to create a negligence cause of action for ship personnel against their

employers. See California Home Brands, Inc. v. Ferreira, 871 F.2d 830, 832-33

(9th Cir. 1989) (discussing the case law pre-Jones Act). In passing the Jones Act,

Congress did not specifically enumerate the rights of seamen, but extended to them

the same rights granted to railway employees by FELA. Cox v. Roth, 348 U.S. 207,

208, 75 S. Ct. 242, 243, 99 L.Ed. 260 (1955). Intrinsically, interpretations of FELA

are instructive in deciding whether causes of action exist under the Jones Act. See

Brown v. Parking Drilling Offshore, Corp., 410 F.3d 166, 178 (5th Cir. 2005)

(“Jones Act cases follow cases under the FELA.”) (citation omitted).

      Withhart contends that the Jones Act extends to seamen-employees the same

rights granted to railway employees by FELA, and by enacting FELA, Congress

impliedly rescinded an employer’s common law right to sue its employees for

property damage, and hence, the Jones Act does the same.

      The majority of courts, including every federal circuit court to address this




             his employment may, at his election, maintain an action for
             damages at law, with the right of trial by jury, and in such action 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....

46 U.S.C. § 688.

                                            7
issue, have concluded that FELA did not abrogate an employer’s common law right

to sue its employees for property damage. See, e.g., Cavanaugh v. Western

Maryland Ry. Co., 729 F.2d 289, 294 (4th Cir. 1984); Sprague v. Boston & Marine

Corp., 769 F.2d 26, 29 (1st Cir. 1985); Nordgren v. Burlington Northern R.R. Co.,

101 F.3d 1246, 1251 (8th Cir. 1996). We agree with these courts and find their

rationale to be persuasive.

      There is contrary authority. See Stack v. Chicago, Milwaukee, St. Paul &

Pac. R., 94 Wash. 2d 155, 615 P.2d 457 (1980) and Yoch v. Burlington N.R.R., 608

F.Supp. 597 (D. Colo. 1985). Contrary to Cavanaugh, Sprague, and Nordgren,

both of these cases held that the FELA’s prohibition of “any device whatsoever” in

Sections 5 and 10 of the FELA, 45 U.S.C. §§ 55 & 60, bars a railroad’s

counterclaim for property damage against a railroad employee. See Stack, 615 P.2d

at 459-61; Yoch, 608 F.Supp. at 598. Thus, the courts have reached different results

based on the statutory language of the FELA. We believe that Cavanaugh,

Sprague, and Nordgren provide a better reasoned analysis in finding that the FELA

does not bar a railroad’s counterclaim for property damage against a railroad

employee.

      In Cavanaugh, a railroad engineer covered by the FELA brought an action

against his employer for personal injuries sustained in a head-on train collision. 729

                                          8
F.2d at 290. The railroad then commenced an action against the engineer for

causing the property damage sustained as a result of the engineer's negligence in

operating its equipment. Id. The court first noted that “there is a well accepted

common law principle that a master or employer has a right of action against his

employee for property damage ... ‘arising out of ordinary acts of negligence

committed within the scope of [the employee’s] employment’....” Id. (citation

omitted). The court then reviewed the statutory language and legislative history of

the FELA.

      The plaintiff in Cavanaugh argued that a counterclaim was a “device,” under

Section 5 of the FELA,4 used by the railroad to exempt itself from liability to the

plaintiff employee. Id. at 291-92. The court disagreed with the employee's

argument and found that the critical word in the definition of “device” was

“exemption”:

      It is only when the ‘contract ... or device’ qualifies as an ‘exempt[ion]
      itself from any liability’ that it is ‘void[ed]’ under Section 5. But a


      4
          Section 5 of the FELA provides:

      Any contract, rule, regulation, or device whatsoever, the purpose or intent
      of which shall be to enable any common carrier to exempt itself from
      liability created by this Chapter, shall to that extent be void...

45 U.S.C. § 55.

                                            9
      counterclaim by the railroad for its own damages is plainly not an ‘exempt
      [ion] ... from any liability’ and is thus not a ‘device’ within the
      contemplation of Congress.

Id. at 292.

      The court looked at the legislative history of Section 5 to determine the

definition of the term “device,” and found that the legislative history revealed that

Congress was trying to eliminate employment contracts that release the company

from liability for damages arising out of the negligence of other employees or the

common carrier. Id. at 292-93. Therefore, the court held that a counterclaim by the

railroad was not a “‘contract ... or device’ the purpose of which [was] to provide an

exemption which Congress was intending to ‘void’ in Section 5.” Id. at 293.

      The plaintiff in Cavanaugh also argued that Section 10 of the FELA5 implies

a statutory bar against the railroads’ counterclaim. Id. The court noted that the

plain language of this section indicates that it was intended to prevent the railroad

from making inaccessible to an injured employee other railroad employees whose


      5
          Section 10 of the FELA provides:

      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.

                                           10
testimony might be helpful to the injured employee should he choose to sue the

railroad. Id. The plaintiff argued that a counterclaim against an employee by a

railroad would make other parties with information less reluctant to voluntarily

furnish information. Id. The court stated that “there is no authority for an

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.” Id. at 294. The court held that “[w]e

cannot believe that Congress has any such far-fetched purpose in enacting section

10.” Id. at 293.

      In sum, the Cavanaugh court determined that the FELA contained no

prohibition against the railroad's suit against the engineer, and that the state common

law allowed an employer, such as the railroad, to sue its employee for damages

sustained as a result of the employee’s negligence. Id. at 294. The First Circuit's

analysis in Sprague and the Eighth Circuit’s analysis in Nordgren follows the same

logic outlined by the Fourth Circuit in Cavanaugh and, in each case, allowed the

railroad's counterclaim to stand. Sprague, 769 F.2d at 28-29; Nordgren, 101 F.3d

at 1250-53.

      We hold that no statutory provision in the FELA, and consequently, in the

Jones Act, prohibits a shipowner-employer from pursuing a claim against its

                                          11
negligent seaman-employee for property damage.

                                         B.

      Withhart relies heavily upon the Ninth Circuit’s decision in California Home

Brands, Inc. v. Ferreira, 871 F.2d 830 (9th Cir. 1989) and the companion case of

C.H.B. Foods, Inc. v. Rebelo, 662 F. Supp. 1359 (S.D. Cal. 1987) in arguing that

the Jones Act prohibits Sea Mar’s negligence and indemnity counterclaim for

property damage. The issue in Ferreira was whether a shipowner-employer, who

may be liable to an injured seaman-employee under the Jones Act, is entitled to seek

indemnity and contribution from another of its employees whose negligence

allegedly caused the injury. 871 F.2d at 832. The court held that a shipowner may

not assert an indemnity and contribution claim against a seaman. Id. at 833. Its

primary rationale in reaching this conclusion was that, because an injured seaman

does not have a cause of action against a fellow negligent employee, it would be

illogical to allow a shipowner, standing in the injured seaman’s shoes, to recover

from the negligent employee. Id. The holding can be distinguished for that reason.

See Gabourel v. Bouchard Transp., 901 F.Supp. 142, 145 (S.D.N.Y. 1995)

(distinguishing Ferreira and Rebelo).6


      6
        In fact, a careful reading of the Rebelo decision confirms the existence of
an employer’s right to recover property damage from a negligent employee. Rebelo,

                                         12
                                         C.

       Withhart argues that allowing Sea Mar to assert its negligence and

indemnity counterclaims for property damage would contravene the “Jones Act

purpose of facilitating compensation to injured seaman.” Ferreira, 871 F.2d at 837.

We are cognizant that the purpose of the Jones Act was to benefit and protect

seamen by enlarging, not narrowing, the remedies available to them. See The

Arizona v. Anelich, 298 U.S. 110, 123, 56 S. Ct. 707, 711, 80 L.Ed. 1075 (1936).

However, permitting a shipowner-employer to sue its seaman-employee for property

damage arising out the seaman-employee’s negligence will not narrow the remedies

available to seamen-employees under the Jones Act. Further, in determining

whether a seaman exercises due care, a court can consider the difficult conditions

under which a seaman works. Ferreira, 871 F.2d at 837 (discussing the perils of

seamen). But the fact that seamen work under difficult conditions is not a reason to

shield them from liability from negligence and indemnity suits for property damage.

                                       V.

      We REVERSE the district court’s judgment of dismissal and REMAND for



662 F.Supp. at 1366 (“When an employee is injured in an accident which causes
damage to property, and the employee sues the employer, the employer may
counterclaim for property damage against the plaintiff ... whose negligent acts
allegedly caused the property damage.”) (citing Sprague and Cavanaugh).

                                         13
further proceedings.




                       14
