Deering v. NATIONAL MAINTENANCE & REPAIR, INC.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1716

V INCENT R AY D EERING,

Plaintiff-Appellee,

v.

N ATIONAL M AINTENANCE & R EPAIR, INC.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:09-CV-676-DRH—David R. Herndon, Chief Judge.

A RGUED O CTOBER 29, 2010—D ECIDED D ECEMBER 2, 2010

Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.

P OSNER, Circuit Judge. Deering, employed as a river-

boat pilot by National, sued it for injuries he sustained

in an accident. National counterclaimed for serious

damage that it alleged Deering had caused the

boat—namely, sinking it. The district court dismissed

the counterclaim, precipitating National’s interlocutory

appeal, which presents questions of admiralty law and of

jurisdiction over interlocutory appeals in admiralty cases.

2 No. 10-1716

On the day of the accident (March 11, 2009), with the

Mississippi River at flood stage (Jim Salter, “Towns Along

Mississippi River Prepare for Springtime Flooding,” South-

east Missourian, Mar. 11, 2009, www.semissourian.com/

story/1509416.html (visited Nov. 29, 2010)), Deering

was having trouble controlling the towboat that he was

operating to move barges at a National drydock facility.

He claims that as a consequence of National’s negligence

the steering mechanism on the towboat was defective,

that he warned his supervisor that the defect made the

maneuvers that he had been directed to perform unsafe

in high-water conditions, but that the supervisor

ordered him to continue. Because of the difficulty of con-

trolling a towboat with a defective steering mech-

anism in such conditions, the boat became wedged

at a dangerous angle against the barge that it was

towing. Another boat approached to offer assistance,

but at excessive speed. At the last minute, to avert a

collision, its captain threw its engines into reverse,

which caused a surge of water that swamped Deering’s

boat. The boat sank rapidly with Deering still on board

and he was swept underneath the adjoining barge. He

survived, but suffered injuries that ended his career as

a riverboat pilot.

He sued National in an Illinois state court under the

Jones Act. The admiralty counterpart to the Federal Em-

ployers’ Liability Act, the Jones Act states that “a

seaman injured in the course of employment . . . may

elect to bring a civil action at law, with the right of trial

by jury, against the employer. Laws of the United States

regulating recovery for personal injury to . . . a railway

No. 10-1716 3

employee apply to an action under this section.” 46 U.S.C.

§ 30104. Deering also sought relief under the general

admiralty law—the judge-made law, like common law

(which however is inapplicable to maritime activities),

that unless displaced by statute governs those activities.

General admiralty law entitles an injured seaman to

maintenance (shelter until he recovers) and cure (treat-

ment), plus lost wages—all irrespective of any

negligence on his part—and, if his injury was caused

by the unseaworthiness of the ship on which he was

injured, to damages comparable to those available in

a nonmaritime personal injury suit, The Osceola, 189

U.S. 158, 175 (1903), subject to the (partial) defense of

comparative negligence. Pope & Talbot, Inc. v. Hawn, 346

U.S. 406, 408-09 (1953); Churchwell v. Bluegrass Marine,

Inc., 444 F.3d 898, 908 (6th Cir. 2006); see generally

Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S.

811, 815 (2001). The parties ignore Deering’s general

admiralty claims; we discuss them briefly later.

National filed a petition in federal district court 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 ship’s value. 46 U.S.C. § 30505(a). National

contends that the towboat, though worth $800,000

before it sank, has a salvage value of only $30,000, and

it seeks to limit its liability to Deering to that amount.

We take no position on the merits of either the limitation

of liability claim or Deering’s personal injury claim, both

of which remain pending in the district court.

The district judge ordered Deering’s state court

action stayed, and Deering then refiled his Jones Act

4 No. 10-1716

and general admiralty law claims in the district court.

National counterclaimed, seeking damages of $800,000

(the figure should really, one would think, be $770,000,

in recognition of the towboat’s salvage value; but we’ll

ignore that point, as do the parties). National claims that

the accident in which the towboat sank was at least

partially attributable to negligence on the part of Deering.

Deering moved to dismiss the counterclaim. The judge

granted the motion on the ground that counterclaims

in the nature of setoffs to Jones Act claims are forbid-

den. National appeals under 28 U.S.C. § 1292(a)(3), which

allows interlocutory appeals “determining the rights

and liabilities of the parties to admiralty cases in which

appeals from final decrees are allowed.” See Charles

Alan Wright, Arthur R. Miller & Edward H. Cooper, 16

Federal Practice and Procedure § 3927 (2d ed. 1995). Before

taking up the merits of the appeal we must satisfy our-

selves that it is within our jurisdiction.

The original and still central purpose of section 1292(a)(3)

is to allow the determination of liability to be appealed

before relief is ordered. The reason is that relief in an

admiralty case is traditionally determined in a separate

proceeding before a special master (called a “commissioner

in admiralty”), and often that proceeding is protracted

and therefore costly, Wingerter v. Chester Quarry Co., 185

F.3d 657, 670 (7th Cir. 1998) (per curiam), though more

commonly so in cases involving collisions, salvage,

towage, insurance, or general average than in cases of

personal injury—but the counterclaim does seek damages

for the destruction of a ship, albeit a small one.

No. 10-1716 5

Although section 1292(a)(3) does not say that all rights

and liabilities of the parties must be decided before an

appeal can be taken, most cases say that its application

should hew closely to the original purpose that we

just described. E.g., id. at 669-70; Evergreen Int’l (USA)

Corp. v. Standard Warehouse, 33 F.3d 420, 424-26 (4th

Cir. 1994). The reason is the disfavor in which inter-

locutory appeals in federal cases generally are held. But

this concern has diminished force in a case in which

an interlocutory admiralty order resembles the kind

of nonmaritime interlocutory order that would be

appealable, albeit only with the consent of the district

court, under 28 U.S.C. § 1292(b) (which also requires the

consent of the court of appeals) or Fed. R. Civ. P. 54(b)—

consent not required by section 1292(a)(3). The issue

presented by National’s appeal is a “controlling question

of law,” 28 U.S.C. § 1292(b), and also an issue that

arises from a separate claim within the meaning of

Fed. R. Civ. P. 54(b); in both respects it is the kind of

interlocutory appeal that is frequently allowed even in

nonmaritime cases.

And note that whether National should be allowed to

counterclaim for property damage is a separate issue from

the merits of either Deering’s personal injury claim or

National’s limitation of liability claim. The facts of the

counterclaim and the facts of Deering’s claim are en-

twined but none of the facts bears on the issue of law

presented by National’s appeal. A number of admiralty

cases allow interlocutory appeals in circumstances such as

these. Continental Casualty Co. v. Anderson Excavating &

Wrecking Co., 189 F.3d 512, 516-18 (7th Cir. 1999); Brother-

6 No. 10-1716

hood Shipping Co. v. St. Paul Fire & Marine Ins. Co., 985 F.2d

323, 324-25 (7th Cir. 1993); Stewart v. Dutra Construction Co.,

230 F.3d 461, 465 (1st Cir. 2000), reversed on other grounds,

543 U.S. 481 (2005); In re Complaint of Nautilus Motor

Tanker Co., 85 F.3d 105, 109-10 and n. 3 (3d Cir. 1996);

Kesselring v. F/T Arctic Hero, 30 F.3d 1123, 1125 (9th Cir.

1994).

There is another jurisdictional issue, however:

National’s notice of appeal was untimely. But it had

filed a Rule 59(e) motion in the district court within the

period for appealing from the dismissal of the counter-

claim, and as the motion contained all the information

that a notice of appeal is required by Rule 3(c) of the

appellate rules to contain—just like the appeal brief held

in Smith v. Barry, 502 U.S. 244, 248 (1992), to do service

for a notice of appeal—National’s motion likewise sufficed.

So we have jurisdiction, and proceed to the merits.

General admiralty law, like common law, creates

liability for negligent damage to property. But ship-

owners, unless they are trying to reduce or eliminate

their liability for personal injuries caused by their negli-

gence, do not sue their employees for property damage

except in the very rare case in which the employee

is so highly paid as to be worth suing. In the case of

seamen, even when they are riverboat pilots rather

than just deckhands, such suits are unknown—unless, as

in this case, the seaman is seeking damages from the

employer. As a practical matter, then, a suit or counter-

claim by a shipowner against a seaman is a setoff

No. 10-1716 7

against the seaman’s personal injury claim; the question

is whether such a setoff is permissible.

Setoffs in personal injury suits by employees are ad-

dressed in section 5 of the Federal Employers’ Liability

Act, 45 U.S.C. § 55, which like the rest of that statute

is incorporated into the Jones Act by reference. Section 5

says that “any contract, rule, regulation, or device what-

soever, the purpose or intent of which shall be to

enable any common carrier to exempt itself from any

liability created by this chapter, shall to that extent be

void: Provided, That in any action brought against any

such common carrier under or by virtue of any of the

provisions of this chapter, such common carrier may set

off therein any sum it has contributed or paid to any

insurance, relief benefit, or indemnity that may have

been paid to the injured employee or the person entitled

thereto on account of the injury or death for which said

action was brought.” National’s counterclaim, the only

purpose of which could be to exempt itself from liability

to Deering (as further shown by its not having sued the

pilot of the boat who contributed to the accident

by approaching National’s towboat at an excessive

speed—and against whom Deering has filed a third-party

complaint for negligence), is a good description of a

“device . . . the purpose or intent of which shall be to

enable [the shipowner] to exempt itself from any

liability created by [the Jones Act].” In a filing in the

district court National itself called its counterclaim a

“setoff.”

The setoff proviso in section 5 supports the inference

that the word “device” embraces all setoffs with the

8 No. 10-1716

exceptions (irrelevant to this case) specified in the

proviso, as otherwise there would be no need for an

express exclusion. Ordinarily we would put little weight

on this point lest we be attributing an unrealistically

high degree of precision and care to legislative drafts-

men in an era in which congressional staffs were rudi-

mentary. But when the FELA was enacted, a railroad’s

right to recover damages from an employee on account

of property damage caused by the employee’s negligence

was limited, either in law or as a matter of custom, to

setoffs (whether or not formally denominated as such)

against claims by employees for unpaid wages. William

P. Murphy, “Sidetracking the FELA: The Railroads’

Property Damage Claims,” 69 Minn. L. Rev. 349, 367-72

(1985). This suggests that the setoff proviso in section 5

may indeed have been based on an understanding that

the courts would deem any property claim by a railroad

that had the effect of a setoff against an employee’s per-

sonal injury claim to be a forbidden “device.” Hence

the need to carve out from the prohibition of setoffs

in section 5 those that Congress wanted to permit.

Moreover, when the FELA was enacted most property

claims by railroads against their employees were based

on the employees’ having expressly assumed in their

employment contracts liability for damaging the em-

ployer’s property, and therefore fell under the “contract”

bar of section 5. Id. It would be surprising if Congress

had meant to countenance an identical result based on a

tort right asserted by employers to which the worker

had not waived objections in his employment contract.

No. 10-1716 9

National argues that the phrase “any device whatso-

ever” must be confined to documents that are just like a

“contract, rule, [or] regulation.” In so arguing it invokes

the rule of interpretation known as eiusdem generis

(Latin for “of the same kind”). But like most rules of

interpretation this one is not so much a rule as an item

in a checklist of considerations bearing on the sensible

interpretation of a document. Words in a string often are

intended to bear similar meanings. But not always—and

not in this instance. The fact that the statute tacks “what-

soever” on to “any device” is a clue that “device” is a

catch-all, cf. Harrison v. PPG Industries, Inc., 446 U.S.

578, 588-89 (1980), in recognition of the incentive of em-

ployers to get around the FELA’s generous provi-

sions—generous relative both to the common law of torts

and workman’s compensation law—for injured employees.

The fact that Congress didn’t think to say that a counter-

claim for property damage was a forbidden device for ex-

tinguishing the employer’s liability for injuries to his

employees confirms the wisdom of including a catch-all.

Anyway National’s “device” is much like the first word

in the string—“contract.” National’s counterclaim has the

same effect as would a provision in its employment

contract with Deering waiving National’s liability under

the Jones Act if he was injured in an accident that caused

property damage to National—and of course such a

contractual provision would be unenforceable. So why

shouldn’t a differently named “device” of identical pur-

pose and consequence likewise be unenforceable?

The destructive effect on an employee’s personal

injury claim of accepting National’s position would be

10 No. 10-1716

magnified by two features of admiralty law that have no

counterpart in a counterclaim in an FELA case: compara-

tive negligence and limitation of liability. Although

the FELA substitutes comparative for contributory negli-

gence as a defense to the employer’s liability to an

injured employee, 45 U.S.C. § 53, defenses against a

counterclaim for property damage are governed by

state law, which may or may not substitute comparative

for contributory negligence as a defense to the counter-

claim defendant’s liability (in this case, Deering’s

liability in negligence for causing the towboat to sink,

were that proved). But an admiralty counterclaim for

property damage would, as we’ll see, always be subject

to a defense of comparative negligence. And under com-

parative negligence National’s damages would merely

be reduced rather than eliminated by proof that its negli-

gence had contributed to the accident.

To appreciate the significance of this point, suppose

that National’s negligence was 96 percent responsible

for the sinking of its towboat and Deering’s negligence

4 percent responsible. Four percent of the loss from the

boat’s sinking ($800,000) is only $32,000. But that’s $2,000

more than National’s liability to Deering on account of

his injury—a liability capped, National claims, at $30,000.

So Deering, although seriously injured (and in the

present posture of the case we must assume seriously

injured because of negligence by National), would end up

not with positive damages or even zero damages but

with negative damages: he would owe National money.

That would be like the outcome in Cook v. St. Louis-San

Francisco Ry., 75 F.R.D. 619 (W.D. Okla. 1976). An injured

No. 10-1716 11

railroad conductor was awarded $46,000 in damages—and

the railroad, which counterclaimed for property damage,

was awarded $1.2 million in damages, leaving the plain-

tiff with no recovery and a large, though doubtless an

uncollectible, debt. See Cavanaugh v. Western Md. Ry., 729

F.2d 289, 297 (4th Cir. 1984) (dissenting opinion).

Ordinarily the effect of the statutory limitation of

liability conjoined with a counterclaim for property

damages would not be so dramatic. The ship would not

be sunk and so the shipowner’s liability to the seaman

would not be limited to a low amount (remember the

limitation is to the value of the ship); and the amount of

property damage caused by the seaman would be small

and so the offset to the plaintiff’s personal injury claim

would also be small. But rarely in such cases would the

shipowner bother to counterclaim for property damage

(other than as a means of pushing up the seaman’s litiga-

tion costs and so forcing him either to abandon his suit

or settle for a nominal amount). This is only the third

reported maritime appeal involving a counterclaim to

a personal injury claim in the 70-year history of the

Jones Act.

In the first, Moore-McCormack Lines, Inc. v. McMahon,

235 F.2d 142 (2d Cir. 1956), the propriety of the counter-

claim was assumed rather than discussed; anyway the

counterclaim was based on a contract rather than on

tort law. The second case is discussed in the next para-

graph. There are a few analogous cases, as we’ll see, under

the FELA, but not many. The poverty of cases should

allay anxiety that seamen who damage their employer’s

12 No. 10-1716

property will seek immunity by filing trivial Jones Act

claims (a claim that the seaman cut his finger and seeks

reimbursement for the cost of a Band-Aid, for example).

The employer will not sue a seaman for damage to prop-

erty except as a setoff to a substantial claim of damages

for personal injury.

National places all its eggs in a basket called Withhart v.

Otto Candies, L.L.C., 431 F.3d 840 (5th Cir. 2005). The

district judge in the present case refused to consider

Withhart because he mistakenly believed that a judge

of this court had criticized him in another case for citing

a decision by a court of appeals other than our court of

appeals. What is true is that district judges are bound by

the decisions of the court of appeals for their circuit

(unless inconsistent with decisions of the Supreme

Court), but when as in this case there is no controlling

decision by their own court of appeals they should of

course give respectful consideration to decisions by

other courts.

Withhart was much like this case (though with an im-

portant distinction, as we’ll see). The court held that a

counterclaim against a seaman for property damages

is not a “device” within the meaning of section 5 of

the FELA. For this conclusion it relied primarily on

Cavanaugh v. Western Md. Ry., 729 F.2d 289 (4th Cir. 1984)

(a decision by a divided panel—we cited Judge Hall’s

dissent earlier). Cavanaugh in turn had relied heavily on

the concern expressed in the House Report on the bill

that became the FELA that railroads were requiring

their employees to sign waivers of liability. H.R. Rep.

No. 10-1716 13

No. 1386, 60th Cong., 1st Sess. 6-8 (1908). Those waivers

exemplify the type of “contract” that section 5 of the

FELA forbids, but section 5 forbids more besides,

including “devices”—a point the court in Cavanaugh

overlooked. It also overlooked the Supreme Court’s

observation in Philadelphia, Baltimore & Washington R.R. v.

Schubert, 224 U.S. 603, 611 (1912), that “the evident pur-

pose of Congress [in enacting section 5, which replaced

a similar provision in a 1906 predecessor statute to the

FELA] was to enlarge the scope of the section and to

make it more comprehensive by a generic, rather than

a specific, description. It thus brings within its purview

‘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.’ It includes every variety of agree-

ment or arrangement of this nature . . . .” Later the Court

remarked on the “comprehensive phraseology” of

section 5. Duncan v. Thompson, 315 U.S. 1, 6 (1942).

The majority opinion in Cavanaugh was followed in

two subsequent appellate cases, Sprague v. Boston & Maine

Corp., 769 F.2d 26, 29 (1st Cir. 1985), and Nordgren v.

Burlington Northern R.R., 101 F.3d 1246, 1251 (8th Cir. 1996)

(another 2 to 1 decision), but its holding had been

rejected by a prior case, Stack v. Chicago, Milwaukee, St. Paul

& Pac. R.R., 615 P.2d 457, 460-62 (Wash. 1980), and is

in tension with California Home Brands, Inc. v. Ferreira, 871

F.2d 830, 833 (9th Cir. 1989). That case holds that the

shipowner cannot seek indemnity from a seaman whose

negligence caused an injury to a seaman who is suing

the shipowner. In effect, California Home Brands treats

14 No. 10-1716

such an indemnity claim as a “device” forbidden by

section 5. The Sprague and Nordgren opinions do not add

to the analysis in Cavanaugh.

Although we doubt that Cavanaugh and the cases fol-

lowing it—all but Withhart being FELA rather than

Jones Act cases—were decided correctly, the case for

barring an employer’s counterclaim is stronger in the

maritime setting in three important respects. It may

thus be significant that Stark, which is contrary to the

Cavanaugh line of cases (before Withhart), was, unlike

them, a maritime case.

First, comparative negligence, today the law in most

states, had not been clearly recognized in any state when

the FELA was enacted in 1908, and was in force in only

a handful of states when the Jones Act was enacted in

1920. Arthur Best, “Impediments to Reasonable Tort

Reform: Lessons From the Adoption of Comparative

Negligence,” 40 Ind. L. Rev. 1, 17-22 (2007). When con-

tributory negligence was king, the slightest negligence

by the employer would bar his counterclaim against

the employee—yet the employee could recover on his

claim only by proving that the employer had been negli-

gent. So except in the unlikely event that the personal

injury and the property damage, though arising from

the same incident, had been caused by unrelated

negligent acts by the parties, a victory by the employee

would, by establishing the employer’s negligence—and

hence the contributory negligence of the defendant with

regard to his counterclaim for property dam-

age—extinguish the counterclaim.

No. 10-1716 15

The approach in admiralty law was different. Until

the Supreme Court discarded the rule of “divided dam-

ages” in United States v. Reliable Transfer Co., 421 U.S. 397

(1975), in favor of the “pure” comparative negligence

defense illustrated by our arithmetical example, the

rule was “equal division of property damage whenever

both parties are found to be guilty of contributing fault,

whatever the relative degree of their fault may have

been.” Id. at 397. In the present case (had it arisen before

1975), this would mean that National, if it could prove

any degree of fault on Deering’s part, would be entitled

to a $400,000 setoff against whatever damages Deering

could prove, for he’d be liable for half the damage to

the towboat.

So while in the reign of contributory negligence a coun-

terclaim in an FELA suit would rarely have been an

effective “device” for thwarting a railroad worker’s

negligence claim, even at the time the Jones Act was

passed it would have been an effective device in a mari-

time case—indeed, it would have been more effective

then than it is now. For with the replacement of the rule

of divided damages by that of comparative negligence

in 1975, slight negligence by the seaman will result in

his bearing only a slight liability for the damage to the

shipowner’s property (in our example, $32,000, rather

than $400,000 under divided damages), though, as in this

case, his slight residual liability might be quite enough

to make his entire personal injury claim evaporate if

the shipowner invoked the Limitation of Liability Act.

And that is the second difference between the FELA

and the Jones Act: the shipowner but not the railroad can

16 No. 10-1716

file an action for limitation of liability. It is the interaction

of the two differences that produced our absurd but, as

applied to the present case, entirely realistic consequence

of National’s position: Deering’s assumed 4 percent

responsibility for the property damage not only wipes

out his personal injury claim because of the interaction

of the comparative negligence doctrine with the limita-

tion of liability statute, but leaves him owing money to

the shipowner even though his injuries may have

made him unemployable.

Third, it is uncertain whether in 1920 a shipowner

could have sued a seaman for property damage. If such

a suit was possible, it would doubtless have been

governed by the rule of divided damages. But was it

possible? Recall from our earlier discussion of the

general admiralty law that a seaman’s rights under

that law (maintenance and cure, and lost wages, but

damages comparable to those available in common law

tort cases only if the injury was attributable to the

ship’s being unseaworthy) were more limited than the

corresponding rights of negligence victims on land.

Maybe the converse rights of shipowners against

seamen who negligently damaged property were also

limited—the absence of such cases supports such an

inference. It would be odd if in enacting the Jones Act

in order to give seamen the same broad rights that the

FELA had conferred on railroad workers, Congress

had left employers armed to nullify those rights

(albeit only in the small set of unusual cases illustrated

by this case) by filing property-damage counterclaims

the purpose of which was to exempt the shipowner

No. 10-1716 17

from liability for a personal injury caused by the ship-

owner’s negligence.

These critical differences between the FELA and Jones

Act contexts were overlooked in Withhart. There is no

mention of limitation of liability; we assume the ship-

owner did not seek it. When the limitation is not sought,

because the value of the seaman’s claim is less than

the ship’s value, the effect of the shipowner’s counter-

claim is likely to be much less dire than when a limita-

tion of liability is sought. Suppose in the present case

that the loss to National was $100,000 and Deering’s

damages $500,000 and he was deemed 20 percent at

fault for the accident. Then his damages would be

reduced only from $500,000 to $380,000 (his damages

would be reduced by 20 percent, to $400,000, and National

would subtract another $20,000 for Deering’s share of

responsibility for the property damage). That is a lot

more than -$2,000.

Maybe, then, the “device” forbidden by section 5 should

be confined, so far as counterclaims against seamen for

property damage are concerned, to cases in which a

limitation of the shipowner’s liability combines with the

counterclaim to wipe out a personal injury claim no

matter how substantial. In this case, for example, even if

Deering’s damages were $5 million, or for that matter

$5 billion, his recovery could well be a negative $2,000 if

National’s position were correct.

For the present then—and mindful that an implicit

abrogation of a right of action (here a right to obtain

compensation for negligently inflicted damage to prop-

18 No. 10-1716

erty) is unusual—rather than creating a conflict with the

Fifth Circuit we hold merely that the one-two punch

thrown by National by 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. We leave for a future day (which may be long

in coming, given the paucity of cases such as this) the

resolution of the issue whether a shipowner who

does not seek to limit his liability should nevertheless

be forbidden to set off damages for negligent damage

to property against a Jones Act claim.

We also need not decide how far our analysis applies

to seamen’s claims under general admiralty law, as

distinct from the Jones Act; National does not argue that

its counterclaim, if barred by the Jones Act as we hold,

might nevertheless be maintainable against such claims.

(And likewise it has forfeited any argument that it

should be permitted to press its counterclaim if it

drops its limitation of liability claim.) Its silence

suggests awareness of the likely futility of such an argu-

ment. If our interpretation of “device” in the Jones Act

is correct, it would be strange indeed had the Supreme

Court, in determining the rights of seamen under

general admiralty law (judge-made law, as we said), meant

to arm shipowners with a “device” that would thwart

those rights as effectively as it would thwart seamen’s

largely redundant rights under the Jones Act. Deering

complains that the towboat’s steering mechanism was

defective, and if that is right and the defect caused (or

contributed to causing) the accident, he has a claim

No. 10-1716 19

of unseaworthiness that is identical to his claim of negli-

gence under the Jones Act. See, e.g., Mahnich v. Southern

S.S. Co., 321 U.S. 96 (1944); In re Oil Spill by Amoco Cadiz

Off Coast of France on March 16, 1978, 954 F.2d 1279, 1302

(7th Cir. 1992) (per curiam); The City of Camden, 292 F. 93,

95-96 (3d Cir. 1923).

A final possibility would be the shipowner’s filing its

property-damage claim as an independent suit rather

than as a counterclaim to the seaman’s personal

injury claim. (It would not be a compulsory counter-

claim, and so could be filed as a separate suit, if the

Jones Act and general admiralty law bar such a counter-

claim in a suit under the Act or the general law.) But by

the same logic deployed above, such a suit filed

alongside a limitation of liability action would be an

impermissible device, as it would have the identical

purpose and effect of preventing the seaman from obtain-

ing the recovery to which the Jones Act and general

admiralty law entitled him. In any event National has

forfeited any argument that it is entitled to circumvent

in this fashion the interpretation of “device” pressed by

Deering and accepted by the district judge and by us.

The dismissal of National’s counterclaim is

A FFIRMED.

12-2-10