Petition for Writ of Certiorari — Perna v. ARCO Marine, Inc.

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6015 1 1 war 29 2008

OFFICE OF THE CLERK

In The

Supreme Court of the United States

>

JOSEPH C. PERNA,

Petitioner,

ARCO MARINE, INC.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

7

PETITION FOR A WRIT OF CERTIORARI

¢

E. ALFRED SMITH

Counsel of Record

CHRISTINE L. SERBANIC

E. ALFRED SMITH & ASSOCIATES

1333 Race Street, 2nd Floor

Philadelphia, PA 19107

(215) 569-8422

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

~

(0G ae ts

QUESTIONS PRESENTED FOR REVIEW

Whether a seaman’s Complaint asserting a Jones Act

claim based on his employer’s failure to furnish him a

safe place to work by permitting the Captain of the vessel

to intentionally inflict emotional distress upon him

should be dismissed because the seaman plaintiff was not

in the “zone of danger”?

Whether a seaman’s Complaint asserting an

unseaworthiness claim based on the Captain’s being less

than equal in seamanship and disposition to others in the

calling as manifested by his constant harassment, belittle-

ment, humiliation, etc. of the seaman-plaintiff should be

dismissed because the seaman-plaintiff was not in the

“zone of danger”?

il

PARTIES TO THE PROCEEDINGS

Petitioner, Joseph C. Perna, was Pla‘atiff and Appel-

lant in the courts below. Respondent was Defendant and

Appellee in the courts below: Arco Marine, Inc.

ee

TABLE OF CONTENTS

Page

Questions Presented For Review................... i

Se Oe PUN IID so bets cceccsecaduscésecs ii

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Te eg ee Ss oak cas ase Oak iv

Cee soci sbebiedcvadascedesss 1

emnmenGTAE OE FUATISGICHOM. ..... wc cccccccccccccccces 1

eee bad knsah ka addeeneedeéievene 2

si hc die de aWded one's cede ue 2

Reasons For Granting The Petition................. 10

I. This Case Presents An Important But Unre-

ET OR a eee 10

II. The Court of Appeals erred in affirming a dis-

missal of Perna’s Jones Act claim............. 10

III. The Court of Appeals erred in affirming a

dismissal of Perna’s claim based on

Se 15

SRE i SE a 21

3 iv

TABLE OF AUTHORITIES

Page

Cases ‘

Alaska Steamship Co. v. Petterson, 347 U.S. 396

CRUE kccdncdateukessdnnesdgasusertacceaseehsantet 16

Allen v. National R.R.- Passenger Corp., 90 F.Supp.

OG: GER CRD. FG. BOs 6b 0 inc sanensndondinssécaens 14

Atchison, Topeka & Sante Fe Ry. Co. v. Buell, 480 U.S.

— Oy ers eee Terres Pere eee ee 11, 13, 14, 15

Bloom v. Consolidated Rail Corp., 41 F.3d 911 (3d

CO WO wince sac badpkvceanacdenhencuceauaesasaaeces 12

Boudoin v. Lykes Bros. S.S. Co., Inc., 348 U.S. 336

(PR vk ds cuvcbevbcntnedssccksepeaeeeasbartensnens 16

Consolidated Rail Corp. v. Gottschall, 512 U.S. 532

COU 5 snc kncckaavecsubannssquannaanns 11, 12, 17, 18

Keen v. Overseas Tankship Corp., 194 F.2d 515 (2d

Cir. 1952), cert. den., 343 U.S. 966 (1953) .......... 16

Kernan v. American Dredging Co., 355 U.S. 426 £

rere rer re pore e rr sy er rey fy eee 10

Lancaster v. Norfolk and Western Ry. Co., 773 F.2d

i Ek | OPP TeT errr errr rier rts 14

McKinley v. Afram Lines (USA) Co., Ltd., 834

Poems. Gil CD). RERAG. TOPGP. 2 conn cacscensscsesnans 17

Mahnich v. Southern S.S. Co., 321 U.S. 96 (1997)...15, 19

Metro-North Commuter R.R. Co. v. Buckley, 521 U.S.

OEE Ts novo oasis ee ee 2.

Miles v. Apex Marine Corp., 498 U.S. 19

17, 18, 19

Vv

TABLE OF AUTHORITIES - Continued ,

Page

Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1960) 16, 19

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978) .... 18

Moragne v. States Marine Lines, Inc., 398 U.S. 375

CREPE tv ideas s0nndieedanss saviors 18, 19

\

Nelson v. Metro-North Commuter R.R., 235 F.3d 101

Cae Ges SD 4.2 65-4 cee tka nee win tik chase enue a2, 13

Sea-Land Services v. Gaudet, 414 U.S. 573 (1974)...... 18

Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) ...... 15

Szymanski v. Columbia Trans. Co., 154 F.3d 591 (6th

Rk. Fe Aen snc cane cena ewaessacae eee 17, 18, 19

Tae Canela, TOP US: 150 CRUD) oo gc kvcsacecscwccess 15

Usner v. Luckenbach Overseas Corp., 400 U.S. 494

og | PS Pees er ree eer rr arm renT TN 16

Waldron v. Moore-McCormack Lines, Inc., 386 U.S.

Fe Cs oon deck cednidicceve ek. 16, 17, 19

Williams v. Treasure Chest Casino, L.C.C., 1998 AMC

See Ce i. BE 6 os dob hp aececdhensbebeencsae. 13

Wiora v. Harrah's Illinois Corp., 2000 AMC 2259

te OM. PPP e TeV TTT eee e er re ree en 13

Wiradihardja v. Bermuda Star Line, Inc., 802 F.Supp.

ee GN SOME 8 i hokevenadsasdneenacianeeeoe 16

Yballa v. Sea-Land Services, Inc., 937 F.Supp. 1428

ee: PAR: TI 5 kaise ncan sine akawredeeueeeneens 13

vi

TABLE OF AUTHORITIES —- Continued

Page

STATUTES

Death on the High Seas Act, 46 U.S.C. §§ 761, 762 .... 19

ey: Ee WE OP OG Svctenccisccusicsccesneadeeteaees 10

PRD FER, GS UGA. © GG occ ciiscncceciccescace 1, 2, 10

OTHER

RESTATEMENT OF TORTS, SECOND, § 46 ......... 13

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Joseph C. Perna, respectfully petitions this

Court for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Third Circuit.

¢

PREVIOUS OPINIONS

The U.S. District Court dismissed Plaintiff's Com-

plaint by an Opinion and Order dated November 29, 1999

and filed on November 30, 1999. A notice of appeal was

filed on December 8, 1999. The U.S. Court of Appeals for

the Third Circuit affirmed the District Court’s judgment

as to the Jones Act and seaworthiness claims but reversed

the maintenance claim by Opinion and Order dated and

filed on January 3, 2001. The District Court and Court of

Appeals Opinions are unreported. On the face of the

Opinion of the Court of Appeals is the notation, “Unre-

ported/Not Precedential.”

Both of the opinions are reproduced in the Appendix.

¢

STATEMENT OF JURISDICTION

The U.S. Court of Appeals judgment was entered on

January 3, 2001. No rehearing was sought. This Petition is

timely. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254.

The District Court had jurisdiction pursuant to the

Jones Act, 46 U.S.C. § 688, and the general maritime law,

28 U.S.C. § 1333. The Court of Appeals had jurisdiction

because a timely appeal was taken from a final judgment

of the U.S. District Court pursuant to 28 U.S.C. § 1291.

e

STATUTE INVOLVED

The statute involved is the Jones Act, 46 U.S.C. § 688,

which reads as follows:

Any seaman who shall suffer personal injury in

the course of his employment may, at his elec-

tion, 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; and in case of the death of any

seaman as a result of any such personal injury

the personal representative of such seaman may

maintain an action for damages at law with the

right of trial by jury, and in such action all

statutes of the United States conferring or regu-

lating the right of action for death in the case of

railway employees shall be applicable. Jurisdic-

tion in such actions shall be under the court of

the district in which the defendant employer

resides or in which his principal office is

located.

STATEMENT OF THE CASE

Perna is a seaman who worked for Arco beginning in

1972. He started as a messman and worked his way up

until he became a Steward in 1980. He has sailed as

Steward on almost all of Arco’s ships. The steward runs

the department responsible for housekeeping aboard the

vessel and for preparing and serving the meals.

In May 1994 Perna served aboard the ARCO

ALASKA as Chief Steward under the command of Cap-

tain Gray. When he first reported for duty, Captain Gray

asked him to stop putting beef on the menu for budgetary

reasons. The Captain wanted chicken and pasta served to

the crew because they were cheaper. Perna refused the

Captain’s request because he wanted to give the crew as

wide a variety as he could, for morale reasons. Perna then

told the Chief Engineer of the Captain’s request, and the

Chief Engineer became annoyed.

The Captain later remonstrated with Perna for hav-

ing told the Chief Engineer.

Perna also had some difficulty with an insubordinate

subordinate who continued to eat shrimp after he was

told he was not allowed to do so. At one point the

subordinate threatened Perna with a knife and this was

reported to the Captain, who refused to discipline the

subordinate.

There were other incidents between the Captain and

Perna during the first tour, and their relationship became

strained.

At the end of Perna’s first tour on June 7, 1994 he was

taken to St. Mary’s Hospital in Long Beach, CA after he

fainted on the dock, and he was hospitalized for five

days. He was suffering from job-induced stress. He then

attended classes and took a vacation. In July, when Perna

called the office for his next assignment, he was told he

would be rejoining the ALASKA. Perna objected because

of the problems he had had with Captain Gray, but he

was told that Captain Gray would not be rejoining the

ship for another month or month and a half. Perna was

reassigned to the ALASKA despite his expressed concern

about serving under Captain Gray again and the stress it

might cause to him.

Perna reported aboard the ALASKA on July 21, 1994

and Captain Devins was in command. Captain Devins

remained aboard unti! September 2, 1994 when he gave

Perna a “Superior” rating on his written evaluation form.

Captain Devins rated Perna’s supervisory skills as

“Excellent” and commented, “Mr. Perna has improved on

his skills as the leader of the Stewards Department and

has promoted ‘Team Work’ in his department.”

When Captain Gray came aboard on September 2,

1994 he promptly met with Perna and called him a “liar”

and walked away without further comment. The follow-

ing day Captain Gray went to Perna’s room and had a

talk with him during which Captain Gray said that Perna

had caused trouble for him with the “office” after their

last voyage together and then threatened that he could

“bust” Perna down to cook/baker.

Shortly thereafter Captain Gray began receiving

“complaints” from the three persons in the Steward’s

Department that Perna was supervising. These were the

same persons whom Perna had supervised for 42 days

under Captain Devins’ command, when Captain Devins

rated Perna’s supervisory skills as “Excellent” and

lauded his effort to promote team work.

After receiving each of these individual complaints

from Perna’s subordinates, Captain Gray would meet

FRR Or

PYRE By aes

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with Perna and tell him of the complaints. He would ask

for Perna’s version and then attempt to reconcile the two,

but he was never able to do so. Captain Gray never told

the subordinates to work out their problems with Perna,

who was their boss, and not to bring their problems

directly to him. He recognized that as Perna’s supervisor

he was obliged to support Perna so far as Perna’s subor-

_ dinates were concerned, but Captain Gray never thought

that he was the problem with the subordinates.

After the first two weeks of the second tour, Captain

Gray sent a message ashore as the vessel was returning

from Valdez, Alaska to Long Beach, California. He said

that a “situation” was developing in the Steward’s

Department and spreading through the department. He

said “some issues include, a trust or lack thereof, percep-

tion that Perna is paranoid, a ‘he said she said’ approach,

to concern that Joe is playing Martha (union delegate)

against other department members.”

In the message, Captain Gray said he was having a

“credibility problem” with some of the players, and he

wanted the shoreside personnel to be the “independent

arbitrator.” He said the problem had started in a minor

way but had “mushroomed” into something much bigger

because of the attitudes and actions of those involved.

Captain Gray said that both Perna‘and one of the

subordinates had asked to be sent on vacation when the

vessel arrived in Long Beach but he did not support this.

He felt that as a supervisor Perna “needs to do his job

instead of run away from it.” He said essentially the same

thing about the subordinate.

Captain Gray concluded his message by saying that

in asking for shoreside involvement, he was not trying to

“run away from it” but he felt he needed observations

from an outside observer.

The meeting was held in Captain Gray’s office on the

vessel when it arrived in Long Beach, but Captain Gray

did not attend.

During the second tour Captain Gray did a number

of other things to Perna in addition to undercutting his

authority with his subordinates. He would frequently

point his finger at the menu in front of Perna’s subordi-

nates and say nothing. He would also reprimand Perna in

front of his subordinates and other shipmates. He also

required Perna to demonstrate equipment use during the

weekly fire and boat drills even though he had

announced that the job would be rotated among all of the

crew members.

In front of others, the Captain complained that his

room was dirty and ordered Perna to have his room

cleaned daily even though the union contract called for

weekly cleaning of the captain’s room. Each day the

captain criticized Perna for something different, and

always in front of others, frequently his surbordinates.

In front of Perna’s subordinates in the galley, one day

Captain Gray told Perna that he had stored ammonia and

Clorox in the same storeroom, which was against com-

pany regulations. Upon inspection by both, however,

there was no such mixture found. Other times the Cap-

tain made Perna look like a “fool” in front of his subordi-

nates and the rest of the crew, and he embarrassed Perna

in front of the crew “all the time” in one way or another.

cnee ane gL ENE

ERIM

One day, without warning, the Captain changed the

lunch break hours and ordered Perna to release his galley

crew early. Perna did that and when the rest of the crew

showed up for lunch, there was no one to take care of

them. Perna himself did the serving.

On another day the Captain told Perna he was going

“to jail” because the overtime sheet for Perna violated

OPA guidelines.

At the conclusion of the tour Captain Gray evaluated

Perna’s performance. He observed as to meal-planning

and preparation “Joe works real hard at this. He is very

concerned about variety, food preparation and presenta-

tion. Food comes out hot and has eye appeal.” As to

Perna’s culinary skills Captain Gray wrote, “Joe demon-

strates high quality cooking skills. Hot and fresh are high

on his list of concerns.” He also observed, “Joe has a

strong desire to perform well.”

The Captain’s criticisms dealt mostly with Perna’s

supervisory skills which he rated as “Unacceptable.” He

said, “Joe’s people handling skills rapidly approach zero

when anything out of the ordinary happens. He does not

handle employee problems and complaints, he brings

them all to me. My perception is that at times he has little

or no control of his department. I have received negative

comments from the other three members of his depart-

ment.”

As part of his overall comments, Captain Gray said,

“The perception that Joe is paranoid is present in a lot of

people.” His overa!l evaluation was Marginal, which was

the second lowest of five rankings.

Over the many years of his employment at Arco

Perna always took great pride in getting a Superior rat-

ing, and this was his first Marginal. Just 34 days earlier !

Captain Devins considered Perna’s managerial skills to

be excellent and had rated him Superior.

In Perna’s sworn Answers to Interrogatories he said

that, with reference to the second voyage, “Captain Gray

harassed, belittled, embarrassed and humiliated plaintiff

and constantly criticized his work and held him up to

ridicule in front of other crew members for the remainder

of the time plaintiff remained on the vessel.” At deposi-

tion Perna answered the questions put to him. There

would be additional testimony of harassment, embarrass-

ment, humiliation and criticism at trial, yet these inci-

dents Perna was not asked about during his deposition.

Some months after leaving the ARCO ALASKA Perna

suffered a nervous breakdown caused by the treatment

he received from Captain Gray. Perna has been unable to

work since April 14, 1995.

CAPTAIN GRAY

Captain Gray graduated from the Maine Maritime

Academy in 1972 and thereafter spent his entire merchant

marine career sailing for Arco. He sailed as an AB for 30

days and then sailed as Third Mate. Thereafter he pro-

gressed normally except that he failed the U.S. Coast

Guard exam for Master the first time he took it.

Captains at Arco are generally placed in one of three

grades. For many years Gray was in the top grade, but in

icici ke

1993 he was demoted to the middle grade. This was

caused by negative performance reports pertaining to his

“interpersonal” skills. He was considered unapproach-

able. His nickname in the fleet was ”“Lord Jim”.

On more than one occasion Perna heard Captain

Gray publicly make racial slurs and understood that a

Mate remonstrated with the Captain on the bridge about

telling racist jokes.

Gray acknowledged under oath that a good leader

would not reprimand someone in front of that person’s

subordinates. He said he would investigate a complaint

from a subordinate only if the subordinate could not get

Satisfaction from his supervisor.

Gray admitted that he received complaints from

Perna’s subordinates early in the voyage and that he told

Perna about them. Gray never told Perna’s subordinates

that they should take their problems to Perna and work

them out with him.

During his deposition, Gray acknowledged that the

things about which Perna testified did, in fact, occur, but

his perception of them was different. It is fair to say that

on almost every issue there was a very significant factual

dispute.

PROCEEDINGS BELOW

In the District Court Arco filed a Motion for Sum-

mary Judgment which was granted as to all counts. On

appeal the Court of Appeals affirmed as to the Jones Act

10

and unseaworthiness counts but reversed as to the main-

tenance and cure count.

ae

v

REASONS FOR GRANTING THE PETITION

I. This Case Presents An Important But Unresolved

Question of Law.

Supreme Court Rule 10(c) provides that a factor

favoring certiorari is that “a United States court of

appeals has decided an important question of federal law

that has not been, but should be, settled by this Court, or

has decided an important federal question in a way that

conflicts with relevant decisions of this Court.”

As discussed below, Petitioner believes that the

Court of Appeals has misapplied one of this Court’s

decisions involving an interpretation of the FELA and has

incorrectly decided an unseaworthiness issue that has not

been, but should be, settled by this Court. Both of these

issues are important questions of federal law.

II. The Court of Appeals erred in affirming a dismissal

of Perna’s Jones Act claim.

The Jones Act, 46 U.S.C. § 688, incorporates the pro-

visions of the FELA, 45 U.S.C. § 51. Accordingly, it is

undisputed that cases interpreting the FELA are equally

applicable to the Jones Act. See Kernan v. American Dredg-

ing Co., 355 U.S. 426, 439 (1958).

The first decision by this Court which discussed

whether claims for emotional distress are “personal

injury” claims and cognizable under the FELA was

11

Atchison, Topeka & Sante Fe Ry, Co. v. Buell, 480 U.S. 558

(1987). There, however, this Court refrained from decid-

ing whether intentional or negligent infliction of emo-

tional distress claims are cognizable under the FELA

because the factual record had not been fleshed out suffi-

ciently, and such a recovery “might rest on a variety of

subtle and intricate distinctions related to the nature of

the injury and the character of the tortious activity.” 480

U.S. at 568.

The case which dealt squarely with negligent inflic-

tion of emotional distress is Consolidated Rail Corp. v.

Gottschall, 512 U.S. 532 (1994). This was a consolidation of

two cases.

In Gottschall, the worker was forced to work under

hot and humid conditions and when a fellow worker died

from a heart attack, the body was simply covered and left

in full view of the others in the work crew for several

nours while they continued to work. Having to watch a

co-worker suffer a heat seizure and die and then having

to view the corpse, although covered, for several hours

while being required to work caused Gottschall to suffer

severe emotional distress.

In the other, Carlisle, the worker was forced to work

long hours on an erratic basis, and the increased respon-

sibilities attendant upon a promotion carried such stress

that eventually he suffered a nervous breakdown.

This Court’s holding was quite specific:

We therefore hold that as part of its ‘duty to use

reasonable care in furnishing its employees with

a safe place to work,’ Buell, 480 U.S., at 558, 107

S.Ct., at 1412, a railroad has a duty under FELA

12

to avoid subjecting its workers to negligently

inflicted emotional injury.

512 U.S. at 550

In Gottschall, this Court remanded for further factual

development. In Carlisle, however, the Court entered

judgment for the defendant because “Carlisle’s work-

stress related claim plainly does not fall within the com-

mon law’s conception of the zone of danger... ” In

particular, “the core of Carlisle’s complaint was that he

had been given too much - not too dangerous - work to

do. That is not our idea of an FELA claim.” 512 U.S. at

558.

After carefully analyzing the alternatives, this Court

further held that a plaintiff can recover for emotional

injury under the FELA only if he/she either “sustained a

physical impact” or was “placed in immediate risk of

physical harm” by reason of the employer’s negligence,

512 U.S. at 547-48.

This Court dealt with the “physical impact” aspect of

the test in Metro-North Commuter R.R. Co. v. Buckley, 521

U.S. 424 (1997). Lower courts are attempting to refine the

“imminent risk of physical harm” aspect. Compare Nelson

v. Metro-North Commuter R.R., 235 F.3d 101 (2d Cir. 2000)

with Bloom v. Consolidated Rail Corp.; 41 F.3d 911 (3d Cir.

1994). -

The “zone of danger” test, as it is sometimes called,

was applied in this case to defeat Perna’s claim even

though Perna told both the District Court and the Court

of Appeals that he was pursuing a claim for intentional

infliction of emotional distress. Both courts nevertheless

characterized the claim as one for negligent infliction of

4

13

emotional distress and decided it accordingly. Neither

court dealt with Perna’s allegation that the shipowner

was negligent in overriding Perna’s objections and

assigning Perna to work with the same Captain who had

already created great difficulties for him.

Other lower courts have also applied the “zone of

danger” test to what are clearly intentional acts. See, €.g.,

Nelson v. Metro-North Commuter R.R., supra, (sexual

harassment); Williams v. Treasure Chest Casino, L.C.C., 1998

AMC 1300 (E.D. La. 1998) (sexual harassment); Wiora v.

Harrah’s Illinois Corp., 2000 AMC 2250 (N.D. Ill. 1999)

(invasion of privacy).

A very diligent search has failed to uncover any

appellate cases which deal with the issue of whether the

intentional infliction of emotional distress is compensable

under the FELA or the Jones Act.

One District Court case held that even if intentional

infliction of emotional distress is actionable under the

Jones Act, the conduct complained of did not constitute

“unconscionable abuse” or “extreme and outrageous con-

duct.” See Yballa v. Sea-Land Services, Inc, 937 F.Supp. 1428

(D. Hawaii 1995).

The Court of Appeals, in a footnote in this case,

suggested that Captain Gray’s conduct did not meet the

test for “extreme and outrageous” conduct required by

the RESTATEMENT OF TORTS, SECOND, § 46. However,

the Court of Appeals did not cite the illustrations in the

RESTATEMENT discussion of § 46, and these are consid-

erably less “outrageous” and “extreme” than Captain

Gray’s conduct. The Court of Appeals’ opinion also

ignored this Court’s observation in Buell that “some

14

States consider the context and the relationship between

the parties significant, placing special emphasis on the

workplace.” 480 U.S. at 568, 569. In its footnote the Court

of Appeals said it was not addressing the intentional

infliction of emotional distress issue.

One District Court has held that intentional infiiction

of emotional distress is actionable under the FELA. Allen

v. National Railroad Passenger Corp., 90 F.Supp. 2d 603

(E.D. Pa. 2000) citing Lancaster v. Norfolk and Western Ry.

Co., 773 F.2d 807, 813 (7th Cir. 1985) that “the applicability

of the FELA to (at least some) intentional torts is too well

settled to be questioned any longer.”

Perna stressed to the District Court and to the Court

ot Appeals that his claim was for the intentional infliction

of emotional distress. The allegation that Captain Gray

constantly “harassed, belittled, embarrassed and humili-

ated” Perna is an allegation that the captain intentionally

subjected Perna to stress far beyond that inherent in a

Captain’s proper supervision of his subordinate depart-

ment heads. Since a ship is a small community where the

crew lives together 24 hours a day, the power of a Cap-

tain to rule a subordinate’s life is greatly magnified since

the subordinate can never escape and there is no appeal.

When abused, that awesome power is unrelenting and

can be extreme in the effects it causes.

In his Memorandum filed in opposition to Arco’s

Motion for Summary Judgment in the District Court,

Perna promised to file a trial brief discussing the various

standards that may be applied in an intentional infliction

of emotional distress case. He asked the Court of Appeals

to reverse with instructions to develop a factual record

15

which would enable that Court to consider an intentional

infliction of emotional distress case with a full record

before it.

The record before this Court has not been developed

factually to a degree which would facilitate a thorough

discussion of an appropriate standard for intentional

infliction of emotional distress cases under the FELA and

the Jones Act. The factual record is essentially the same as

that in Buell.

It is clear that most of the lower courts are applying

the “zone of danger” test to any case that involves only

emotional injuries. Only this Court can give them the

necessary guidance so that they can clearly recognize

what is-or is not actionable and what standard applies.

Accordingly, petitioner is seeking to have this Court

reverse the Court of Appeals with instructions that the

District Court be directed to develop a full record and

consider the appropriate standard to apply to an inten-

tional infliction of emotional distress case under the Jones

Act and the FELA.

III. The Court of Appeal erred in affirming a dismissal

of Perna’a claim based on unseaworthiness.

Under the general maritime law a shipowner is

under a legal duty to furnish its seamen with a seaworthy

ship or one that is reasonably fit for the purpose

intended, and this duty was first announced in The

Osceola, 189 U.S. 158 (1903). This duty is a species of

liability without fault, and it is non-delegable. Seas Ship-

ping Co. v. Sieracki, 328 U.S, 85 (1946). Unseaworthiness

does not depend on a finding of negligence. Mahnich v.

16 |

Southern S.S. Co., 321 U.S. 96 (1.944); Alaska Steamship Co.

v. Petterson, 347 U.S. 396 (1954). It can be found even

when there is a jury finding that the vessel owner was not

negligent. Waldron v. Moore-McCormack Lines, Inc., 386

U.S. 724 (1967). It can be found in transitory conditions |

that did not exist long enough for the vessel owner to

have actual or constructive notice. Mitchell v. Trawler

Racer, Inc., 362 U.S. 539 (1960).

As stated by this Court in Usner v. Luckenbach Over-

seas Corp., 400 U.S. 494, 498 (1971):

“Liability based upon unseaworthiness is

wholly distinct from liability based upon negli-

gence. The reason, of course, is that

unseaworthiness is a condition, how that condi- |

tion came into being —- whether by negligence or

otherwise is quite irrelevant to the owner’s lia-

bility for the personal injuries resulting from it.”

The warranty extends also to crew members, and the

shipowner’s obligation is to furnish a crew “equal in

disposition and seamanship to the ordinary men in the

calling ...” This was first recognized by Judge Learned

Hand in Keen v. Overseas Tankship Corp., 194 F.2d 515 (2d

Cir. 1952), cert. den., 343 U.S. 966 (1953) and sanctioned by

this Court in Boudoin v. Lykes Bros. S.S. Co., Inc., 348 U.S.

336 (1955).

This Court has not decided what marks the bound-

aries of a seaman’s fitness except in the Boudoin assault

context. The lower courts have generally required the use

of a deadly weapon such as a knife, e.g., Miles v. Melrose,

882 F.2d 976 (5th Cir. 1989) or the use of something else in

a savage manner, e.g, Wiradihardja v. Bermuda Star Line,

802 F.Supp. 989 (S.D.N.Y. 1992) (a bottle of catsup). Mere

ene

17

drunken assaults are not enough, e.g., McKinley v. Afram

Lines. (USA) Co., Ltd., 834 FSupp. 510 (1993), but the

court there also acknowledged that a weapon need not be

involved if the assailant is shown to have an “excep-

tionally quarrelsome nature.”

In Waldron v. Moore-McCormack Lines, Inc., supra, this

Court said that an “incompetent” seaman would render

the vessel unseaworthy, but the facts of that case dealt

with an inadequate number of seamen rather than an

incompetent one.

Petitioner contended in the District Court that Cap-

tain Gray was considerably less than equal in disposition

and seamanship to others in the calling and was prepared

to offer expert testimony to this effect. However, the

District Court and the Court of Appeals dismissed peti-

tioner’s unseaworthiness claim on the authority of

Szymanski v. Columbia Trans. Co., 154 F.3d 591 (6th Cir.

1998). Szymanski was a Jones Act/unseaworthiness case

where a heart attack was said to have been caused by job-

related stress. On the strength of Gottschall the court

affirmed a summary judgment of dismissal because the

seaman-plaintiff was not in the “zone of danger.”

It then concluded that since there was no recovery

for the injury under the Jones Act, there could also be no

recovery under the unseaworthiness doctrine. It claimed

to find support for this reasoning in Miles v. Apex Marine

Corp., 498 U.S. 19 (1990).

Petitioner submits that Szymanski was incorrectly

decided in several respects.

18

In Gottschall this Court did not hold there could be no

recovery for emotional illness; it held just the opposite. It

said there could be recovery for such an injury if plaintiff-

worker is in the “zone of danger” at the time the injury is

suffered.

Furthermore, the Miles case is not authority for the

rationale suggested in Szymanski. Miles was the last of

three cases decided by this Court to mark the boundaries

of the wrongful death action created under the general

maritime law in Moragne v. States Marine Lines, Inc., 398

U.S. 375 (1970). The other two cases which also dealt with

aspects of the Moragne wrongful death remedy are Sea-

Land Services v. Gaudet, 414 U.S. 573 (1974) and Mobil Oil

Corp. v. Higginbotham, 436 U.S. 618 (1978).

Ordinarily, wrongful death law is created by statute,

and items such as beneficiaries and elements of recovery

are enacted at one time by the legislature. This could not

be done in Moragne since this Court could only decide the

case before it. The wrongful death remedy under the

general maritime law is being fashioned on a case-by-case

basis as it must be. When deciding these various elements

of the newly created wrongful death remedy, this Court

pays great deference to Congressional enactments and, to

a lesser extent, those of the states because these are policy

statements in an area which is normally one for a legisla-

ture to decide. '

Accordingly, in Miles this Court held that a nonde-

pendent parent cannot recover for loss of society in a

Moragne cause of action and that the general maritime

law does not permit a survival action for the decedent's

lost future earnings largely because such recoveries are ~

ee

19

not permissible under the Jones Act or the Death on the

High Seas Act, 46 U.S.C. §§ 761, 762.

In discussing the relationship between the Jones Act

and the general maritime law, this Court noted that, “The

jones Act evinces no general hostility to recovery under

maritime law.” 498 U.S. at 29. Indeed, Szymanksi runs

directly counter to the holdings in Mahnich, Waldron and

Mitchell, which specifically addressed the negligence vis-

a-vis unseaworthiness issue. —

If Szymanksi is correctly decided, hereafter every

judge must enter judgment in favor of the shipowner

whenever a jury returns a verdict finding no negligence

but unseaworthiness. The holding in Miles just doesn’t

compel that result, and it is completely contrary to the

observation in Miles that “unseaworthIness [became] the

principal vehicle for recovery by seamen, for injury or

death.” (citing Moragne) 498 U.S. at 25, 26.

Finally, in the development of the unseaworthiness

remedy this Court has never focused on the injury

involved; it has always stressed the need for guarding

seamen’s safety by requiring the condition of the vessel

to be reasonably fit for the purpose intended. Szymanski

therefore represents a radical departure from this Court’s

rationale for the unseaworthiness remedy which was

fashioned for this Court’s wards. Petitioner does not

believe that whether a ship is unsedworthy should

depend on the nature of the injury suffered by the sea-

man.

The Court of Appeals suggests that although Miles

may not compel the result it reached, its reasoning is a

logical extension of Miles. This is just not correct.

20

The “zone of danger” test cannot apply in the

unseaworthiness context because every seaman injured

by reason of the unseaworthiness of the vessel was in the

zone of danger when he was hurt. Perna was always in

the zone of danger whenever he was subjected to Captain

Gray’s verbal abuse. He may not have been in fear of

physical harm but as to him Captain Gray’s unrelenting

verbal abuse made his life an abomination 24 hours a day

for over one month. Even when he sought to get off after

two weeks, Captain Gray would not permit that.

The decisions by this Court are replete with refer-

ences to this Court’s special role in the development of

maritime jurisprudence in light of the constitutional grant

of exclusive jurisdiction for admiralty and maritime mat-

ters to this Court in Art. II] with no concomitant grant of

legislative power to Congress in Art. II. Only this Court

can correct the aberration in the reasoning of the court

below and thereby prevent the confusion which will flow

from an application of the “zone of danger” test in an

area which defines the remedy in light of the condition

which caused the harm rather than the nature of the

harm.

21

CONCLUSION

For the foregoing reasons, Petitioner respectfully

requests that this Court issue the Writ of Certiorari to

review the decision of the United States Court of Appeals

for the Third Circuit.

Respectfully,

E. ALFRED SMITH

Counsel of Record

CHRISTINE L. SERBANIC

E. ALFRED SMITH & ASSOCIATES

1333 Race Street, 2nd Floor

Philadelphia, PA 19107

(215) 569-8422

Attorneys for Petitioner

App. 1

UNREPORTED/NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1108

JOSEPH C. PERNA,

Appellant

V.

ARCO MARINE, INC

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF PENNSYLVA-

NIA

D.C. Civil No. 97-CV-4326

District Judge: The Honorable Herbert J. Hutton

Argued: December 5, 2000

Before: BARRY, COWEN, and WOOD," Circuit Judges

(Opinion Filed: January 3, 2001)

E. Alfred Smith, Esq. (Argued)

Second Floor

1333 Race Street

Philadelphia, Pennsylvania 19107

Attorney jor Appellant

“The Honorable Harlington Wood, Jr., United States Circuit

Judge for the Seventh Circuit, sitting by designation.

App. 2

Francis X. Kelly, Esq. (Argued)

Dante Mattioni, Esq.

Andrew H. Quinn, Esq.

Mattioni, Mattioni & Mattioni

399 Market Street, 2nd Floor

Philadelphia, Pennsylvania 19106

Attorney for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge

I. Background

Appellant Joseph Perna worked as a steward aboard

several of appellee Arco Marine’s ships beginning in

1972. During 1994, Perna twice served aboard the ARCO

ALASKA under Arco employee Captain Jim Gray. Perna

alleges that Captain Gray frequently belittled, embar-

rassed, criticized, and humiliated him-during these voy-

ages. This verbal abuse, he continues, resulted in

emotional injury which manifested itself by his last day

of work on April 14, 1995 and left him totally disabled.

Perna filed a complaint in District Court seeking

damages under three causes of action: the Jones Act, 46

U.S.C. § 688; the maritime doctrine of unseaworthiness;

and maintenance and cure. On Arco’s motion for sum-

mary judgment, the District Court found that Perna failed

to state a cognizable claim under either the Jones Act or

the doctrine of unseaworthiness. The District Court also

rejected, without discussion, Perna’s claim for mainte-

nance and cure. Perna appeals to this Court, challenging

App. 3

the basis for the District Court’s findings on the Jones Act

and unseaworthiness claims and complaining that, in any

event, his maintenance and cure claim should be allowed

to go forward. For the reasons which follow, we will

affirm the District Court’s order in part, reverse in part,

and remand for further proceedings.

II. Discussion

A. Preliminary considerations

Federal Rule of Civil Procedure 56(c) mandates the

entry of summary judgment “after adequate time for

discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986). This Court’s stan-

dard of review over a district court’s grant of summary

judgment is plenary. Taylor v. Phoenixville School Dist., 174

F.3d 142 (3d Cir. 1999).

As a threshold matter, Arco contends that Perna

“abandoned” his original complaint and never amended

it to cover the emotional injury for which he now seeks

damages. The record shows that Perna filed his complaint

on June 30, 1997, alleging that he suffered injury “[o]n or

about April 14, 1995 . . . by the negligence of the defen-

dant . . . and the unseaworthiness of the ARCO

ALASKA.” He neither specified what the alleged injury

was nor stated any details as to its cause. At his deposi-

tion on May 4, 1998, Perna discussed the events of April

14, 1995 and conceded that although he fell down some

App. 4

stairs aboard the ARCO PRUDOE BAY that day, the acci-

dent in fact caused no injury. He went on to claim, in both

his deposition and answers to interrogatories, that rather

than the slip and fall case Arco originally expected, it was

harassment by Captain Gray during tours of duty in 1994

which brought about his disabling emotional illness.

We agree with the District Court that any incon-

gruities between Perna’s complaint and his claim as it

took shape do not add up to fatal flaws. First, the com

plaint clearly related to some event or events aboard the

ARCO ALASKA and, therefore, could not have been

about an accident on the ARCO PRUDOE BAY, as Arco

imagined. Second, as the District Court noted, a plain-

tiff’s complaint need only set forth “a short and plain

statement of the claim showing that the pleader is enti-

tled to relief.” F.R.Civ.P. 8(a)(2). The plaintiff does not

have to “set out in detail the facts upon which he bases

his claim,” Conley v. Gibson, 355 U.S. 41, 47 (1957), but

must merely provide “fair notice of what the plaintiff’s

claim is and the grounds upon which it rests.” Id. The

pleading requirements are not meant to stand in the way

of a court reaching the merits of a dispute. Lundy v.

Adamar of New Jersey, Inc. 34 F.3d 1173, 1186 (3d Cir. 1994);

see also Conley, 355 U.S. at 48 (“The Federal Rules [of Civil

Procedure] reject the approach that pleading is a game of

skill in which one misstep by counsel may be decisive to

the outcome and accept the principle that the purpose of

pleading is to facilitate a proper decision on the merits.”);

2A Moore & Lucas, Moore’s Federal Practice { 8.02, at

8-10 (2d ed. 1994) (“The real importance of the pleading

rules is that they make pleadings, in and of themselves,

relatively unimportant. Cases are to be decided on the

App. 5

merits.”) While Perna’s complaint is surely vague, Arco

recognized by the time it drafted its motion for summary

judgment that Perna anchored his action on the alleged

mistreatment by Captain Gray and, indeed, made argu-

ments directly relating to his emotional injury claim.

B. The Jones Act

The Jones Act, 42 U.S.C. § 688, establishes a uniform

system of seamen’s tort law parallel to that available to

employees of interstate railway carriers under the Federal

Employers’ Liability Act (“FELA”), 45 U.S.C. § 51. Miles v.

Apex Marine Corp., 498 U.S. 19, 29 (1990). The Jones Act

specifically provides 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.” 42 U.S.C. § 688. Thus, cases interpreting the FELA

provide guidance for the interpretation of the Jones Act.

Fashauer v. NJ Transit Rail Operations, Inc., 57 F.3d 1269,

1278 n.3 (3d Cir. 1995).

The first step in deciding whether Perna’s complaint

states a cognizable Jones Act claim is to determine what

injury Perna, in fact, alleges. Perna contends that his

claim is based on the intentional infliction of emotional

distress, but his complaint plainly states that he sustained

personal injuries “[s]olely by reason of the negligence of

the defendant and the unseaworthiness of its vessel.” In

Perna’s brief to this Court, he again summarizes his com-

plaint as alleging “that Arco was negligent in failing to

provide Perna with a safe place to work, i.e. one where

the Captain was able to intentionally inflict this

a

App. 6

emotional distress on him.” App. Br. at 13 (emphasis

added). As the District Court found:

Characterizing Plaintiff’s claim through circular

wording such as the foregoing has little effect on

the Court’s analysis. No matter what label Plain-

tiff puts on his claim, the only injury alleged is

“emotional injury,” which by the very terms of

Plaintiff's complaint sounds in negligence.

App. at 9a.!

A claim of negligent infliction of emotional distress

can be brought under the FELA and, thus, under the

Jones Act. In Consolidated Rail Corp. v. Gottshall, 512 U.S.

1 Whether an intentional infliction of emotional distress

claim would fare better under the Jones Act has not been

addressed by this Court, and we need not address it here. Even

had Perna’s complaint set forth such a claim, however, the facts

would not support it. Intentional infliction of emotional distress

requires conduct of an “extreme or outrageous type.” Cox v.

Keystone Carbon, Inc., 861 F.2d 390, 395 (3d Cir. 1988). This Court

has further noted that “it is extremely rare to find conduct in the

employment context that will rise to the level of outrageousness

necessary to provide a basis for recovery for the tort of

intentional infliction of emotional distress.” Matczak v. Frankford

Candy and Chocolate Co., 136 F.3d 933 (3d Cir. 1997). Although it

appear that Captain Gray could be difficult to work under, the

petty harassment, disagreements, and insults described by

Perna do not reach an extreme or outrageous level. See Section

46(1) of the Restatement (Second) of Torts, comment (d)

(“Liability has been found only where the conduct has been so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized

community . . . [t]he liability clearly does not extend to mere

insults, indignities, threats, annoyances, petty oppressions, or

other trivialities.”).

App. 7

532 (1994), the Supreme Court found that railroads, as

part of their duty to use reasonable care in furnishing

employees with a safe workplace, must avoid swhiecting

workers to negligently inflicted emotional injury. Got-

tshall, 512 U.S. at 550. The Court also found, however,

that “an emotional injury constitutes ‘injury’ resulting

from the employer’s ‘negligence’ for purposes of FELA

only if it would be compensable under the terms of the

zone of danger test.” Id. at 555. The “zone of danger” test

requires a plaintiff seeking to recover for purely emo-

tional injuries to have suffered some physical impact or

have been placed at immediate risk of physical harm by

the defendant's negligence. Consolidated Rail Corp. v. Got-

tshall, 56 F.3d 530, 532 (3d Cir. 1995) (applying the “zone

of danger” test after remand from the Supreme Court).

Perna fails to allege that he ever stood within any

“zone of danger” or faced an “immediate risk of physical

harm.” Bloom v. Consolidated Rail Corp., 41 F.3d 911, 915

(1994). The only cause Perna cites for his emotional ill-

ness is the behavior of Captain Gray. Moreover, the report

of Dr. Stuart J. Cohen states that Perna’s “major depres-

sive episode occurred as a result of apparent mistreat-

ment by his supervisor, Captain Gray.” No other factor is

mentioned. Because Perna alleges the negligent infliction

of emotional distress but does not allege facts sufficient to

meet the “zone of danger” test, his complaint fails to set

out a cognizable case under the Jones Act. The District

Court was correct in finding for Arco with respect to that

claim.

App. 8

C. Unseaworthiness

While the Jones Act provides an action in negligence

for death or injury of a seaman, it does not disturb the

seaman’s long-recognized right to claim compensation

for injuries resulting from “unseaworthiness.” Miles v.

Apex Marine Corp., 498 U.S. 19, 29 (1990). Under maritime

law, a shipowner must furnish a seaworthy ship. The

Osceola, 189 U.S. 158 (1903). This duty is absolute and

completely divorced from the ship owner’s Jones Act

duty to avoid negligent conduct. Mitchell v. Trawler Racer,

Inc., 362 U.S. 539, 549 (1960). Seaworthiness requires not

that the shipowner furnish a perfect vessel, but only one

reasonably fit for its intended use. Id. at 550. In addition

to claims resulting from physical defects in the vessel

itself, courts have found ships to be unseaworthy where a

dangerous or improperly trained crewmember is not

“equal in disposition and seamanship to the ordinary

men in the calling.” Clevenger v. Star Fish & Oyster Co., 325

F.2d 397, 400 (5th Cir. 1963) (quoting Keen v. Overseas

Tankship Corp., 194 F.2d 575, 578 (2d Cir. 1952)).

Perna argues that Arco failed to provide a seaworthy

ship by installing as captain a man who was unequal to

ordinary men in his calling. Arco contended, and the

District Court agreed, that under the Supreme Court's

holding in Miles any unseaworthiness claim for purely.

emotional injury requires that the plaintiff meet the same

“zone of danger” test necessary for Jones Act claims. The

Miles Court examined whether the Jones Act’s preclusion

of loss of society claims meant that such claims also failed

under the unseaworthiness doctrine. The Court found

that:

App. 9

[i]t would be inconsistent with our place in the

constitutional scheme were we to sanction more

expansive remedies in a judicially created cause

of action in which liability is without fault than

Congress has allowed in cases of death resulting

from negligence.

Miles, 498 U.S. at 32-33.

In a case directly on point, the Sixth Circuit recently

found that Miles requires plaintiffs seeking emotional

injury damages under the unseaworthiness doctrine to

show that the allegedly incompetent seaman caused the

plaintiff direct physical injury or placed the plaintiff in a

“zone of danger.” Szymanski v. Columbia Transportation

Co., 154 F.3d 591, 596 (6th Cir. 1998). The Szymanski Court

found that:

[c]onsistent with the approach of the Court in

Miles and [Moragne v. States Marine Lines, Inc.,

398 U.S. 375 (1970)], we believe that the

unseaworthiness action should not reach an

injury that the statute does not. A seaman’s

claim under either the Jones Act or the

unseaworthiness doctrine is fundamentally a

single cause of action, and remedies under one

must be congruent with remedies under the

~ other. If no damages are permitted under the

Jones Act, then an unseaworthiness claim can-

not supply them either.

Szymanski, 154 F.3d at 596.

Whether Miles effects unseaworthiness claims for

purely emotional injuries is a question of first impression

in this Court. Perna contends that Szymanski is flawed,

but we find that the Sixth Circuit’s holding, if not manda-

ted by Miles, certainly represents a logical extension of

App. 10

Miles. As an absolute liability regime, unseaworthiness

indeed encompasses more than the negligence-grounded

Jones Act. It does not follow, however, that the

unseaworthiness doctrine is limitless in scope. As the

Szymanski Court noted, though the “standards for affix-

ing liability may differ [between the Jones Act and

unseaworthiness] . . . the liability must be due to a

compensable injury.” Szymanski, 154 F.3d at 596-97. In

Miles, the Court declined to open a common-law door to

compensation which Congress had closed by statute.

There, the relevant injury was non-pecuniary loss. Here,

it is emotional distress absent the requisite “zone of dan-

ger.” Neither one is compensable under the Jones Act,

and allowing either one to go forward in the guise of an

unseaworthiness claim “would be inconsistent with our

place in the constitutional scheme.” Miles, 498 U.S. at

32-33.

The idea that purely emotional injury claims must be

bounded in some manner is hardly controversial. As the

Supreme Court noted in Gottshall, negligent infliction of

emotional distress “holds out the very real possibility of

nearly infinite and unpredictable liability . . . Courts

therefore have placed substantial limitations on the class

of plaintiffs that may recover for emotional injuries and

on the injuries that may be compensable.” Gottshall, 512

U.S. 546. While case law specific to purely emotional

injury and unseaworthiness is not extensive, courts have

generally required some type of violent physical impact.

See, e.g., Yballa v. Sea-Land Services, 937 F. Supp. 1428, 1436

(D. Hawaii 1995) (absent some sort of physical assault on

the plaintiff, unseaworthiness claim based on misconduct

of fellow crewmembers not actionable as a matter of law);

App. 11

Wiradihardja v. Bermuda Star Line, Inc., 802 F. Supp. 989,

994-95 (S.D.N.Y. 1992) (violent physical attack using more

than fists sufficient to establish “savage and vicious

nature” necessary for showing of unseaworthiness); Wal-

ters v. Moore-McCormack Lines, Inc., 309 F.2d 191, 192-93

(2d Cir. 1962) (acts more savage and vicious than mere

brawling needed to establislt unseaworthiness) (citing

Boudoin v. Lykes Brothers S.S. Co., 348 U.S. 336, 340 (1955)).

Because Perna failed to allege any physical impact or

“zone of danger” related to his emotional injury, the

District Court was correct in finding for Arco on the

unseaworthiness claim.

D. Maintenance and cure

Maintenance and cure is the “ancient right given to

seamen by the maritime law,” approximating a seagoing

workers’ compensation scheme. O’Connell v. Interocean

Management Corp., 90 F.3d 82, 84 (1996). “Maintenance” is

a per diem allowance designed to provide seamen the

compensation necessary to pay for food and lodging

expenses while they recuperate ashore.? Id. “Cure” repre-

sents the cost of medical treatment. Id. The remedy of

maintenance and cure is a contractual obligation indepen-

- dent of the shipowner’s negligence or even the seaman’s

own negligence. Id. An employer’s obligation to furnish

maintenance and cure continues “until the seaman has

2 Most deep water seamen today are unionized, and most

of the relevant collective bargaining agreements incorporate a

rate of $8 per day. Barnes v. Andover Co., L.P., 900 F.2d 630 (3d

Cir. 1990). This Court has held that a seaman may challenge that

bargained rate. Id.

App. 12

reached the point of maximum cure, that is until the

seaman is cured or his condition is diagnosed as perma-

nent and incurable.” Id. (citing Barnes v. Andover Co., L.P.,

900 F.2d 630, 633 (3d Cir. 1990)).

The most important aspect of maintenance and cure

is that, while its benefits are relatively limited its avail-

ability is relatively certain. Barnes, 900 F.2d at 634.

“Although maintenance does not entitle a seaman to a

pension or a lump-sum payment to compensate for dis-

ability or lost earning capacity, it is available in the

absence of any showing of negligence or unseaworthi-

ness, it is not reduced by a seaman’s negligence, and it

must be provided at the onset of the illness or injury and

not only after a judicial finding of liability.” Id. at 634.

Maintenance and cure is payable regardless of whether

the seaman’s employment caused the injury or illness.

Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527 (1938). An oft-

cited rule states that “[a] shipowner must pay mainte-

nance and cure for any illness or injury which occurred,

was aggravated, or manifested itself while the seaman

was in the ship’s service.” J. Norris, The Law of Seamen,

§ 26:21.

Given the broad applicability of this doctrine, the

District Court was incorrect to the extent that it dismissed

Perna’s maintenance and cure claim based solely on the

reasoning that it already found his Jones Act and

unseaworthiness claims untenable. Perna need not show

negligence or unseaworthiness for maintenance and cure,

only injury while in service of Arco. Unlike Jones Act and

unseaworthiness claims, maintenance and cure requires

no “zone of danger,” even for claims of purely emotional

damage. See, e.g., West v. Midland Enterprises, Inc., 227 F.3d

App. 13

613, 617 (6th Cir. 2000) (Gottshall-Szymanski “zone of dan-

ger” requirement does not control maintenance and cure

claims); Nelsen v. Research Corp., 805 F. Supp. 837, 853 (D.

Haw. 1992) (illness for purposes of maintenance and cure

can include purely psychological problems). Further-

more, the Supreme Court has said “that the shipowner’s

liability for maintenance and cure was among the most

pervasive of all and that it was not to be defeated by

restrictive distinctions nor narrowly confined. When

there are ambiguities or doubts, they are resolved in

favor of the seaman.” Vaughan v. Atkinson, 369 U.S. 527,

532 (1962) (citations and internal quotation marks omit-

ted).

Viewing the facts presented thus far in the light most

favorable to the non-moving party, Perna alleges that he

suffered emotional injury of some sort during the time he

served aboard Arco vessels. Perna concedes in his brief to

this Court that Arco has paid him at least some mainte-

nance, but alleges that Arco has refused to pay medical

expenses and thus has fallen short of its maintenance and

cure obligation. Whether Perna’s allegations accurately

represent reality is a genuine issue of material fact.

III. Conclusion

The District Court properly concluded that Perna

alleges no conduct for which Arco could be liable under

the Jones Act or the doctrine of unseaworthiness. The

District Court erred, however, in dismissing Perna’s

maintenance and cure claim on a summary judgment

App. 14

motion. We will, therefore, reverse only as to the mainte-

nance and cure claim and remand for further proceedings

consistent with this Opinion.

TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.

/s/ Maryanne Trump Barry

Circuit Judge

App. 15

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH C. PERNA, ) CIVIL ACTION

Vv. :

ARCO MARINE, INC. ) NO. 97-4326

MEMORANDUM AND FINAL JUDGMENT

(FILED NOV 30 1991)

HUTTON, J. November 29, 1999

Presently before the Court is Defendant’s Motion for

Summary Judgment (Docket No. 8) and Plaintiff’s

response thereto. For the reasons stated below, the Defen-

dant’s Motion for Summary Judgment is GRANTED.

I. BACKGROUND

In the light most favorable to the Plaintiff, the facts

are as follows. Plaintiff has worked as a seaman for

Defendant since 1972. In May 1994 Plaintiff served

aboard the Arco Alaska as Chief Steward under the com-

mand of Captain Gray. During this tour Plaintiff's rela-

tionship with Captain Grey [sic] deteriorated due to

Plaintiff’s refusal to institute certain changes to the ship’s

menu. Following the commencement of Plaintiff’s tour he

was hospitalized for several days, however, he returned

to the Alaska to serve another tour on July 21, 1994 under

the Command of Captain Devins. During this tour, on or

about September 2, 1994, Captain Devins gave Plaintiff a

positive evaluation.

App. 16

Following the September 2, 1994 evaluation Captain

Gray returned to command of the vessel. From this point

forward Plaintiff and Captain Gray were in conflict with

each other. Plaintiff was disciplined by the Captain in

front of his staff and subordinates, made to clean the

Captain’s room excessively, and required 'to constantly

demonstrate equipment use during fire and boat drills;

despite the belief that this job would be rotated. Plaintiff

further alleges that Captain Grey [sic] embarked on a

campaign to harass and humiliate Plaintiff. Such conduct

included the failure to discipline a shipmate that

allegedly threatened Plaintiff with a knife.

At the conclusion of Plaintiff’s tour with Captain

Grey [sic], Plaintiff received a written evaluation for the

period of September 2, 1994 until October 6, 1994. Plain- :

tiff’s evaluation stated, inter alia, that Plaintiff’s super- |

visory skills were unacceptable and that there was a |

perception that Plaintiff was paranoid. Plaintiff finished

his last assignment on the Arco Purdoe Bay, on or about

April 15, 1995. Since this time Plaintiff has had no gainful

employment and is suffering from depression. Plaintiff

files this instant action asserting “emotional illness”

resulting from the harassment, belittlement, embarrass-

ment, and humiliation inflicted upon him by Captain

Grey. [sic]

II. DISCUSSION

A. Exhaustion of Remedies in the Collective Bargain-

ing Agreement

Defendant asserts that Plaintiff’s complaint should

be dismissed by the Court because Plaintiff exercised his

:

ee

App. 17

legal remedies without first attempting to resolve his

grievance under the Collective Bargaining Agreement

(“CBA”). (See Def.’s Mot. for Summ. J. at 14). This posi-

tion, however, is without merit. Generally, when deter-

mining the scope of an arbitration clause, courts operate

under a “presumption of arbitrability in the sense that

‘[a]n order to arbitrate the particular grievance should

not be denied unless it may be said with positive assur-

ance that the arbitration clause is not susceptible of an

interpretation that covers the asserted dispute.’ ” See Bat-

taglia v. McKendry, No. CIV.A.98-5321, 1999 WL 570861, at

*4 (E.D. Pa. Aug. 3, 1999) (quoting AT & T Techs. v.

Communications Workers, 475 U.S. 643, 650 (1986)). Of

course, where an agreement to arbitrate is limited in its

substantive scope, courts ought not allow this “ ‘policy

favoring arbitration . . . to override the will of the parties

by giving the arbitration clause greater coverage than the

parties intended.’ ” Id. (quoting PaineWebber v. Hartmann,

921 F.2d 507, 513 (3d Cir.1990)).

In this instant matter, Section 206.1 of the CBA states

“the following procedure shall govern the . . . complaint

of a Chief Steward of unfair treatment in applying the

provisions of this Agreement.” (See CBA § 206.1) (emphasis

added). Section 206.3 further states that “[n]o complaint

or grievance shall be considered unless presented in

accordance with the foregoing procedure... .” (See CBA

§ 206.3).

Even in light of the above mentioned provisions, the

Court finds that Plaintiff is not required to arbitrate this

matter because the very terms of the CBA’s arbitration

clause is limited to disputes concerning the unfair appli-

cation or interpretation of the Agreement. (See CBA

App. 18

§ 206.1) Plaintiff makes no such claim, rather Plaintiff's

claim is for personal injury caused by Defendant’s negli-

gence and the vessels [sic] unseaworthiness. (See Pl.’s

Compl. { 7). The CBA makes no such reference to personal

injury matters and further fails to address the possibility

of, or the procedure for, resolving claims under the Jones

Act or the doctrine of unseaworthiness. As such, the Court

finds that there is positive assurance that the arbitration

clause does not cover the current dispute and the Court

must consider the merits of Plaintiffs’ [sic] claim.

B. Plaintiff’s Complaint

Federal Rule of Civil Procedure 8(a) requires that a

plaintiff’s complaint set forth “a short and plain state-

ment of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). Accordingly, the plaintiff

does not have to “set out in detail the facts upon which

he bases his claim.” Convey v. Gibson, 355 U.S. 41, 47

(1957). In other words, the plaintiff need only “give the

defendant fair notice of what the plaintiff's claim is and

the grounds upon which it rests.” Id.

The purpose of summary judgment is to avoid a

pointless trial in cases where it is unnecessary and would

only cause delay and expense. See Goodman v. Mead John-

son & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429

U.S. 1038 (1977). Summary judgment is appropriate “if

the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any mate-

rial fact and that the moving party is entitled to a judg-

ment as a matter of law.” Fed. R. Civ. P. 56(c). The party

iia

App. 19

moving for summary judgment has the initial burden of

showing the basis for its motion. See Celotex Corp. 0.

Catrett, 477 U.S. 317, 323 (1986). Once the movant ade-

quately supports its motion pursuant to Rule 56(c), the

burden shifts to the nonmoving party to go beyond the

mere pleadings and present evidence through affidavits,

depositions, or admissions on file to show that there is a

genuine issue for trial. See id. at 324. A genuine issue is

one in which the evidence is such that a reasonable jury

could return a verdict for the nonmoving party. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

When deciding a motion for summary judgment, a

court must draw all reasonable inferences in the light

most favorable to the nonmoving party. See Big Apple

BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d

Cir. 1992). cert. denied, 507 U.S. 912 (1993). Moreover, a

court may not consider the credibility or weight of the

evidence in deciding a motion for summary judgment,

even if the quantity of the moving party’s evidence far

outweighs that of its opponent. See id. Nonetheless, a

party opposing summary judgment must do more than

rest upon mere allegations, general denials, or vague

statements. See Trap Rock Indus., Inc. v. Local 825, 982 F.2d

884, 890 (3d Cir. 1992).

1. Count i - Jones Act

Title 46, Section 688 of the United States Code states

in relevant part that:

Any seaman who shall suffer personal injury in

the course of his employment may, at his election,

App. 20

maintain an action for 7 at law, with the

right of trial by jury.

42 U.S.C.A. § 688 (West 1999) (“Jones Act”) (emphasis

added). Further, this section provides 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 . . . . ” § 688. Thus, in

interpreting a plaintiff's rights under § 688, the Court

must look to cases which have interpreted the Federal

Employers’ Liability Act (FELA) at Title 45, Section 51 of

the United States Code. See Fashauer v. New Jersey Transit

Rail Operations, Inc., 57 F.3d 1269, 1278 n.3 (3d Cir. 1995)

(citing Kernan v. American Dredging Co., 355 U.S. 426, 439,

78 S. Ct. 394, 401, L. Ed. 2d 382 (1958)).

As a threshold question, the Court must determine

the nature of Plaintiff's “personal injury” for the pur-

poses of the Jones Act. Only if the Court finds that such

injury is one which is cognizable under the Act, can the

Court consider the existence of negligence on the part of

the Defendant. See, .e.g., Bloom v. Consolidated Rail Corp.,

41 F.3d 911, 914 (3rd Cir. 1994).

Plaintiff's complaint alleges that “[o]n or about April

14, 1995 plaintiff suffered injures while under the

employment of defendant.” (See Pl.’s Compl. { 5). Plain-

tiff’s complaint also states that “[sJolely by reason of the

negligence of the defendant and the unseaworthiness of its

vessel, plaintiff sustained personal injuries.” (See Pl.’s

Comp. { 7) (emphasis added). Lastly, Plaintiff’s response

to Defendant's interrogatories clearly states that the only

injury sustained as a result of the alleged occurrences was

App. 21

“emotional illness.” (See Pl.’s Resp. to Def.’s Interogs.

1 9).

Thus, it is quite evident that the only cognizable

causes of action in Count I which Plaintiff has given tne

Defendant notice of, pursuant to Fed R. Civ. P. 8(a), is for

negligent infliction of emotional distress and

unseaworthiness. Despite this, Plaintiff contends that his

Jones Act claim is not for negligent infliction of emotional

distress, but rather for “failure to furnish plaintiff with a

safe place to work in light of the history of ill will

between the Captain and [Plaintiff].” (See Pl.’s Resp. to

Def.’s Summ. J. Mot. at 12). Plaintiff further states that,

“Plaintiff's claim is for negligently creating a situation

which enabled ... the Captain of [the] vessel, to inten-

tionally inflict such emotional distress as to cause serious

injuries.” (See Pl.’s Resp. to Def.’s Summ. J. Mot. at 13).

Characterizing Plaintiff's claim through circular

wording such as the foregoing, has little effect on the

Court’s analysis. No matter what label Plaintiff puts on

his claim, the only injury alleged is “emctional injury,”

which by the very terms of Plaintiff's complaint sounds

in negligence. (See Pl.’s Compl. { 7).

Plaintiff attempts to characterize his claim with a

form over substance argument. Despite this, even accept-

ing Plaintiff's assertion that his claim is for “failing to

furnish plaintiff with a safe place to work,” the only

injury Plaintiff has claimed is emotional injury based

upon the negligent actions of Defendant. (See P1.’s Compl.

{ 7; see also Pl.’s Answers to Def.’s Interrogs. {{ 2-9).

Based upon Plaintiff's explanation of the events, the

App. 22

Court simply cannot characterize Plaintiff’s claim as any-

thing other than one based upon Defendant’s negligence

for allowing emotional injury to be inflicted upon the

Plaintiff. Such a claim is at its core nothing more than a

claim for “negligent infliction of emotional distress.”

Plaintiff makes no mention of any physical injury

occurring concurrently with Defendant’s negligence, nor

does Plaintiff allege that Defendant’s negligence caused

Plaintiff to suffer later physical consequences. Plaintiff

had the opportunity to state such injuries in his interroga-

tory answers, yet failed to do so, instead unequivocally

stating without specific explanation, that the only injuries

incurred were “emotional injury.” (See Pl.’s Answers to

Def.’s Interrogs. { 2). Since there are no facts in the

record which would allow the Court to conclude Plain-

tiff’s injuries were actually physical in nature the Court

must analyze Plaintiff’s claim based upon the standards

for “emotional injury” set forth by the Supreme Court

and the Third Circuit.

In Consolidated Rail Corp. v. Gottshall, the Supreme

Court held that “as part of its ‘duty to use reasonable care

in furnishing its employees with a safe place to work,’ a

railroad has a duty under FELA to avoid subjecting its

workers to negligently inflicted emotional injury.” 512

U.S. 532, 550 (1994). However, such emotional injury did

not “impose a duty to avoid creating a stressful work

environment. . . . ” Id. at 554. When a recovery for

negligently inflicted emotional injury is cognizable,

“workers within the zone of danger of physical impact

will be able to recover for emotional injury caused by fear

of physical injury to himself, whereas a worker outside

the zone will not.” Id. at 556. Thus, the zone of danger

App. 23

test limits recovery for emotional injury resulting from a

defendant's negligent conduct, notwithstanding the fact

that its application will foreclose some genuine claims.

See Bloom, 41 F.3d at 914 (citing Gottshall, 512 U.S. at 532).

Such restriction on “emotional distress” claims equally

apply to Plaintiff’s claims under the Jones Act as the

body of FELA jurispurdence is expressly incorporated

into the Jones Act. See Fashauer, 57 F.3d at 1278 n.3; see

also 42 U.S.C.A. § 688.

In the current matter, to recover for purely emotional

injuries, as so admitted, Plaintiff must be within the zone

of danger; requiring that Plaintiff suffer a physical impact

or be placed in immediate risk of physical harm by

Defendant’s negligence. See Gottshall v. Consolidated Rail

Corp., 56 F.3d 530, 532 (3d Cir. 1995) (applying the zone of

danger test to purely emotional injuries after remand of

the matter by the Supreme Court); See also Ferguson v.

CSX Transp., 36 F. Supp.2d 253, 256 (E.D. Pa. 1999) (find-

ing plaintiff did not show his emotional distress was the

result of the fear of immediate physical harm); Decesare v.

Nat'l R.R. Passenger Corp., No. CIV.A.99-129, 1999 WL

927009 (E.D. Pa. Oct. 25, 1999) (finding that plaintiff

claiming emotional distress from sexual harassment did

not satisfy the zone of danger requirement where there

was no physical impact or immediate risk of physical

harm).

Plaintiff’s deposition and responses to Defendant's

interrogatories reveal three potential grounds on which to

assert said emotional injury. First, there is reference to a

fall in which Plaintiff fell backwards on a set of stairs

aboard the vessel. (See Perna Dep. at 235). Second, Plain-

tiff makes reference to an alleged incident in which a

App. 24

fellow employee threatened Plaintiff with a knife. (See

Perna Dep. at 80, 149). Third, Plaintiff asserts emotional

injury resulting from harassment and humiliation by the

Captain of the vessel. (See Pl.’s Answer to Interrogs. { 2).

The Court will consider the merits of each of these events

in turn.

C. Plaintiff’s Fall On The Steps

With respect to Plaintiff’s fall, it simply cannot serve

as a basis for the claimed emotional injury; despite a

physical impact. First, there is no evidence or allegation

in the record that said fall was the result of Defendant's

negligence and second, and most importantly, Plaintiff

admits in his deposition that he was not injured as a

result of said fall. (See Perna Dep. at 235-36). Since Plain-

tiff claims no injury as a result of the fall, nor does he

allege he suffered emotional trauma as a result, there is

no genuine issue of material fact in dispute which would

allow a reasonable jury to return a verdict in Plaintiff’s

favor.

D. The Threatening Behavior of Plaintiff’s Co-Worker

With respect to the threatening behavior of Plaintiff's

co-worker in which Plaintiff was allegedly threatened

with a knife, Plaintiff acknowledges that there was never

any physical impact. (See Pl.’s Dep. at 149). Therefore, to

state a cognizable emotional distress claim the Plaintiff

must show that his emotional injury is the result of the

fear of immediate physical harm arising out of said

Si a a

App. 25

threat. See Bloom, 41 F.3d at 911 (applying the zone of

danger test to emotional distress claims).

While the Third Circuit has not specifically

announced the parameters required to satisfy the “fear of

immediate physical harm” condition, see, e.g., Bloom, 41

F.3d at 915 n.4, it is clear from the established record that

Plaintiff’s emotional illness is not the result of such fear.

The Court has examined Plaintiff’s Complaint, Deposi-

tions, Answers to Interrogatories, and Affidavits in the

light most favorable to the plaintiff for facts that could

reasonably infer the requisite fear; but no such evidence

can be located. At best the record evidences only that

Plaintiff anticipated a future physical conflict.! Further,

Plaintiff’s interrogatory answers do not allege Plaintiff's

emotional illness is related to any fear of such immediate

1 Plaintiff’s Deposition states in relevant part that:

And I had told them before, I - you know, the guy’s

threatening me all the timerl told the captain a couple

of times. I told the office. I told the Union. I said, He

comes at me with that knife, comes near me, I’ll crush

his head in. So don’t, you know, like - I mean, how

would you like to work like that every day?

(See Perna Dep. at 84). Plaintiff further stated:

Q: When you said he pulled a knife on you wasn’t

that a fight?

A: Well, it’s not a physical fight, you know. It’s a

threat. It’s not a, you know —

Q: Well, did you mention that?

A: We didn’t come into physical. Yeah, I told them

about — well, I didn’t tell the doctor about that.

Q: What did you tell the doctor when you went to

the hospital?

c—

App. 26

harm. Rather, Plaintiff’s “emotional illness” appears to

wholly revolve around the harassment and inaction ot

Captain Gray.? Lastly, the expert report supplied by

Plaintiff states that “[t]his major depressive episode

occurred as a result of apparent mistreatment by his

supervisor, Captain Gray.” (Report of Stuart J. Cohen, Ph.

D.).

As such, the Court cannot locate any evidence which

when viewed in the light most favorable to the Plaintiff

would allow a reasonable jury to determine that the

Plaintiff’s emotional distress was the result of a fear of

immediate physical harm from the threatening incident.

This result is consistent with a recent decision in this

district where the mere fact that plaintiff could have been

in fear of immediate harm, was insufficient without sup-

porting evidence in the record. See Ferguson, 36 F.

Supp.2d at 256 (finding that plaintiff’s deposition testi-

mony clearly reveals that his emotional distress claim

A: Well, they ran all these tests on me and they couldn’t find

anything

Q: What did you tell the doctor?

A: When he asked me, you know, exactly what happened. I

told him, you know, I did have problems on there with the

captain, you know.

(See Perna Dep. at 149-50).

2 In Defendant’s interrogatory requesting an explanation of

the subject matter of the suit, Plaintiff answers “Captain Grey

[sic] harassed, embarrassed and humiliated plaintiff in front of

other crew members. . . . Captain Grey [sic] failed to discharge

or discipline a member of the Steward’s Department who was

insubordinate and menacing to plaintiff.” (See Def.’s Interrogs.

{ 2; see also Pl.’s Answer to Def.’s Interrogs. { 2).

App. 27

was not the result of fear of immediate physical harm

from death threats or possibly being hit by objects pro-

jected at him).

E. Harassment, Embarrassment, Humiliation, and Inac-

tion

Lastly, Plaintiff's claim of emotional injury resulting

from the harassment, embarrassment, humiliation, and

inaction of Captain Gray must be considered. From the

outset, it is clear form the evidence in the record that the

foregoing claims do not implicate any physical impact or

threat of immediate physical harm. As such, said claims

are analogous to claims based on a stressful work envi-

ronment. The Supreme Court has held that such stress

related claims do not state a cognizant cause of action

under the FELA. See Gottshall, 512 U.S. at 554 (reversing

the Third Circuit). Further, in a recent decision in this

district the court held that emotional distress resulting

from allegations of sexual harassment failed to state a

claim under the FELA when there was no physical impact

or threat of physical impact. See Decesare, 1999 WL

972009, at *4. As these restrictions on FELA claims also

apply to the Jones Act, they bear directly on Plaintiff’s

ability to state a claim under the Act.

In the instant matter, Plaintiff does not adduce evi-

dence, nor can any be located, that said emotional injury

was the result of physical impact or a threat of immediate

physical harm. Thus, in the light most favorable to the

plaintiff, a reasonable jury considering Captain Gray’s

actions could not find that Plaintiff’s claim of purely

App. 28

“emotional illness” was within the requisite zone of dan-

ger as announced in Gottshall, 56 F.3d at 534 See also

Bloom, 41 F.3d at 911.

As a result of the foregoing analysis, Plaintiff’s claim -

for emotional injury resulting from his fall, his co-

workers [sic] threatening behavior, and the actions of

Captain Gray are not cognizable under the Jones Act.

Thus, the Plaintiff has not suffered a “personal injury”

within the meaning of the Act and Defendant’s motion to

dismiss Count I must be granted to the extend it asserts a

claim of negligence under the Jones Act.

F. Count I — Unseaworthiness

The doctrine of unseaworthiness in essence imposes

a nondelegable duty on a shipowner to provide seamen

with a vessel that is reasonably fit for its purpose; “it is a

‘species of liability without fault.’ ” See Calhoun v. Yamaha

Motor Corp., U.S.A., 40 F.3d 622, 631 (3d Cir. 1994). Lia-

bility based upon unseaworthiness is entirely distinct

from liability based upon negligence. See Earles v. Union

Barge Line Corp., 486 F.2d 1097, 1105 (3d. Cir. 1973). Under

maritime law unseaworthiness is a condition of the vessel

which is the proximate cause of the seaman’s injuries. Id.

at 1102. Such liability is imposed without regard to fault

or the exercise of due care. Id. Unseaworthiness applies,

inter alia, when injury is caused by a crew member that is

unfit. Id. However, where no defective condition exists

there can be no liability for unseaworthiness. Id.

App. 29

Defendant in its motion for summary judgment

asserts that like the Jones Act, Plaintiff’s purely “emo-

tional injuries” are also subject to the “zone of danger”

test under the doctrine of unseaworthiness as it exists in

general maritime law. (See Def.’s Resp. to Pl.’s Opp’n at

3). Such a restriction on the doctrine of unseaworthiness

is apparently one of first impression as the Court has

been unable to locate any cases within this circuit that

apply the Gottshall “zone of danger” requirement to this

doctrine. See, e.g., Gottshall, 56 F.3d at 534.

Nevertheless, the Sixth Circuit has recently had occa-

sion to consider such application in Szymanski v. Columbia

Transp. Co., 154 F.3d 591 (6th Cir. 1998). In Szymanski, the

court stated that “[a] seaman’s claim under the Jones Act

or the unseaworthiness doctrine is fundamentally a single

cause of action, and the remedies under one must De

congruent with the remedies under the other. If no dam-

ages are permitted under the Jones Act, then an

unseaworthiness claim cannot supply them either.” 154

F.3d at 569. The court further stated, “[w]hile an incompe-

tent workman could . . . cause a ship to be unseaworthy,

‘unseaworthiness” that leads only to the type of ‘emo-

tional distress’ claim that we have rejected above is not

unseaworthiness that entitles a seaman to compensation.

The incompetent employee still must either cause some

kind of direct physical injury, or place the plaintiff within

the zone of danger of such injury.” Id.

The crux of the Sixth Circuit’s decision relied on the

guidance of the Supreme Court in both Gotshall, 512 U.S.

at 532, and Miles v. Apex Marine Corp., 498 U.S. 19 (1990).

The Supreme Court in Miles stated that “[t]he Jones Act

evinces no general hostility to recovery under general

App. 30

maritime law. It does not disturb seamen’s general mar-

itime claims for injures resulting from unseaworthi-

ness...” Miles, 498 U.S. 29. Nevertheless, the Court

limited the availability of “loss of society” damages in

unseaworthiness claims in order to develop a uniform

rule throughout all maritime law. See Miles, 498 U.S. at 33

(stating “we restore a uniform rule applicable to all

actions for the wrongful death of a seaman, whether

under DOHSA, the Jones Act, or general maritime law.”).

In reaching its decision to develop such a uniform rule

the Court explained that “[i]t would be inconsistent with

our place in the constitutional scheme were we to sanc-

tion more expansive remedies in a judicially created

cause of action [unseaworthiness] in which liability is

without fault than Congress has allowed in cases of death

resulting from negligence.” Id. at 326.

By analogy, applying the above reasoning to the

“zone of danger” requirement announced in Gofttshall, it

would be illogical to require a showing of physical injury

or the threat of immediate physical harm with regard to

negligence-based Jones Act claims, but not to impose an

equal restriction when liability is without fault. As such,

the Court is compelled to extend the “zone of danger”

requirement as adopted by the Supreme Court and the

Third Circuit, to cases where a plaintiff claims only emo-

tional injury that fails to state a cognizable claim under

the Jones Act because plaintiff is not within the meaning

of the “zone of danger.” Therefore, the Court also dis-

misses Plaintiff’s unseaworthiness claim in Count I.

App. 31

G. Count II - Admiralty

Count II of Plaintiff’s complaint realleges Count I of

the complaint in its entirety under the Court’s Admiralty

Jurisdiction. Therefore, the Court must dismiss Count II

of Plaintiff’s complaint consistent with the analysis

already set forth in this memorandum.

An appropriate Order follows.

App. 32

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH C. PERNA, : CIVIL ACTION

v. * NO. 97-4326

ARCO MARINE, INC.

FINAL JUDGMENT

AND NOW, this 29th day of November, 1999, upon

consideration of the Defendant’s Motion for Summary

Judgment (Docket No. 8), and Plaintiff’s response thereto,

IT IS HEREBY ORDERED that the Defendant’s Motion is

GRANTED.

IT IS FURTHER ORDERED that JUDGMENT is

entered in favor of the Defendant and against the Plain-

tiff.

BY THE COURT:

/s/ Herbert J. Hutton

HERBERT J. HUTTON, J.