UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1721

CHARLES H. DISE,

Plaintiff – Appellant,

v.

EXPRESS MARINE, INCORPORATED,

Defendant - Appellee,

and

UNIVERSITY OF SOUTH ALABAMA MEDICAL CENTER; JUVONDAS SHUNTA 

HODGE, M.D.; AMIN FRONTAN, M.D.; J. DOE # 1; J. DOE # 2; J. 

DOE # 3; J. DOE # 4; J. DOE # 5,

Defendants.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Catherine C. Blake, District Judge. 

(1:07-cv-01893-CCB)

Argued: September 21, 2011 Decided: November 17, 2011

Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.

Affirmed by unpublished opinion. Judge Davis wrote the opinion, 

in which Judge Wilkinson and Judge Motz joined.

ARGUED: David W. Skeen, WRIGHT, CONSTABLE & SKEEN, LLP, 

Baltimore, Maryland, for Appellant. JoAnne Zawitoski, SEMMES, 

BOWEN & SEMMES, Baltimore, Maryland, for Appellee. ON BRIEF:
2

Meighan Griffin Burton, WRIGHT, CONSTABLE & SKEEN, LLP, 

Baltimore, Maryland; Lawrence A. Melfa, BUTLER, MELFA & TAYLOR, 

PA, Towson, Maryland, for Appellant. Alexander M. Giles, 

SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

DAVIS, Circuit Judge:

Appellant Charles H. Dise (“Dise”) filed this maritime 

action to recover for injuries he sustained when a skiff piloted 

by him and owned by his employer, Appellee Express Marine, Inc. 

(“EMI”), allided with a bridge piling, and as a result of 

allegedly negligent medical treatment he received at the

University of South Alabama Medical Center (“USA Medical”) in 

the wake of the allision. Dise asserted claims for negligence 

and vicarious liability under the Jones Act, 46 U.S.C. app. § 

688(a) (recodified at 46 U.S.C. § 30104), and unseaworthiness 

under the general maritime law. EMI counterclaimed to recover 

for property damage to its skiff. The district court granted 

summary judgment in favor of EMI on Dise’s Jones Act and 

unseaworthiness claims, and on EMI’s property damage 

counterclaim. We affirm.

I.

A.

At the time of the relevant events, Dise was a Maryland 

resident employed by EMI as an assistant engineer on the Tug 

BALTIMORE. EMI is a New Jersey corporation engaged in the 

business of towing barges and commodities from various East and 

Gulf Coast locations. Dise began working for EMI in October 

2003. In April 2005, EMI assigned Dise to work on the Tug 
4

BALTIMORE as an assistant engineer. His duties included standing 

watch in the engine room during specified shifts. 

During July 2005, the Tug BALTIMORE was assisting with the 

loading of a barge near Mobile, Alabama. Around the time of 

Dise’s assignment to the Tug BALTIMORE, EMI purchased a 14-foot 

Boston Whaler (“the skiff”) for the purpose of taking draft 

readings on the barge associated with the Tug BALTIMORE.1

On the evening of July 19, 2005, the Tug BALTIMORE and the 

associated barge were docked at a terminal on Three Mile Creek

in Mobile, Alabama. In addition to Dise, the crew members 

onboard the Tug BALTIMORE included Captain Michael Daniels, 

First Mate Covil, Chief Engineer Sammy Edwards, Bargeman Jerry 

Harper, Assistant Bargeman George Greggs, and the cook, Otis 

Foster. Just before midnight, Daniels asked Greggs to take draft 

According to First Mate Douglas Covil, prior to the date of the 

accident, July 19, 2005, the skiff had been used only for taking 

draft readings. After the accident, the skiff was also used to 

transport groceries and supplies to and from the tug.

 1 “Draft” is “the depth of water required to float a 

vessel,” and “draft marks” are “the Arabic numerals on both 

sides of the bow and stern of a vessel to show the ship’s 

draft.” Thompson Lenfestey & Tom Lenfestey, The Sailor’s 

Illustrated Dictionary 142-43 (Globe Pequot ed., 2001). In the 

context of this case, taking “draft readings” consists of 

recording the draft marks at the waterline on the barge being 

towed by the Tug BALTIMORE. See J.A. 128-30. 
5

readings from the adjoining barge using the skiff. Daniels also 

instructed Greggs to deliver a radio to Harper on the barge.

Although Greggs had never operated the skiff prior to that 

night, both Daniels and Covil had used the skiff to take draft 

readings on numerous occasions. In his deposition, Daniels 

testified that he had taken the skiff out earlier that very

evening to measure the drafts. Neither party testified to 

experiencing any problems with the skiff.

Dise was present when Daniels ordered Greggs to take the 

draft readings. Dise asked Daniels for permission to drive the 

skiff while Greggs took the draft readings. According to the 

testimony of Daniels, which was corroborated by Covil, Daniels 

replied to Dise with something along the lines of, “it d[oes]n’t 

take two people to read drafts.” J.A. 55, 71. After Daniels left 

the galley, however, Dise informed Covil that he was planning to 

accompany Greggs, and Covil did not explicitly tell him not to 

follow through on that plan. 

Dise and Greggs met on the deck a few minutes later, 

boarded the skiff, and proceeded to the barge to take the draft 

readings. Dise operated the skiff, while Greggs sat toward its 

bow. Once they had acquired the initial draft readings, Dise and 

Greggs decided to pilot the boat down Three Mile Creek. Dise 

testified that it was Greggs’s idea to take the skiff downriver 

to see a ship moored nearby, while Greggs testified that Dise 
6

wanted “to run the boat to see how it operated,” J.A. 174. It is 

undisputed that Dise was at the helm of the skiff during the 

entire incident.

Dise steered the skiff downriver toward the moored ship, 

passing under a railroad bridge along the way. Shortly after 

passing under the bridge, a call came in to the skiff to take a 

second set of draft readings because, according to Greggs, 

Harper had noticed a “discrepancy” and so wanted a new set of 

readings taken. J.A. 175. Dise testified that he heard the word 

“emergency” over the call, immediately turned the boat upriver,

and accelerated on a course toward the barge. J.A. 325. In his 

deposition testimony, Dise claimed the fastest he drove the boat 

was 17 or 18 knots, short of full throttle. However, in his 

diary entry made after that night, he described the speed of the 

skiff as “full speed ahead.” See J.A. 151-53. Greggs also 

testified that, when Dise turned the boat around, “he opened up 

the boat full throttle,” which Greggs ascertained because he 

could see that the throttle was all the way forward. J.A. 602.

Dise claims that when he turned the skiff around, he was 

blinded by lights on the ship ahead of him and could not clearly 

see the bridge, so he asked Greggs to shine the skiff’s 

spotlight, which he had been using to take the draft readings, 

on the bridge. When Greggs did not respond, however, Dise did 

not slow down or await Greggs’s compliance; indeed, Dise recalls 
7

“spe[eding] up a little bit more” at that point. J.A. 328.

Shortly thereafter, the skiff crashed into one of the bridge’s 

bulkheads, and Dise and Greggs were thrown into the water, 

suffering injuries to their extremities. According to Dise, he 

could not make out the contours of the bridge without the 

spotlight illuminating it. Greggs testified that it was a clear 

night, he could clearly see the bridge and its bulkheads up 

until the moment of impact, and he yelled to Dise to slow down 

just before the crash.

After the allision, Dise and Greggs managed to hold onto 

the skiff and get to the shore of Three Mile Creek. Once ashore, 

Dise located a watchman on the railroad bridge who called 911. 

An ambulance responded to the scene and took Dise and Greggs to 

USA Medical in Mobile, Alabama. Upon learning of the accident, 

EMI dispatched Keith Kirkeide, a company representative, to 

Mobile to oversee Dise’s medical care. EMI paid all of the 

medical expenses that Dise incurred while at USA Medical, which 

included treatment of a major injury to his left leg. 

USA Medical discharged Dise on July 23, 2005, at which 

point he boarded a flight to travel to Baltimore. During the 

course of the flight, Dise became severely ill. An ambulance was 

called and transported Dise to St. Agnes Hospital immediately

upon his arrival in Baltimore. Doctors at St. Agnes Hospital 

discovered that Dise’s leg wound had a severe bacterial 
8

infection requiring an immediate operation and extensive 

treatment. As a result, St. Agnes Hospital transferred Dise to 

the University of Maryland Shock Trauma Center the next day for 

additional treatment. Over the next two years, Dise underwent 

multiple surgeries in an attempt to restore function to his leg.

He reached maximum medical improvement on January 31, 2008, 

though he has permanent injuries to his leg. Dise did not return 

to work for EMI after the accident.

B.

Dise filed suit in the district court on July 17, 2007,

seeking damages under the Jones Act, 46 U.S.C. app. § 688(a),

and various maritime doctrines. The complaint alleged five 

counts: (1) negligence under the Jones Act; (2) unseaworthiness 

under the general maritime law; (3) vicarious liability under 

the Jones Act for negligent provision of medical care; (4) 

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

liability and counterclaimed for recoupment of maintenance and 

cure payments made to Dise, indemnification for payments made to 

Greggs, and reimbursement for repairs to EMI’s skiff following 

the accident. 

After the close of discovery, the parties filed crossmotions for summary judgment. EMI moved for summary judgment or 

partial summary judgment as to all claims in the complaint on 

the basis that each of Dise’s causes of action lacked merit. In 
9

the alternative, EMI sought summary judgment on its affirmative 

defense that it was entitled to exoneration or limitation of 

liability to the value of the skiff at the time of the accident.

Dise moved for summary judgment on his vicarious liability 

claim, the entirety of EMI’s counterclaim, and EMI’s affirmative 

defenses.

The district court granted summary judgment in favor of EMI 

as to all five counts in Dise’s complaint, and denied Dise’s 

cross-motion for summary judgment on his vicarious liability 

claim. Dise v. Express Marine, Inc., 651 F. Supp. 2d 457, 471 

(D. Md. 2009). The district court granted summary judgment in 

favor of Dise on EMI’s counterclaims seeking recoupment of 

maintenance and cure and indemnification for payments made to 

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

judgment on its counterclaim for damage to the skiff, the 

district court instructed EMI to advise the court within ten 

days if it still wished to pursue the counterclaim in light of 

the court’s other summary judgment rulings. Id. In response, EMI 

timely moved for summary judgment to resolve its sole remaining 

claim. Dise opposed the motion. On June 2, 2010, the district 

court granted summary judgment in favor of EMI on its claim for 

damages to the skiff. Dise v. Express Marine, Inc., 714 F. Supp.

2d 558, 562 (D. Md. 2010). Dise timely filed the instant appeal.
10

II.

Dise appeals the district court’s grant of summary judgment 

in favor of EMI on his claims for negligence under the Jones 

Act, unseaworthiness under the general maritime law, and

vicarious liability under the Jones Act for negligent provision 

of medical care, as well as EMI’s counterclaim for damage to the 

skiff. We review the district court’s grant of summary judgment 

de novo. See Wash. Metro. Area Transit Auth. v. Potomac Inv. 

Props., Inc., 476 F.3d 231, 234 (4th Cir. 2007).

A. 

The Jones Act provides a cause of action in negligence for 

“any seaman who shall suffer personal injury in the course of 

his employment,” 46 U.S.C. app. § 688(a), and incorporates by 

reference the judicially-developed doctrine of liability under 

the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51 et 

seq., thereby according seamen rights parallel to those of 

railway employees. Kernan v. American Dredging Co., 355 U.S. 

426, 439 (1958); Hernandez v. Trawler Miss Vertie Mae, 187 F.3d 

423, 436 (4th Cir. 1999); see also 46 U.S.C. app. § 688(a) 

(providing that “all statutes of the United States modifying or 

extending the common-law right or remedy in cases of personal 

injury to railway employees shall apply” to a seaman’s Jones Act 

action). FELA provides in relevant part that railway employees 

enjoy a right of recovery for injury or death resulting in whole 
11

or in part from the negligence of their employer or their 

employers’ officers, agents, or employees. 45 U.S.C. § 51.

Accordingly, to prevail on a negligence claim under the Jones 

Act, a seaman must show: “(1) personal injury in the course of 

his employment; (2) negligence by his employer or an officer, 

agent, or employee of his employer; and (3) causation to the 

extent that his employer’s negligence was the cause ‘in whole or 

in part’ of his injury.” Hernandez, 187 F.3d at 436.

To further the humanitarian purpose of FELA, Congress 

eliminated several common-law tort defenses that had 

traditionally restricted recovery by injured workers. Consol.

Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994). Specifically, 

FELA abolishes the common law fellow-servant rule and the 

assumption of risk defense, rejects the doctrine of contributory 

negligence in favor of comparative negligence, and prohibits 

employers from contractually exempting themselves from FELA. Id.

at 542-43; see also 45 U.S.C. §§ 51, 53-55. The Supreme Court 

liberally construes FELA, but “has cautioned that . . . FELA, 

and derivatively the Jones Act, is not to be interpreted as a 

workers’ compensation statute and that unmodified negligence 

principles are to be applied as informed by the common law.” 

Hernandez, 187 F.3d at 436-37 (citing Gottshall, 512 U.S. at 

543-44)). In sum, “in establishing a Jones Act claim based on 

negligence, the elements of duty, breach, and injury draw on 
12

common law principles; the element of causation is relaxed; and 

common law defenses are modified or abolished.” Id. at 437 

(citations omitted).

In order to establish negligence, a seaman-plaintiff in a 

Jones Act action must prove by a preponderance of the evidence 

that his employer breached a duty to protect him against a 

foreseeable risk of harm. Martin v. Harris, 560 F.3d 210, 216 

(4th Cir. 2009) (citing Hernandez, 187 F.3d at 436). A 

shipowner-employer’s duty under the Jones Act is to provide a 

seaman-employee with a reasonably safe place to work. Id. at 216

(internal citations and quotation marks omitted). This duty 

extends from the vessel to the shore, provided the seaman is 

acting in the course of his employment.2

 2 The district court, having determined that EMI was not 

negligent, “assumed without deciding” that Dise was acting in 

the course of employment at the time of the accident. Dise, 651 

F. Supp. 2d at 465. We note that the parties disagree as to the 

scope of this standard, but we likewise find that Dise has 

failed to establish a genuine dispute of material fact as to 

EMI’s negligence, and that EMI is therefore entitled to judgment

as a matter of law. Accordingly, like the district court, we do

not reach the issue of whether Dise was acting “in the course of 

employment” at the time of the accident.

Id. (citing O’Donnell v. 

Great Lakes Dredge & Dock Co., 318 U.S. 36, 39 (1943)). Turning 

to the sufficiency of the evidence in this case, the question is 

whether the evidence before the district court on EMI’s motion 

for summary judgment, when viewed in the light most favorable to 

Dise, rose above the level of mere speculation and conjecture, 
13

to the point where a factfinder could reasonably find that the 

risk of harm posed was reasonably foreseeable. 

Dise argues on appeal that the evidence establishes genuine 

disputes of material fact with respect to several theories of 

negligence, including: (1) EMI’s poor training and instruction 

of Greggs; (2) the absence of written or verbal guidelines for 

use of the skiff; (3) Greggs’s failure to shine the spotlight; 

and (4) defective steering of the skiff. In addition, Dise 

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

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

applied an erroneous causation standard. The district court 

addressed each of Dise’s theories of negligence in turn and, 

finding no genuine disputes of material fact, concluded that EMI 

was entitled to judgment as a matter of law. Having had the 

benefit of oral argument and having carefully reviewed the 

briefs, record, and controlling legal authorities, we reach the 

same conclusion. Accordingly, as to Dise’s Jones Act negligence 

claim, we affirm on the basis of the district court’s well 

reasoned opinion.3 See Dise, 651 F. Supp. 2d 457.

 3 Given that Dise bears the burden of proof on all elements 

of his Jones Act negligence claim, the absence of evidence that 

EMI breached a duty to Dise is dispositive, irrespective of the 

Jones Act causation standard applied by the district court. 

Consequently, we do not reach Dise’s causation argument. 
14

B.

Dise’s unseaworthiness claim is separate and distinct from 

his negligence claim. See Usner v. Luckenbach Overseas Corp., 

400 U.S. 494, 498 (1971). General maritime law imposes a duty 

upon shipowners to provide seaworthy vessels, that is, vessels 

reasonably fit for their intended use. Mitchell v. Trawler 

Racer, Inc., 362 U.S. 539, 550 (1960). This duty extends to the 

vessel itself, its equipment, and its crew. It is an absolute 

duty requiring no knowledge on the part of the shipowner and 

exists independently of the duty to exercise reasonable care 

under the Jones Act, 46 U.S.C. app. § 688(a). Id. at 548-49. In 

order to prevail on a claim for unseaworthiness, a plaintiff 

must demonstrate that “the unseaworthy condition of the vessel 

was the proximate or direct and substantial cause of the 

seaman’s injuries.” Hernandez, 187 F.3d at 439 (citing Gosnell 

v. Sea-Land Serv., Inc., 782 F.2d 464, 467 (4th Cir. 1986)).

Thus, the “causation burden is more demanding than the one the 

plaintiff undertakes under the Jones Act.” Id. (internal 

quotation marks and citations omitted). 

Dise argues that “the defective steering of the skiff as 

well as a poorly trained and instructed fellow crewman, Greggs, 

with regard to use of the skiff, are unseaworthy conditions.” 

Appellant’s Br. 16. As set forth supra, however, Dise has failed 

to present sufficient evidence to establish a material dispute 
15

of fact as to whether Greggs was qualified to operate the skiff

or whether the steering was defective. Regardless, it is 

undisputed that the intended use of the skiff, which was new 

when delivered to the Tug BALTIMORE only a few months prior to 

the accident, was to take draft readings from the barge.

Defective steering at high speed, even if proved, would not 

render the skiff unfit for this use as draft readings are not, 

and indeed cannot be, taken at high speed. In addition, even if 

Dise were able to show that deficiencies in the crew and the 

vessel created an unseaworthy condition, he still must identify

admissible facts sufficient to demonstrate that one of these 

conditions was the “proximate or direct and substantial cause” 

of his injury. We agree with the district court’s conclusion 

that neither was. Accordingly, we affirm the district court’s 

grant of summary judgment in favor of EMI on Dise’s 

unseaworthiness claim.

C.

The admiralty law doctrine of maintenance and cure imposes 

upon a seaman’s employer a non-waivable and non-delegable duty 

to provide food, lodging, and medical treatment to a seaman 

injured in the course of employment. 5 Robert Force & Martin J. 

Norris, Law of Seamen § 26-1 (5th ed. 2003); see also De Zon v. 

Am. Pres. Lines, 318 U.S. 660, 667 (1943). A sick or injured 

seaman has a cause of action under the Jones Act for his 
16

employer’s wrongful failure to provide proper medical attention.

De Zon, 318 U.S. at 667. Because the Jones Act incorporates the 

principles of FELA, 45 U.S.C. § 51 et seq., which renders an 

employer liable for injuries negligently inflicted by its 

“officers, agents, or employees,” a shipowner can violate its 

duty to provide prompt and adequate medical care in two ways: 

“directly, such as when the shipowner fails to get a crewman to 

a doctor when it is reasonably necessary and the ship is 

reasonably able to do so; and vicariously, when the shipowner 

selects a doctor who acts negligently.” Olsen v. Am. Steamship 

Co., 176 F.3d 891, 896 (6th Cir. 1999). Dise raises only the 

latter type of claim, arguing that EMI is vicariously liable for 

the allegedly negligent provision of medical care by USA Medical

providers Drs. Juvondas Shunta Hodge and Amin Frontan following 

the accident. 

The district court granted EMI’s motion for summary 

judgment and denied Dise’s motion for summary judgment on his 

claim alleging vicarious liability under the Jones Act. Dise, 

651 F. Supp. 2d at 469. As a preliminary matter, the district 

court determined that “in order to be vicariously liable for the 

medical malpractice of a treating physician, the shipowner must 

take some affirmative act in selecting or engaging the 

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

relaxed under the Jones Act, the district court nevertheless 
17

concluded that Dise had failed to present evidence of an

affirmative act on the part of EMI sufficient to give rise to an

agency relationship with the USA Medical providers as a matter 

of law. Id. at 469. 

Dise argues on appeal that the district court’s agency 

analysis is inconsistent with the Supreme Court’s decisions in 

Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326 (1958), 

and Hopson, et al. v. Texaco, Inc., 383 U.S. 262 (1966), which 

he avers establish that agency should be interpreted broadly in 

the Jones Act context consistent with the employer’s nondelegable duty to provide cure. In the alternative, Dise 

contends that even if an affirmative act by EMI is a necessary 

predicate to an agency relationship with the USA Medical 

providers, the district court erred in finding that the evidence 

does not establish such a relationship.

EMI’s vicarious liability for the alleged negligence of the 

USA Medical providers turns upon the scope of “agency” in the 

Jones Act context. The case law is instructive with regard to 

these parameters. The Supreme Court has held that when a 

railroad employee’s injury is caused in whole or in part by the 

fault of others performing, under contract, operational 

activities of his employer, such others are “agents of the 

employer within the meaning of . . . FELA.” Sinkler, 356 U.S. at 

331-32. The same standard applies in the Jones Act context. See
18

Fitzgerald v. A.L. Burbank & Co., 451 F.2d 670, 680 (2d Cir. 

1971) (applying Sinkler in a Jones Act case). Accordingly, for 

example, where a ship carries an onboard physician employed by 

the ship, vicarious liability attaches to the shipowner for the 

physician’s negligence. De Zon, 318 U.S. at 668. Courts have 

also consistently held that an agency relationship exists when a 

shipowner engages the services of an on-shore physician. See, 

e.g., Olsen, 176 F.3d at 895-96 (“[T]he shipowner is liable for 

the negligence of an on-shore physician that it hires to treat 

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

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

vicariously liable where its agent brought an injured seaman to 

physician who misdiagnosed and mistreated plaintiff’s eye 

injury). Liability does not attach, however, when a seaman 

selects his own physician. See Joiner v. Diamond M Drilling Co., 

688 F.2d 256, 262 n.9 (5th Cir. 1982) (“[W]e can find no case 

holding a shipowner vicariously liable for the negligence of an 

onshore physician selected by the injured seaman himself.”).

Similarly, the Seventh Circuit has held that when an employer 

merely refers a seaman to a negligent medical provider, the

provider is “neither [an] employee[] of the defendant nor acting 

on behalf of [the defendant], thus eliminating any basis for 

vicarious liability.” Greenwell v. Aztar Indiana Gaming Corp., 

268 F.3d 486, 489, 492-93 (7th Cir. 2011). 
19

Consistent with Dise’s argument, the Supreme Court has 

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

‘agents’ to give vitality to the standard governing the 

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

Sinkler, 356 U.S. at 330-31. Even given this relaxed agency 

standard, however, the district court properly determined that, 

based upon the case law, an agency relationship giving rise to 

vicarious liability under the Jones Act requires “some 

affirmative act [on the part of the shipowner] in selecting or 

engaging” an on-shore medical provider. Dise, 651 F. Supp. 2d at 

468. 

Relying primarily upon Sinkler and Hopson, Dise argues that 

a shipowner’s vicarious liability for negligent medical 

treatment arises from its non-delegable duty to provide 

maintenance and cure, rather than from any affirmative act taken 

in selecting the provider. Neither case supports his position, 

however. In Sinkler, the Supreme Court held that when an 

employee’s injury was caused by the fault of others performing, 

under contract, operational activities of the employer, such 

others were “agents” of the employer within the meaning of FELA. 

356 U.S. at 331-32. In Hopson, the Supreme Court applied Sinkler

in a Jones Act case to find that a shipowner who had a duty to 

bring an incapacitated seaman before the U.S. Consul prior to

discharge in a foreign port, and who selected a taxi service to 
20

transport the seaman, as it had done many times before, bore the 

responsibility for the negligence of the driver it chose. 383 

U.S. at 264. Both cases support the principle that, because a 

seaman’s employer is under an absolute duty to provide medical 

treatment to a sick or injured seaman, medical personnel 

selected by it to render that treatment are deemed to be engaged 

in the ship’s business as “agents” despite the fact that the 

practitioner may be an independent contractor or completely 

unrelated to the ship. However, these cases do not establish 

that every provider of medical services to a sick or injured 

seaman is automatically deemed an agent of the shipowner by 

virtue of the shipowner’s duty to provide maintenance and cure.4

In order to survive summary judgment, Dise must present 

evidence establishing, at minimum, a genuine dispute of material 

fact with respect to whether EMI took some affirmative act to 

select or otherwise engage the USA Medical providers. Dise does 

 

 4 The circuit and district court cases Dise cites as support 

are similarly inapposite. See De Centeno v. Gulf Fleet Crews, 

Inc., 798 F.2d 138 (5th Cir. 1986) (shipowner liable where 

vessel’s agent arranged for seaman to see local physician who 

negligently failed to recognize signs of diabetes and therefore 

failed to order blood test, where proper diagnosis could have 

avoided diabetic coma and death); Fitzgerald, 451 F.2d 670 (2d 

Cir. 1971) (shipowner liable for negligence of doctor it 

selects); Sambula, 405 F.2d 291 (shipowner liable for 

negligently selecting general practitioner, rather than 

ophthalmologist, who misdiagnosed and mistreated plaintiff’s 

eye).
21

not dispute that there is no evidence in the record that EMI 

affirmatively engaged the USA Medical providers to treat him, 

but instead argues that EMI constructively selected the USA 

Medical providers by instituting a written emergency response 

policy that instructs employees to “call 911 first.” See J.A. 

722. Although it is a close question, we conclude that the

existence of the “call 911 first” policy alone is insufficient

as a matter of law to demonstrate that EMI selected or otherwise 

engaged USA Medical and its providers in particular. Instituting 

such a policy is essentially the equivalent of providing each 

employee with a list of every medical provider in the region.

Such an act does not indicate that the employer selected or 

engaged any particular provider.

Dise also contends that EMI acquiesced in USA Medical’s 

treatment of him by paying for his care and not moving him to a 

different facility, thereby establishing an agency relationship. 

EMI was required to pay Dise’s medical expenses in order to 

satisfy its non-delegable duty to provide cure, and did not 

select or engage USA Medical in doing so. EMI’s failure to move 

Dise to another hospital is also insufficient as a matter of law 

to establish that EMI selected or otherwise affirmatively 

engaged USA Medical. Thus, we affirm the district court’s grant 

of summary judgment in favor of EMI on Dise’s claim for 

vicarious liability under the Jones Act.
22

D.

We turn, finally, to the district court’s award of 

affirmative relief to EMI. Dise argues that EMI may not assert 

its property damage counterclaim because the Jones Act prohibits 

counterclaims by employer-shipowners against employee-seamen, as 

such actions are incompatible with the principles of maritime 

law. The district court acknowledged that neither the Supreme 

Court nor this court has directly addressed this question, but 

reasoned that “the consistency with which these courts have 

applied FELA to Jones Act cases and permitted counterclaims 

under FELA weighs in favor of permitting EMI’s counterclaim.”

Dise, 714 F. Supp. 2d at 560. Consequently, the district court 

granted EMI’s motion for summary judgment on its counterclaim 

for damages to the skiff in the amount of $3,254.96, the 

undisputed cost of repairs. Id. at 562.

In reaching this result, the district court relied 

primarily upon this court’s decision in Cavanaugh v. W. Md. Ry. 

Co., 729 F.2d 289, 294 (4th Cir.), cert. denied, 469 U.S. 872 

(1984), which held that FELA does not prohibit employer 

counterclaims against employees in the railroad context, and a

subsequent Fifth Circuit decision which held, largely based upon

Cavanaugh, that the Jones Act does not bar employer 

counterclaims in the maritime context, Withhart v. Otto Candies, 

L.L.C., 431 F.3d 840 (5th Cir. 2005). Id. at 560-61. Dise 
23

contends that Cavanaugh and Withhart were incorrectly decided, 

and argues in the alternative that even if we extend Cavanaugh

to this context, considerations unique to the maritime context 

militate against extending our decision in that case to Jones 

Act actions, as the Fifth Circuit did in Withhart. Although we 

recognize that Cavanaugh did not squarely address the issue 

before us in the instant maritime case, we decline to so readily

discount its relevance given that the Jones Act incorporates the 

judicially-developed doctrine of liability under FELA.

In Cavanaugh, we held that FELA neither explicitly nor 

implicitly proscribes the filing of a counterclaim by a railroad 

in a FELA case to recover for property damages sustained by 

reason of the sole negligence of a plaintiff-employee. 729 F.2d

at 294. We noted that if the railroad-employer were denied the 

right to assert a property damage counterclaim during the

employee’s FELA suit, the compulsory counterclaim requirement 

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

later bringing the claim, thereby unfairly affording the 

employee absolute immunity from any liability for his 

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

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

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

employees. Id.
24

Section 5 of FELA provides that “any contract, rule, 

regulation, or device whatsoever, the purpose or intent of which 

shall be to enable any common carrier to exempt itself from any 

liability created by this act, shall to that extent be void . . 

.” 45 U.S.C. § 55. Section 10 similarly provides that “any 

contract, rule, regulation, or device whatsoever, the purpose, 

intent or effect of which shall be to prevent employees of any 

common carrier from furnishing voluntary information to a person 

in interest as to the facts incident to the injury or death of 

any employee, shall be void . . .” 45 U.S.C. § 60. We reasoned 

that Section 5 clearly defines “device” as having the purpose of 

exempting the common carrier from liability, and an employer 

negligence counterclaim does not exempt the common carrier from 

liability; therefore, an employer negligence counterclaim is not 

a prohibited device under Section 5. Cavanaugh, 729 F.2d at 291-

92. With respect to Section 10, we found that “there is no 

authority for the assumption that the possibility of a 

counterclaim being filed creates an unfair advantage in favor of 

the defendant or improperly coerces or intimidates the injured 

party from seeking redress for his injuries . . . The same 

argument could be advanced against the admissibility of a 

counterclaim in any tort action.” Id. at 293.5

 5 We note that our reasoning in Cavanaugh has not gone 

(Continued)
25

The First and Eighth Circuits have followed Cavanaugh, 

holding that employer property damage counterclaims are 

actionable under FELA. See Sprague v. Boston & Maine Corp., 769 

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

R.R. Co., 101 F.3d 1246, 1253 (8th Cir. 1996). The Eighth 

Circuit held that employer property damage counterclaims are not 

“devices” under Section 5 and 10 of FELA because the suits do 

not absolve the employers of liability. Nordgren, 101 F.3d at 

1251. Interpreting the phrase “any device whatsoever” in 

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

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

“regulation,” and determined that because they refer to legal 

instruments that railroads attempt to use to evade liability, 

 

unquestioned. Dissenting from the divided panel’s majority 

opinion in Cavanaugh, Judge Hall argued that the majority 

construed Sections 5 and 10 too narrowly. 729 F.2d at 295. 

According to the dissent, the counterclaim at issue was “a 

‘device’ calculated to intimidate and exert economic pressure on 

the employee, to curtail and chill his rights, and ultimately to 

exempt the railroads from liability under the FELA.” Id. at 296. 

The dissent further found that the counterclaim violated Section 

10 insofar as it “would prevent employees from voluntarily 

furnishing information regarding the extent of their 

negligence.” Id. In Stack v. Chi., Milwaukee, St. Paul and Pac. 

R.R., 615 P.2d 457 (Wash. 1980), the Washington Supreme Court 

similarly found that employer negligence counterclaims violate 

Section 5 of FELA because such suits limit employer liability, 

as employees would then be reluctant to file FELA actions, id.

at 459. In Yoch v. Burlington N. R.R., 608 F. Supp. 597, 598 (D. 

Colo. 1985), the Colorado federal district court adopted Stack’s 

rationale in holding that FELA prohibits employer negligence 

countersuits.
26

the term “devices” should be viewed in the same context. Id. at 

1250-51. Therefore, according to the Nordgren court, “any device 

whatsoever” is simply a catchall phrase “referring only to any 

other creative agreement or arrangements the railroad might come 

up with to exempt itself from liability,” and does not include 

employers’ negligence countersuits. Id.

In Withhart, the Fifth Circuit considered as a matter of 

first impression in the federal courts of appeals whether a 

shipowner-employer in a Jones Act action may assert negligence 

and indemnity claims against its seaman-employee for property 

damage allegedly caused by the employee’s negligence. 431 F.3d 

at 840. Relying largely upon Cavanaugh, the court held that “no 

statutory authority in FELA, and consequently, in the Jones Act, 

prohibits a shipowner-employer from pursuing a claim against its 

negligent seaman-employee for property damage.” Id. at 845. The 

Withhart court noted that negligence was an actionable wrong 

under maritime law prior to enactment of the Jones Act, 431 F.3d 

at 842 (internal citation omitted), and reasoned that permitting 

employer counterclaims would not exempt employers from liability 

or unfairly prejudice employees, id. at 844. The Witthart court 

concluded that allowing an employer counterclaim would not 

narrow the remedies available to employees under the Jones Act. 

Id. at 845. 
27

Consistent with the district court’s analysis, the extant 

authority weighs in favor of allowing EMI’s counterclaim based 

upon the particular facts of this case. EMI’s counterclaim for 

damage to its skiff does not act as a liability-exempting 

“device” of the sort prohibited by FELA, 45 U.S.C. §§ 55 and 60. 

EMI sought to limit its liability to $7,945.00 under the 

Limitation of Liability Act, 46 U.S.C. §§ 30501, et seq., which 

so far as bears on this case limits a shipowner’s liability to 

the value of the ship, 46 U.S.C. § 30505(a), but counterclaimed 

for the lesser amount of $3,254.96, the undisputed cost of 

repairs. In addition, we have found that EMI was not negligent 

to any extent, so its property damage counterclaim does not 

serve as a set off to liability. For these reasons, we affirm 

the district court’s grant of summary judgment in favor of EMI 

on its counterclaim for property damage to the skiff. We leave 

for another day, however, the question of whether property 

damage counterclaims by shipowner-employers against negligent 

seaman-employees are actionable in every Jones Act case.6

 6 Notably, in a decision postdating the district court’s 

order granting summary judgment in this case, the Seventh 

Circuit held that “combining a property-damage counterclaim with 

a limitation of liability in order to wipe out a substantial 

personal injury claim under the Jones Act is a liabilityexempting device forbidden by the Act.” Deering v. Nat’l Maint.

& Repair, Inc., 673 F.3d 1039, 1048 (7th Cir. 2010) (Posner, 

J.). We have no occasion in the case at hand to examine Deering. 
28

III.

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

district court, that the evidence in the record fails to 

establish a genuine dispute of material fact as to EMI’s 

negligence or its vicarious liability for the alleged negligence 

of the USA Medical providers. In order to establish an agency 

relationship for the purposes of vicarious liability in a Jones 

Act action, the seaman-employee must demonstrate some 

affirmative act on the part of a shipowner-employer in selecting 

or otherwise engaging the negligent medical provider. Thus, we 

affirm the district court’s grant of summary judgment in favor 

of EMI on Dise’s Jones Act claims. With respect to his 

unseaworthiness claim under the general maritime law, Dise 

failed to establish that either the skiff or the crew 

constitutes an unseaworthy condition. Accordingly, we affirm the 

district court’s grant of summary judgment in favor of EMI on 

the unseaworthiness claim. 

Finally, while neither this court nor the Supreme Court has

decided whether employer property damage counterclaims are 

actionable in Jones Act cases, we have no hesitation in 

concluding that EMI’s counterclaim does not serve as a 

liability-exempting device under the particular facts of the 

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

authority favoring allowance of EMI’s counterclaim. Thus, we 
29

affirm the district court’s grant of summary judgment on EMI’s

counterclaim for damage to the skiff. We acknowledge, however,

that under circumstances not present in the case before us, some 

employer property damage counterclaims may be impermissible 

under the FELA, Jones Act, and general remedial principles of 

maritime law. See Deering v. Nat’l Maint. & Repair, Inc., 673 

F.3d 1039 (7th Cir. 2010).

AFFIRMED