[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 96-2931 ________________________

D.C. Docket No. 94-395-CIV-FTM-25D

S. PAUL WHITE,

Plaintiff-Appellant,

GLYNNOLA WHITE,

Plaintiff,

versus

MERCURY MARINE, DIVISION

OF BRUNSWICK, INC., BRUNSWICK

CORP.,

DefendantsAppellees,

RONALD GOLL, et al.,

Movants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(December 1, 1997)

Before ANDERSON, DUBINA and CARNES, Circuit Judges.

 
2

CARNES, Circuit Judge:

This appeal concerns a maritime worker's effort to recover

from the manufacturer of marine engines for the hearing loss he

suffered because of exposure to the noise of those engines during

his employment. Plaintiff S. Paul White appeals the district

court's grant of summary judgment in favor of Mercury Marine

Division of Brunswick, Inc. (“Mercury Marine”). The district court

held that White's claim was barred by the general maritime statute

of limitations, 46 U.S.C. App. § 763a. On appeal, White concedes

that he cannot recover for the hearing loss he suffered due to

engine noise exposure which occurred outside § 763a's three-year

limitations period. However, he asks us to adopt a “modified

continuing tort theory” under which he would not be barred from

recovering for the hearing loss suffered due to exposure within the

limitations period. For the reasons set out below, we decline to

adopt the modified continuing tort theory in general maritime law

and affirm the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

S. Paul White began his employment with the Florida Marine

Patrol (“FMP”) in 1964. As a patrol officer from 1964 to 1984,

White spent six to eight hours per day, 5 days a week, patrolling

Florida's territorial waters in FMP boats. In 1984, White achieved

the rank of sergeant, and later he became a lieutenant. In his

capacity as a sergeant or lieutenant, White spent as much as half

of his work time on land. However, he spent the remainder of his

work time in FMP boats. White retired in 1995.
1

White never wore ear protection while he was on the job. The

record is unclear as to whether he simply chose not to wear it or

the performance of his duties precluded him from doing so.

3

During his thirty-one years as an FMP officer, White patrolled

Florida's waters in several types of boats. One common feature of

those boats was that they had Mercury Marine engines. The amount

of engine noise exposure depends on a variety of factors, including

the size of the engine, its installation, any muffling of the

engine, how open the throttle is, and the location of the operator.

White's FMP boats had either 50, 120, 140 or 260 horsepower

engines, and the operator was positioned close to the engine.

White, as a water patrol officer, was exposed to substantial noise

from Mercury Marine's engines throughout his employment.

Not surprisingly, White now has poor hearing. He wears two

hearing aids. Understandably, he attributes his poor hearing to

being continuously exposed for more than three decades to the loud

noise created by Mercury Marine engines on the boats he operated.

The parties agree that White's hearing is impaired, and they also

agree that at least as early as 1984 White became aware that the

loud engine noise was causing him hearing loss. In that year, a

doctor advised White that his constant exposure to loud engine

noise was causing his hearing loss, and that he should wear ear

protection.1 Another doctor gave White the same advice in 1988.

In 1990 White filed a workman's compensation claim in which he

stated that the constant exposure to engine noise had caused his

gradual loss of hearing.
2

 White's wife also sued, asserting derivative causes of

action, but she does not appeal the dismissal of her claims.

4

It was not until 1994 that White sued Mercury Marine in

federal district court.2

 His complaint included claims against

Mercury Marine for negligence, strict liability, and breach of the

implied warranties of merchantability and fitness for a particular

purpose. Mercury Marine deposed White, thereby learning of his

long-standing awareness of the cause of his hearing loss. Shortly

thereafter, Mercury Marine filed a motion for summary judgment,

contending that the three-year statute of limitations for general

maritime claims, 46 U.S.C. App. § 763a, barred White's claims. 

In response, White argued for application of the “modified”

continuing tort theory, which is best explained in terms of that

which it modifies, the “pure” continuing tort theory. Under the

pure version of the continuing tort theory, a cause of action for

any of the damages a plaintiff has suffered does not “accrue” until

the defendant's tortious conduct ceases. See, e.g., Everhart v.

Rich's Inc., 194 S.E.2d 425, 428 (Ga. 1972)(holding that the

statute of limitations is tolled until the defendant's continuing

tortious activity is eliminated). Under the pure continuing tort

theory, a plaintiff may recover for all the harm he has suffered,

not just that suffered during the limitations period. See Taylor

v. Meirick, 712 F.2d 1112, 1118 (7th Cir. 1983). By contrast, the

modified version of that theory allows recovery for only that part

of the injury the plaintiff suffered during the limitations period.

Here, that would be the damage to White's hearing caused by the
5

noise exposure occurring within three years before the lawsuit was

filed. Apparently White chose to argue for the modified version of

the continuing tort theory instead of the more plaintiff-friendly

pure version, because he felt that with the modified version he

would have more to work with insofar as the decisions of this

Circuit were concerned.

The district court granted Mercury Marine's motion for summary

judgment, holding that the statute of limitations bars White's

claims. The court began its opinion by noting that this case fell

within the admiralty jurisdiction -- a point which White does not

contest in this Court -- and therefore general maritime law

applied. The general maritime statute of limitations, 46 U.S.C.

App. § 763a, states that a cause of action must be “commenced

within three years from the date the cause of action accrued.”

Finding no controlling precedent that defines when a cause of

action “accrues” under the general maritime law, the court chose to

apply the “discovery rule,” which had been applied by the Supreme

Court in Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018 (1949), a

Federal Employers' Liability Act case. Because White had

discovered his cause of action more than three years before he

filed suit, the district court held that White's cause of action

had accrued more than three years before the complaint was filed,

therefore, the suit was time-barred. The court entered judgment in

favor of Mercury Marine, and White appealed.
6

II. STANDARD OF REVIEW

This Court reviews a district court's grant of summary

judgment de novo, applying the same legal standard employed by the

district court. See, e.g., Fitzpatrick v. City of Atlanta, 2 F.3d

1112, 1117 (11th Cir. 1993). Summary judgment is appropriate if

the record shows no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. See,

e.g., Eberhart v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990).

When deciding whether summary judgment is appropriate, “all

evidence and reasonable factual inferences drawn therefrom” are

reviewed in a light most favorable to the non-moving party. Warren

v. Crawford, 927 F.2d 559, 562 (11th Cir. 1991).

Whether the district court should have applied the modified

continuing tort theory or the discovery rule is a question of law,

which we decide de novo. See, e.g., Blohm v. Commissioner , 994

F.2d 1542, 1548 (11th Cir. 1993).

III. DISCUSSION

The parties agree that White’s claim is governed by general

maritime law. See Southern Pacific Co. v. Jensen , 244 U.S. 205,

215, 37 S. Ct. 524, 528 (1917)(“[I]n the absence of some

controlling statute the general maritime law as accepted by the

federal courts constitutes part of our national law applicable to

matters within the admiralty and maritime jurisdiction.”).

However, the general maritime statute of limitations, 46 U.S.C.

App. § 763a, offers little specific guidance for choosing between
7

the modified continuing tort theory and the discovery rule. It

states:

Unless otherwise specified by law, a suit for recovery of

damages for personal injury or death, or both, arising

out of a maritime tort, shall not be maintained unless

commenced within three years from the date the cause of

action accrued.

46 U.S.C. App. § 763a. “Accrue” is the operative word, the marking

point that gives the statute its bite. Unfortunately, Congress did

not define “accrue,” and thus failed to specify the depth of the

bite. Mercury Marine argues that we should define “accrue” by

referring to the discovery rule, while White argues that “accrue”

as used in § 763a, should encompass the modified continuing tort

theory. Neither party's position finds much support in the word

“accrue” itself, which simply means to become enforceable. See

Random House Unabridged Dictionary, 13 (2d ed. 1993). The

dictionary definition of accrue is unhelpful because when White's

claims became legally enforceable, or when they stopped being

enforceable, is the issue.

White concedes here, as he did in the district court, that he

knew of both his injury and its cause more than three years before

he filed suit. If we use the discovery rule to define when White's

cause of action accrued, the statute of limitations bars his suit.

If we use the modified continuing tort theory, it does not. This

appeal turns on our choice between the two. 

A. SUPPLEMENTING GENERAL MARITIME LAW

Before we choose between the discovery rule and the modified

continuing tort theory, we address White's contention that we
8

should “supplement” the general maritime law on this issue with

Florida law. The Supreme Court followed the approach of

“supplementing” state law for general maritime law purposes in

Yamaha Motor Corp., U.S.A. v. Calhoun, --- U.S. ----, 116 S. Ct.

619 (1996). In that case, the Supreme Court held that courts may

use state law to supplement the remedies available for wrongful

death under the general maritime law. See id., 116 S. Ct. at 629.

Noting that Congress had not prescribed a comprehensive tort regime

to be uniformly applied, the Court reasoned that state remedies

were not displaced by maritime law. See id. 116 S. Ct. at 628; see

also Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513

U.S. ---, ---, 115 S. Ct. 1043, 1054 (1995)(holding that the

exercise of admiralty jurisdiction “does not result in automatic

displacement of state law.”). The Yamaha court did, however,

reiterate that state laws inconsistent with the substance of

federal maritime law should be given no effect. See Yamaha, 116 S.

Ct. at 624.

Florida has adopted the pure continuing tort theory. See

Seaboard Air Line R.R. Co. v. Holt, 92 So. 2d 169, 170 (Fla. 1956);

Halkey-Roberts Corp. v. Mackal, 641 So. 2d 445, 447 (Fla. Dist. Ct.

App. 1994). Whether we may rely on Florida's adoption of that

theory to supplement the general maritime law depends on the two

factors outlined in Yamaha: 1) Is the pure continuing tort theory

inconsistent with the substance of federal maritime law; and 2) Has

Congress prescribed a rule in this area that must be uniformly

applied in federal maritime law cases? See Yamaha, 116 S. Ct. at
9

628. The pure continuing tort theory is not inconsistent with the

general maritime statute of limitations because the word “accrue”

does not embrace or reject it.

 However, application of Florida law would contradict the

second Yamaha requirement of the absence of congressional action in

the area. The very existence of a federal generalmaritime statute

of limitations implies that it should be applied uniformly across

the nation. The federal concern with balancing the interests of

maritime plaintiffs to obtain redress for their injuries against

the interests of defendants and the court system in avoiding the

problems caused by stale claims does not vary from state to state.

Accordingly, the definition of the federal statutory term “accrue”

should not vary based on whether the forum state has adopted a

version of the continuing tort theory. See Yamaha, --- U.S. at ---

n.8, 116 S. Ct. at 626, n. 8 (“[S]tate law must yield to the needs

of a uniform federal maritime law when [the law makes] inroads on

a harmonious system”)(internal citation and quatoes omitted); In re

Amtrack “Sunset Limited” Train Crash, 121 F.3d 1421, 1424-25 (11th

Cir. 1997)(noting that Yamaha did not overrule the “bedrock

admiralty principles” of harmony and uniformity in admiralty and

maritime law). Thus, we cannot use Florida law to supplement the

general maritime statute of limitations in this or any other case,

and that would be equally true if Florida had adopted the modified

continuing tort theory that White espouses.
10

B. CONSTRUCTION OF SECTION 763a

Given the ambiguity of the statutory term “accrued,” this

would be an appropriate occasion in which to resort to legislative

history. See, e.g., United States v. Garcia, 718 F.2d 1528, 1533

(11th Cir.1983) ("Review of legislative history is only justified

when a statute is inescapably ambiguous"). However, neither party

has pointed us to anything in the legislative history of § 763a

that is helpful, nor have we been able to find any guidance there

ourselves. Decisional law is a different matter.

Although there is no binding precedent directly on point, we

do not write on an entirely clean slate. We have for guidance two

Supreme Court decisions interpreting statute of limitations

language materially identical to that of § 763a. Those cases, Urie

v. Thompson, 337 U.S. 163, 68 S. Ct. 1018 (1949), and United States

v. Kubrick, 444 U.S. 111, 100 S. Ct. 352 (1979), involved

interpretations of the Federal Employers' Liability Act (FELA) and

Federal Tort Claims Act (FTCA), respectively. Although the general

maritime law has been recognized as a distinct body of federal

common law, see In re Air Disaster At Lockerbie Scotland, 37 F.3d

804, 828 (2d Cir. 1994), this Court has used precedents from other

areas of law to inform its maritime decisions in the past, see,

e.g., Flores v. Carnival Cruise Lines, 47 F.3d 1120, 1125 n.4 (11th

Cir. 1995).

 The first Supreme Court precedent, Urie v. Thompson construed

the FELA language requiring that any lawsuit under the statute be

filed “within three years from the day the cause of action
11

accrued.” In that case, a railroad worker sued his employer a

year after he had become incapacitated by silicosis. See id., at

165-66 69 S. Ct. at 1022-1023. He had been exposed to silica dust

for thirty years before filing suit. The railroad argued that

because the worker must have contracted silicosis more than three

years before his suit was filed, his cause of action had “accrued”

outside of the limitations period, therefore, the suit was barred.

See id. at 169, 69 S. Ct. at 1024. The Supreme Court rejected that

interpretation of the word “accrued” in favor of the discovery

theory of accrual, under which the cause of action accrues on the

date the worker first knew or should have known of his injury and

its cause. See id. at 170, 69 S. Ct. at 1025 (citing Assoc.

Indemnity Corp. v. Industrial Accident Comm'n, 12 P.2d 1075, 1076

(Cal. Dist. Ct. App. 1932).

The Urie court explained that adopting an actual occurrence or

onset theory of accrual would punish the worker's “blameless

ignorance” in ways that the FELA's “humane legislative plan” never

intended. See id. Indeed, it would result in the FELA providing

nothing more than a “delusive remedy” for occupational illnesses

that have a slow and gradual onset from accumulated exposure. In

the actual case before it, for example, the initial onset theory

would mean that “at some past moment in time, unknown and

inherently unknowable even in retrospect, Urie was charged with the

slow and tragic disintegration of his lungs,” and his “failure to

diagnose within the applicable statute of limitations a disease
3

White contends that this Court adopted the “modified”

continuing tort theory in Santiago, a Jones Act case. Santiago

involved a maritime worker who suffered a hearing loss after

12

whose symptoms had not yet obtruded on his consciousness” would bar

any recovery. Id. at 169, 69 S. Ct. at 1024.

 The railroad contended alternatively that each inhalation of

silica dust was a separate tort giving rise to a fresh cause of

action. See id. Therefore, it argued, Urie's recovery should be

limited to the damages caused by the dust he inhaled during the

three years preceding his suit. The Supreme Court rejected that

argument. Considering the overall purpose of the Federal

Employer's Liability Act, the court stated: 

mechanical analysis of the “accrual” of [Urie's] injury -

whether breath by breath, or at one unrecorded moment in

the progress of the disease - can only serve to thwart

the congressional purpose [of including occupational

diseases in the category of compensable injuries]

Id. The Court criticized the “breath by breath” measurement of

accrual, because it would “limit petitioner's damages to that

aggravation of his progressive injury traceable to the last

eighteen of his employment.” Id. at 170, 69 S. Ct. at 1024.

 The modified continuing tort theory the petitioner urges us to

adopt today is little more than the modern equivalent of the

“breath by breath” theory that Urie rejected. Under the modified

continuing tort theory a plaintiff may recover damages for any

increase in injury caused by the defendant within the limitations

period, even though he “discovered” his injury before the

limitations period. See Santiago v. Lykes Bros. S.S. Co., Inc.,

986 F.3d 423, 428 (11th Cir. 1993).3
spending years in a ship’s engine room. The Santiago Court

concluded that the district court’s jury instructions, which were

really a recitation of the pure continuing tort theory, were

incorrect statements of the continuing tort theory. See id. at

427. In other words, if a continuing tort theory was to be applied

in a Jones Act case, it should be the modified instead of the pure

version. White argues that this Court would not have outlined the

“proper” continuing tort theory for the trial on remand had it not

accepted the theory.

So it might seem, except that the Santiago Court went out of

its way to avoid making that theory part of the law of this

Circuit. The Court pointed out that we had applied the discovery

rule instead “in numerous other federal statutory contexts,” id. at

427 and n.3, and noted that since the split the Fifth Circuit had

rejected the continuing tort theory in a Jones Act case involving

similar facts, see id. at 427. The actual holding in Santiago was

that the relevant jury instruction changed the issue to the

surprise and detriment of the defendant on the last day of trial,

and was also “an erroneous statement of the law under the

continuing tort theory.” Id. The most the Santiago Court was

willing to say as to the law of the Circuit was that, “[t]he

Eleventh Circuit has not squarely addressed the issue of the

continuing tort theory under the Jones Act,” and “[w]e do not rule

out the continuing tort theory.” Id. at 427-28. That decision did

not rule the theory in, either.

13

Faced with the similarity between the old “breath by breath”

theory rejected in Urie and the modified continuing tort theory he

favors, White argues that the reason the Supreme Court rejected the

breath by breath theory in Urie was that it as unfairly limited the

plaintiff's recovery under the facts of that case, while

application of the materially identical modified continuing tort

theory will permit this plaintiff to recover. However, the

discovery rule, as a rule of law, is not to be applied only when it

will benefit a plaintiff. It protects plaintiffs who are unaware

of their injury, while requiring those plaintiffs who have

“discovered” their injury to file suit within the prescribed

period. It, like the statute of limitations in general, is a
14

neutral balancing of interests, which must be neutrally applied

regardless of the party it benefits in a particular case. That

point is illustrated by the Kubrick decision, which applied the

discovery rule to the detriment of the plaintiff in that case.

In United States v. Kubrick, 444 U.S. 111, 113, 100 S. Ct.

352, 354-55 (1979), the Supreme Court was faced with the task of

construing the Federal Tort Claims Act statute of limitations,

which barred any claim not presented to the proper federal agency

“within two years after such claim accrues.” The issue in Kubrick

was whether a claim “accrues” when the plaintiff knows of both his

injury and its cause, but does not know that the injury was

negligently inflicted. See id. at 116, 356. The Supreme Court

rejected the contention that a plaintiff must know of a

tortfeasor's negligence before a cause of action will accrue. Id.

at 122, 100 S. Ct. 359. The Court reasoned that plaintiffs who are

armed with the facts about the harm they have suffered, namely

their injury and its cause, are able to protect themselves by

seeking advice in the medical and legal communities. Id. at 123,

100 S. Ct. at 360. The Supreme Court applied the discovery rule in

Kubrick, as it did in Urie, and refined that rule to clarify that

discovery of the injury and its cause -- and not the realization

that a cause of action exists -- marks the date the limitations

period starts running. As it happened, under the facts of that

case, the discovery rule operated to bar the plaintiff's lawsuit,

because he had been aware of his injury and its cause for more than
15

two years before he presented a claim. See id. at 118-125, 100 S.

Ct. at 357-61.

In its Kubrick opinion, the Supreme Court noted that statutes

of limitations often bar perfectly valid claims, and indeed “that

is their very purpose.” Id. at 125, 100 S. Ct. at 361. They exist

as statutes of repose which, after plaintiffs have had what the

legislature deems a reasonable period of time to bring claims,

“protect defendants and the courts from having to deal with cases

in which the search for truth may be seriously impaired by the loss

of evidence, whether by death or disappearance of witnesses, fading

memories, disappearance of documents, or otherwise.” Id. at 117,

100 S. Ct. at 357. The importance legislatures have accorded the

interests protected by civil statutes of limitations is evident

from the fact that they are as ubiquitous as the rights whose

vindication they condition upon timely assertion.

So, twice the Supreme Court has been presented with federal

statute of limitations language materially identical to that in the

general maritime statute of limitations, and twice the Supreme

Court has held that courts should use the discovery rule to

determine when a cause of action accrues. It is a familiar canon

of statutory construction that courts should generally construe

similar statutory language similarly. See, e.g., EEOC v. Reno, 758

F.2d 581, 583-84 (11th Cir. 1985)(finding that because provisions

of the Age Discrimination in Employment Act “were taken in haec

verba from Title VII, decisions under the analagous section of

Title VII [are] highly relevant to the issue before [the Court]”);
16

cf. also Knight v. Georgia, 992 F.2d 1541, 1545 (11th Cir.

1993)(using substantial body of case law from another, similar

provision of the Age Discrimination in Employment Act to guide the

interpretation of the operative provision); Bodzy v. Commissioner,

321 F.2d 331, 335 (5th Cir. 1963)(holding that “provisions of the

Internal Revenue Code should be interpreted similarly where similar

language is used”). We see no good reason to give the term

“accrue” as Congress used it in the general maritime statute of

limitations a different meaning from that the Supreme Court gave

the identical term when Congress used it in the FELA and FTCA

statutes.

Furthermore, it could be argued that Congress has tacitly

accepted the Supreme Court's construction of the word “accrue.”

Congress has amended neither the FELA nor the FTCA since the

Supreme Court decided Urie and Kubrick. True, it is always

treacherous to try to divine congressional intent from silence. As

one court has aptly put it, "[n]ot every silence is pregnant."

State of Illinois Dept. of Public Aid v. Schweiker, 707 F.2d 273,

277 (7th Cir. 1983). “In some cases, Congress intends silence to

rule out a particular statutory application, while in others

Congress' silence signifies merely an expectation that nothing more

need be said in order to effectuate the relevant legislative

objective. An inference drawn from congressional silence certainly

cannot be credited when it is contrary to all other textual and

contextual evidence of congressional intent.” Burns v. United

States, 501 U.S. 129, 136, 111 S. Ct. 2182, 2186 (1991). However,
17

such an inference is not contrary to any evidence of congressional

intent here. The inference that Congress did not disapprove use of

the discovery rule to define accrual for purpose of federal

statutes of limitations is perhaps strengthened by the penultimate

sentence of the Kubrick opinion. There, the Supreme Court

practically invited Congress to set things right if the Court had

misjudged the legislative intent on the matter; it did so by noting

that Congress had the ultimate power to change the meaning of

“accrue.” See Kubrick at 127, 100 S. Ct. at 361. Nearly two

decades have passed, and Congress has not exercised that power.

 Congress passed the general maritime statute of limitations --

using the word “accrue” -- in 1980, which was after both Urie and

Kubrick were decided. Congress' continued use of the term

“accrue,” without even the slightest indication of disagreement

with those two decisions, suggests that Congress tacitly accepted

the Court's interpretation, or at least was not noticeably upset

with it. After all, Congress is assumed to act with the knowledge

of existing law and interpretations when it passes new

legislation. See Merrill Lynch, Pierce, Fenner & Smith v. Curran,

456 U.S. 353, 382, n. 66, 102 S. Ct. 1825, 1841, n. 66 (1982). We

presume that Congress “expects its statutes to be read in

conformity with [Supreme Court] precedents.” United States v.

Wells, --- U.S. ---, ---, 117 S. Ct. 921, 929 (1997). 

Finally, we note that in the past we have adopted the

discovery rule where Congress has failed to enact a statute of

limitations to govern various federal causes of action. See
18

Bowling v. Founders Title Co., 773 F.2d 1175, 1178 (11th Cir.

1985)(holding that the discovery rule applies to civil RICO

claims); Durham v. Business Management Assoc., 847 F.2d 1505, 1508

(11th Cir. 1988)(same as to securities claims); Mullinax v.

McElhenney, 817 F.2d 711, 716 at n.2 (11th Cir. 1987)(same as to 28

U.S.C. § 1983 claims). In Bowling v. Founders Title Co., we noted

that while state statutes of limitations set the limitations period

for civil RICO claims, the time of accrual was governed by federal

law. See Bowling, 773 F.2d at 1178 citing Rawlings v. Ray, 312

U.S. 96, 61 S. Ct. 473 (1941). In that case, we chose consistency

in the application of the “general federal rule” -- the discovery

rule -- over a rule similar to the “pure” continuing tort theory.

See id. (“[Adopting the discovery rule] is consistent with our

practice in related fraud and securities cases”).

 For all of these reasons, we hold that a cause of action

“accrues” for the purposes of 46 U.S.C. App. § 763a when the

plaintiff knew or should have known of his injury and its cause.

Because it is undisputed that White knew more than three years

before he filed suit that his loss of hearing was caused by

exposure to the loud engine noise, the district court correctly

held that his lawsuit was barred by the statute of limitations.

IV. CONCLUSION

The judgment of the district court is AFFIRMED.