FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JENNIFER E. BAUER, 

Plaintiff-Appellant, No. 09-17254

v. D.C. No.

MRAG A  1:08-cv-00582- MERICAS, INC.; F/V LADY

DAE-BMK KAREN; LADY KAREN,

INCORPORATED, OPINION

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Hawaii

David A. Ezra, District Judge, Presiding

Submitted October 13, 2010*

Honolulu, Hawaii

Filed October 27, 2010

Before: Michael Daly Hawkins, M. Margaret McKeown and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge McKeown

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

17895
COUNSEL

Charles J. Ferrera, Honolulu, Hawaii, for the plaintiffappellant.

Robert G. Frame, Michael J. Nakano, Mark Stephen Hamilton, Frame & Nakano, Honolulu, Hawaii, for the defendantappellee. 

BAUER v. MRAG AMERICAS, INC. 17897
OPINION

McKEOWN, Circuit Judge:

Congress passed the Marine Mammal Protection Act

(“MMPA”), 16 U.S.C. § § 1361 et seq., in response to the

concern that marine mammals “are, or may be, in danger of

extinction or depletion as a result of” human activities. Id.

§ 1361(1). As part of the protection efforts under both the

Magnuson-Stevens Act, 16 U.S.C. §§ 1801 et seq., and the

MMPA, the Secretary of Commerce may require vessels to

have observers aboard to monitor compliance with fishing

regulations and to “obtain statistically reliable information on

the species and number of marine mammals incidentally taken

in the fishery.” Id. § 1383a(e)(1); see also id. § 1821(h). The

observers are considered federal employees, not employees of

the vessel owner. Having thrust these observers on board private vessels, however, Congress limited the vessel owners’

liability to the observers. As a general rule, an observer “that

is ill, disabled, injured, or killed from service as an observer

on that vessel may not bring a civil action . . . against the vessel owner.” Id. § 1383a(e)(7)(A). We conclude that this

immunity provision precludes a negligence suit by a federal

observer who was injured while taking a restroom break. 

Jennifer E. Bauer was serving as a fisheries observer

aboard the F/V Lady Karen when she was injured by a cable

on the vessel that snapped and hit her. Bauer sued Lady

Karen, Incorporated (“LKI”) for, among other things, negligence under general maritime law. In response to LKI’s

motion to dismiss the complaint for failure to state a claim,

Bauer argued that the MMPA immunity provision does not

bar her suit because, at the time of her injury, she was taking

a bathroom break rather than serving as an observer. Looking

to a related provision of the Federal Employee Compensation

Act (“FECA”), 5 U.S.C. § 8102(a), for guidance, the district

court disagreed and held that Bauer’s suit was barred by the

MMPA. 

17898 BAUER v. MRAG AMERICAS, INC.
[1] The immunity provision of the MMPA provides as follows:

An observer on a vessel . . . that is ill, disabled,

injured, or killed from service as an observer on that

vessel may not bring a civil action under any law of

the United States for that illness, disability, injury, or

death against the vessel or vessel owner, except that

a civil action may be brought against the vessel

owner for the owner’s willful misconduct.

16 U.S.C. § 1383a(e)(7)(A) (emphasis added). This provision

“does not apply if the observer is engaged by the owner, master, or individual in charge of a vessel to perform any duties

in service to the vessel.” Id. § 1383a(e)(7)(B). 

In interpreting § 1383a(e)(7)(A), we begin with the plain

language of the statute. See, e.g., Consumer Prod. Safety

Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

“[C]ourts must presume that a legislature says in a statute

what it means and means in a statute what it says there. When

the words of a statute are unambiguous, then . . . judicial

inquiry is complete.” Barnhart v. Sigmon Coal Co., 534 U.S.

438, 461-62 (2002) (internal quotation marks omitted).

Because the immunity provision abrogates Bauer’s common

law rights under general maritime law, see Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959),

we “take care to avoid an overbroad interpretation of the statute that would afford immunity that was not intended,” Ducey

v. United States, 713 F.2d 504, 510 (9th Cir. 1983). 

[2] The MMPA does not define “from service as an

observer on that vessel,” and no other court has interpreted

that phrase. The language of the statute, however, is unambiguous. The term “from” is a function word that simply indicates the “source, cause, means, or ultimate agent of an action

or condition.” Webster’s Third New International Dictionary

913 (1963). “Service as an observer on that vessel” means

BAUER v. MRAG AMERICAS, INC. 17899
exactly what it says—during the period the individual is on

the vessel in the capacity of an observer. Hence, if the injury

arises from a period of service as an observer, then the immunity provision comes into play. 

[3] Bauer was on the boat as an observer monitoring fishing operations and the boat was underway with fishing activities in full swing. Not surprisingly, Bauer could not be

expected to monitor activities non-stop without a bathroom

break. Nor did she have the luxury of stepping off the boat to

take a bathroom break at a coffee shop. Her sensible decision

to take a short on-board break did not somehow cabin or limit

Bauer’s “service” as an observer. Common sense kicks in on

this point—the injury occurred in the performance of her service as an observer on the vessel. Accordingly, the immunity

provision of the MMPA bars Bauer’s suit. 

[4] Although the text of the MMPA’s immunity provision

is clear, our reading of that provision also finds support in a

related provision of the FECA. The FECA provides compensation to any federal employee injured “in the performance of

his duty.” 5 U.S.C. § 8102(a). MMPA observers are considered federal employees for purposes of FECA. 16 U.S.C.

§ 1881b(c). 

[5] FECA provides compensation for injuries sustained by

a federal employee “in the performance of his duty.” 5 U.S.C.

§ 8102(a). Although the phrase “in the performance of his

duty” is not the same as that as used in the MMPA, the intent

is similar and the parallel is useful—both statutes relate to a

federal employee’s undertaking of specific job responsibilities. “[S]ervice as an observer on that vessel” essentially

means service “in the performance of his duty [as an observer].” Notably, courts have held that there is FECA coverage

even if the employee is not actively engaged in job related

duties at the time of the injury, such as when taking a lunch

break. See, e.g., Woodruff v. U.S. Dep’t of Labor, 954 F.2d

634, 640 (11th Cir. 1992) (FECA coverage applies where

17900 BAUER v. MRAG AMERICAS, INC.
employee’s injuries were sustained during an unpaid lunch

break on employer’s premises); see also Moe v. United States,

326 F.3d 1065, 1070 (9th Cir. 2003) (FECA coverage was

available even though employee’s injury was not sustained

during a job-related activity because the employee’s “job

placed her in th[e] situation” in which the injury occurred). 

Our reference to the similarly intended FECA provision

simply confirms that Bauer’s injury stems from her performance of duties as a fisheries observer. Bauer’s negligence

claim1 against Lady Karen is barred by the immunity provision of the MMPA because her injuries were sustained from

her service as an observer, albeit during a restroom break. 

AFFIRMED.

1Bauer relies on Wallace v. United States, 669 F.2d 947, 952 (4th Cir.

1982), to argue that FECA coverage does not bar actions against third

party defendants. Wallace is inapposite, however, because we are not referencing the FECA provision as a basis for government versus private liability, but rather as a guide to the similar scope of employment language

of the MMPA. 

BAUER v. MRAG AMERICAS, INC. 17901