Motion To Dismiss Seaman's Claim As A Discretionary Function Was Denied
EDWARD A. CARNEY v. UNITED STATES OF AMERICA
CCB-03-3493
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
2005 U.S. Dist. LEXIS 7697
May 2, 2005, Decided
PROCEDURAL POSTURE: Plaintiff, a seaman-engineer, suffered an injury to his hand while attempting to measure a shipboard fan unit to facilitate repairs. He brought claims for negligence and failure to provide prompt maintenance or cure, pursuant to the Suits in Admiralty Act, 46 U.S.C.S. app. §§ 741-752, and the Public Vessels Act, 46 U.S.C.S. app.§§ 781-790. Defendant United States moved to dismiss the claims as subject to the discretionary function exception.
OVERVIEW: The engineer was employed by a private contractor, but was assigned to a vessel used by the government. He was injured when his superior officer failed to take certain safety precautions with the fan machinery, such as failing to stabilize it and replace protective covers as required by the machinery's manual. The government asserted the claims should be dismissed for lack of subject matter jurisdiction under the discretionary function theory, and also moved for summary judgment on the maintenance and cure claims, asserting it had paid the benefits due to the engineer and did not presently owe maintenance and cure. The court agreed with the government that selecting a ship for public use was a discretionary act as to the government's procurement of the vessel and crew, but rejected the argument that the negligent failure to warn and a negligent creation of unsafe working conditions or equipment were covered under discretionary function exception immunity. The government was current on maintenance and cure, but could be liable for compensatory damages for delay in payment. The engineer set forth no statutory basis for an award of attorney's fees.
OUTCOME: To the extent that the delay in receipt of maintenance and cure exacerbated the engineer's injury or pain and suffering, he could seek consequential or compensatory damages, not including attorney's fees or punitive damages. Summary judgment was otherwise granted. The motion to dismiss was denied as to the failure to warn claim, and granted as to the arguments about the crew and the vessel, which were within the government's discretion.
