United States v. 2010-10-27 | 09-17254 | JENNIFER BAUER V. LADY KAREN, INCORPORATED | precedential |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JENNIFER E. BAUER,
Plaintiff-Appellant, No. 09-17254
v. D.C. No.
1:08-cv-00582-  MRAG AMERICAS, INC.; F/V LADY DAE-BMKKAREN; 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

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COUNSEL
Charles J. Ferrera, Honolulu, Hawaii, for the plaintiff-
appellant.
Robert G. Frame, Michael J. Nakano, Mark Stephen Hamil-
ton, Frame & Nakano, Honolulu, Hawaii, for the defendant-
appellee.
17897 BAUER v. MRAG AMERICAS, INC.

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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 pri-
vate 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 ves-
sel 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, negli-
gence 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.
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[1] The immunity provision of the MMPA provides as fol-
lows:
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, mas-
ter, 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. Com-
pagnie Generale Transatlantique, 358 U.S. 625, 630 (1959),
we “take care to avoid an overbroad interpretation of the stat-
ute 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 unambig-
uous. The term “from” is a function word that simply indi-
cates 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
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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 immu-
nity provision comes into play.
[3] Bauer was on the boat as an observer monitoring fish-
ing operations and the boat was underway with fishing activi-
ties 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 ser-
vice 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 compen-
sation to any federal employee injured “in the performance of
his duty.” 5 U.S.C. § 8102(a). MMPA observers are consid-
ered 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 responsibili-
ties. “[S]ervice as an observer on that vessel” essentially
means service “in the performance of his duty [as an observ-
er].” 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
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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 perfor-
mance of duties as a fisheries observer. Bauer’s negligence
claim1 against Lady Karen is barred by the immunity provi-
sion 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 ref-
erencing the FECA provision as a basis for government versus private lia-
bility, but rather as a guide to the similar scope of employment language
of the MMPA.
17901 BAUER v. MRAG AMERICAS, INC.

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