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PUTHE v. EXXON SHIPPING CO.

September 26, 1992

KURT A. PUTHE Jr., Plaintiff, against EXXON SHIPPING COMPANY, Defendant.

Spatt


The opinion of the court was delivered by: ARTHUR D. SPATT

MEMORANDUM DECISION AND ORDER

SPATT, District Judge.

 Among the issues presented in this Jones Act case, is, the interesting and elusive question of whether a seaman can recover damages for purely emotional distress.

 This is an action by the plaintiff Kurt Puthe, Jr. ("Puthe" or plaintiff), brought pursuant to the Jones Act, 46 U.S.C. § 688, claiming negligence and unseaworthiness on the part of the defendant Exxon Shipping Company ("Exxon" or defendant). The plaintiff asserts that he is a seamen with rights under the Jones Act and claims that he suffered various psychological and emotional injuries while serving on several of Exxon's ships.

 Presently before the Court is the motion of the defendant for summary judgment pursuant to Federal Rule of Civil Procedure 56. Exxon contends that there is no basis for recovery for emotional injuries in the instant matter. Alternatively, Exxon maintains that the action is time-barred under Federal Employers Liability Act, 46 U.S.C. § 56 ("FELA") and the Uniform Statute of Limitations for Maritime Torts, 46 U.S.C. § 763 ("USLMT"). The law developed under the FELA applies to Jones Act claims because it is incorporated by reference into the Jones Act (see 46 U.S.C. § 688: "Any seaman who shall suffer personal injury in the course of his employment [may maintain an action] and in such action all statutes of the United States modifying or extending the common-law right . . . in cases of personal injury to railway employees shall apply").

 For the reasons set forth below, the motion of the defendant is granted in its entirety.

 FACTUAL BACKGROUND

 This action was commenced by complaint filed on May 29, 1989. According to the plaintiff, he was first diagnosed as having a psychiatric disorder on or about September 11, 1986. He maintains that, as a result of the diagnosis, he first learned of his injury at that time.

 The defendant contends that the plaintiff's alleged psychological problems do not stem from the conduct of its employees or the unseaworthiness of its vessels. Exxon maintains that the plaintiff suffers from a personality disorder long predating his employment as a merchant seaman. Furthermore, Exxon contends that Puthe knew or had reason to know of his psychological problems as early as 1983. Therefore, Exxon contends that Puthe may not recover under the Jones Act or FELA. Alternatively, Exxon contends that Puthe's claims are time-barred under the applicable statute of limitations.

 Though the factual background in this case is somewhat detailed, an examination of Puthe's personal and employment history is necessary to properly determine the defendant's motion.

 Puthe's Employment History

 Puthe joined Exxon in 1977, after having first obtained his "Z" card in 1976. He first sailed aboard the Exxon Chester and stopped sailing in 1986, with his last voyage aboard the Exxon Benecia. During his nine year career as a seamen with Exxon, Puthe made thirty-eight voyages on sixteen different vessels (Def. Ex. 2).

 The plaintiff contends that he sustained numerous physical injuries as a seaman with Exxon. However, no legal action was ever brought against Exxon for such injuries. Puthe presents the following incidents in which he allegedly sustained physical injuries.

 While aboard the Exxon Chester during 1977, he alleges that he was ordered to remove a scupper plug from the forward deck of the ship in bad weather, and was injured when hit by a wave. In 1978, aboard the Exxon Philadelphia, the plaintiff claims he fell on deck and injured his neck. In 1980, the plaintiff claims that he sprained his knee on board the Exxon Florence, but did not want to leave the ship so that he could be home in time for Christmas vacation. During a voyage in 1982, aboard the Exxon Chester, the plaintiff burned his hand while working in a pumping room. He suffered another burn while working aboard the Exxon Benecia in 1986. Puthe also claims the he sprained his foot on two occasions, once in 1984 and again in 1985.

 As noted above, the plaintiff's alleged physical injuries are not directly implicated in this action. However, Puthe alleges that there were several other incidents that occurred on board Exxon vessels which the plaintiff contends caused or contributed to his emotional injuries.

 While the plaintiff was in the hospital recovering from his fall on board the Exxon Philadelphia in 1978, he learned that a crewmember of the Exxon New Orleans was killed working on the ship. After his release from the hospital, Puthe was assigned to the New Orleans. He walked off the ship the same day he signed on, claiming that he had a "bad feeling" about working on the ship and that he was "still a little schizie about falling in the first place on the Exxon Philadelphia" (Plt's Depo. p. 22-23).

 The plaintiff also claims that in 1981 he lost a great deal of weight due to certain gastro-intestinal ailments. During that period of time, he was assigned to the Exxon Philadelphia under the command of Captain Marshall Price. According to Puthe, he was frightened by Price because he would order the ship's engines "throttled-up" in heavy seas. Puthe stated that he thought Price "wanted to take us to our grave with the ship" (Plt's Depo. p. 85). Price also allegedly required the men to work on deck in very cold weather and high winds.

 While aboard the Exxon Chester in 1982, Puthe had a confrontation with Second Officer Thomas Rice. Puthe refused an order to work in an overheated pump room. According to the plaintiff, Rice allegedly shoved or poked him and threatened to "kick his ass" if he failed to obey the order (Plt's Depo. p. 31). Puthe carried out the order, but burned his hand in the process. Afterward, he had a further confrontation with Rice at which time Rice repeated his threat.

 Puthe also avers that on several occasions he was exposed to harmful chemicals. He alleges that he developed chloracne in 1982 due to his exposure to caustic soda which contaminated the water supply on board the Exxon Huntington. In 1986, he claims that he was exposed to harmful gasses while working in tanks on the Exxon Houston. He further alleges that he was continually exposed to asbestos, fiberglass and hydrocarbons while on Exxon ships.

 Periodically, throughout his career, Puthe asserts that he was improperly "bumped," that is, temporarily demoted from his duties as an "able-bodied seaman" to those of an "ordinary seaman." He alleges this twice occurred in 1984 aboard the Exxon Newark and the Exxon North Slope. In 1985, while aboard the Exxon Lexington, Captain John Mazza bumped Puthe from oiler to utility man due to personnel restrictions. Puthe complained and threatened to walk off the ship but Mazza insisted that he accept the temporary demotion to utility man. Upon determining that Mazza was resolute, instead of leaving the ship as he threatened, Puthe returned to his room and suffered an emotional breakdown. Puthe stated in his deposition "I went to my room and cried hysterically for an hour. I first realized at that point I am not in control of my life or my emotions and that I had a problem. . . " (Plt's Depo. p. 27). Puthe later noted that Mazza was the "one officer that made me realize I had a mental problem. I was unable to cope and I was in a bad position. . . . The stress was too great to handle at the time" (Plt's Depo. p. 84).

 Puthe's Psychiatric Treatment

 Puthe maintains that the foregoing incidents occurred through the defendant's negligence and unseaworthiness of its vessels. He further contends that such incidents caused him emotional distress, but that he only became aware that his emotional problems were related to his employment with Exxon in August, 1986.

 It appears that sometime in the summer of 1986 Puthe began feeling extremely depressed. However, Puthe continued to sail, signing on for the Exxon Benecia on July 31, 1986 and signing off on August 27, 1986. This was the plaintiff's last voyage. Although it is unclear, Puthe alleges that some incident occurred while on board the Benecia that prompted him to seek psychiatric care.

 During 1986, he sustained bouts of fatigue and depression and sometime in late August, Puthe visited Dr. Schwartz, his personal physician. Dr. Schwartz prescribed an antidepressant medication known as Tofranil. According to the plaintiff, the medication had no beneficial effect. In or about late August or early September, 1986, Puthe sought further treatment for his condition, visiting Becky Rizzo, an Exxon employment assistance counselor. Rizzo referred the plaintiff to Dr. Marguerite G. Larsen. Puthe alleges that during this period he was so depressed and so lacking in self-esteem, he began playing russian roulette with loaded guns (Plt's Depo. p. 67). In this regard, he stated "I put my destiny or fate in the hands of Jesus Christ or God and I figured if it was time to go, it was time to go. When it wasn't time I thought it was even funnier. I thought it was funnier and I could do it again" (Plt's Depo. p. 68).

 On September 11, 1986 Puthe visited Dr. Larson. In the course of that visit Puthe intimated that he had difficulty breathing and sleeping, suffered weight loss and had experienced other ailments similar to those suffered in 1981 while aboard the Exxon Philadelphia. He also told Dr. Larson he had entertained thoughts of suicide. She prescribed antidepressant medication and suggested continued treatment. Puthe did continue to visit Dr. Larson for treatment, who made a diagnosis of depression. After a session on September 18, 1987, Dr. Larson noted that Puthe "often relates feeling abused by others" (Plt's Ex. 3). At that time she confirmed that Puthe was suffering from depression, but attributed to it no cause.

 Puthe continued treatment with Dr. Larson through March 22, 1989. She noted that drug therapy was no longer required. Her final medical report and diagnosis indicated that Puthe suffered from dysthymia with his work as a stress factor (Plt's Ex. 1).

 On or about March 4, 1987 Puthe saw Dr. Roy Carmen, a gastro-intestinal specialist, in regard to his weight loss and rectal bleeding. In a letter dated March 4, 1987 addressed to Dr. Larson, Dr. Carmen noted that Puthe expressed that he was depressed and anxious about his life style and job in the Merchant Marine. Puthe said he feared the potential long term effects of being exposed to noxious cargos while at sea. Dr. Carmen diagnosed his illness as a probable spastic bowel and hemorrhoid ...


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