94 Wash. 2d 155, 615 P.2d 457, 459 (Wash. 1980)). The court then reviewed both the statutory language and legislative history. It found no evidence that "Congress intended the illogical result of proscribing the filing of a counterclaim by the railroads in an FELA case to recover for property damages sustained by reason of the sole negligence of the plaintiff-employee . . . ." 729 F.2d at 294; see also Sprague, 769 F.2d at 28-29.
Plaintiff relies on Ferreira to argue that the holdings in Cavanaugh and Sprague do not apply in the Jones Act context. Contrary to plaintiff's suggestion, however, Ferreira does not address the issue before me. In Ferreira, the court held that a shipowner may not assert an indemnity claim against a seaman. Its primary rationale in reaching this conclusion was that, because an injured seaman does not have a cause of action against a fellow negligent employee, it would be illogical to allow a shipowner, standing in the injured seaman's shoes, to recover from the negligent employee. 871 F.2d at 833.
In contrast, Bouchard is not asserting an indemnity claim against plaintiff but a negligence claim. As discussed above, such direct claims against allegedly negligent employees for property damage are permissible in FELA actions. Sprague, 769 F.2d at 29; Cavanaugh, 729 F.2d at 294. To the extent that policy considerations addressed in Ferreira would bar such a claim by distinguishing admiralty cases from railroad cases, I do not accept them. In determining whether a seaman has exercised due care, a court certainly can take into account the difficult conditions under which the seaman works. That seamen work under difficult conditions is not reason to provide them with absolute immunity from negligence suits. See Sprague, 769 F.2d at 29. Accordingly, I hold that a shipowner may assert a negligence cause of action against an employee.
B. Prejudice to Plaintiff
Plaintiff claims that Bouchard has no factual support for its proposed counterclaim and that in fact the counterclaim is based on sheer speculation. Plaintiff's allegation is overstated. Although Bouchard cannot state with certainty that plaintiff's negligence caused the damage to the Tugboat, this is not required. See Caisse Nationale de Credit Agricole-CNCA v. Valcorp, Inc., 28 F.3d 259, 264 (2d Cir. 1994) (pleading is frivolous only if it is clear that there is no chance for success). Bouchard has learned through discovery that plaintiff is one of only four people who could have caused the explosion. Plaintiff was present and participated in the repair work during which the rag was left in the lubricating oil system of the starboard engine. A jury will have to weigh the credibility of each witness and to determine who in fact is responsible for the explosion. Furthermore, Bouchard pleaded the defense of comparative negligence in its answer. Thus, plaintiff was on notice that he was alleged to be at least partly responsible for the explosion. Accordingly, Bouchard's counterclaim has sufficient factual support and will not result in undue prejudice to plaintiff.
C. Undue Delay
Plaintiff's final argument is that Bouchard unduly delayed in seeking leave to add this counterclaim, and that this delay warrants denial of Bouchard's motion. It is true that Bouchard's excuses for its delay in moving to add a counterclaim are less than compelling. Still, the lawsuit is only one and a one-half years old and the amended pleading will not substantially delay the suit, as it involves the same transaction or occurrence at issue in the claims already presented. Moreover, it appears that Bouchard did not know the extent of plaintiff's involvement in the repair work that ultimately caused the damage to the tug until depositions were taken. Accordingly, Bouchard's delay does not warrant denial of its motion to add a counterclaim.
For the reasons set forth above, Bouchard's motion to amend its answer to add a counterclaim is granted. An amended answer is to be filed within 14 days hereof.
Dated: New York, New York
October 18, 1995
United States District Judge