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October 18, 1995


The opinion of the court was delivered by: CHIN



 Plaintiff Thomas Gabourel, chief engineer on the tugboat Morton S. Bouchard, Jr. (the "Tugboat"), brings this Jones Act action against Bouchard Transportation Co. ("Bouchard"), the owner of the Tugboat, and Caddell Dry Dock and Repair Co. ("Caddell"), a repair company. *fn1" Defendant Bouchard seeks to amend its answer to include a counterclaim against the plaintiff for damages incurred to the Tugboat during the explosion that injured plaintiff. For the reasons set forth below, Bouchard's motion is granted.


 Plaintiff was injured on July 2, 1992 when the starboard engine of the Tugboat exploded. In addition to injuring plaintiff, the explosion caused extensive damage to the Tugboat. An investigation into the cause of the explosion revealed that a rag was left in the exploding engine's lubricating oil system. Earlier that day, employees of Caddell had removed and repaired a lube oil pipe in the lubricating oil system.

 Four men were present during the repairs: the plaintiff, the Tugboat's assistant engineer, and two Caddell employees. In sworn deposition testimony, all four men denied leaving the rag in the engine. Thus, it remains a mystery as to who is ultimately to blame for the explosion.


 Under Rule 13(f) of the Federal Rules of Civil Procedure, a court may allow a party to amend its pleading to assert a counterclaim if the pleader failed originally to assert the counterclaim "through oversight, inadvertence, or excusable neglect, or when justice so requires." Fed. R. Civ. P. 13(f). Courts must read Fed. R. Civ. P. 13(f) together with Fed. R. Civ. P. 15(a), which provides that leave to amend a pleading "shall be freely given when justice so requires." Bigda v. Fischbach Corp., 849 F. Supp. 895, 906 (S.D.N.Y. 1994); Bank of New York v. Sasson, 786 F. Supp. 349, 352 (S.D.N.Y. 1992). In assessing a motion to add a counterclaim, a court should consider the following factors: (1) whether the counterclaim is compulsory; (2) whether the pleader has acted in good faith and has not unduly delayed filing the counterclaim; (3) whether undue prejudice would result to plaintiff; and (4) whether the counterclaim raises meritorious claims. Bigda, 849 F. Supp. at 906; Northwestern Nat'l Ins. Co. v. Alberts, 717 F. Supp. 148, 153 (S.D.N.Y. 1989). Here, there is no question that the proposed counterclaim is compulsory, as Bouchard's claim arises from the same transaction or occurrence, the explosion, as plaintiff's claim. Fed. R. Civ. P. 13(a). I will address the other factors in reverse order.

 A. Merit of the Proposed Counterclaim

 In considering whether a proposed counterclaim is meritorious, the court should apply standards applicable under Fed. R. Civ. P. 12(b)(6). Thus, if the claim would be subject to dismissal under Rule 12(b)(6), the court should refuse to grant leave to amend. Sasson, 786 F. Supp. at 353; Alberts, 717 F. Supp. at 153. The proposed counterclaim should be construed in the light most favorable to the moving party, see Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974), and leave to add the counterclaim should be denied if the moving party can prove no set of facts supporting the proposed claim that would entitle him to relief. Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985).

 Evaluating the proposed counterclaim requires a review of the history of the Jones Act. The Jones Act was enacted in 1920 to create a negligence cause of action for ship personnel against their employers. California Home Brands, Inc. v. Ferreira, 871 F.2d 830, 833 (9th Cir. 1989). In passing the Jones Act, Congress extended to ship workers the rights granted to railroad employees by the Federal Employers Liability Act ("FELA"). Cox v. Roth, 348 U.S. 207, 99 L. Ed. 260, 75 S. Ct. 242 (1955). As such, interpretations of FELA are instructive in determining whether causes of action exist under the Jones Act.

 The majority of courts to address the issue have concluded that FELA did not abrogate an employer's common law right to sue its employees for property damage. *fn2" See, e.g., Sprague v. Boston and Maine Corp., 769 F.2d 26, 28-29 (1st Cir. 1985); Cavanaugh v. Western Maryland Ry., 729 F.2d 289, 291 (4th Cir.), cert. denied, 469 U.S. 872, 83 L. Ed. 2d 151, 105 S. Ct. 222 (1984). In Cavanaugh, the court first noted that "there is a well accepted common law principle that a master or employer has a right of action against his employee for property damages . . . 'arising out of ordinary acts of negligence committed within the scope of [the employee's] employment' . . . ." 729 F.2d at 290-91 (citing Stack v. Chicago, M., St. P. & P.R.R., 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 ...

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