Robinson, Dave v. Alter Barge Line ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1647
DAVE ROBINSON,
Plaintiff-Appellant,
v.
ALTER BARGE LINE, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05-665—David R. Herndon, Chief Judge.
____________
ARGUED DECEMBER 7, 2007—DECIDED JANUARY 16, 2008
____________
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The plaintiff was a deckhand on
a barge owned by the defendant, a company that pro-
vides shipping by barge in inland waterways, mainly the
Mississippi River. See “Alter Barge Line, Inc.—History,”
www.alterbarge.com/history.html (visited Dec. 7, 2007).
On three occasions he complained to management that
crew members were using illegal drugs while on duty.
Shortly after the third report he was fired and brought
this suit for retaliatory discharge. The district judge
granted summary judgment for the defendant.
2 No. 07-1647
The plaintiff advances four separate grounds for relief,
two under Illinois law (conceded to govern any nonfed-
eral issues in the case) and two under admiralty law
(which of course is federal). One ground is section 20 of the
Illinois Whistleblower Act, 740 ILCS 174/20, which for-
bids an employer to “retaliate against an employee for
refusing to participate in an activity that would result in a
violation of a State or federal law, rule, or regulation.”
Using illegal drugs would be such an “activity,” but there
is no evidence that the plaintiff refused to engage in it. The
district judge thought “activity” could be stretched to
include working with drug users or on boats on which
drugs were being used, but the stretch is implausible,
because neither would be an illegal activity. Nor did the
plaintiff refuse to work because of the presence of drugs
or drug users, or indeed for any other reason. And, criti-
cally, there is no indication that he refused to use drugs
himself. That is not to say that he did use them; there is
no indication of that either. The point is that he did not
refuse to use them—as far as appears, he was never
invited to use them. Anyway there is no indication that
the defendant fired him because he refused to use drugs.
(That would be bizarre conduct—firing an employee for
refusing to use illegal drugs on the job.) And so he has no
claim under the statute, as the district judge correctly
concluded.
The judge held in the alternative that the Whistle-
blower Act is preempted, so far as its application to seamen
is concerned, by the federal statute that we discuss next.
We need not consider that alternative ground. But in
passing it by we do not mean to approve (or for that mat-
ter disapprove) the district judge’s analysis.
After the Fifth Circuit in Donovan v. Texaco, Inc., 720 F.2d
825 (5th Cir. 1983), held that there is no tort of retaliatory
No. 07-1647 3
discharge under admiralty law, Congress passed the
Seaman’s Protection Act, 46 U.S.C. § 2114. So far as bears
on this case, the Act forbids discharging or otherwise
discriminating against a seaman because he “in good
faith has reported or is about to report to the Coast Guard
or other appropriate Federal agency or department that
[he] believes that a violation of a maritime safety law or
regulation prescribed under that law or regulation has
occurred.” § 2114(a)(1)(A); see Gaffney v. Riverboat Services
of Indiana, Inc., 451 F.3d 424, 452-53 (7th Cir. 2006). The
plaintiff did not report the use of illegal drugs (a use that
we can assume violated “a maritime safety law or reg-
ulation prescribed under that law,” though neither
party bothers to say so) to the Coast Guard (conceded to
be the appropriate agency to report such a violation to,
though there is no indication that the plaintiff complained
to any agency, federal or for that matter state) until after
he was fired. Nor did he tell anyone before he was fired
that he was planning to complain to a federal agency. The
defendant could not have fired him because he was about
to report the use of illegal drugs to the Coast Guard if
it didn’t know he had any intention of doing so. And as
far as the record shows, it didn’t.
We have now disposed of one of the plaintiff’s state
claims and one of his federal claims. His other state
claim is under Illinois’s common law tort of retaliatory
discharge. Generally an employee who does not have an
employment contract can be fired at the will of the em-
ployer, but the Illinois courts, like those of most states,
Deborah A. Ballam, “Employment-at-Will: The Impending
Death of a Doctrine,” 37 Am. Bus. L.J. 653, 664-66 (2000);
see Chism v. Mid-South Milling Co., 762 S.W.2d 552, 555-56
(Tenn. 1988), have created an exception for cases in which
4 No. 07-1647
the employee is fired because he reported dangerous or
illegal activities at work. Metzger v. DaRosa, 805 N.E.2d
1165 (Ill. 2004); Jacobson v. Knepper & Moga, P.C., 706 N.E.2d
491, 493 (Ill. 1998); Palmateer v. International Harvester Co.,
421 N.E.2d 876, 878-80 (Ill. 1981); Bourbon v. Kmart Corp.,
223 F.3d 469, 472 (7th Cir. 2000) (Illinois law). That is a
precise description of what happened to the plaintiff, if
the allegations of his complaint are true. But the defend-
ant persuaded the district court that the plaintiff’s com-
mon law claim is preempted both by the federal statute
that we have just been discussing and by admiralty
law—the body of legal doctrines, most judge-made, that
govern the legal rights and duties of the users of navigable
waterways.
The argument for preemption by the statute is unper-
suasive. Remember that the statute was enacted in re-
sponse to the Donovan decision. Donovan had been dis-
charged because he complained to the Coast Guard. All
the statute did, besides abrogating the rule adopted in
Donovan, was to add “about to report” to “report” (a
subsequent amendment extended protection for report-
ing to other agencies as well, besides the Coast Guard)
and to entitle the seaman to refuse (without fear of retalia-
tion) to perform duties that he reasonably believed
would inflict a serious injury on him or on others. 46
U.S.C. § 2114(a)(1)(B). These narrow provisions do not
suggest an intention by Congress to occupy the entire
field of retaliatory discharge of seamen; nor is there any
other indication of such a purpose. It would be paradox-
ical if, to repair the damage that it believed had been
caused by Donovan, Congress killed the application of all
state statutory and common law doctrines of retaliatory
discharge to seamen—yet that is the defendant’s argument.
No. 07-1647 5
Of course it is possible that shipping interests persuaded
Congress in effect to trade Donovan for a broad immunity
from state law: seamen would have a limited federal right
to sue in respect of retaliatory discharge but in exchange
would give up all such rights under state law. The im-
portance of interest groups in the legislative process
must not be gainsaid, and courts must be cautious not to
upset legislative compromises. But nothing in the history
of the Seaman’s Protection Act or in any other source of
knowledge to which we have been directed suggests the
swap that we have conjectured. The Senate Report de-
scribes the retaliation provision of the Act as merely a
response to Donovan. S. Rep. No. 454, 98th Cong., 2d Sess.
12 (1984).
The defendant has a somewhat stronger argument that
admiralty law as a whole, which includes statutes such as
the Seaman’s Protection Act and the Jones Act but also
judge-made doctrines, such as maintenance and cure,
and divided damages in collision cases, preempts state
remedies for retaliatory discharge. The Fourth Circuit
has so held, Meaige v. Hartley Marine Corp., 925 F.2d 700,
702-03 (4th Cir. 1991). Other courts disagree. Zbylut v.
Harvey’s Iowa Mgmt. Co., 361 F.3d 1094, 1095-96 (8th Cir.
2004); Clements v. Gamblers Supply Mgmt. Co., 610 N.W.2d
847, 848-50 (Iowa 2000); Baiton v. Carnival Cruise Lines,
Inc., 661 So. 2d 313, 314-15 (Fla. App. 1995). We have not
spoken to the issue.
The “savings to suitors” provision of 28 U.S.C. § 1333(1)
(conferring on the federal courts original jurisdiction,
exclusive of the state courts, over “any civil case of admi-
ralty or maritime jurisdiction, saving to suitors in all cases
all other remedies to which they are otherwise entitled”)
precludes automatic preemption of state remedies by
6 No. 07-1647
admiralty law, Yamaha Motor Corp., U.S.A. v. Calhoun, 516
U.S. 199, 206 (1996); Askew v. American Waterways Operators,
Inc., 411 U.S. 325, 337-44 (1973)—the kind of preemption
one finds in the labor field. Compare Belknap, Inc. v.
Hale, 463 U.S. 491, 499 (1983). As Justice Frankfurter
pointed out in Romero v. International Terminal Operating
Co., 358 U.S. 354, 373-74 (1959), “State-created liens are
enforced in admiralty. State remedies for wrongful death
and state statutes providing for the survival of actions, both
historically absent from the relief offered by the admiralty,
have been upheld when applied to maritime causes of
action. Federal courts have enforced these statutes. State
rules for the partition and sale of ships, state laws govern-
ing the specific performance of arbitration agreements,
state laws regulating the effect of a breach of warranty
under contracts of maritime insurance—all these laws and
others have been accepted as rules of decision in admiralty
cases, even, at times, when they conflicted with a rule of
maritime law which did not require uniformity.” All that
is preempted are provisions of state law that would, if
applicable to maritime disputes, undermine admiralty law.
And thus a “State may modify or supplement the mari-
time law by creating liability which a court of admiralty
will recognize and enforce when the state action is not
hostile to the characteristic features of the maritime law or
inconsistent with federal legislation,” Just v. Chambers,
312 U.S. 668, 691 (1941) (emphasis added), or in other
words when there is no “clear conflict” with admiralty
law. Ellenwood v. Exxon Shipping Co., 984 F.2d 1270, 1278
(1st Cir. 1993). Such conflicts are illustrated by cases,
summarized in Yamaha Motor Corp., U.S.A. v. Calhoun,
supra, 516 U.S. at 210, which hold that the “federal mari-
time rule validating oral contracts precluded application
No. 07-1647 7
of state Statute of Frauds[,] . . . admiralty’s comparative
negligence rule barred application of state contributory
negligence rule[,] . . . [and] federal maritime rule allocating
burden of proof displaced conflicting state rule.” See
also Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263, 278-80
(2d Cir. 2002); Green v. Vermilion Corp., 144 F.3d 332, 338-
41 (5th Cir. 1998); Sosebee v. Rath, 893 F.2d 54 (3d Cir.
1989); J. Ray McDermott & Co. v. Vessel Morning Star, 457
F.2d 815, 818-19 (5th Cir. 1972).
The court in Donovan thought that allowing a seaman
to sue for retaliatory discharge would upset what it
described as the delicate balance between the authority
of the captain of a ship over his crew and the interest of
the seamen. The court emphasized the scary history of
mutiny at sea, 720 F.2d 828, which dramatized, the court
thought, the danger of allowing authority to be divided
between captain and crew. We have no wish to en-
courage mutinies on Mississippi barges, but we think that
accidents due to drunken and cocaine-snorting seamen
pose rather a greater risk to maritime safety in U.S. waters
in the twenty-first century; and it is a risk that tort liability
for firing a seaman who reports such carryings-on to his
captain or to the management of the barge company is
likely to reduce. Congress could not have been much
impressed by the concerns of the judges in the Donovan
case, for the Seaman’s Protection Act erodes the dictatorial
power of the captain over his crew.
What is true is that interstate barge companies would
prefer to have a uniform rule rather than have to comply
with the tort laws of each of the states through which
their barges pass. But if the desire for a uniform rule
were enough to preempt the application of state law to
maritime activities, the “savings to suitors” provision
8 No. 07-1647
would be empty and the legion of state laws that have
been held not preempted by maritime law (which include,
besides the earlier examples we gave, forum non
conveniens law, American Dredging Co. v. Miller, 510 U.S.
443, 446-56 (1994), water-pollution laws, Askew v. American
Waterways Operators, Inc., supra; Ballard Shipping Co. v. Beach
Shellfish, 32 F.3d 623, 625-31 (1st Cir. 1994), and
antidiscrimination laws, Ellenwood v. Exxon Shipping
Co., 984 F.2d 1270, 1278-81 (1st Cir. 1993)) would be
inexplicable.
Nevertheless, when the state interest in regulating
some aspect of maritime activity is very weak, the inter-
est in uniformity might well override it and thus justify
preempting state law. See generally Ballard Shipping Co. v.
Beach Shellfish, supra, 32 F.3d at 628-29; Brockington v.
Certified Electric, Inc., 903 F.2d 1523, 1529-33 (11th Cir. 1990).
But safety is an important state interest. Collisions between
barges or between barges and bridges or other structures
can be immensely destructive. A collision between a barge
and a railroad bridge in Alabama in 1993 killed 47 people.
Michael A. Knott, “Vessel Collision Design Codes and
Experience in the United States,” in Ship Collision Analysis
75 (Henrik Gluver & Dan Olsen eds. 1998). Another barge-
bridge collision, in Oklahoma in 2002, killed 14. National
Transportation Safety Board, Ramming of the Eads Bridge by
Barges in Tow of the M/V Anne Holly With Subsequent
Ramming and Near Breakaway of the President Casino on the
Admiral, St. Louis Harbor, Missouri, April 4, 1998 (Marine
Accident Report NTSB/MAR-00/01, Washington, D.C.,
www.ntsb.gov/publictn/2000/ MAR0001.pdf (visited Dec.
27, 2007). See also Sonya Colberg, “I-40 Bridge Collapse
Third Worst in Nation,” NewsOk.com, June 1, 2002,
http://newsok.com/article/ 868772/1147960676 (visited
No. 07-1647 9
Dec. 25, 2007); Sipke E. van Manen & Aksel G. Frandsen,
“Ship Collision With Bridges, Review of Accidents,” in Ship
Collision Analysis, supra, at 8.
A state’s interest in maritime safety would not cut
much ice were the state trying to impose a tort principle
that was contrary to established admiralty law, as by
trying to substitute contributory or comparative negli-
gence for the admiralty rule of divided damages in colli-
sion cases. But liability for retaliating for an employee’s
complaints about safety is unlikely to interfere with safety-
related rules of admiralty law unless one takes seriously
the musings in the Donovan opinion on mutiny, which
we do not do and probably were not intended to do. So
limited is the scope of the Seaman’s Protection Act that
unless state law is applicable few seamen will have a
remedy for retaliatory discharge, cf. Gerosa v. Savasta & Co.,
329 F.3d 317, 328-30 (2d Cir. 2003), and the result will
be to undermine maritime safety, with only a slight
offsetting gain in reducing the burden on boat owners
of having to familiarize themselves with liability for
retaliatory discharge in the states that their vessels
traverse. Subjecting them to such liability does not seem
“unduly burdensome on maritime activities.” Huron
Portland Cement Co. v. Detroit, 362 U.S. 440, 443 (1960).
At the oral argument of the appeal, the defendant’s
lawyer conceded that a state law that imposed liability
for discharging an employee because he had complained
about racial or sexual discrimination could be invoked by
a seaman; admiralty law, as held in Ellenwood v. Exxon
Shipping Co., supra, would not preempt the state law. The
safety of the giant barges that ply the Mississippi River
has an importance to society that is comparable to en-
couraging complaints about racial discrimination. The
10 No. 07-1647
average barge carries a load of 1500 tons (some, especially
on the lower Mississippi, carry twice that load), and the
average tow consists of 15 barges, for a total of 22,500 tons.
Coosa-Alabama River Improvement Association, Inc.,
“Barges and Tugboats,” www.caria.org/barges_tugboats.
html (visited Dec. 7, 2007). The potential damage from
such a parade of motorized hippopotamuses is enor-
mous, and employees should be encouraged to voice
their concerns about safety. This is not to suggest that
everyone who files a suit alleging retaliatory discharge
actually is a victim of retaliation. Many such suits are
based on misunderstandings (the plaintiff can’t believe
there was a good reason for his having been sacked, so
he imputes a bad one to the employer), and some are
strategic. One effect of allowing such suits will be to raise
the cost of discharging bad seamen—which might reduce
maritime safety. But when evaluating a claim of conflict
preemption, we assume that state law does more good
than harm.
The plaintiff’s other federal claim is that the defendant
committed a judge-made admiralty tort by firing him for
raising safety concerns. There is some case support for
the existence of such a tort, Clements v. Gamblers Supply
Management Co., supra, 610 N.W.2d at 850; Borden v. Amoco
Coastwise Trading Co., 985 F. Supp. 692, 696-99 (S.D. Tex.
1997); Seymore v. Lake Tahoe Cruises, Inc., 888 F. Supp. 1029,
1034-35 (E.D. Cal. 1995), and some opposition. Meaige v.
Hartley Marine Corp., supra, 925 F.2d at 702; Garrie v. James
L. Gray, Inc., 912 F.2d 808, 813 (5th Cir. 1990); Feemster v. BJ-
Titan Services Co./Titan Services, Inc., 873 F.2d 91, 93-94 (5th
Cir. 1989). If we held that there is such a tort and that it
preempts state law, this would greatly weaken the defen-
dant’s argument for uniformity, though not destroy it
completely unless and until the Supreme Court con-
No. 07-1647 11
firmed the tort (and its preemptive effect) and thus made
the law uniform across the federal circuits. Such a tort (if
indeed it preempted state retaliatory discharge law)
would not be entirely to the liking of plaintiffs because
there is no jury in admiralty unless Congress creates a
right to a jury, as it has done in the Seaman’s Protection
Act and the Jones Act.
Nevertheless, on balance a uniform, preemptive admi-
ralty remedy would appear to make good sense. We
hesitate to declare it in the present case, however, because
the plaintiff forfeited the claim in the district court. We
can relieve an appellant from a forfeiture when a pure issue
of law is involved, e.g., Humphries v. CBOCS West, Inc., 474
F.3d 387, 391-92 (7th Cir. 2007); Twisdale v. Snow, 325 F.3d
950, 952 (7th Cir. 2003); Amcast Industrial Corp. v. Detrex
Corp., 2 F.3d 746, 749-50 (7th Cir. 1993), because our review
of the district court’s resolution of such an issue is plenary,
and therefore bypassing that court has limited significance
for the parties and for the formulation of legal doctrine. But
we won’t do so in this case because the plaintiff’s argument
in this court for the federal rule is perfunctory, occupying
only a page in his main brief. Cf. Singleton v. Wulff, 428 U.S.
106, 121 (1976).
To summarize, we reject all but the plaintiff’s state
common law claim. If that claim were in federal court only
by virtue of the supplemental jurisdiction, the district
court would have discretion to relinquish jurisdiction
over it because the federal claims have fallen out before
trial. 28 U.S.C. § 1367. But as the parties are of diverse
citizenship, that disposition is barred.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
12 No. 07-1647
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-16-08