Jones Act Cases - Seaman Cases, Decisions & Opinions
Law Office of William H. Lawson
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Jones Act - Table of Contents
The Jones Act - Cases, Decisions and Opinions
I. IN GENERAL - B. Relationship to Other Available Remedies - 2. Remedies Provided by Federal Statute
14. Federal Employees' Compensation Act
(5 USCS section 8101 et seq.)
Federal Employees' Compensation
Act (5 USCS section 8101 et seq.) is not exclusive remedy of
civilian crew member injured through negligence of operators
of merchant, as distinguished from public vessel wholly
owned by United States, but he may maintain action under 46
USCS Appx section 688. Inland Waterways Corp. v Doyle (1953, CA8
Mo) 204 F2d 874, 1953 AMC 2148.
Contention that Federal Employees Compensation
Act (FECA) does not provide exclusive remedy for seamen
employed by TVA is without merit, since express language of
FECA demonstrates Congressional intent that remedies
provided thereunder were exclusive of all other liability of
United States or instrumentality, even in regard to those
individuals employed by federal agencies empowered under
terms of their enabling legislation to sue and be sued.
Turner ex rel. Turner v Tennessee Valley Authority, Owner of
The Lucy E. (1988, CA6 Tenn) 859 F2d
412.
Wrongful death suit by
widow of deckhand employed by Tennessee Valley Authority was
barred by exclusivity provision of Federal Employees
Compensation Act, 5 USCS section 8116. Hutchins by Hutchins v TVA
(1996, CA11 Ala) 98 F3d 602, 10 FLW Fed C
518.
Federal Employees
Compensation Act (5 USCS section 8101 et seq.) did not afford
the sole and exclusive remedy to plaintiff against his
employer the defendant, Panama Canal Company, for injuries
sustained in course of his employment as member of crew of
vessel owned and operated by it, and defendant was subject
to suit under Jones Act -this section-. Cordero v Panama
Canal Co. (1959, DC NY) 170 F Supp 234.
Exclusive remedy for death or injury of crew
members employed on vessel by wholly-owned governmental
agency, Inland Waterways Corporation, was under Federal
Employees' Compensation Act (5 USCS section 8101 et seq.).
Petition of United States by Inland Waterways Corp. (1962,
ED La) 212 F Supp 214, affd (CA5 La) 342 F2d 799, cert den
382 US 831, 15 L Ed 2d 75, 86 S Ct 70.
Civil service seaman's action against U.S. for
injuries suffered while serving on Navy vessel is precluded
under 46 USCS Appx section 688, because his exclusive remedy is
under Federal Employees' Compensation Act (5 USCS section
8102(a)), notwithstanding allegation that he was told he was
not entitled to benefits under Act. White v Marine Transport
Lines, Inc. (1989, ED Tex) 711 F Supp
335.
Jones Act (46 Appx.
USCS section 688) claim by estate of federally employed seaman,
killed in boating accident, against government is barred
under 5 USCS section 8116(c); exclusive remedy is under Federal
Employees Compensation Act (5 USCS section 8101 et seq.). Turner
v Tennessee Valley Authority (1986, MD Tenn) 651 F Supp
233.
15. Longshore and Harbor Worker's Compensation Act (33
USCS section 901 et seq.)Longshore and
Harbor Workers' Compensation Act (33 USCS section 901 et seq.)
superseded 46 USCS Appx section 688 in its application to
longshoremen, but applies only where injury occurs upon
navigable waters of United States, which means states,
territories and District of Columbia, but not Canal Zone.
Panama Agencies Co. v Franco (1940, CA5 Canal Zone) 111 F2d
263, 1940 AMC 1456.
Machinist who repaired equipment on board car
ferry primarily while ferries were sailing between ports was
not limited to remedies available under Longshore and Harbor
Workers' Compensation Act (33 USCS section 901 et seq.) and was
permitted recovery under Jones Act. Petersen v Chesapeake
& O. R. Co. (1986, CA6 Mich) 784 F2d
732.
Wire line operator who
was not permanently assigned to specific drilling platform
but spent 30 percent of his time on oil production vessels,
and was injured while off loading tool box, and who received
compensation under LHWA was in fact covered by LHWA and
therefore not eligible to sue employer under Jones Act.
Fontenot v AWI, Inc. (1991, CA5 La) 923 F2d
1127.
Jones Act and
Longshore and Harbor Worker's Act are mutually exclusive;
workers cannot be both seamen and longshoremen, and employee
whose occupation is expressly enumerated in LHWA will not be
considered seaman. Easley v Southern Shipbuilding Corp.
(1991, CA5 La) 936 F2d 839.
Cases decided under Jones Act with respect to
presumption against extraterritoriality do not require
exemption of Longshore and Harbor Workers Compensation Act
from such presumption. Kollias v D & G Marine
Maintenance (1994, CA2) 29 F3d 67.
Although double recovery of any damage element
under Long Shore Harbor Workers Compensation Act, 33 USCS section
902, and Jones Act is prohibited, and although acts are
"mutually exclusive", some maritime workers may be Jones Act
seamen who are injured while also performing job
specifically enumerated under LHWCA and are therefore
entitled to recovery under both statutes. Figueroa v
Campbell Indus. (1995, CA9 Cal) 45 F3d 311, 95 CDOS 352, 95
Daily Journal DAR 619, 1995 AMC 793, companion case,
remanded (1995, CA9 Cal) 1995 US App LEXIS
765.
Right of crew member
of vessel to proceed under 46 USCS Appx section 688 and general
maritime law is basic right which should not be withheld
from employee because of relief afforded by Longshore and
Harbor Workers' Act (33 USCS section 901 et seq.) Boyles v
Humble Oil & Refining Co. (1962, ED La) 209 F Supp
857.
Longshoreman who was
in employ of defendant corporation which operated and
controlled steamship in hold of which longshoreman was
injured, and who had received benefits under Longshore and
Harbor Workers' Act (33 USCS section 901 et seq.) had no cause
of action under 46 USCS Appx section 688. Aycock v Lykes bros.
S.S. Co. (1964, SD Tex) 236 F Supp 360, 1964 AMC
1883.
Injured employee has
5 days in which to file second amended complaint under
Longshore and Harbor Workers' Compensation Act (LHWCA) (33
USCS section 901 et seq.) against barge owner/employer, where
plaintiff was injured while attempting to couple railway
cars on barge moored at defendant's boatyard on American
side of Detroit River, because plaintiff was injured while
performing as "conductor" upon actual navigational waters of
United States, making LHWCA provide exclusive remedy so that
claims under general admiralty and maritime law, Jones Act
(46 USCS Appx section 688), Safety Appliance Act (45 USCS section 1 et
seq.), and Federal Employer's Liability Act (45 USCS section 51
et seq.) are dismissed. Le Blanc v Norfolk & W. R. Co.
(1986, ED Mich) 673 F Supp 208.
Worker's action for injuries under Jones Act
(46 USCS section 688) is dismissed where worker was engaged in
loading vessel at time of injury, since such activity is
traditional duty of longshoreman, and worker who is engaged
in occupation specifically included in Longshore and Harbor
Worker's Compensation Act (33 USCS section 901 et seq.) is
ineligible for Jones Act benefits. Thibodeaux v Torch, Inc
(1987, WD La) 674 F Supp 1240.
If employer fails to secure payment of
compensation, employee has at his election all rights of
action that he would have had if Longshore and Harbor
Workers' Compensation Act (33 USCS section 901 et seq.) had not
been passed, including right to bring under 46 USCS Appx section
688 action for damages at law. Thorneal v Cape Pond Ice Co.
(1947) 321 Mass 528, 74 NE2d 5.
16. --Status of plaintiffIf
oiler who was injured while working aboard defendant's
vessel was seaman under 46 USCS Appx section 688 and member of
crew under Longshore Act (33 USCS section 901 et seq.), then he
was free to sue under 46 USCS Appx section 688; but if he was not
member of crew under Longshore Act, he must proceed under
that act and was not entitled to sue under 46 USCS Appx section
688. Carumbo v Cape Cod S.S. Co. (1941, CA1 Mass) 123 F2d
991, 1942 AMC 215 (disagreed with Offshore Co. v Robison
(CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson
v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert
den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with
Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d
1067))).
Finding of deputy
commissioner in proceeding under Longshore and
Harborworkers' Compensation Act (33 USCS section 901 et seq.)
that plaintiff was injured while performing service as
member of shore staff for employer and engaged in shifting
vessel from drydock, does constitute finding, for purposes
of seaman's separate action under 46 USCS Appx section 688, that
plaintiff was not member of crew. Hagens v United Fruit Co.
(1943, CA2 NY) 135 F2d 842.
Where injured person was engaged in occupation
expressly enumerated in LHWCA, such as loading and unloading
cargo, and other traditional long-shoring activities,
recovery under Jones Act is precluded. Campo v Electro-Coal
Transfer Corp. (1990, CA5 La) 955 F2d
10.
A "seaman" -dredge
deckhand- having elected to receive and accept benefits of
Longshore and Harbor Workers' Compensation Act -33 USCS section
901 et seq.-, was not thereby precluded from maintaining his
action under 46 USCS Appx section 688, where status of plaintiff
aboard vessel in navigable waters was in serious dispute.
Lawrence v Norfolk Dredging Co. (1961, ED Va) 194 F Supp
484, 1961 AMC 2034, affd (CA4 DC Va) 319 F2d 805, 1964 AMC
362, cert den 375 US 952, 11 L Ed 2d 313, 84 S Ct
443.
Claim made by
plaintiff under Longshore and Harbor Workers' Compensation
Act (33 USCS section 901 et seq.) for compensation benefits did
not deprive plaintiff of right to jury determination of his
seaman's status under 46 USCS Appx section 688. Oliver v Ocean
Drilling & Exploration Co. (1963, WD La) 222 F Supp 843,
1964 AMC 374.
Plaintiff is
not collaterally estopped from seeking to be determined
"seaman" within 46 USCS Appx section 688 because of prior
determination of ALJ that plaintiff was covered under 33
USCS section 901 et seq. Ramos v Universal Dredging Corp. (1982,
DC Hawaii) 547 F Supp 661.
Owners and operator of oil production platform
upon which employee was injured when platform collapsed in
wake of hurricane are entitled to summary judgment against
employee's Jones Act (46 USCS Appx section 688) claim, because (1)
oil platform built on land, towed to offshore location, and
not relocated in 26 years is not "vessel" and therefore
employee is not Jones Act "seaman," (2) since injuries
occurred on outer continental shelf, 43 USCS section 1333 calls
for application of Longshoremen's and Harbor Workers'
Compensation Act (LHWCA) (33 USCS section 905(a)) to employee's
claim, (3) charge that failure to evacuate platform in spite
of hurricane was willful and wanton misconduct did not make
employee's suit intentional tort claim outside scope of
LHWCA, and (4) owners and operators were joint venturers and
"joint employers" of plaintiff immune from liability under
LHWCA. Johnson v Odeco Oil & Gas Co. (1987, ED La) 679 F
Supp 604.
Person who signed
shipping articles as seaman, stevedore, and fisherman,
injured while engaged in unloading operations at port of
call, was entitled to recover under 46 USCS Appx section 688 as
seaman rather than under Longshore and Harbor Workers'
Compensation Act (33 USCS section 901 et seq.) as stevedore. De
Luca v Red Salmon Canning Co. (1934) 2 Cal App 2d 124, 37
P2d 704.
17. Federal Employers' Liability Act (45 USCS section 51 et
seq.)Amendment of 1939 to Federal
Employers' Liability Act (45 USCS section 51 et seq.) which
extended coverage to employees not directly engaged in
interstate commerce, did not extend meaning of word "seaman"
in 46 USCS Appx section 688. Desper v Starved Rock Ferry Co.
(1952) 342 US 187, 96 L Ed 205, 72 S Ct 216, 1952 AMC 12,
reh den 342 US 934, 96 L Ed 695, 72 S Ct
374.
46 USCS Appx section 688
extends to seamen same rights granted to railroad employees
by Federal Employers' Liability Act (45 USCS section 51 et
seq.); words of Federal Employers' Liability Act need not be
lifted bodily from their context and applied mechanically to
specific facts of maritime events, but rather those
contingencies against which Congress has provided to insure
recovery to railroad employees should also be met in
admiralty setting. Cox v Roth (1955) 348 US 207, 99 L Ed
260, 75 S Ct 242.
46 USCS
Appx section 688 creates federal right of action for wrongful
death of seaman based on statutory action under Federal
Employers' Liability Act (45 USCS section 51 et seq.). Kernan v
American Dredging Co. (1958) 355 US 426, 2 L ed 2d 382, 78 S
Ct 394.
46 USCS Appx section 688,
by expressly providing for seaman cause of action granted to
railroad workers by Federal Employers' Liability Act (45
USCS section 51 et seq.), provides for entire doctrine of
liability judicially developed under latter Act; 46 USCS
Appx section 688, by incorporation of Federal Employers' Liability
Act and decisions thereunder, permits recovery for death of
seaman resulting from violation of statutory duty, even in
absence of any showing of negligence. Kernan v American
Dredging Co. (1958) 355 US 426, 2 L Ed 2d 382, 78 S Ct
394.
46 USCS Appx section 688
effectively obliterates all distinctions between kinds of
negligence for which ship owner is liable to his employees,
as well as limitations imposed by fellow-servant doctrine,
by extending to seamen remedies made available to railroad
workers under Federal Employers' Liability Act (45 USCS section
51 et seq.). Mitchell v Trawler Racer, Inc. (1960) 362 US
539, 4 L Ed 2d 941, 80 S Ct 926 (superseded by statute as
stated in Jones & Laughlin Steel Corp. v Pfeifer, 462 US
523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d
570).
Jones Act (46 USCS
Appx section 688), which establishes uniform federal law that
state as well as federal courts must apply to determination
of employer liability to seamen and incorporates by
reference all statutes of United States modifying or
extending common-law right or remedy in cases of personal
injury to railway employees, adopts entire judicially
developed doctrine of liability under Federal Employers'
Liability Act (FELA) (45 USCS section 51 et seq.); in
particular, Jones Act adopts requirement of FELA that state
courts apply uniform federal law. American Dredging Co. v
Miller (1994, US) 127 L Ed 2d 285, 114 S Ct 981, 94 CDOS
1288, 93 Daily Journal DAR 2371, 1994 AMC 913, 7 FLW Fed S
754.
Eleventh Amendment
immunity protects New Jersey Transit Rail Operations from
claim asserted under Federal Employers' Liability Act (FELA)
(45 USCS section 51 et seq.), where recent Supreme Court
decision restricting abrogation of Eleventh Amendment
immunity to Jones Act (46 USCS section 688) cause of action is
equally applicable to FELA, because neither FELA nor state
enabling statutes indicate specific intent to waive immunity
of state-run railroad to suits in federal court, and this
result, compelled by Eleventh Amendment, does not violate
injured state railroad employee's equal protection rights.
Rockwell v New Jersey Transit Rail Operations, Inc. (1988,
DC NJ) 682 F Supp 280.
Intent of Congress in enacting 46 USCS Appx section
688 was to make applicable to seafaring occupation only such
features of Federal Employers' Liability Act (45 USCS section 51
et seq.) as were not already expressly covered by Wrongful
Death on the High Seas Act (46 USCS Appx section 701 et seq.).
Re Rademaker's Estate (1938) 166 Misc 201, 2 NYS2d 309, 1938
AMC 396.
46 USCS Appx section 688
confers upon seaman or his legal representative same right
of recovery for injury or death as is accorded to railway
employees under Federal Employers' Liability Act (45 USCS section
section 51 et seq.). Re Nelson (1938) 168 Misc 161, 5 NYS2d
398.
18. --Standards of liabilityStandard of liability under 46 USCS Appx section 688
is that established by Congress under Federal Employers'
Liability Act. Ferguson v Moore-McCormack Lines, Inc. (1957)
352 US 521, 1 L Ed 2d 511, 77 S Ct 457.
46 USCS Appx section 688 incorporates standards of
Federal Employers' Liability Act (45 USCS section 51), which
renders employer liable for injuries negligently inflicted
on its employees by its "officers, agents, or employees";
these standards include principles that 45 USCS section 51 is
avowed departure from rules of common law, and recognizing
cost of human injury as inescapable expense of railroading,
undertakes to adjust that expense equitably between worker
and carrier; and that when employee's injury is caused in
whole or in part by fault of others performing, under
contract, operational activities of employer, such others
are "agents" of employer within meaning of section 1 of Federal
Employers' Liability Act (45 USCS section 51). Hopson v Texaco,
Inc. (1966) 383 US 262, 15 L Ed 2d 740, 86 S Ct
765.
Standard of liability
under Jones Act is same as under Federal Employers'
Liability Act (45 USCS section 51 et seq.). Springborn v
American Commercial Barge Lines, Inc. (1985, CA5 La) 767 F2d
89 (disagreed with by multiple cases as stated in Nix v
Kansas City S. R. Co. (CA5 Tex) 776 F2d
510).
To extent that Jones
Act differs from FELA, difference is to be resolved in favor
of seaman; thus, seaman is not barred from suit under Jones
Act because he conceals material fact in applying for
employment. Reed v Iowa Marine & Repair Corp. (1992, ED
La) 143 FRD 648, later proceeding (ED La) 1992 US Dist LEXIS
12875, costs/fees proceeding (ED La) 1992 US Dist LEXIS
14461, adopted (ED La) 1993 US Dist LEXIS
1107.
Standard of liability
and test of negligence and causation are same for both 46
USCS Appx section 688 and Federal Employers' Liability Act (45
USCS section 51 et seq.). Catania v Halcyon S.S. Co. (1975, 2d
Dist) 44 Cal App 3d 348, 118 Cal Rptr
513.
19. --Use of precedent46 USCS
Appx section 688 makes 45 USCS section 51 et seq. rule of decision in
actions by employees in actions for injuries from marine
service to employers. Larson v Lewis-Simas-Jones Co. (1938)
29 Cal App 2d 83, 84 P2d 296, 1938 AMC
1505.
In adjudicating case
brought under 46 USCS Appx section 688 court may consider
decisions rendered under 45 USCS section 51 et seq. Greenhaw v
Pacific-Atlantic S.S. Co. (1950) 190 Or 182, 224 P2d
918.
46 USCS Appx section 688
incorporates 45 USCS section 51 et seq. and its decisional law,
and consequently makes all rights enjoyed by railroad
employees under Federal Employers' Liability Act available
to seamen. Rodriguez v B-R Dredging Co. (1977, Tex Civ App
Corpus Christi) 552 SW2d 601, revd on other grounds (Tex)
564 SW2d 693.
20. --Suits by survivorsSurviving parents of seamen drowned when
drilling vessel on which seamen were crew members capsized
cannot recover nonpecuniary damages under Jones Act for loss
of their sons' society where seamen were also survived by
spouses and children, since, under 45 USCS section 51, parents can
recover only when seaman is not survived by spouse or
children. Sistrunk v Circle Bar Drilling Co. (1985, CA5 La)
770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh
den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed
2d 318, 106 S Ct 1205.
Under FELA -45 USCS section 51 et seq.- schedule of
beneficiary for wrongful death or personal injury action
brought under Jones Act -46 USCS Appx section 688- is limited to
decedent's surviving widow or husband, children, parents,
and next of kin dependent upon decedent. Glod v American
President Lines, Ltd. (1982, ND Cal) 547 F Supp
183.
21. Oceanographic Research Vessels Act (46 USCS Appx section
441 et seq.)Although under
exclusionary language of 46 USCS Appx section 444 scientific
personnel on oceanographic research vessel may not bring
suit under Jones Act (46 USCS Appx section 688), they are not
excluded from remedies available under general maritime law;
however, individual who fell overboard while assisting
fellow employee in repair of survey equipment on vessel
chartered for seismic oil exploration was not seaman and not
entitled to benefit of doctrine of seaworthiness, where
individual was exclusively employee of company which
chartered vessel, performed no duties in aid of vessel's
navigation, and performed only scientific duties on behalf
of employer. Craig v M/V Peacock (1985, CA9 Cal) 760 F2d
953.
Oceanographic Research
Vessels Act (46 USCS Appx section 441 et seq.) does not remove
scientific personnel from seaman's status under 46 USCS Appx
section 688. Sennett v Shell Oil Co. (1971, ED La) 325 F Supp
1.
Scientific personnel on
board oceanographic research vessels, if otherwise entitled
to assert seamen status under Jones Act -46 USCS Appx section 688-
and general maritime law, are not prevented from doing so by
46 USCS Appx section 441 et seq., but are entitled to same
remedies available to all whose duties contribute to
operation and welfare of vessel. Presley v Carribean Seal
(1982, SD Tex) 537 F Supp 956, 10 Fed Rules Evid Serv
1064.
University research
lab employee may not recover under Jones Act, 46 USCS Appx section
688, where employee was member of scientific research team
aboard research vessel engaged in underwater acoustical
research, and was injured when knocked down by wave, because
Oceanographic Research Vessel Act, 46 USCS Appx section 441-444,
precludes scientific personnel from recovering under Jones
Act for injuries suffered at sea, and specifically excludes
scientific personnel on oceanographic research vessels from
definition of "seaman" under Jones Act, 46 USCS Appx section 444.
Mitola v Johns Hopkins Univ. Applied Physics Lab. (1993, DC
Md) 839 F Supp 351.
22. Suits in Admiralty Act (46 USCS Appx section 741 et
seq.)Even though effect of general
service agreement under which steamship company operated
vessel for United States Maritime Commission was to make
seaman employee of United States, this did not necessarily
remit him exclusively to Suits in Admiralty Act (46 USCS
Appx section 741 et seq.) for remedy to enforce substantive
right given by 46 USCS Appx section 688. Hust v Moore-McCormack
Lines, Inc. (1946) 328 US 707, 90 L Ed 1534, 66 S Ct 1218
(ovrld apparently on other grounds Cosmopolitan Shipping Co.
v McAllister, 337 US 783, 93 L Ed 1692, 69 S Ct 1317, reh
den 338 US 839, 94 L Ed 513, 70 S Ct
32).
Seaman injured while
serving on vessel of Inland Waterways Corporation could sue
such corporation only under Suits in Admiralty Act of 1920
(46 USCS Appx section 741 et seq.); that Act is not in conflict
with 46 USCS Appx section 688, but is exception to it. Sevin v
Inland Waterways Corp. (1937, CA5 La) 88 F2d 988, 1937 AMC
814.
Though cause of action
under 46 USCS Appx section 688 is based on negligence and, when
brought against government has to be prosecuted in admiralty
because of requirement of Suits in Admiralty Act (46 USCS
Appx section 741 et seq.), suit is not transformed into
proceeding under former rules of maritime law under which
right of recovery depends on proof of unseaworthiness.
Desrochers v United States (1939, CA2 NY) 105 F2d 919, 1940
AMC 1392, cert den 308 US 519, 84 L Ed 441, 60 S Ct
180.
In action by marine
engineer against his employer for personal injuries,
complaint alleged that defendant had chartered or leased
vessel on which injuries were received from United States;
even if this is construed to mean bare-boat charter, Suits
in Admiralty Act (46 USCS Appx section 741 et seq.) would not
apply, and federal District Court would have jurisdiction
under 46 USCS Appx section 688. Foster v Moore-McCormack Lines,
Inc. (1942, CA2 NY) 131 F2d 907, 1943 AMC 42, cert den 318
US 762, 87 L Ed 1134, 63 S Ct 560.
Election of non-jury trial of Jones Act claim
in state court does not make it an admiralty case within
exclusive federal jurisdiction. Linton v Great Lakes Dredge
& Dock Co. (1992, CA5 La) 964 F2d 1480, petition for
certiorari filed (Sep 21, 1992).
46 USCS Appx section 688 applies to suit by seaman
under 46 USCS Appx section 742. Hansen v United States (1926, DC
Ga) 12 F2d 321.
Jones Act,
46 USCS Appx section 688, applies only to vessels of private
ownership or operation; when vessel is owned by United
States or by corporation in which United States or its
representatives owns entire capital stock, rights under 46
USCS Appx section 688 are enforceable by Suits in Admiralty Act,
46 USCS Appx section 741 et seq. Schwecke v United States (1951,
DC Cal) 96 F Supp 225.
23. Death on the High Seas Act (46 USCS Appx section 761 et
seq.)Death on High Seas Act (46 USCS
Appx section 761 et seq.) creates wrongful death action for
death outside 3-mile limit; whereas 46 USCS Appx section 688,
incorporating Federal Employers' Liability Act (45 USCS section
51-60), establishes such action based on negligence for
wrongful death of seaman regardless of situs of wrong.
Sea-Land Services, Inc. v Gaudet (1974) 414 US 573, 39 L Ed
2d 9, 94 S Ct 806, reh den 415 US 986, 39 L Ed 2d 883, 94 S
Ct 1582 and (not followed Alfone v Sarno, 87 NJ 99, 432 A2d
857, 26 ALR4th 1237).
Death
on High Seas Act (46 USCS Appx section 761-768) and 46 USCS Appx
section 688 create alternative or cumulative remedies for death of
seaman on high seas. The Black Gull (1936, CA2 NY) 82 F2d
758, cert den 298 US 684, 80 L Ed 1404, 56 S Ct
954.
46 USCS Appx section 688 did
not provide exclusive remedy for death of seaman on high
seas and action for such damages can be maintained under
Death on High Seas Act (46 USCS Appx section 761-768) by
seaman's administratrix, notwithstanding existence of 46
USCS Appx section 688 and fact that administratrix had previously
brought similar action under 46 USCS Appx section 688 which was
still pending. Doyle v Albatross Tanker Corp. (1966, CA2 NY)
367 F2d 465, 22 ALR3d 847.
Claim of representative of deceased seaman for
negligence under 46 USCS Appx section 688 and unseaworthiness
under Death on High Seas Act (46 USCS Appx section 761 et seq.)
may be tried in admiralty before same jury. Peace v Fidalgo
Island Packing Co. (1969, CA9 Wash) 419 F2d 371, 13 FR Serv
2d 1053.
Seamen have
alternative remedies against their employers under 46 USCS
Appx section 688 for negligence or under Death on High Seas Act
(46 USCS Appx section 761 et seq.) for unseaworthiness. Re
Dearborn Marine Service, Inc. (1974, CA5 Tex) 499 F2d 263,
30 ALR Fed 499, reh den (CA5 Tex) 512 F2d 1061 and cert
dismd 423 US 886, 46 L Ed 2d 118, 96 S Ct
163.
Cause of action under
Death on the High Seas Act (46 USCS Appx section 761 et seq.)
may be coupled with action under 46 USCS Appx section 688.
Batkiewicz v Seas Shipping Co. (1943, DC NY) 53 F Supp
802.
Suit by administrator
of estate of deceased seaman under 46 USCS Appx section 688 for
death of his son was no bar to suit in admiralty under Death
on High Seas Act (46 USCS Appx section 761 et seq.) for benefit
of both father and sister. The Four Sisters (1947, DC Mass)
75 F Supp 399.
Jurisdiction
conferred by Death on High Seas Act (46 USCS Appx section
761-768), even when joined with jurisdiction under 46 USCS
Appx section 688, creates situation different from 46 USCS Appx section
688. Ridgedell v Olympic Towing Corp. (1962, ED La) 205 F
Supp 952.
Personal
representatives of seaman were entitled to recover for
seaman's death at sea under either Death on High Seas Act
(46 USCS Appx section 761-768) or under 46 USCS Appx section 688,
since relationship between two acts is not simply one of
alternative remedies, but rather Death on High Seas Act
provides remedy for additional class of beneficiaries.
Petition of Risdal & Anderson Inc. (1968, DC Mass) 291 F
Supp 353.
Valid claim by
plaintiff under 46 USCS Appx section 688 does not affect legality
of claims under Death on High Seas Act (46 USCS Appx section 761
et seq.). Hamilton v Canal Barge Co. (1975, ED La) 395 F
Supp 978 (disapproved on other grounds Culver v Slater Boat
Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722
F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537
and cert den (US) 83 L Ed 2d 37, 105 S Ct
90).
Representatives of
deceased crew members may seek recovery for members'
pre-death pain and suffering, where no Jones Act (46 USCS
Appx section 688) claim is available, because in this type of
claim the Death on High Seas Act (46 USCS Appx section 761 et seq.)
does not preempt general maritime survival actions for pain
and suffering and punitive damages. Favaloro v S/S Golden
Gate (1987, ND Cal) 687 F Supp 475, 1988 AMC
818.
24. --Congressional intentDistrict Court properly granted summary
judgment to defendant administrator of decedent captain's
estate in Jones Act case on ground that captain was not
employer; plaintiffs cited no case outside context of
fishing lays that accords captain or master status as owner
pro hac vice. McAleer v Smith (1995, CA1 RI) 57 F3d 109,
1995 AMC 2174.
Adoption of
46 USCS Appx section 688 so recently after enactment of Death on
the High Seas Act (46 USCS Appx section 761-768) did not
indicate Congressional intention that provisions of 46 USCS
Appx section 688 should not apply to libel in admiralty to recover
damages resulting from death of seaman; Death on High Seas
Act is general in its application and is not essentially
seaman's act, whereas 46 USCS Appx section 688 relates to seaman
and gives right of action wherever death occurs, in
appropriate admiralty jurisdiction. Campbell v Luckenbach
S.S. Co. (1925, DC Or) 5 F2d 674.
Passage of 46 USCS Appx section 688 without express
repeal of Death on High Seas Act (46 USCS Appx section 761-768)
and without use of words of exclusivity, manifested
congressional intent that dual remedies available to injured
seaman should also be available to his estate if he dies;
administratrix bringing action under both statutes would be
entitled to jury trial on both theories. Gvirtsman v Western
King Co. (1967, CD Cal) 263 F Supp 633, 10 FR Serv 2d
1060.
25. --Alternative or cumulative remediesRecovery for seaman's death by drowning was
cognizable under 46 USCS Appx section 688 and resort to Death on
High Seas Act (46 USCS Appx section 761 et seq.) was not
necessary. Pollard v Seas Shipping Co. (1945, CA2 NY) 146
F2d 875, 1945 AMC 119.
Where explosion on offshore oil platform killed
persons on boat tied to platform, Death on High Seas Act (46
USCS Appx section 761-768) and 46 USCS Appx section 688 provided
alternative remedies for recovery of damages as to seaman.
Re Dearborn Marine Service, Inc. (1974, CA5 Tex) 499 F2d
263, 30 ALR Fed 499, reh den (CA5 Tex) 512 F2d 1061 and cert
dismd 423 US 886, 46 L Ed 2d 118, 96 S Ct
163.
Where seaman lost his
life when fishing trawler on which he was employed sank due
to collision with other vessel, administrator of his estate
could maintain action against owners and operators of
trawler under Death on High Seas Act (46 USCS Appx section
761-768) or under 46 USCS Appx section 688. McPherson v S.S. South
African Pioneer (1971, ED Va) 321 F Supp
42.
Death of tool pusher,
employed on drilling barge 100 miles at sea, gave rise to
cause of action under Death on High Seas Act (46 USCS Appx section
section 761 et seq.) as well as under 46 USCS Appx section 688, where,
at time of death, tool pusher was being transported by
helicopter to drilling barge. Higginbotham v Mobil Oil Corp.
(1973, WD La) 357 F Supp 1164, supp op (WD La) 360 F Supp
1140, affd in part and revd in part on other grounds (CA5
La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred
(CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling
Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919
and (disagreed with on other grounds Steckler v United
States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed
with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd
on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010,
on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L
Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v
Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part
(CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842,
104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90)
and (disapproved on other grounds Jones & Laughlin Steel
Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541,
on remand (CA3) 711 F2d 570).
26. Other federal laws and treatiesDefense Bases Act (42 USCS section 1651 et seq.),
which incorporates remedies of Longshoremen's and Harbor
Workers' Compensation Act (33 USCS section 901 et seq.), makes
available to member of crew of any vessel, injured while
employed at military, air, and naval bases outside United
States, remedy afforded by 46 USC Appx section 688. Grimes v
Raymond Concrete Pile Co. (1958) 356 US 252, 2 L Ed 2d 737,
78 S Ct 687 (not followed Johnson v John F. Beasley Constr.
Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328,
105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A.,
Inc. (CA5 La) 781 F2d 1067)).
Treaty relating to matters of internal order or
discipline on board vessel of Honduran registry does not
affect rights of seaman to recover damages for negligence
against American citizen who owns vessel. Gerradin v United
Fruit Co. (1932, CA2 NY) 60 F2d 927, cert den 287 US 642, 77
L Ed 556, 53 S Ct 92.
Jones
Act (46 USCS Appx section 688) is distinguishable from Public
Vessels Act in that purpose of former was remedial in nature
for benefit and protection of seamen who are peculiarly
wards of admiralty; although seaman injured by act of United
States public vessel could recover under Public Vessels Act,
it was not specifically enacted for seaman's sole benefit.
United Continental Tuna Corp. v United States (1977, CA9
Cal) 550 F2d 569, 1977 AMC 660.
Once limitation of liability under 46 USCS Appx
section 183 has been denied, plaintiffs should be permitted to
elect whether to remain in limitation proceedings or to
revive their original claims under Jones Act (46 USCS Appx section
688) in forum where they were originally brought prior to
their restraint under order issued by court in which
limitation proceedings were brought. Wheeler v Marine
Navigation Sulphur Carriers, Inc. (1985, CA4 Va) 764 F2d
1008.
Although conduct
wrongful only by virtue of sex discrimination provisions of
Civil Rights Act is not cognizable under Jones Act,
plaintiff's claim for emotional and physical injury
resulting from harassment is cognizable under Jones Act.
Wilson v Zapata Off-Shore Co. (1991, CA5 Tex) 939 F2d 260,
56 BNA FEP Cas 1051, 57 CCH EPD P 40942.
Although court will decline to reach issue of
whether jurisdiction pursuant to Title VII of Civil Rights
Act reaches owners of foreign flag cruise ships, EEOC will
be allowed to investigate facts relevant to its jurisdiction
through subpoena ducas tecum. EEOC v Kloster Cruise, Ltd.
(1991, CA11 Fla) 939 F2d 920, 56 BNA FEP Cas 1061, 57 CCH
EPD P 40934.
Finding of
negligence under Jones Act does not conclusively mean
finding of privity or knowledge for purpose of Limitation of
Liability Act. brister v A.W.I., Inc. (1991, CA5 La) 946 F2d
350, reh, en banc, den (CA5 La) 1991 US App LEXIS
28366.
Definition of
"seaman" under Jones Act is limited to Jones Act and is not
applicable to remedial goals of Fair Labor Standards Act.
Martin v Bedell (1992, CA5 La) 955 F2d 1029, 30 BNA WH Cas
1321, 121 CCH LC P 35612.
Factors enunciated by Supreme Court for barring
recovery against military under Federal Tort Claims Act
apply equally to actions under admiralty provisions. Blakey
v U.S.S. Iowa (1993, CA4 Va) 991 F2d
148.
Seaman injured while
employed on vessel owned by United States and operated by
steamship company under service agreement with War Shipping
Administration could maintain his cause of action against
United States, by virtue of Public Law 17, 78th Congress (50
USCS Appx. section 1271, 1273, 1274, 1291-1295), as if he were
proceeding under 46 USCS Appx section 688, and he also had right
to maintain an action against steamship company for damages
for maritime tort. Steele v American South African Line
(1945, DC Cal) 62 F Supp 636.
Seaman who allegedly was intentionally injured
by second seaman may sue second seaman under 28 USCS section 1331,
because suit is not precluded by 46 USCS Appx section 688. Pearson
v Rowan Cos. (1987, ED La) 674 F Supp 558.
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