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Jones Act - Table of Contents
The Jones Act - Cases, Decisions and Opinions
V. DEFENSES - A. Seaman's Acts or Omissions - 1. Contributory and Comparative Negligence
348. Contributory negligence
When seaman, by his own volition, creates extraneous circumstance, he brings about intervening cause that directly affects his relation to his employers and to ship; he is responsible for such intervening cause if it consists of his own willful misconduct, is something which is done in pursuance of some private avocation or business, or grows out of relations unconnected with service, or is not logical incident of duty. Jackson v Pittsburgh S.S. Co. (1942, CA6 Ohio) 131 F2d 668.
Defendant under 46 USCS Appx section 688 is not relieved from liability simply because he is not wholly at fault. Hern v Moran Towing & Transp. Co. (1943, CA2 NY) 138 F2d 900.
If breach of duty owed by employee to employer was sole and proximate cause of his injury, then recovery would be barred, not because of contributory negligence, but rather because no negligence of employer was in chain of causation, but if employee was injured because of his employer's negligence which combined with his own neglect of duty to his employer, then doctrine of comparative negligence would be applicable. Chesapeake & O. R. Co. v Newman (1957, CA6 Ohio) 243 F2d 804.
45 USCS section 53(3), dealing with contributory negligence and incorporated into 46 USCS Appx section 688, is equally applicable whether claimant's negligence occurs at commencement or at end of chain of causation. Ammar v American Export Lines, Inc. (1964, CA2 NY) 326 F2d 955, 1964 AMC 631, cert den 379 US 824, 13 L Ed 2d 34, 85 S Ct 48, reh den 379 US 985, 13 L Ed 2d 34, 85 S Ct 48, reh den 379 US 985, 13 L Ed 2d 579, 85 S Ct 640.
Possibility of finding that injured seaman was also negligent, would not defeat his claim as matter of law. Lambert v Diamond M Drilling Co. (1982, CA5 La) 683 F2d 935, reh den (CA5 La) 688 F2d 1023.
In action brought under 46 USCS Appx section 688, contributory negligence cannot be pleaded as separate and complete defense. Siclana v United States (1944, DC NY) 56 F Supp 444.
Defendant in action under 46 USCS Appx section 688 who relies on defense of contributory negligence, has burden to establish contributory negligence by preponderance of evidence. Willis v American Barge Line Co. (1949, DC Pa) 87 F Supp 919.
Each of following elements of contributory negligence must be found before defense can be said to exist: (1) act (or omission); (2) duty to so act (or refrain); (3) breach of said duty; (4) actual causation ("cause in fact"); (5) legal causation ("proximate cause"); (6) injury or damage. Curry v United States (1971, ND Cal) 327 F Supp 155, supp op (ND Cal) 338 F Supp 1219.
Seaman's claim against vessel owner is rejected, where seaman was injured by broken capstan line while operating capstan to draw barges and tugboat together, because evidence indicated that there was no negligent act or omission of owner which was cause of injury, that capstan line and capstan were in good condition, and that seaman's improper operation of capstan was cause of injury. Gaddis v Orgulf Transport Co. (1988, SD Ill) 680 F Supp 1279.
Failure to heed warning given too late to avoid injury was not contributory negligence. Anderson v Matson Navigation Co. (1932) 125 Cal App 447, 13 P2d 1041.
In action by member of vessel's crew for injuries received while on isolated errand on land for his employer, defense of contributory negligence was open to defendant. Powers v Murray (1934) 266 Mich 688, 254 NW 559.
349. Comparative negligence
Under 46 USCS Appx section 688, doctrine of comparative negligence applies. Socony-Vacuum Oil Co. v Smith (1939) 305 US 424, 83 L Ed 265, 59 S Ct 262; Keel v Greenville Mid-Stream Service, Inc. (1963, CA5 Miss) 321 F2d 903; Petressen v American President Lines, Ltd. (1944, City Ct) 48 NYS2d 757 (city court of New York); Duplanty v Matson Navigation Co. (1959) 53 Wash 2d 434, 333 P2d 1092.
Under 46 USCS Appx section 688, assumption of risk and contributory negligence on part of seaman are considered as comparative negligence. Imperial Oil, Ltd. v Drlik (1956, CA6 Ohio) 234 F2d 4, cert den 352 US 941, 1 L Ed 2d 236, 77 S Ct 261; Stahlin v Lehigh V. R. Co. (1940) 125 NJL 211, 15 A2d 344.
If breach of duty owed by employee to employer was sole and proximate cause of his injury, then recovery would be barred, not because of contributory negligence, but rather because no negligence of employers was in chain of causation, but if employee was injured because of his employer's negligence which combined with his own neglect of duty to his employer, then doctrine of comparative negligence would be applicable. Chesapeake & O. R. Co. v Newman (1957, CA6 Ohio) 243 F2d 804.
Comparative fault is applied in strict liability action for unseaworthiness, in personal injury actions under Jones Act [46 USCS Appx section 688], and actions brought under Death on the High Seas Act [46 USCS Appx section 766], and in longshoremen's suits against vessels under 33 USCS section section 901 et seq. Lewis v Timco, Inc. (1983, CA5 La) 716 F2d 1425, CCH Prod Liab Rep P 9831, 74 ALR Fed 293, on remand (CA5 La) 736 F2d 163, CCH Prod Liab Rep P 10160, reh den (CA5 La) 744 F2d 94 and reh den (CA5 La) 744 F2d 94.
Seaman cannot be found comparatively negligent when following order to complete task in specific manner. Alholm v American S.S. Co. (1998, CA8 Minn) 144 F3d 1172, 1998 AMC 2352.
350. Reduction of damages
Contributory negligence, although not barring recovery under 46 USCS Appx section 688, is given due weight in arriving at damages recoverable. Engel v Davenport (1926) 271 US 33, 70 L Ed 813, 46 S Ct 410, 1926 AMC 679; Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712, 1936 AMC 635.
Contributory negligence is not defense to action brought either under 46 USCS Appx section 688 or under maritime laws for injuries attributable to negligently defective equipment, but is ground only for apportionment of damages. Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712.
Lost earnings and medical expenses are subject to reduction under 46 USCS Appx section 688 if seaman has been contributorily negligent. Fitzgerald v United States Lines Co. (1963) 374 US 16, 10 L Ed 2d 720, 83 S Ct 1646, 7 FR Serv 2d 774, reh den 375 US 870, 11 L Ed 2d 99, 84 S Ct 26 and motion den 376 US 901, 11 L Ed 2d 604, 84 S Ct 655.
In action under 46 USCS Appx section 688 contributory negligence acts merely to mitigate damages, rather than to bar claim. Schaeffer v Michigan-Ohio Navigation Co. (1969, CA6 Mich) 416 F2d 217, 7 ALR Fed 493 (disagreed with Lewis v Timco, Inc. (CA5 La) 697 F2d 1252, different results reached on reh, remanded, en banc (CA5 La) 716 F2d 1425, CCH Prod Liab Rep P 9831, 74 ALR Fed 293, on remand (CA5 La) 736 F2d 163, CCH Prod Liab Rep P 10160, reh den (CA5 La) 744 F2d 94 and reh den (CA5 La) 744 F2d 94).
Effect of finding of contributory negligence in 46 USCS Appx section 688 claim is only to reduce damages proportionately, not to bar claim. Fontenot v Teledyne Movible Offshore, Inc. (1983, CA5 La) 714 F2d 17.
Under Jones Act, contributory negligence, however gross, does not bar recovery, but only mitigates damages. Johnson v Offshore Express, Inc. (1988, CA5 La) 845 F2d 1347, cert den (US) 109 S Ct 497.
In case of equal liability between defendant and seaman, verdict should be cut in half rather than being reduced to nothing. Vivian v Gulf Oil Corp. (1952, DC Pa) 103 F Supp 391; Cohen v American Petroleum Transport Corp. (1947) 188 Misc 465, 68 NYS2d 250 (city court).
Contributory negligence on part of injured workman may be relied on in diminution of damages, notwithstanding defendant's failure to specially plead it. Greenhaw v Pacific-Atlantic S.S. Co. (1950) 190 Or 182, 224 P2d 918.
351. Application to state proceedings
Notwithstanding state statute conferring jurisdiction on state Court of Claims to hear claims for wrongful death of seaman due to wrongful acts of state employees, contributory negligence will only mitigate damages since recovery in state court is limited to damages authorized under federal statutes. Otis v State (1944, Ct Cl) 47 NYS2d 755.
Doctrine of comparative negligence will be applied in suit in state court for maritime tort unless recovery is sought under state statute which negatives such doctrine in particular action. Boles v Munson S.S. Line, Inc. (1932) 235 App Div 175, 256 NYS 709, revd without op on other grounds 260 NY 516, 184 NE 74; Lloyd v T. Hogan & Sons, Inc. (1927) 128 Misc 665, 219 NYS 750.
352. Seaman's duty and standard of conduct
In action under 46 USCS Appx section 688, determination of whether injured person has been guilty of contributory negligence is made by judging conduct of seaman against that of reasonably prudent person under circumstances. Mroz v Dravo Corp. (1970, CA3 Pa) 429 F2d 1156.
In action to recover for injuries under 46 USCS Appx section 688, distinction should be drawn between injuries which result from momentary lapse of conduct and injuries which result from breach of duty; seaman may not recover against shipowner for injuries occasioned by his own neglect of some independent duty arising out of employer-employee relationship; result turns upon shipowner's independent right to recover against seaman for non-performance of duty resulting in damage to shipowner, which in effect offsets seaman's right to recover against shipowner for failure to provide safe place to work. Reinhart v United States (1972, CA9 Cal) 457 F2d 151.
While seaman's duty to protect himself is slight, duty does exist; contributory negligence is available to mitigate vessel owner's liability when injured seaman has been negligent in breaching duty to act or refrain from acting; seaman generally has no duty to find safest way to perform his work, but where it is shown that there existed safe alternative available of which he knew or should have known, seaman's course of action can be properly considered in determining whether he was negligent. Thezan v Maritime Overseas Corp. (1983, CA5 La) 708 F2d 175, cert den 464 US 1050, 79 L Ed 2d 189, 104 S Ct 729.
Seaman has duty to follow safe course of conduct of which he knows or should have known and that is readily available to avoid unsafe course. Fontenot v Teledyne Movible Offshore, Inc. (1983, CA5 La) 714 F2d 17.
Trial court erred in instructing jury, over proper objection, than seaman was required to use ordinary care for his own safety rather than slight care, which is proper standard. Brooks v Great Lakes Dredge-Dock Co. (1984, CA5 La) 754 F2d 536, on reh, mod on other grounds (CA5 La) 754 F2d 539.
Although seaman has duty to use reasonable care, seaman's duty to protect himself is slight, since duty is tempered by reality of maritime employment, and generally, seaman has no duty to find safest way to perform work, but rather, duty to provide for safe course of conduct lies primarily with vessel owner. Johnson v Offshore Express, Inc. (1988, CA5 La) 845 F2d 1347, cert den (US) 109 S Ct 497.
Seamen in Jones Act negligence cases are bound to standard of ordinary prudence in exercise of care for their own safety, not to lesser duty of slight care. Gautreaux v Scurlock Marine (1997, CA5 La) 107 F3d 331, 1997 AMC 1521.
Although seaman's duty to exercise reasonable care is slight, that duty is breached where seaman fails to use proper equipment when such equipment is available. Hicks v Crowley Maritime Corp. (1982, SD Tex) 538 F Supp 285, affd without op (CA5 Tex) 707 F2d 514 and affd without op (CA5 Tex) 707 F2d 514 and affd without op (CA5 Tex) 707 F2d 514.
353. --Considerations of age and experience
In action brought by seaman under 46 USCS Appx section 688, seaman's youth, unfamiliarity, and total lack of experience put heavier burden on ship and relieved seaman of possibility of contributory negligence. Stevens v Seacoast Co. (1969, CA5 Miss) 414 F2d 1032.
Under general maritime law and 46 USCS Appx section 688, doctrine of "comparative negligence" applies; whether danger was obvious from point of view of seaman, in light of comparative negligence issue, is to be determined with respect to seaman's age, experience, and training. Stark v American Dredging Co. (1946, DC Pa) 66 F Supp 296.
354. Employer's violation of safety rules
Vessel owner's alleged violation of safety rule found in owner's safety manual did not present legal bar to affirmative defense of contributory or comparative negligence to deckhand's claim under 46 USCS Appx section 688(a) for negligence that allegedly caused deckhand's knee injury when he stepped off hatch cover while scraping, sanding, and painting vessel's bottom. VanDeKreeke v USS Great Lakes Fleet, Inc. (2001, ED Mich) 172 F Supp 2d 907, 2001 AMC 2312.
Injury or death of seaman resulting from employer's violation of safety statute bars consideration of contributory negligence in action under 46 USCS Appx section 688. Rodriguez v B-R Dredging Co. (1977, Tex Civ App Corpus Christi) 552 SW2d 601, revd on other grounds (Tex) 564 SW2d 693.
Seaman's damages, predicated on determination that violation of Corps of Engineers Safety Manual was equivalent to violation of statute, should be reduced by percentage of seaman's contributory negligence where provision was not elevated to status of statute. B-R Dredging Co. v Rodriguez (1978, Tex) 564 SW2d 693.
355. Performance of supervisory functions
Master of ship who contributes to his own injury by reason of breach of supervisory duties owed to his employer, may not recover damages. Walker v Lykes Bros. S.S. Co. (1952, CA2 NY) 193 F2d 772.
Failure of plaintiff to duly perform supervisory responsibilities as master is but species of contributory fault which only diminishes damages. Boat Dagny, Inc. v Todd (1955, CA1 Mass) 224 F2d 208.
Chief mate injured while in process of carrying out responsibility for safe working conditions will not be barred in his action for injuries sustained in area on ship he had ordered cleaned up. Stanworth v American Stern Trawlers, Inc. (1975, CA9 Wash) 523 F2d 46.
356. Obedience to orders
That stevedore went to work in place of danger in obedience to orders of superior officer would not, of itself, relieve him from fault in being there. B. A. Carroll Stevedore Co. v Makinda (1927, CA1 Mass) 20 F2d 19.
Seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes possible danger. Williams v Brasea, Inc. (1974, CA5 Tex) 497 F2d 67, mod on other grounds and reh den (CA5 Tex) 513 F2d 301, cert den 423 US 906, 46 L Ed 2d 136, 96 S Ct 207 and later app (CA5 Tex) 549 F2d 977.
Where master of vessel had absolute authority on whether linoleum floors would be waxed or not and chambermaid failed to carry out master's orders not to wax floors and master subsequently was injured by slipping on waxed floor, owner of vessel is not liable for injuries under 46 USCS Appx section 688. Elliott v Jones & Laughlin Steel Corp. (1957, DC Pa) 166 F Supp 731, affd (CA3 Pa) 259 F2d 959.
Actions of seaman in following orders of captain will not constitute contributory negligence. Pedersen v Diesel Tankers, Ira S. Bushey, Inc. (1967, SD NY) 280 F Supp 421.
357. Failure to protest, report, or remedy dangerous condition
Maritime worker who continues to work under conditions known to be dangerous may be contributorily negligent. Du Bose v Matson Navigation Co. (1968, CA9 Cal) 403 F2d 875.
In action under 46 USCS Appx section 688 to recover for injuries, seaman cannot be held contributorily negligent for failure to protest conditions, where danger was not evident to him and there was no basis for considering him imprudent in his course of conduct which was at direction of superiors. White v Rimrock Tidelands, Inc. (1969, CA5 La) 414 F2d 1336, 13 FR Serv 2d 1082.
Seaman who has possibility of securing relief by informing his supervisors of unsafe condition but continues to work without doing so may be contributorily negligent. Mroz v Dravo Corp. (1970, CA3 Pa) 429 F2d 1156.
Although provisions barring assumption of risk as defense in cases of defective or hazardous conditions eliminate also question of contributory negligence where seaman had no alternative but to subject himself to dangerous conditions in his place of employment; where seaman has possibility of securing relief by informing his superiors of unsafe conditions but continues to work without doing so he may be found to be contributorily negligent. Mroz v Dravo Corp. (1970, CA3 Pa) 429 F2d 1156.
In action to recover under 46 USCS Appx section 688, seaman was not barred from recovery as being contributorily negligent when seaman who knew of dangerous condition was not required by independent duty arising out of employment relationship to remedy that condition. Noack v American S.S. Co. (1974, CA6 Ohio) 491 F2d 937.
Seaman seeking recovery under 46 USCS Appx section 688 was not contributorily negligent for failing to report condition already known to shipowner which had existed for more than 20 days. Scarberry v Ohio River Co. (1963, SD W Va) 217 F Supp 189.
If seaman does not have duty to remedy allegedly dangerous condition, his injury arising from such condition even if allegedly partially caused by his own negligence in not rectifying dangerous condition, will not be considered in seaman's suit for his injury. Petressen v American President Lines, Ltd. (1944, City Ct) 48 NYS2d 757 (city court); Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001; Beauchamp v Sause Bros. Ocean Towing Co. (1973) 267 Or 106, 514 P2d 1346.
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An important victory in the fight for individual rights (as opposed to insurer rights) is the case of Yukumoto and HMSA v. Tawahara. In that case on May 26, 2017, the Hawaii Supreme Court rejected the efforts of a health insurer who tried to convert its insurance coverage into a 'loan agreement' and recover its medical expense payments from Mr. Yukumoto when he had a 3rd party claim - in spite of the fact that he was not being fully compensated for his losses. This insidious insurance practice has been damaging the citizens and members of the Hawaii community for many years. For more info, see the decision here: Yukumoto and HMSA v. Tawahara, Hawaii Sup. Ct. No. SCAP-15-0000460 (May 26, 2017).