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In 46 USCS Appx section 688 actions, question of damages is for jury to decide. Garcia v Queen, Ltd. (1973, CA5 Fla) 487 F2d 625, 17 FR Serv 2d 1593.
Jury has exclusive obligation to compute damages and that computation need not conform to strict arithmetical calculations but may be in form of lump sum award. McDonald v Federal Barge Lines, Inc. (1974, CA5 La) 496 F2d 1376.
Doctrine of joint and several liability is crystallized in Jones Act, and court considers this in forming its decision not to adopt "modified joint liability" in general maritime law cases. Coats v Penrod Drilling Corp. (1995, CA5 Miss) 61 F3d 1113.
In action to recover damages under 46 USCS Appx section 688, judge may award damages without specifically detailing basis for arriving at figure; medical and funeral expenses would be in addition to general, undifferentiated award. Williamson v Western-Pacific Dredging Corp. (1969, DC Or) 304 F Supp 509, affd (CA9 Or) 441 F2d 65, cert den 404 US 851, 30 L Ed 2d 91, 92 S Ct 90.
In action brought under 46 USCS Appx section 688, assessment of damages is primarily question of fact for jury. Baldwin v Huffman Towing Co. (1977, 5th Dist) 51 Ill App 3d 861, 9 Ill Dec 469, 366 NE2d 980.
446. Relation to damages under general maritime law
In general maritime action for seaman's wrongful death due to negligence of employer under 46 Appx USCS section 688, damages are not available for loss of society or loss of future earnings because 46 Appx USCS section 762 explicitly limits damages to pecuniary loss. Miles v Apex Marine Corp. (1990, US) 112 L Ed 2d 275, 111 S Ct 317.
In action in admiralty against employer, injured seaman can allege and prove both negligence and unseaworthiness, amount of damages recoverable being limited to one or other where court finds that both negligence and unseaworthiness was proximate cause of injuries. Platt v Chesapeake & O. R. Co. (1948, DC Ohio) 82 F Supp 968.
Measure of damages under general maritime law is at least as broad, and perhaps good deal broader, than 46 USCS Appx section 688. Re Farrell Lines, Inc. (1971, ED La) 339 F Supp 91.
Seaman's right to maintenance and cure is implicit in contractual relationship between seaman and his employer, and is designed to insure recovery of those individuals upon injury or sickness sustained in service of ship; maintenance and cure are due without regard to negligence of employer or unseaworthiness of ship; where plaintiff has not reached maximum cure defendant must make continuous cure payments until such time as plaintiff reaches maximum cure and failure of defendant to continue cure payments being unreasonable, arbitrary and capricious, will result in plaintiff being entitled to compensatory damages and attorneys fees. Parker v Texaco, Inc. (1982, ED La) 549 F Supp 71.
Injured seaman's spouse may pursue claim for loss of consortium, service, and society in general maritime law negligence action against third parties, even though loss of consortium is not provided for under Jones Act (46 USCS Appx section 688) and injured plaintiff is Jones Act seaman, because claim is brought under general maritime law of negligence under which loss-of-consortium damages are recoverable. Rebstock v Sonat Offshore Drilling (1991, ED La) 764 F Supp 75.
Punitive damage claims filed by injured crew members and estates of 9 deceased crew members are stricken, even though general rule is that punitive damages are available under general maritime law, where injured seek recovery under 46 USCS Appx section 688 and seaworthiness doctrine and estates rely on 46 USCS Appx section section 688 and 762 and seaworthiness doctrine, because it would be inconsistent with court's place in constitutional scheme to sanction more expansive remedies in judicially-created general maritime cause of action than Congress allows under section section 688 and 762, which preclude recovery of punitive damages. Re Complaint of Aleutian Enterprise, Ltd. (1991, WD Wash) 777 F Supp 793.
Wife of deceased seaman may recover nonpecuniary damages in wrongful death action against defendant other than seaman's employer, because general maritime law allows cause of action for wrongful death of seaman, Jones Act does not cover action against defendant other than employer, and unavailability of nonpecuniary damages under Jones Act does not preclude recovery from nonemployer defendant. Sexton v American Steamship Co. (In re Cleveland Tankers) (1994, ED Mich) 843 F Supp 1157.
447. --Cumulative awards
Right to maintenance, cure and wages, arises out of nature of employment and is contractual obligation independent of right to indemnity or compensatory damages for injury caused by negligence; these two rights are consistent and cumulative. Pacific S.S. Co. v Peterson (1928) 278 US 130, 73 L Ed 220, 49 S Ct 75.
Seaman is under no necessity of tendering benefits given him by his employers in order to maintain action under 46 USCS Appx section 688. Guerrero v American-Hawaiian S.S. Co. (1955, CA9 Cal) 222 F2d 238, 1955 AMC 1035.
Although seaman is not required to elect between claim for maintenance and cure and claim for negligence under 46 USCS Appx section 688, where damages in each overlap, double compensation is not permissible. Bartholomew v Universe Tankships, Inc. (1960, CA2 NY) 279 F2d 911.
Seaman is entitled to appropriate award on causes of action under 46 USCS Appx section 688 and maintenance and cure under general maritime law as long as damage did not result in double recovery for same item. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 4 ALR3d 517.
In action to recover damages under 46 USCS Appx section 688 and under maintenance and cure, award for maintenance and cure is not necessarily cause for reduction of award for negligence; there is no basis for any modification of awards, as being duplicative, where awards were made based on different elements of potential areas for recovery. Petition of Oskar Tiedemann & Co. (1966, CA3 Del) 367 F2d 498, supp op (CA3 Del) 367 F2d 505, cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 953 and cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 957, reh den 386 US 1000, 18 L Ed 2d 354, 87 S Ct 1303.
Seaman in action for recovery of injuries under 46 USCS Appx section 688 and doctrine of unseaworthiness cannot have cumulative recoveries under each. Peymann v Perini Corp. (1974, CA1 Mass) 507 F2d 1318, 19 FR Serv 2d 604, cert den 421 US 914, 43 L Ed 2d 780, 95 S Ct 1572 and (disagreed with Joyce v Atlantic Richfield Co. (CA10 Colo) 651 F2d 676).
Injured seaman may not recover cumulative damages in action against shipowner for negligence under 46 USCS Appx section 688 and unseaworthiness under general maritime law; he has but one claim for damages founded on alternative causes of action. McCarty v Service Contracting, Inc. (1970, ED La) 317 F Supp 629.
Supplemental payments made by employer to injured seaman were for lost wages and thus were treated as setoff against damages seaman recovered in action under 46 USCS Appx section 688 in order to avoid double recovery, where employer presented unrefuted evidence that it paid $ 20,945.28 to seaman as supplemental payments for lost wages, rather than as maintenance, and although seaman contended that court could not determine that jury award included award for lost wages, court was entitled to construe jury award as if it fully compensated seaman for his loss of income. Ballard v River Fleets (1997, ED Mo) 974 F Supp 1274.
Right to maintenance, cure, and wages arises out of implied contractual obligation, and is separate and independent from right to receive compensatory damages in negligence or unseaworthiness action; seaman's right to bring action for damages, in addition to receiving maintenance and cure, does not entitle him to double recovery for any given element of damage, and amount paid under maintenance and cure obligation will ultimately be subtracted from total damage award. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.
448. Law governing
46 USCS Appx section 688 has no specific limitation on damages, but does incorporate by reference statute governing death of railway workers, 45 USCS section section 51 et seq.; because of this relationship, courts have uniformly interpreted damage recoveries under 46 USCS Appx section 688 as being similarly limited to pecuniary losses. Ivy v Security Barge Lines, Inc. (1978, CA5 Miss) 585 F2d 732, on reh (CA5 Miss) 606 F2d 524, cert den 446 US 956, 64 L Ed 2d 815, 100 S Ct 2927, reh den 448 US 912, 65 L Ed 2d 1173, 101 S Ct 27 and on remand (ND Miss) 89 FRD 322.
Federal law and jurisprudence govern substantive rights of seaman as to damages awardable under 46 USCS Appx section 688 and not those under state law relating to awards for personal injuries. Stevens v Patterson Menhaden Corp. (1966, La App 1st Cir) 191 So 2d 692, cert den 250 La 5, 193 So 2d 524.
449. Collateral source rule
Tortfeasor should not have benefit of payments to injured seaman which he did not make, and collateral source rule, resting upon Federal Employers' Liability Act, is applicable to computation of damages in litigation under 46 USCS Appx section 688 and recovery is not subject to diminution by payments of State Unemployment Disability fund into which employer did not contribute. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 4 ALR3d 517.
Social security and insurance benefits payable to widows and minor children surviving decedent, even though paid for in part by decedent's employer, do not represent partial payment of shipowners' liability for loss to families of decedent's earning capacity under 46 USCS Appx section 688. Petition of United States Steel Corp. (1970, CA6 Ohio) 436 F2d 1256, cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1649, reh den 403 US 940, 29 L Ed 2d 720, 91 S Ct 2247 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1660, reh den 403 US 924, 29 L Ed 2d 703, 91 S Ct 2227 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1665 and later app (CA6 Ohio) 479 F2d 489, cert den 414 US 859, 38 L Ed 2d 110, 94 S Ct 71 and (disapproved on other grounds Sea-Land Services, Inc. v Gaudet 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)).
In action under 46 USCS Appx section 688, payments provided under Social Security Act cannot be considered in ascertaining pecuniary loss to widow and children, and cannot be deducted from award. Gardner v National Bulk Carriers, Inc. (1963, ED Va) 221 F Supp 243, affd (CA4 Va) 333 F2d 676.
Vessel owner may set off benefits already paid to injured seaman against damages it may be required to pay for maintenance and care, pecuniary loss of wages and medical-hospital care under 46 USCS Appx section 688, even though owner's insurer actually paid benefits and has not been made party, because to allow seaman to recover his medical expenses and lost wages for same period he received workers' compensation would be to sanction double recovery. Miron v All-Alaskan Seafoods, Inc. (1988, WD Wash) 705 F Supp 518, 1988 AMC 2644.
Evidence of pension, retirement and social security benefits is not admissible even for limited purpose of demonstrating plaintiff's motive to retire in view of federal policy precluding admission of collateral benefits in Jones Act and FELA cases. Brumley v Federal Barge Lines, Inc. (1979, 5th Dist) 78 Ill App 3d 799, 33 Ill Dec 609, 396 NE2d 1333.
450. Limitation of damages agreements
Agreement between seaman and shipowner by which maximum monetary recovery for injuries was stipulated in contract of employment may be unenforceable for want of sufficient consideration where in return for absolute right to recover negligible damages, seaman surrendered substantial right to recover full indemnity for any loss or damage suffered in consequence of unseaworthiness of ship; whenever stipulation is found in shipping articles which limits rights and privileges of seaman, courts of admiralty hold them void unless two things concurred: (1) that nature and operation of clause was fully and fairly explained to seaman; and (2) that additional compensation was allowed, entirely adequate to new restrictions and risks imposed upon them thereby. Blanco v Phoenix Compania De Navegacion, S. A. (1962, CA4 Va) 304 F2d 13, 9 ALR3d 410.
451. Attorney's fees and costs
Where evidence fails to show that shipowner has exhibited callousness and indifference to seaman's plight in denying liability for maintenance and cure, award of attorney's fees cannot stand. Morales v Garijak, Inc. (1987, CA5 Tex) 829 F2d 1355.
In Jones Act case, District Court did not abuse its discretion when it imposed attorney fees against plaintiff's attorney where attorney either refused to comply with or completely ignored court's orders regarding discovery. O'Neill v AGWI Lines (1996, CA5 Tex) 74 F3d 93, 1996 AMC 929.
Where, in addition to claims for maintenance and damages for failure to pay maintenance, libellant alleged and sought to prove that his active tuberculosis was caused by conditions aboard vessel, such latter claim was entirely separate, and plaintiff was not entitled to attorney's fees based on such separate claim as part of damages on former claims. Vaughan v Atkinson (1962, ED Va) 206 F Supp 575.
In personal injury action tried under 46 USCS Appx section 688 for negligence and general maritime law for unseaworthiness, sanction power vested in court by 28 USCS section 1331 to impose costs survived because unseaworthiness claim under general maritime law was pendent to claim under 46 USCS Appx section 688, even though not arising under Constitution, laws or treaties of United States; where plaintiff's verdict in 46 USCS Appx section 688 case was less than jurisdictional amount, court reduced plaintiff's judgment in amount of defendant's costs. McCord v Moore-McCormack Lines, Inc. (1965, SD NY) 242 F Supp 493, 1965 AMC 1837.
In action brought under 46 USCS Appx section 688, sum determined to be reasonable attorney's fee is within discretion of trial court; in case in which wards of court are involved, court has both power and duty to determine attorney's fees irrespective of any fee arrangement, contingent or otherwise, entered into between plaintiffs and their attorneys; local rule requiring court approval of attorney's fees for "incompetent person," does not embrace such fees attributable to seamen and their families per se; in determining reasonableness of attorneys' fees, court should consider attorneys' time, duplication of services and contingent nature of success. Donnarumma v Barracuda Tanker Corp. (1978, CD Cal) 79 FRD 455.
Injured worker is not entitled to payment of additional attorney's fees under New York Work Comp Law section 29(l), where worker was injured on boat leased by employer, worker filed for and received workers' compensation, but also filed Jones Act claim, 46 USCS Appx section 688, against employer, employer and insurance company settled worker's claim, and worker sought waiver of insurance company's lien on previously paid compensation benefits, because Work Comp Law section 29(l) only applies to actions by worker against third party, not to actions by worker against employer, and worker is not entitled to additional attorneys' fees under statute. Turner v Niagara Frontier Transp. Auth. (1994, WD NY) 843 F Supp 847.
452. --Failure to pay maintenance and cure
Seaman was entitled to damages in amount of counsel fees incurred in bringing his action for maintenance and cure against shipowner who wilfully defaulted in its obligation to pay maintenance and cure. Vaughan v Atkinson (1962) 369 US 527, 8 L Ed 2d 88, 82 S Ct 997, 1962 AMC 1131, reh den 370 US 965, 8 L Ed 2d 834, 82 S Ct 1578 and on remand (ED Va) 206 F Supp 575.
Puerto Rican obstinacy rule for award of attorneys' fees has no application to action which is not based on diversity of citizenship. Stephenson v Star-Kist Caribe, Inc. (1979, CA1 Puerto Rico) 598 F2d 676.
While determination of amount of attorney's fees may be similar to costs, or collateral to main dispute in case in some situations, in action for arbitrary and willful failure to pay maintenance and cure, such determination is not collateral to main issues of case but issue relating to substantive component of case. Holmes v J. Ray McDermott & Co. (1982, CA5 La) 682 F2d 1143, 34 FR Serv 2d 985, cert den 459 US 1107, 74 L Ed 2d 956, 103 S Ct 732, later app (CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682 and (disagreed with International Asso. of Bridge, etc. Local Union 75 v Madison Industries, Inc. (CA9 Ariz) 733 F2d 656, 116 BNA LRRM 2422, 101 CCH LC P 11041, 39 FR Serv 2d 368 (disagreed with C.I.T. Corp. v Nelson (CA11 Ala) 743 F2d 774 (disagreed with Morgan v Union Metal Mfg. (CA6 Ohio) 757 F2d 792, 37 BNA FEP Cas 625, 36 CCH EPD P 35090, 1 FR Serv 3d 310 (disagreed with my multiple cases as stated in Crossman v Maccoccio (CA1 RI) 792 F2d 1)) and (disagreed with Exchange Nat. Bank v Daniels (CA7 Ill) 763 F2d 286, reh gr, in part, reh den, in part (CA7 Ill) 768 F2d 140))).
453. Punitive damages
In action brought under 46 USCS Appx section 688, punitive damages may be recovered against owner of vessel where it can be shown that owner authorized or ratified reckless acts of master either before or after their occurrence, or if acts complained of were those of unfit master and owner was reckless in employing him. United States Steel Corp. v Fuhrman (1969, CA6) 407 F2d 1143, 13 FR Serv 2d 1151, 10 ALR Fed 500, cert den 398 US 958, 26 L Ed 2d 542, 90 S Ct 2162 and cert den 398 US 958, 26 L Ed 2d 542, 90 S Ct 2163 and later app (CA6 Ohio) 436 F2d 1256, cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1649, reh den 403 US 940, 29 L Ed 2d 720, 91 S Ct 2247 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1660, reh den 403 US 924, 29 L Ed 2d 703, 91 S Ct 2227 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1665 and later app (CA6 Ohio) 479 F2d 489, cert den 414 US 859, 38 L Ed 2d 110, 94 S Ct 71 and (disapproved on other grounds Sea-Land Services, Inc. v Gaudet 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)).
Where action under DOHSA is joined with Jones Act action, neither statutory scheme may be supplemented by general maritime law or by state law and therefore punitive damages cannot supplement awards for pain and suffering of crew members prior to death. Bergen v F/V St. Patrick (1987, CA9 Alaska) 816 F2d 1345.
Damages recoverable under 46 USCS Appx section 688, are limited to pecuniary loss, but administratrix of decedent's estate was entitled to recover punitive damages under state Wrongful Death Act. McDonald v The 204 (1961, SD Ala) 194 F Supp 383.
In action brought under 46 USCS Appx section 688, claimant was permitted to amend complaint to include demand for punitive damages, since such amendment was not frivolous on its face. Gunnip v Warner Co. (1968, ED Pa) 43 FRD 365, 12 FR Serv 2d 176.
Punitive damages claims in class action asbestosis litigation are dismissed, where plaintiffs seek damages under 46 USCS Appx section 688, because, due to its reference to "railway employees," section 688 consistently has been construed as incorporating rights and remedies of FELA (45 USCS section section 51 et seq.) and it has long been held that punitive damages are not available under FELA. Re Mardoc Asbestos Case Clusters 1, 2, 5, & 6 (1991, ED Mich) 768 F Supp 595, 1991 AMC 1610.
Injured crewmembers may not recover punitive damages based upon general maritime law against shipowner, where crewmembers claimed that owner acted willfully and wantonly in failing to maintain seaworthy vessel, because punitive damages are not available under 46 USCS Appx section 688 and where Congress has legislated in area of maritime law, case-law created remedies must be uniform with such legislation. Re Petition of Cleveland Tankers, Inc. (1992, ED Mich) 791 F Supp 679.
Injured seaman may not recover punitive damages under general maritime law in personal injury action, where Jones Act (46 USCS Appx section 688) specifically applies, since Jones Act limits recoverable damages to pecuniary loss. Jackson v Unisea, Inc. (1992, DC Alaska) 824 F Supp 895.
Claim of seaman against vessel owner and employer, seeking to recover for injuries allegedly received while aboard vessel, is denied summarily, where seaman sought punitive damages under Jones Act on account of unseaworthiness of vessel, because nonpecuniary damages such as punitive damages are not recoverable under Jones Act. Bell v Zapata Haynie, Corp. (1994, WD La) 855 F Supp 152.
Seaman who was statutorily barred from receiving punitive damage award under 46 USCS Appx section 688 could not recover punitive damages against nonemployers in personal injury action alleging negligence and unseaworthiness under general maritime law, absent evidence of wrongdoing. Saudi v S/T Marine Atl. (2000, SD Tex) 159 F Supp 2d 483, 2001 AMC 1289, motion to strike gr, in part (2000, SD Tex) 2000 US Dist LEXIS 20864.
In action under Jones Act (46 USCS Appx section 688), plaintiff is entitled to present issue of punitive damages to jury. Baptiste v Superior Court of Los Angeles County (1980, 2d Dist) 106 Cal App 3d 87, 164 Cal Rptr 789, cert den 449 US 1124, 67 L Ed 2d 110, 101 S Ct 940.
454. --For inadequate maintenance and cure
In action under 46 USCS Appx section 688 by seaman who suffered back injury, finding that employer willfully and arbitrarily refused to pay maintenance and cure justifies special punitive damages award of $ 11,550; there is no merit to defendant's contention that amount of award is excessive because of plaintiff's failure to show that defendant's conduct aggravated his injuries. Holmes v J. Ray McDermott & Co. (1984, CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682.
Punitive damages awards must be grounded on egregious shipowner conduct exhibiting wanton and intentional disregard of seaman's rights, and district court errs in allowing jury to impose punitive damages merely because shipowner pays maintenance rate jury later finds to be inadequate. Harper v Zapata Off-Shore Co. (1984, CA5 La) 741 F2d 87.
In action by seaman against shipowner under 46 USCS Appx section 688 resulting from injuries sustained by seaman from fall occurring on defendant's vessel, jury did not err in awarding $ 100,000 punitive damage award for defendant's willful and capricious failure to provide maintenance and cure to seaman. Hodges v Keystone Shipping Co. (1983, SD Tex) 578 F Supp 620.
Jury properly found employer's failure to pay injured seaman maintenance and cure for over one year arbitrary and capricious and sufficient to justify punitive damages award under 46 USCS Appx section 688, where seaman chose to see doctor other than one chosen by employer, informed employer of that fact, yet received no further payments, because, while seaman's claim for cure may be subject to mitigation, it remains employer's burden to prove that seaman's doctor provided unnecessary treatment or charged unnecessary fees. Turner v Inland Tugs Co. (1988, ED La) 689 F Supp 612.
Summary judgment is granted to employer in injured seaman's action for exemplary damages under 46 USCS Appx section 688, because exemplary damages are not available in personal injury actions under section 688, and although exemplary damages may be available in a maintenance and cure action, which is based on contract rather than on statute, summary judgment is granted to employer because seaman admits that he received and continues to receive maintenance and cure payments, and has pleaded no facts entitling him to exemplary damages. Ortega v Oceantrawl, Inc. (1992, DC Alaska) 822 F Supp 621, 1993 AMC 902.
Vessel owner is denied summary dismissal of injured seaman's claim for attorney's fees and punitive damages, even though owner asserts reliance on doctor's representations that seaman had reached maximum medical improvement in electing to terminate maintenance and cure, because termination decision is almost always precipitated by diagnosis of some physician and that alone does not insure reasonableness of decision. Musielak v Rowan Int'l, Inc. (1993, SD Tex) 814 F Supp 556.
Seaman's claim against vessel owner and employer under 46 Appx USCS section 688, seeking punitive damages for injuries received as result of condition of defendant's unseaworthy vessel, is denied summarily, because concerns for uniformity dictate denial of punitive damages in maintenance and cure actions under Jones Act since such damages are disallowed in wrongful death actions under same Act and because by analogy to actions under Federal Employers' Liability Act in which punitive damages are not recoverable for nonfatal injuries, such damages should be denied. Boyd v Cinmar of Gloucester (1996, ED Va) 919 F Supp 208, 1996 AMC 1805.
Remarriage of widow neither bars nor mitigates her pecuniary loss recoverable under 46 USCS Appx section 688 due to wrongful death of husband. Petition of United States (1950, DC NY) 92 F Supp 495.
456. --Duty to seek medical treatment
It is duty of plaintiff in action under 46 USCS Appx section 688 to minimize his damages by submitting to reasonable treatment and test in each case is one of reasonableness to be determined by triers of fact. Ambrose v Norfolk Dredging Co. (1960, CA4 Va) 284 F2d 802.
When seaman was instructed by company doctor to seek private medical care, seaman's duty vis-a-vis his employer to seek free medical help was as matter of law indefinitely suspended, but when employer notified him of its intention to provide free medical care, seaman's duty to mitigate his damages by seeking public hospital facilities was reinstated. Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 958, 13 FR Serv 2d 1116.
457. --Seaman's own fault
Contributory negligence is not defense to suit brought under 46 USCS Appx section 688 but is ground only for apportionment of damage. Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712.
Assumption of risk is not a complete defense in suit brought by seaman under 46 USCS Appx section 688; rule to be applied is that of comparative negligence which operates to reduce recoverable damages. Socony-Vacuum Oil Co. v Smith (1939) 305 US 424, 83 L Ed 265, 59 S Ct 262.
In seaman's personal injury action, all lost earnings and medical expenses are recoverable on negligence count, but under Jones Act (46 USCS Appx section 688) they are subject to reduction by jury 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.
Under 46 USCS Appx section 688, contributory negligence is not bar to recovery, but is to be given due weight in arriving at damage recoverable by claimant. The J. H. Hillman (1939, CA3 Pa) 108 F2d 231; Reinhart v United States (1972, CA9 Cal) 457 F2d 151; Scott v Fluor Ocean Services, Inc. (1974, CA5 La) 501 F2d 983.
In action under 46 USCS Appx section 688, further modification of award was not justified since jury had been properly charged to make reduction in damages based on contributory negligence of plaintiff, and court in entering judgment reduced verdict by nearly one half. Herring v Luckenbach S.S. Co. (1943, CA2 NY) 137 F2d 598, 1943 AMC 1215.
Duty which law imposes upon injured person, regardless of any conscious assumption of duty towards wrongdoer is type of contributory negligence which reduces award under 46 USCS Appx section 688. Walker v Lykes Bros. S.S. Co. (1952, CA2 NY) 193 F2d 772.
In action brought under 46 USCS Appx section 688, damages awarded were reduced to reflect plaintiff's own negligence. Andrews v Chemical Carriers, Inc. (1972, CA3 Del) 457 F2d 636, cert den 409 US 874, 34 L Ed 2d 126, 93 S Ct 120.
District Court erred in molding verdict, in case brought by injured diver against her employer, to apply percentage of comparative negligence found by jury with respect to Jones Act claim to unseaworthiness claim where defendant waived issue and where court did not submit issue to jury and later made sua sponte determination. Neely v Club Med Management Servs. (1995, CA3 Pa) 63 F3d 166.
Federal Employers Liability Act, 45 USCS section 53, precludes reduction of damages on ground of comparative fault where vessel on which petitioner was injured was in unexcused violation of Coast Guard safety regulation. Fuszek v Royal King Fisheries (1996, CA9 Wash) 98 F3d 514, 96 CDOS 7787, 96 Daily Journal DAR 12893, 1997 AMC 92.
Amount of damage which seaman sustained which is recoverable under 46 USCS Appx section 688 must be reduced in proportion that his own fault contributed to happening of accident. Davis v Associated Pipe Line Contractors, Inc. (1968, WD La) 305 F Supp 1345, affd (CA5 La) 418 F2d 920, cert den 397 US 988, 25 L Ed 2d 396, 90 S Ct 1119.
If deceased seaman was guilty of negligence contributing to his death, such contributory negligence would not constitute absolute bar to decedent's next of kin in action under 46 USCS Appx section 688 but could only be considered in diminution of damages to which next of kin is entitled. Presley v Upper Mississippi Towing Corp. (1961, La App 1st Cir) 141 So 2d 411.
46 USCS Appx section 688 and accompanying 45 USCS section section 51 et seq. contain no provision as to apportionment equivalent to that in 46 USCS Appx section section 761-767. Re Nelson (1938) 168 Misc 161, 5 NYS2d 398, 1938 AMC 1068.
458. ----Particular circumstancesIf injuries sustained by seaman were caused solely by reason of seaman's intoxication and not because of any fault of shipowner, then recovery under 46 USCS Appx section 688 would be denied; however, where intoxication is merely contributing cause of injury sustained, then recovery will be allowed at reduced amount. Cruz v American Export Isbrandtsen Lines, Inc. (1970, SD NY) 310 F Supp 1364.
Damages will be diminished because of seaman's negligence where seaman was negligent when he attempted to repair hose which caused injury rather than returning immediately to base of operations upon discovery of such damage; although damaged hose caused vessel to be unseaworthy, damaged hose of itself did not cause injury where seaman's improper use of seaworthy equipment to repair damaged hose caused accident and consequently seaman may not recover for unseaworthiness under such circumstance. Landry v Oceanic Contractors, Inc. (1982, ED La) 548 F Supp 337, affd (CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.
In action by seaman for personal injuries incurred when he fired Lyle gun on board ship, accident was result of joint and concurrent negligence of plaintiff and defendant, and damages should be apportioned accordingly. Fegan v Lykes Bros. S. S. Co. (1941) 198 La 312, 3 So 2d 632, 1941 AMC 1154.
459. Apportionment of damages among defendants
Although original negligence of shipowner may be in law proximate cause of damages flowing from subsequent maltreatment by ophthalmologist at Public Health Service Facility, there is no reason why ultimate burden of damages should not be distributed between owner and government, with each made to bear portion caused by its own negligent conduct. Penn Tanker Co. v United States (1969, CA5 Tex) 409 F2d 514 on remand (SD Tex) 310 F Supp 613.
Joint and several loss allocating mechanism which serves to provide injured seaman his full judgment is consonant with policy behind Jones Act, to provide protection to seamen who are victims of negligence. Joia v Jo-Ja Service Corp. (1987, CA1 Mass) 817 F2d 908.
Where shipowner and riparian landowners were independently at fault for seaman's injuries caused by ignition of oil floating on river by lighted lantern, but were in fact and in legal contemplation total strangers to each other, there is no relational basis and no legal justification for imposing indemnitor's liability on riparian landowners after shipowner had paid damages for injuries in action under 46 USCS Appx section 688. American Dredging Co. v Gulf Oil Corp. (1959, DC Pa) 175 F Supp 882, affd (CA3 Pa) 282 F2d 73, cert den 364 US 942, 5 L Ed 2d 373, 81 S Ct 460, reh den 365 US 838, 5 L Ed 2d 748, 81 S Ct 746.
In action by seaman to recover under 46 USCS Appx section 688, ultimate burden of damages is to be distributed between guilty parties, with each made to bear that portion of damages caused by its own negligent conduct. Penn Tanker Co. v United States (1970, SD Tex) 310 F Supp 613.
Joinder of Jones Act (46 USCS Appx section 688) claim with product liability claim does not affect application of proportionate fault doctrine except where otherwise insignificant comparative negligence of plaintiff would reduce recovery. Bass v Phoenix Seadrill/78, Ltd. (1983, ED Tex) 562 F Supp 790, amd on other grounds (ED Tex) 573 F Supp 866 and affd in part and revd in part on other grounds (CA5 Tex) 749 F2d 1154.
In injured seaman's action under Jones Act and general principles of maritime law against vessel owner, right of contribution which owner might otherwise have against hospital which treated seaman for portion of recovery against owner not attributable to owner's conduct is barred by seaman's prior settlement of state court malpractice action against hospital by virtue of New York statute providing, with respect to contribution in multi-defendant action when some but not all of jointly liable defendants settle, that settling defendant is relieved of liability for contribution to codefendants and that plaintiff gives up right to recover from codefendants for portion of award attributable to settling defendant's actions. Soto v United States Lines, Inc. (1985, SD NY) 608 F Supp 904.
Jones Act plaintiff who releases one joint tortfeasor but has viable claim against second joint tortfeasor may recover that portion of total damages proportionate to fault of second joint tortfeasor. Complaint of Chevron Transport Corp. (1985, MD Fla) 613 F Supp 1428.
In federal maritime case brought under 46 USCS Appx section 688, indemnity shall be permitted by tortfeasor, claiming to be only passively or secondarily liable against joint tortfeasor guilty of active or affirmative negligence even where no contractual relationship exists between parties and rule prohibiting contribution between joint tortfeasors is not bar to indemnification. Tri-State Oil Tool Industries, Inc. v Delta Marine Drilling Co. (1969, CA5 La) 410 F2d 178 (disagreed with Loose v Offshore Navigation, Inc. (CA5 La) 670 F2d 493, 68 ALR Fed 318) as stated in Cities Service Co. v Lee-Vac, Ltd. (CA5 La) 761 F2d 238, CCH Prod Liab Rep P 10526.
In action brought under 46 USCS Appx section 688, vessel owner who was only passively negligent was entitled to total indemnity from actively negligent party, and attorneys' fees would be included in funds to which shipowner would be entitled to as indemnification; actively negligent tortfeasor who was operating vessel would be entitled to reimbursement for attorneys fees where insurance policy existed, and insurance company did not provide counsel when notified of action. Kelloch v S & H Subwater Salvage, Inc. (1973, CA5 La) 473 F2d 767, on remand (ED La) 397 F Supp 738, later op (ED La) 397 F Supp 742.
Vessel owner was not entitled to indemnification from other negligent parties in action brought by seaman under 46 USCS Appx section 688 where conduct on which his liability is based was not sufficiently different in kind or degree to be distinguished from conduct of other tortfeasors, and all were guilty of active misconduct. 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.
Shipowner was entitled to indemnity from wharfinger where breach of warranty of workmanlike performance by wharfinger resulted in loss; shipowner's negligence did not preclude indemnification where negligence did not prevent or hamper wharfinger's performance of its duty in accordance with its warranty of workmanlike service. Oglebay Norton Co. v CSX Corp. (1986, CA6 Ohio) 788 F2d 361.
Shipowner-employer is not entitled to indemnity or contribution from employee for Jones Act (46 USCS Appx section 688) damages paid to other employee where Act was enacted only to create negligence cause of action against vessel owners since to permit owner to sue employee for indemnification would be contrary to Act's history and its purpose of enlarging remedies available to seamen. California Home Brands, Inc. v Ferreira (1989, CA9 Cal) 871 F2d 830.
District Court's denial of contribution and indemnity claim against seaman's employer, brought by vessel against which seaman won damages, was not merely authorized but required by jury's verdict assigning 100 percent negligence against vessel and none against employer. Larue v Joann M. (1996, CA11 Fla) 73 F3d 325, 9 FLW Fed C 772, mod (1996, CA11 Fla) 9 FLW Fed C 948.
In order to obtain contribution or indemnity in action brought under 46 USCS Appx section 688 one defendant must first prove that other defendant was negligent and that its negligence was cause of seaman's injury; degree to which first defendant itself was negligent determines its right to contribution or indemnity, if first defendant was only secondarily or constructively negligent it may recover indemnity and if it was primarily negligent contribution is appropriate recovery. Spualding v Parry Navigation Co. (1950, DC NY) 90 F Supp 567, revd on other grounds (CA2 NY) 187 F2d 257, cert den 342 US 918, 96 L Ed 686, 72 S Ct 362.
Shipowner can seek indemnity or contribution from third party liable over for breach of warranty where shipowner has paid to settle personal injury action brought by seaman employee under 46 USCS Appx section 688, provided that seaman was injured on shipowner's vessel, shipowner was potentially liable to seaman and amount paid in settlement was reasonable. Western Tankers Corp. v United States (1975, SD NY) 387 F Supp 487.
Charterer is not entitled to indemnity from operator of vessel where charterer contributed to fault of injury. Landry v Oceanic Contractors, Inc. (1982, ED La) 548 F Supp 337 affd (CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.
Indemnity by employer is not warranted where contributory negligence of employee would have prevented recovery against third party. Gauthier v Crosby Marine Service, Inc. (1983, ED La) 576 F Supp 681.
Ambiguity in employer's liability insurance policy, consisting of conflict between alternate employer endorsement and definition of "insured" that did not include "alternate employer," created genuine issue of material fact as to policy's coverage of vessel owner in connection with on-board injury to employee, precluding summary judgment on vessel owner's indemnity claim against insurer in connection with employee's suit against employer and vessel owner under 46 USCS Appx section 688. Foster v Subsea Int'l (1998, ED La) 101 F Supp 2d 454.
Barge line which entered into court-sanctioned settlement with its injured employee in action under 46 USCS Appx section 688 to compensate him for injury suffered in accident brought about solely because of negligence of another may recover indemnity from other for sums paid and expenses incurred in settlement; right to indemnity arises without any contractual relationship between parties, where one of parties is guilty of active or affirmative negligence, while other is without actual fault but may be vicarious liable because of technical or passive negligence. Wisconsin Barge Line, Inc. v The Barge Chem 301 (1975, MD La) 390 F Supp 1388, revd on other grounds (CA5 La) 546 F2d 1125, reh den (CA5 La) 550 F2d 41 and reh den (CA5 La) 550 F2d 42.
461. --Between shipowner and stevedoring company
Shipowner who settled claim with employee of stevedoring company injured during course of unloading operations, was not volunteer in this settlement because he was at least potentially liable to claims brought by stevedore and was entitled to indemnity from stevedoring company pursuant to provisions of charter. Ace Tractor & Equipment Co. v Olympic S.S. Co. (1955, CA9 Cal) 227 F2d 274.
Shipowner was entitled to indemnification from stevedoring company following reasonable settlement between shipowner and injured stevedore based upon pre-existing contract between shipowner and stevedoring company. West Coast Terminals Co. v Luckenbach S.S. Co. (1965, CA9 Cal) 349 F2d 568.
Shipowner may recover as indemnity from stevedoring contractor those damages which shipowner has been required to pay longshoremen employed by stevedore for injuries suffered aboard ship, even in absence of expressed agreement of indemnity, since essence of stevedoring contract is stevedore's warranty of workmanlike service; this rule has been extended to include indemnity actions by shipowners against other suppliers of services to ships such as ship repair contractors, and against shipyards; shipowner will not be entitled to indemnity for expenses of defense in the absence of showing breach of duty, either in tort or in contract, by wharfinger. Sims v Chesapeake & O. R. Co. (1975, CA6 Mich) 520 F2d 556.
Judgment on action brought under 46 USCS Appx section 688 should not include interest on verdict from date of death, as neither 46 USCS Appx section 688 nor 45 USCS section section 51 et seq. permit awarding of interest before damages are judicially ascertained. Cortes v Baltimore Insular Line, Inc. (1933, CA2 NY) 66 F2d 526.
Discretionary allowance of interest on award for claim based under 46 USCS Appx section 688, from date of death to date of judgment was not clear error, especially in view of judge's computation of present value of award as of date of judgment. Gardner v National Bulk Carriers, Inc. (1964, CA4 Va) 333 F2d 676.
Unlike collision cases and wrongful death cases, where loss, although unliquidated, occurs at one time and is measurable at that one time, case in which damages awarded by jury included substantial compensation for future pain and suffering and future loss of earnings is not appropriate case for awarding of pre-judgment interest. Barrios v Louisiana Constr. Materials Co. (1972, CA5 La) 465 F2d 1157.
It was within trial court's discretion to award prejudgment interest to plaintiff suing under 46 USCS Appx section 688. Brown v Aggie & Millie, Inc. (1973, CA5 La) 485 F2d 1293.
Shipowner entitled to indemnity from wharfinger in connection with wrongful death of seaman was entitled to prejudgment interest from date that shipowner settled wrongful death claim. Oglebay Norton Co. v CSX Corp. (1986, CA6 Ohio) 788 F2d 361.
District Court erred by awarding prejudgment interest on damages for future pain and suffering, contrary to federal rule prohibiting prejudgment interest on postjudgment losses; however, District Court did not abuse its discretion in awarding prejudgment interest on damages for losses that occurred prior to trial. Pickle v International Oilfield Divers, Inc. (1986, CA5 La) 791 F2d 1237.
Award of prejudgment interest to worker who recovered under 46 USCS Appx section 688 was within discretion of District Court with respect to past damages, but was not permissible with respect to future damages, and, on remand, District Court was to divide judgment into past and future damages and reduce award of prejudgment interest accordingly. Martin v Walk, Haydel & Associates, Inc. (1986, CA5 La) 794 F2d 209.
Where there are no exceptional or extraordinary circumstances which militate against award of prejudgment interest on maritime claim, plaintiff is entitled to have interest included in his recovery. Magee v United States Lines, Inc. (1992, CA2 NY) 976 F2d 821.
In fixing award for pecuniary damages recoverable due to seaman's being lost at sea, plaintiff was not entitled to prejudgment interest. Bednar v United States Lines, Inc. (1973, ND Ohio) 360 F Supp 1313.
Prejudgment interest may not be awarded in action under 46 USCS Appx section 688 which was tried to jury; proper case for awarding pre-judgment interest is one in which there were elements of inordinate delay, or most of damages were sustained prior to judgment. Barton v Zapata Offshore Co. (1975, ED La) 397 F Supp 778.
Only jury may award prejudgment interest to verdict on claims exclusively within province of jury. Parisi v Lady in Blue, Inc. (1977, DC Mass) 433 F Supp 681.
Award under Jones Act to injured seaman consisting of single sum of $ 175,000 for general damages including both past and future harm is amended to $ 125,000 for past harm and $ 50,000 for future harm to avoid Ninth Circuit prohibition on awards of prejudgment interest for postjudgment harm. Ward v American Hawaii Cruises, Inc. (1988, DC Hawaii) 719 F Supp 915, reconsideration den (DC Hawaii) 1989 AMC 930.
Award of prejudgment interest is appropriate at rate of 4.9 percent on seaman's past damages, even though recovery of prejudgment interest is normally not allowed in Jones Act (46 USCS Appx section 688) action at law, because same rule does not apply to Jones Act cases brought under court's admiralty jurisdiction, tried without jury. Bush v Diamond Offshore Co. (1999, ED La) 46 F Supp 2d 515.
Award of prejudgment interest is rule rather than exception under maritime law, and, in practice, well-nigh automatic, and rule applies equally to claims brought under 46 USCS Appx section 688. Motts v M/V Green Wave (1999, SD Tex) 50 F Supp 2d 634.
Injured electrician is awarded 6 percent prejudgment interest on all damages accrued from date of loss through entry of judgment, where no peculiar circumstances would make such award inequitable, because equitable rate of prejudgment interest is usually awarded Jones Act (46 USCS Appx section 688) plaintiff in Fifth Circuit to ensure injured seaman is compensated for use of funds to which he is entitled. Laffitte v Maersk Line, Ltd. (2000, SD Tex) 98 F Supp 2d 793.
In 46 USCS Appx section 688 cases there is no prejudgment interest. Melancon v I. M. C. Drilling Mud (1973, La App 1st Cir) 282 So 2d 532, application den (La) 283 So 2d 769 and application den (La) 283 So 2d 771.
Federal jurisprudence disallowing prejudgment interest on claims under Jones Act (46 USCS Appx section 688) is substantive and therefore controlling on action brought in state court. Morris v Transworld Drilling Co. (1978, La App) 365 So 2d 46.
Allowance of interest on judgments in actions under Jones Act (46 USCS Appx section 688) is matter of federal substantive law; prejudgment interest, although authorized under state statute, was properly denied. Shemman v American S.S. Co. (1979) 89 Mich App 656, 280 NW2d 852.
463. --Where joined with general maritime action
46 USCS Appx section 688, and FELA (45 USCS section section 51 et seq.) does not provide for interest before damages are determined; in admiralty, allowance of interest is discretionary with court. Sabine Towing Co. v Brennan (1936, CA5 Tex) 85 F2d 478, cert den 299 US 599, 81 L Ed 441, 57 S Ct 191, reh den 299 US 624, 81 L Ed 459, 57 S Ct 234.
Prejudgment interest is available in 46 USCS Appx section 688 action tried in admiralty, and allowance of interest rests with trial court's sound discretion. Williamson v Western Pacific Dredging Corp. (1971, CA9 Or) 441 F2d 65, cert den 404 US 851, 30 L Ed 2d 91, 92 S Ct 90.
Pre-judgment interest may not be awarded in action under 46 USCS Appx section 688 at law; pre-judgment interest may be awarded in 46 USCS Appx section 688 action in admiralty, subject to usual admiralty rule of discretion. Doucet v Wheless Drilling Co. (1972, CA5 La) 467 F2d 336, 16 FR Serv 2d 971.
In action under 46 USCS Appx section 688, federal admiralty rule under which award of pre-judgment interest would rest within discretion of trial of facts should be employed; awarding of pre-judgment interest is for jury, and trial court's award of pre-judgment interest violated province of jury and therefore may not stand. Robinson v Pocahontas, Inc. (1973, CA1 Mass) 477 F2d 1048 (disagreed with Incandela v American Dredging Co. (CA2 NY) 659 F2d 11) and (disagreed with Kraljic v Berman Enterprises, Inc. (CA2 NY) 575 F2d 412 (disagreed with Holmes v J. Ray McDermott & Co. (CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682) as stated in Harper v Zapata Off-Shore Co. (CA5 La) 741 F2d 87) as stated in Thyssen, Inc. v S.S. Fortune Star (CA2 NY) 777 F2d 57.
In admiralty case, warrant of prejudgment interest is committed to sound discretion of trial court and, in fact, generally in maritime law, prejudgment interests should be awarded. Curry v Fluor Drilling Services, Inc. (1983, CA5 La) 715 F2d 893.
Where plaintiff seeks recovery under Jones Act and general maritime law for injuries sustained in single accident, trial court may exercise discretion to award prejudgment interest only when pure admiralty item of damage, such as damages caused by unseaworthiness, can be isolated and identified in verdict. Domangue v Penrod Drilling Co. (1984, CA5 La) 748 F2d 999.
When Jones Act (46 USCS Appx section 688) claim is brought under court's admiralty jurisdiction, and case is tried to court and not to jury, allowance of prejudgment interest is within discretion of trial court even if there is no finding of unseaworthiness. Williams v Reading & Bates Drilling Co. (1985, CA5 La) 750 F2d 487.
Seaman bringing unseaworthiness and Jones Act claims is not entitled to prejudgment interest unless jury apportions damages between such claims. McPhillamy v Brown & Root, Inc. (1987, CA5 La) 810 F2d 529.
Plaintiff, who recovered on claims brought under 46 USCS Appx section 688 for general unseaworthiness, and for maintenance and cure, was entitled to interest on jury verdict from date of judgment at rate allowed by state law of forum; only jury may award prejudgment interest to verdict on claims exclusively within province of jury. Parisi v Lady in Blue, Inc. (1977, DC Mass) 433 F Supp 681.
Prejudgment interest could not be awarded where Jones Act negligence and unseaworthiness claims were brought against owner of rig in whose service seaman was working at time of his injury but where jury did not find that rig was unseaworthy. Baum v Transworld Drilling Co. (1985, WD La) 612 F Supp 1555.
464. --Post judgment interest
Interest runs from date of judgment on second verdict where new trial granted on issue of damages since no judgment was ever entered on first verdict. Reinertsen v George W. Rogers Constr. Corp. (1975, SD NY) 403 F Supp 1263.
465. Additur and remittitur
In action under 46 USCS Appx section 688, award made by trial court was increased by appellate court where injuries turned out to be much more serious than initially thought. Stuart v Alcoa S.S. Co. (1944, CA2 NY) 143 F2d 178.
Duty of appellate court in reviewing damage award after remittitur was to examine record to determine whether award exceeded maximum amount that trier of fact could have properly awarded. Knight v Texaco, Inc. (1986, CA5 La) 786 F2d 1296.
Jones Act jury verdict awarding $ 855,000 total damages, of which $ 425,000 was attributed to lost earnings, is excessive and new trial is granted unless plaintiff agrees to remittitur to $ 525,000, where 62-year-old tugboat deck hand, possibly on verge of retirement, injured right elbow in one accident and then ankle and elbow in accident 4 months later, because Jones Act claimant is entitled only to full compensation for, inter alia, pain, suffering, and unexaggerated estimate of lost wages. Earl v Bouchard Transp. Co. (1990, ED NY) 735 F Supp 1167.
State Supreme Court cannot reduce amount of jury's verdict, as such authority would be substantive, not merely procedural and would be contrary to intent of Congress in providing for jury trial in suits under 46 USCS Appx section 688. Hust v Moore-McCormack Lines, Inc. (1947) 180 Or 409, 177 P2d 429.
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A new case from the Hawaii Supreme Court recognizes personal injury claims for a viable fetus. This new approach seems consistent with a judicial approach to unborn children that life begins at viability. Castro v. Melchor, SCWC-12-0000753 (March 13, 2018).