Injuries at Sea: Establishing Liability

Over the past year, I have had the pleasure of authoring a series of articles outlining principles of maritime law. This article will focus on establishing liability under general maritime law and the Jones Act. In an upcoming Trial News, I will conclude this series by outlining seaman damages.

Background

Maritime and Admiralty law encompass the rules, concepts and procedures governing navigation and commerce by water. General maritime law was codified into the laws of the United States through the United States Constitution Article III, Section 2. This constitutional provision extended the judicial power of the United States to all cases of admiralty and maritime jurisdiction. Originally, general maritime law simply provided seamen with benefits of maintenance and cure for injuries sustained aboard their vessels. These benefits were a form of workers' compensation. With the advancement of steam navigation, the shipping industry increased dramatically. Injuries aboard vessels became more common and it was evident that these minimal benefits did not adequately compensate seamen for the dangerous nature of the industry and the "perils of the sea." The United States Supreme Court first expanded seaman remedies in the historical case The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903). As a result of The Osceola, damages were now available ". . . for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship." Id. at 175. The warranty of seaworthiness imposed upon a vessel owner the absolute and non-delegable duty to provide seamen with a vessel that was both reasonably fit for its intended purpose and voyage. When the vessel owner's breach of this warranty caused injuries, a seaman was now entitled to damages against both the vessel (in rem) and its owner (in personam).

With these broadened rights, however, injured seamen still could not recover damages for the negligence of their employer or fellow employees. Consequently, claims for unseaworthiness could be commonly defeated by the fellow servant rule.

In response to this injustice, Congress passed Section 33 of the Merchant Marine Act in 1920, which is commonly called the Jones Act, and is codified at 46 U.S.C. sec. 688. The Jones Act provided seamen with a negligence remedy. The Act was named for Senator Wesley L. Jones of Washington State, who was then the chairman of the Senate Commerce Committee. The Jones Act, 46 U.S.C. sec. 688(a), provides as follows:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with a right of trial by jury, and in such actions all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railroad employees shall apply; and in case of the death of any seaman as a result of such personal injury, the personal representative of such seaman may maintain an action for damages at law with a right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

The Jones Act provided seamen with rights parallel to railroad workers under the Federal Employers' Liability Act (FELA), 45 U.S.C. sec.sec. 51-60. FELA provides railroad workers with the right to sue their employer for injury or death. 45 U.S.C. sec. 51. Under FELA, the common law defenses of contributory negligence and assumption of risk were abolished, 45 U.S.C. sec.sec. 53, 54. A comparative negligence rule is applicable to both FELA and Jones Act cases, and the negligence of a seaman is only a defense which goes to the mitigation of damages.

Under general maritime law, seamen are not entitled to a trial by jury. However, the Jones Act provides the right to a jury trial if brought on the "law side of a federal district court." Generally, a seaman's dual claims are joined as one action; when this occurs, both claims may be heard by a jury. Fitzgerald v. U.S. Lines, Co., 375 U.S. 16 (1963).

Unseaworthiness

As aforementioned, a claim based upon unseaworthiness enforces upon the ship owner an "absolute duty to provide to every member of his crew 'a vessel and appurtenances reasonably fit for their intended use.'" Ferrara v. L&V Fishing, Inc., 99 F.3d 449, 453 (1st Cir. 1996); Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 199 (1st Cir. 1980). This duty is not only absolute, but also continuing and non-delegable. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 80 S.Ct. 926, 932, 4 L.Ed. 2d 941 (1960). The warranty of seaworthiness extends to the entire vessel and to all facets of its operator.

The term seaworthy is a relative one. A seaworthy vessel, generally, is one sufficiently strong, stauch, and appropriately equipped to allow it to safely engage in its intended use . . . . The vessel must be fit for the use anticipated, and must be able to withstand expected seasonable weather in the area where used.

Nygaard v. Peter Pan Seafoods, Inc., 508 F. Supp. 151, 153 n. 5 (D.C. Wash. 1981), aff'd in part, vacated in part on other grounds, 701 F.2d 77 (9th Cir. 1983); see also Mitchell, supra.

How an unseaworthy condition came into being is generally irrelevant "to the owner's liability for personal injuries resulting from it." Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517, 27 L.Ed. 2d 562 (1971).

Although this duty has been viewed as a form of strict liability, Smallwood v. American Trading & Transportation Co., 839, F. Supp. 1377, 1379 (N.D. Cal. 1993), "[t]he standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suited for her intended use." Mitchell, supra at 550, 80 S.Ct. at 933.

Diligence or adhering to prevailing industry standards and customs does not necessarily relieve the duty to provide a seaworthy vessel. Ward v. American Hawaii Cruises, 719 F. Supp. 915, 921 (D. Hawaii 1988); Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir. 1980).

Unseaworthiness can be established in a variety of ways. For example, defective gear and tools will render a vessel unseaworthy. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), reh. Denied, 328 U.S. 878; Mannich v. Southern Steamship Co., 321 U.S. 96, 64 S. Ct. 455, 88 L.Ed. 561 (1944); Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 81 S.Ct. 6, 5 L.Ed. 2d 20 (1960).

This duty includes providing an adequate crew as a whole and for individual tasks to be performed. Tran v. Captain Glyn, Inc., 909 F. Supp. 727, 735 (D. Hawaii 1995).

Slippery decks may also create an unseaworthy condition. Spinks v. Chevron Oil Co., 507 F.2d 216 (5th Cir. 1975).

Under the warranty of seaworthiness, a transitory condition of a crew member may create a breach, Mitchell, supra, however, an isolated act of negligence by a fellow crew member will not necessarily establish an unseaworthy condition. Usner, supra; see also Hogge v. SS Yorkmar, 434 F. Supp. 715 (D.C. Md. 1977).

A seaman may not recover for an injury caused by his own failure to perform a duty imposed upon him by his employment. Reinhart v. United States, 457 F.2d 151, 154 (9th Cir. 1972). This principle is known as the primary duty rule. In Bernard v. Maersk Lines, Ltd., 22 F.3d 903 (9th Cir. 1994), the court defined three principles that limit the application of this rule as follows:

First, the primary duty rule will not bar a claim of injury arising from the breach of a duty that the plaintiff did not consciously assume as a term of his employment. Second, the rule does not apply where a seaman is injured by a dangerous condition that he did not create and, in the proper exercise of his employment duties, could not have controlled or eliminated. Third, the rule applies only to a knowing violation of a duty consciously assumed as a term of employment. It does not apply to a momentary lapse of care by an otherwise careful seaman.

Id. at 907.

In summary, a plaintiff having an unseaworthiness claim must establish that:
  1. the warranty extended to him and his duties;
  2. his injury was caused by the ship's equipment or appurtenances;
  3. the ship's equipment or appurtenances were not reasonably fit for their intended use; and
  4. the unseaworthy condition proximately caused his injuries.

The Jones Act

To recover under the Jones Act, a seaman must establish that his employer, or one of its agents, was negligent, and that this negligence was a cause, however slight, of his injuries. 46 U.S.C. sec. 688(a); Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir. 1993). A seaman may recover even where the negligence did not render the ship unseaworthy. Toucet v. Maritime Overseas Corp., 991 F.2d 5, 10 (1st Cir 1993). The ". . . evidence necessary to support a finding of Jones Act negligence is less than that required for common law. Negligence, . . . even the slightest negligence is sufficient to sustain a finding of negligence." Havens at 218.

In Riditzki v. Can Mar Reading & Bait Limited Partnership, 111 F.3d 658 (9th Cir. 1997), the court outlined the Jones Act duty as follows:

The employer of a seaman owes the seaman a duty under the Jones Act to provide the seaman with a safe place to work. This duty extends to providing a safe place to work on the ship of a third person over whom the employer has no control, if that is where the seaman's employer sends him to work.

Id. at 662. The Jones Act causation standard is often described as featherweight. This standard was described by the United States Supreme Court in Rogers v. Missouri Pacific RR Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed. 493 (1957). The Ninth Circuit quoting Rogers at 506, S.Ct. at 448, has stated as follows:

[T]he test of a jury case [on the question of causation] is simply whether the proof justified . . . that employer negligence played any part, even the slightest, in producing the injury . . . for which damages are sought.

Lies v. Farrell Lines, Inc., 641 F.2d 765, 770-71 (9th Cir. 1981), quoting Rogers v. Missouri Pacific RR Co., 352 U.S. 500, 506, 77 S. Ct. 443, 448, 1 L.Ed. 493 (1957).

A Jones Act claim may only be brought against a seaman's employer, Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S. Ct. 1317, 93 L.Ed. 1692 (1949), reh. Denied, 338 U.S. 839. However, the Jones Act recognizes the "borrowed servant" doctrine. Under this doctrine, "[t]he person to whom the employee is loaned assumes the responsibilities of a master, thereby relieving the original master of liability for the injuries that occur in the scope of the borrowed servant's employment." Wolsiffer v. Atlantis, Inc., 848 F. Supp. 1489, 1495 (D. Hawaii 1994).

Although the Jones Act is normally construed in favor of the seaman, the employer is only liable if its agents either knew or should have known of the unsafe condition which is the basis for a negligence claim. Ribitzki at 663. However, under the Act, a duty of reasonable inspection is implied. Id. at 663.

In staying with the general theme of the Act, courts have traditionally held that a seaman's duty to protect himself is only "slight." Brooks v. Great Lakes Dredge-Dock Co., 754 F.2d 556 (5th Cir. 1984), modified on other grounds, 754 F.2d 539 (5th Cir. 1985); Ceja v. Mike Hooks, Inc., 690 F.2d 1191 (5th Cir. 1982). However, in Gartreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997), the court recently took a step backward, holding that the standard of care owed by a Jones Act seaman is to act with ordinary prudence under the circumstances. See also Sharp v. Stokes Towing Co., Inc., 1998 WL 11620 (N.D. Miss. 1998). The Ninth Circuit has not recently addressed this issue.

Conclusion

General maritime law and the Jones Act provide plaintiff's counsel with significant "tools" with which to seek justice on behalf of injured seamen and their families.