Recent Personal Injury and Car Accident News and Cases related to Hawaii
On June 29, 2015, the Hawaii Supreme Court rendered its decision in the case of St. Paul Fire and Marine Ins. Co. v. Liberty Mutual Insurance, Hi. Sup. Ct. Case No SCCQ-14-0000727 (June 29, 2015). This case arose out of a wrongful death personal injury case handled by this office which resulted in a $4.1 million verdict in favor of our clients - even though Liberty Mutual, the primary liability insurer, never offered anything even close to its policy limits of $1 million. St. Paul - who had to pay our clients everything recovered in excess of the initial $1 million - claimed that Liberty Mutual committed bad faith towards it by failing to settle within its $1 million policy limits. The Hawaii Supreme Court agreed and found that an excess insurer has claims for bad faith against a primary insurer.
JONES ACT- TABLE OF CONTENTS
The Jones Act
h3>14. Federal Employees' Compensation Act (5 USCS § § 8101 et seq.)
Federal Employees' Compensation Act (5 USCS § § 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 § 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 § 8116. Hutchins by Hutchins v TVA (1996, CA11 Ala) 98 F3d 602, 10 FLW Fed C 518.
Federal Employees Compensation Act (5 USCS § § 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 § § 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 § 688, because his exclusive remedy is under Federal Employees' Compensation Act (5 USCS § 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 § 688) claim by estate of federally employed seaman, killed in boating accident, against government is barred under 5 USCS § 8116(c); exclusive remedy is under Federal Employees Compensation Act (5 USCS § § 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 § § 901 et seq.)
Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) superseded 46 USCS Appx § 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 § § 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 § 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 § 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 § § 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 § § 901 et seq.) had no cause of action under 46 USCS Appx § 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 § § 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 § 688), Safety Appliance Act (45 USCS § § 1 et seq.), and Federal Employer's Liability Act (45 USCS § § 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 § 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 § § 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 § § 901 et seq.) had not been passed, including right to bring under 46 USCS Appx § 688 action for damages at law. Thorneal v Cape Pond Ice Co. (1947) 321 Mass 528, 74 NE2d 5.
16. --Status of plaintiff
If oiler who was injured while working aboard defendant's vessel was seaman under 46 USCS Appx § 688 and member of crew under Longshore Act (33 USCS § § 901 et seq.), then he was free to sue under 46 USCS Appx § 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 § 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 § § 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 § 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 § § 901 et seq.-, was not thereby precluded from maintaining his action under 46 USCS Appx § 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 § § 901 et seq.) for compensation benefits did not deprive plaintiff of right to jury determination of his Seaman's status under 46 USCS Appx § 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 § 688 because of prior determination of ALJ that plaintiff was covered under 33 USCS § § 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 § 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 § 1333 calls for application of Longshoremen's and Harbor Workers' Compensation Act (LHWCA) (33 USCS § 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 § 688 as seaman rather than under Longshore and Harbor Workers' Compensation Act (33 USCS § § 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 § § 51 et seq.)
Amendment of 1939 to Federal Employers' Liability Act (45 USCS § § 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 § 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 § 688 extends to seamen same rights granted to railroad employees by Federal Employers' Liability Act (45 USCS § § 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 § 688 creates federal right of action for wrongful death of seaman based on statutory action under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Kernan v American Dredging Co. (1958) 355 US 426, 2 L ed 2d 382, 78 S Ct 394.
46 USCS Appx § 688, by expressly providing for seaman cause of action granted to railroad workers by Federal Employers' Liability Act (45 USCS § § 51 et seq.), provides for entire doctrine of liability judicially developed under latter Act; 46 USCS Appx § 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 § 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 § § 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 § 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 § § 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 § § 51 et seq.), where recent Supreme Court decision restricting abrogation of Eleventh Amendment immunity to Jones Act (46 USCS § 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 § 688 was to make applicable to seafaring occupation only such features of Federal Employers' Liability Act (45 USCS § § 51 et seq.) as were not already expressly covered by Wrongful Death on the High Seas Act (46 USCS Appx § § 701 et seq.). Re Rademaker's Estate (1938) 166 Misc 201, 2 NYS2d 309, 1938 AMC 396.
46 USCS Appx § 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 § § 51 et seq.). Re Nelson (1938) 168 Misc 161, 5 NYS2d 398.
18. --Standards of liability
Standard of liability under 46 USCS Appx § 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 § 688 incorporates standards of Federal Employers' Liability Act (45 USCS § 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 § 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 § 1 of Federal Employers' Liability Act (45 USCS § 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 § § 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 § 688 and Federal Employers' Liability Act (45 USCS § § 51 et seq.). Catania v Halcyon S.S. Co. (1975, 2d Dist) 44 Cal App 3d 348, 118 Cal Rptr 513.
19. --Use of precedent
46 USCS Appx § 688 makes 45 USCS § § 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 § 688 court may consider decisions rendered under 45 USCS § § 51 et seq. Greenhaw v Pacific-Atlantic S.S. Co. (1950) 190 Or 182, 224 P2d 918.
46 USCS Appx § 688 incorporates 45 USCS § § 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 survivors
Surviving 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 § 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 § § 51 et seq.- schedule of beneficiary for wrongful death or personal injury action brought under Jones Act -46 USCS Appx § 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 § § 441 et seq.)
Although under exclusionary language of 46 USCS Appx § 444 scientific personnel on oceanographic research vessel may not bring suit under Jones Act (46 USCS Appx § 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 § § 441 et seq.) does not remove scientific personnel from Seaman's status under 46 USCS Appx § 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 § 688- and general maritime law, are not prevented from doing so by 46 USCS Appx § § 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 § 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 § § 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 § 444. Mitola v Johns Hopkins Univ. Applied Physics Lab. (1993, DC Md) 839 F Supp 351.
22. Suits in Admiralty Act (46 USCS Appx § § 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 § § 741 et seq.) for remedy to enforce substantive right given by 46 USCS Appx § 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 § § 741 et seq.); that Act is not in conflict with 46 USCS Appx § 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 § 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 § § 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 § § 741 et seq.) would not apply, and federal District Court would have jurisdiction under 46 USCS Appx § 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 § 688 applies to suit by seaman under 46 USCS Appx § 742. Hansen v United States (1926, DC Ga) 12 F2d 321.
Jones Act, 46 USCS Appx § 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 § 688 are enforceable by Suits in Admiralty Act, 46 USCS Appx § § 741 et seq. Schwecke v United States (1951, DC Cal) 96 F Supp 225.
23. Death on the High Seas Act (46 USCS Appx § § 761 et seq.)
Death on High Seas Act (46 USCS Appx § § 761 et seq.) creates wrongful death action for death outside 3-mile limit; whereas 46 USCS Appx § 688, incorporating Federal Employers' Liability Act (45 USCS § § 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 § § 761-768) and 46 USCS Appx § 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 § 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 § § 761-768) by Seaman's administratrix, notwithstanding existence of 46 USCS Appx § 688 and fact that administratrix had previously brought similar action under 46 USCS Appx § 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 § 688 and unseaworthiness under Death on High Seas Act (46 USCS Appx § § 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 § 688 for negligence or under Death on High Seas Act (46 USCS Appx § § 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 § § 761 et seq.) may be coupled with action under 46 USCS Appx § 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 § 688 for death of his son was no bar to suit in admiralty under Death on High Seas Act (46 USCS Appx § § 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 § § 761-768), even when joined with jurisdiction under 46 USCS Appx § 688, creates situation different from 46 USCS Appx § 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 § § 761-768) or under 46 USCS Appx § 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 § 688 does not affect legality of claims under Death on High Seas Act (46 USCS Appx § § 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 § 688) claim is available, because in this type of claim Death on High Seas Act (46 USCS Appx § § 761 et seq.) does not preempt general maritime survival action 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 § 688 so recently after enactment of Death on the High Seas Act (46 USCS Appx § § 761-768) did not indicate Congressional intention that provisions of 46 USCS Appx § 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 § 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 § 688 without express repeal of Death on High Seas Act (46 USCS Appx § § 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 § 688 and resort to Death on High Seas Act (46 USCS Appx § § 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 § § 761-768) and 46 USCS Appx § 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 § § 761-768) or under 46 USCS Appx § 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 § § 761 et seq.) as well as under 46 USCS Appx § 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 treaties
Defense Bases Act (42 USCS § § 1651 et seq.), which incorporates remedies of Longshoremen's and Harbor Workers' Compensation Act (33 USCS § § 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 § 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 § 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 § 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 § 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. § § 1271, 1273, 1274, 1291-1295), as if he were proceeding under 46 USCS Appx § 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 § 1331, because suit is not precluded by 46 USCS Appx § 688. Pearson v Rowan Cos. (1987, ED La) 674 F Supp 558.
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