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
IV. NEGLIGENCE A. In General
Damages may be recovered in Seaman's action against shipowner under 46 USCS Appx § 688 for personal injuries only when negligence is proven. Jacob v New York City (1942) 315 US 752, 86 L Ed 1166, 62 S Ct 854; De Zon v American President Lines, Ltd. (1943) 318 US 660, 87 L Ed 1065, 63 S Ct 814, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025.
Recovery may be had for injuries due to negligence of one in authority over injured seaman or to any defective condition of vessel. Stevens v R. O'Brien & Co. (1933, CA1 Mass) 62 F2d 632.
Federal Employers' Liability Act (45 USCS § § 51 et seq), incorporated into 46 USCS Appx § 688, makes shipowner liable for injury resulting in whole or in part from negligence of any officer, agent or employee of shipowner or by reason of any defect or insufficiency, due to its negligence, in its cars, appliances, machinery or other equipment. Lopoczyk v Chester A. Poling, Inc. (1945, CA2 NY) 152 F2d 457, 1946 AMC 40.
Mere fact that seaman has suffered injury does not per se call for liability under 46 USCS Appx § 688, if employer negligence has not been found to exist. Carver v Partlow Corp. (1965, CA5 Fla) 344 F2d 932.
Rule that nothing in Jones Act suggests standard of care to be attributed to either employer or employee is anything different than ordinary prudence under circumstances, must be given retroactive effect to all cases open on direct review when rule was announced by court. Crawford v Falcon Drilling Co. (1997, CA5 La) 131 F3d 1120.
Provisions of 46 USCS Appx § 688 apply only to maritime torts. Mullen v Eastern Transp. Co. (1938, DC Pa) 25 F Supp 62.
Actions under 46 USCS Appx § 688 are limited to Seaman's actions on navigable waters and do not extend to nonmaritime torts. Oliver v Calmar S.S. Co. (1940, DC Pa) 33 F Supp 356, 1940 AMC 411.
Vessel owner sued under 46 USCS Appx § 688 is not liable as insurer of injured Seaman's safety but is liable only for negligence. Hopson v Gulf Oil Corp. (1951) 150 Tex 1, 237 SW2d 352.
Right of recovery under 46 USCS Appx § 688 depends on negligence in one or both of two particulars: (1) that of any officer, agent or employee of carrier; (2) by reason of defect or insufficiency of equipment. Mullen v Fitz Simons & Connell Dredge & Dock Co. (1948, CA7 Ill) 172 F2d 601, cert den 337 US 959, 93 L Ed 1758, 69 S Ct 1534.
Under 46 USCS Appx § 688, there must be (1) negligent act by defendant, and (2) negligence must have contributed to injury. West v Eastern Transp. Co. (1950, CA4 Va) 179 F2d 478, cert den 340 US 810, 95 L Ed 595, 71 S Ct 37.
Claim under 46 USCS Appx § 688 requires finding both of negligent breach of duty and proximate cause. Myles v Quinn Menhaden Fisheries, Inc. (1962, CA5 La) 302 F2d 146.
For plaintiff to succeed in suit under 46 USCS Appx § 688, he must establish by fair preponderance of evidence that defendant was negligent and that such negligence was proximate cause, in whole or in part, of his injuries. Oliveras v United States Lines Co. (1963, CA2 NY) 318 F2d 890.
Claim under Jones Act requires finding both of negligent breach of duty and proximate cause. Complaint of Chevron Transport Corp. (1985, MD Fla) 613 F Supp 1428.
254. Duty to employee
Negligent failure to comply with absolute duty to furnish seaworthy vessel reasonably fit for intended voyage, which negligent failure proximately causes injury to seaman, is actionable under 46 USCS Appx § 688. Cortes v Baltimore Insular Line, Inc. (1932) 287 US 367, 77 L Ed 368, 53 S Ct 173.
It is shipowner's duty to provide crew of vessel with reasonably safe place in which to work and failure to do so gives rise to cause of action under 46 USCS Appx § 688. Mahnich v Southern S.S. Co. (1944) 321 US 96, 88 L Ed 561, 64 S Ct 455.
Vessel has duty to provide safe working place for members of its crew. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224, 1945 AMC 887.
Ship must provide safe place to work to seaman, or one who performs tasks traditionally performed by ship's crew; that duty encompasses reasonably safe means of boarding, and departing from, vessel, and failure to discharge it constitutes negligence. Southard v Independent Towing Co. (1971, CA3 Pa) 453 F2d 1115.
It is familiar and well established rule that shipowner has obligation to furnish seamen and longshoremen performing seamen's work, seaworthy vessel, including seaworthy appurtenances and equipment, as well as safe place to work, obligation which extends to area where loading and unloading operations are performed. Shephard v S/S Nopal Progress (1974, CA5 La) 497 F2d 963, reh den (CA5 La) 502 F2d 1167 and reh den (CA5 La) 502 F2d 1168 and cert den 420 US 937, 43 L Ed 2d 414, 95 S Ct 1147.
Shipowner has duty to every seaman employed onboard vessel to furnish vessel with appurtenances that are reasonably fit for their intended use; duty includes maintaining ship's equipment in proper operating condition, and failure of piece of vessel equipment under proper and expected use is sufficient to establish unseaworthiness. Lee v Pacific Far East Line, Inc. (1977, CA9 Cal) 566 F2d 65.
Vessel owner's duty to prevent unseaworthy conditions is absolute, continuing, and non-delegable; lack of knowledge of or opportunity to correct such conditions does not mitigate vessel owner's duty. Allen v Seacoast Products, Inc. (1980, CA5 La) 623 F2d 355, 6 Fed Rules Evid Serv 536 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).
Employer must have notice and opportunity to correct unsafe condition before liability will attach. Perkins v Am. Elec. Power Fuel Supply, Inc. (2001, CA6 Ohio) 246 F3d 593, 2001 FED App 101P, reh den, reh, en banc, den (2001, CA6) 2001 US App LEXIS 11223.
Vessel owner is required to take affirmative action when prevailing conditions require such to prevent accidental injury to members of crew, even though ship and its appurtenances are ordinarily considered to be reasonably safe; failure to exert such diligence as circumstances require can result in unseaworthiness, actionable negligence under 46 USCS Appx § 688, or both. Trahan v Superior Oil Co. (1962, WD La) 204 F Supp 627, affd (CA5 La) 322 F2d 234, 8 ALR3d 497, 1964 AMC 100.
255. --Standard applied
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.
In case under 46 USCS Appx § 688, test of reasonable safety varies with prevailing conditions, and test of order to seaman is whether such order is one which reasonably prudent superior would give in all circumstances. Matson Navigation Co. v Hansen (1942, CA9 Cal) 132 F2d 487.
Nature of business and particular dangers involved determine amount of care required in particular case, whether on land or sea; test or standard to be adopted in determining whether care used is proper and commensurate with danger is supposed conduct under circumstances of reasonable and prudent man; failure to use care that reasonable and prudent man would use under like circumstances is usual concept of negligence and standard of care recognized under maritime law under 46 USCS Appx § 688 and under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81.
Negligence as applied in 46 USCS Appx § 688 must be given liberal construction and includes any knowing or careless breach of any obligation which employer owes to seamen. Koehler v Presque-Isle Transp. Co. (1944, CA2 NY) 141 F2d 490, 1944 AMC 432, cert den 322 US 764, 88 L Ed 1591, 64 S Ct 1288; Catania v Halcyon S.S. Co. (1975, 2d Dist) 44 Cal App 3d 348, 118 Cal Rptr 513.
Under Jones Act (46 USCS Appx § 688), vessel owner is deemed negligent if he fails to exercise reasonable care to maintain reasonably safe work environment. Ober v Penrod Drilling Co. (1984, CA5 La) 726 F2d 1035.
Evidence of "slightest" negligence is sufficient to sustain finding of Jones Act liability, and burden on plaintiff for showing causation is "featherweight." Johnson v Offshore Express, Inc. (1988, CA5 La) 845 F2d 1347, cert den (US) 109 S Ct 497.
Negligence within meaning of 46 USCS Appx § 688 is failure to exercise degree of care which ordinary prudent person would use under circumstances in discharging duty he owes to those who work on vessel. Clements v Chotin Transp., Inc. (1980, MD La) 496 F Supp 163.
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, 3d Dist) 44 Cal App 3d 348, 118 Cal Rptr 513.
In action for death of seaman who jumped into sea while in employ of defendant on fishing trip on defendant's vessel, issue of defendant's liability must be decided upon facts as they presented themselves to master and crew of fishing vessel, and standard of care required was that of reasonably prudent man under circumstances, seeing what these men saw and or ought to have seen of appearance and actions of deceased. Bugden v Trawler Cambridge, Inc. (1946) 319 Mass 315, 65 NE2d 533.
Standard of care imposed upon defendant in action under 46 USCS Appx § 688 is that of reasonable or ordinary care, having regard to circumstances; measure of shipowner's duty in this respect does not vary, but degree of care must be adjusted to risk involved. Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001.
Test of negligence of master is whether he did that which he ought not to have done or failed to do that which he should have done, and his act of commission or omission proximately contributed to accident. Wood Towing Corp. v West (1943) 181 Va 151, 23 SE2d 789.
Standard of care imposed by 46 USCS Appx § 688 is duty to provide seaworthy vessel which owner impliedly promised to his seamen in their contract of employment. Brown v Intercoastal Fisheries, Inc. (1949) 34 Wash 2d 48, 207 P2d 1205.
256. --Higher than for ordinary employer
Obligation of shipowner to his seamen is substantially greater than that of ordinary employer to his employees. Koehler v Presque-Isle Transp. Co. (1944, CA2 NY) 141 F2d 490, 1944 AMC 432, cert den 322 US 764, 88 L Ed 1591, 64 S Ct 1288.
Operator of vessel is required to display higher standard of care than is required of employer on shore with regard to employees, but under 46 USCS Appx § 688 claimant must show negligence on part of employer. Esta v Persohn (1950, La App, Orleans) 47 So 2d 64.
Higher degree of care is required of shipowner than is required of employers of servants for work on shore. Taber v Cities Service Oil Co. (1950) 198 Misc 332, 97 NYS2d 891.
46 USCS Appx § 688 employer has nondelegable duty to furnish plaintiff with safe place in which to work and failure to do so constitutes negligence. Wilkins v P.M.B. Systems Engineering, Inc. (1982, ED Tex) 553 F Supp 201, vacated on other grounds (CA5 Tex) 741 F2d 795.
Shipowner has nondelegable duty to furnish seaman safe place in which to work, and higher degree of care is required of him than is required of employers of servants for work on shore. Taber v Cities Service Oil Co. (1950) 198 Misc 332, 97 NYS2d 891.
Duties imposed by 45 USCS § § 51 et seq., as extended to seamen by 46 USCS Appx § 688, are absolutely nondelegable. Greenhaw v Pacific-Atlantic S.S. Co. (1950) 190 Or 182, 224 P2d 918.
258. --Limits of duty
Shipowner need only provide reasonably safe place for seaman to work and is not insurer of safety. Kahyis v Arundel Corp. (1933, DC Md) 3 F Supp 492.
"Safe place to work" rule is subject to limitation that master is not required to eliminate all danger attendant upon work that is inherently dangerous. The Ellenor (1941, DC Fla) 39 F Supp 576, 1941 AMC 1195, affd (CA5 Fla) 125 F2d 774, 1942 AMC 245.
Under 46 USCS Appx § 688, employer is not held absolutely responsible to furnish employees with safe place to work but is only bound to exercise reasonable care to see that place is reasonably safe. Vojkovich v Ursich (1942) 49 Cal App 2d 268, 121 P2d 803, 1942 AMC 299.
Shipowner is not insurer of safety of ship's seamen, however, seamen have long been considered wards of court and it is clear that duty owed them reaches high standard. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.
Shipowner is not insurer of safety of ship's seamen, but has duty of providing reasonably safe place to work, and reasonably safe method to do work; ship owner is not under duty to supply very best tools or very best method to accomplish particular task. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.
259. --Particular circumstances
Where master had opportunity to make repairs in several ports in which vessel stopped, master had duty to see that vessel, which had become unsafe during voyage, was put in seaworthy condition and to see that any repair order was carried out. Walker v Lykes Bros. S.S. Co. (1952, CA2 NY) 193 F2d 772.
Under 46 USCS Appx § 688, vessel owner is deemed negligent if he fails to exercise reasonable care to maintain reasonably safe work environment; fact that employer permitted lead tongs to swing recklessly, either by driller's failure to use back-up tongs in violation of employer's safety rule or by driller's application of too much torque, is sufficient to constitute breach of duty to furnish plaintiff with reasonably safe place to work within § 688 standards. Ober v Penrod Drilling Co. (1982, CA5 La) 694 F2d 68, vacated on other grounds, superseded on other grounds (CA5 La) 726 F2d 1035.
In causing study to be made of noise levels aboard vessel and in providing individual hearing protection and insulation in engine room of vessel which protected seamen from permanent hearing loss, employers performed their duty to provide their seamen with reasonably safe place to work; employers do not have absolute duty to eliminate all excessive noise aboard vessel, nor even absolute duty to completely insulate their seamen from all excessive noise although employers do have duty to protect their seamen against permanent hearing loss. Hicks v Crowley Maritime Corp. (1982, SD Tex) 538 F Supp 285, affd without op (CA5 Tex) 707 F2d 514 and affd without op (CA5 Tex) 707 F2d 514 and affd without op (CA5 Tex) 707 F2d 514.
Employer who elects not to send engineer or mechanic with its equipment on job is at fault for not instructing personnel with respect to repairing of particular equipment to be used on job; where job requires use of high-pressure hose and employer does not send out its own engineer familiar with intricacies of compressor operations and repairs, where it is reasonable to assume that such engineer would have had expertise and proper tools to effect repair to hose, employer has duty to instruct its personnel with respect to repair of such hoses. 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.
Seaman's claim under 46 USCS § 688 to recover damages for injuries allegedly sustained aboard United States merchant vessel against United States is dismissed, where (1) Seaman's claim of accident was contradictory, confused, and belied by other evidence in several places, (2) Seaman's description of weather conditions and smoothness of vessel's ride at time of accident was belied by deck logs for proposed dates, and (3) convincing proof was not presented as to presence of oil, grease, excessive wetness, or unreasonably dangerous condition of any kind on ladderwell steps, because United States did not breach its duty to provide seaman with safe place to work and equipment that is reasonably fit for safe performance of task at hand. Saleh v United States (1994, SD NY) 849 F Supp 886.
260. Statutory duties
It was for trier of fact to determine whether failure to post lookout amounted to violation of 33 USCS § 221, providing for safety precautions. Wilson v Oil Transport Co. (1957, CA5 La) 242 F2d 727, cert den 355 US 835, 2 L Ed 2d 46, 78 S Ct 56.
46 USCS Appx § 688 gives action for damages for death resulting from negligence as well as for death, without regard to negligence, where violation of statues or regulations contributes to death. Gillespie v United States Steel Corp. (1963, CA6 Ohio) 321 F2d 518, 25 Ohio Ops 2d 22, 7 FR Serv 2d 141, affd 379 US 148, 13 L Ed 2d 199, 85 S Ct 308. (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (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.
In injured roustabout's Jones Act suit asserting that company on whose rig he was working was negligent as matter of law because its failure to install railing along exhaust pipe from which he fell constituted negligence per se, 5 elements of negligence per se claim are (1) violation of Coast Guard regulations, (2) plaintiff's membership in class of intended beneficiaries of regulations, (3) injury of type against which regulations are designed to protect, (4) unexcused nature of regulatory violation, and (5) causation. Smith v Trans-World Drilling Co. (1985, CA5 La) 772 F2d 157.
Seaman's damages, which had been predicated on lower court determination that violation of provision of Corps of Engineers Safety Manual was equivalent to violation of safety statute, should be reduced by percentage of Seaman's contributory negligence as provision is not elevated to status of statute by incorporation by reference in Armed Services Procurement Regulations. B-R Dredging Co. v Rodriguez (1978, Tex) 564 SW2d 693.
261. --Causal relation to injury
46 USCS Appx § 688 permits recovery for death of seaman resulting from violation of statutory duty in absence of any showing of negligence; thus, cause of action for death of seaman arises under 46 USCS Appx § 688 where he lost his life from lamp igniting vapors where lamp, in violation of Coast Guard navigation rule was maintained at height of less than 8 feet above water, and vapor would not have been ignited if lamp had been carried at required height, it being immaterial that Coast Guard regulation was intended for prevention of collisions and for no other purpose. Kernan v American Dredging Co. (1958) 355 US 426, 2 L Ed 2d 382, 78 S Ct 394.
Shipowner who was violating his statutory duty in not having adequate number of fire extinguishers on his ship was not liable under 46 USCS Appx § 688 for death of seaman which was in no way related to fire extinguisher violation. Nolan v Greene (1967, CA6 Ky) 383 F2d 814.
Violation of federal law providing that all ships' masters, mates, chief engineers, and assistant engineers shall be licensed seamen was negligence as matter of law when violation of federal law was proximate cause of injury to seaman. Gonsalves v Coito (1956, 4th Dist) 144 Cal App 2d 138, 300 P2d 742.
In action by seaman for personal injuries incurred when he fired Lyle gun on board ship, evidence showed that defendant failed to comply with regulations which required it to furnish powder bags properly filled to be used in firing of gun, and this failure was one of proximate causes of accident making defendant liable therefor. Fegan v Lykes Bros. S. S. Co. (1941) 198 La 312, 3 So 2d 632, 1941 AMC 1154.
Failure to require operator of vessel to be licensed was violation of Coast Guard regulations and negligence per se, and since obtaining license would have required physical examination of plaintiff, failure to require license was contributing cause of plaintiff's illness; vessel was required by certificate of inspection to have aboard at all times two ocean operators and two deckhands, except when operating not more than 12 hours in any 24 hour period, and vessel's failure to operate with more than two crewmembers when evidence indicates that additional crewmembers were needed, is violation of Coast Guard regulations and negligence. Smith v Cameron Crews, Inc. (1977, La App 3d Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.
262. Compliance with custom and general practice
Compliance with customs and practice of industry is not in itself due care. Schlichter v Port Arthur Towing Co. (1961, CA5 La) 288 F2d 801, cert den 368 US 828, 7 L Ed 2d 32, 82 S Ct 50.
In negligence actions under 46 USCS Appx § 688, prevailing trade customs cannot furnish legal standard of due care. Bryant v Partenreederei-Ernest Russ (1964, CA4 Md) 330 F2d 185.
Seaman is not granted relief against tug owner and employer in action arising out of injuries sustained while dragging cable from one tug to another across wooden dock with warped plank, because although there were other possible methods of transporting cables, method employed by owner was reasonable, prudent, safe, and customary, so there is no merit to Seaman's claim that he was required to perform his job in dangerous or unreasonable manner. Lombas v Moran Towing & Transp. Co. (1995, SD NY) 899 F Supp 1089.
263. Degree of negligence required for liability
Any negligence on part of employer under 46 USCS Appx § 688 which plays any part, however slight, in producing injury to employee is sufficient to fix liability for such injuries. Ferguson v Moore-McCormack Lines, Inc. (1957) 352 US 521, 1 L Ed 2d 511, 77 S Ct 457; Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 985, 13 FR Serv 2d 1116; Stacey v Sea-Drilling Corp. (1970, CA5 La) 424 F2d 1272; Davis v Hill Engineering, Inc. (1977, CA5 Tex) 549 F2d 314, reh den (CA5 Tex) 554 F2d 1065; 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) Santana v United States (1977, CA1 Puerto Rico) 572 F2d 331; 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.
In action under 46 USCS § 688 case should be submitted to jury if, on evidence presented, there is rational basis for inference that defendant was probably in some respect negligent, and that injuries complained of were at least partially caused by such negligence. Smith v Reinauer Oil Transport, Inc. (1958, CA1 Mass) 256 F2d 646, cert den 358 US 889, 3 L Ed 2d 117, 79 S Ct 133.
Under 46 USCS Appx § 688, which incorporates Federal Employers' Liability Act (45 USCS § § 51 et seq.), employer is liable for injury to employee resulting in whole or in part from employer's negligence, and such standard of liability is not identical to employer's negligence being "substantial factor" in causing employee's injury. Farnarjian v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 474 F2d 361 (disagreed with Joyce v Atlantic Richfield Co. (CA10 Colo) 651 F2d 676).
That only slightest negligence need be shown to uphold award of damages in 46 USCS Appx § 688 cases does not mean that seaman may prevail on no evidence at all; there must be some evidence from which jury can infer that unsafe condition existed and that owner either knew or, in exercise of due care, should have known of it. Perry v Morgan Guaranty Trust Co. (1976, CA5 La) 528 F2d 1378.
Remedial nature of 46 USCS Appx § 688 and its imposition of higher standard of care on employers results in liability upon showing of only slight negligence. Allen v Seacoast Products, Inc. (1980, CA5 La) 623 F2d 355, 6 Fed Rules Evid Serv 536 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).
District Court adequately explained to jury lesser standard of negligence needed to establish liability under Jones Act, where District Court instructed jury, inter alia, that (1) negligence is legal cause of damage if it played any part, no matter how small, in bringing about or actually causing injury or damage, (2) jury may find injury or damage legally caused by defendant's act or omission if it should find "any" negligence of defendant contributed in any way to plaintiff's injury, and (3) unseaworthiness claim differs from Jones Act claim. Rogers v Eagle Offshore Drilling Services, Inc. (1985, CA5 La) 764 F2d 300, reh den, en banc (CA5 La) 770 F2d 549.
Seaman has right to recover damages from his employer if employer was guilty of some negligence and such negligence played any role, no matter how slight, in producing injury; although plaintiff bears burden of proof on such issue, burden is "featherweight." Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.
More than ample evidence supported jury's finding of liability of owner and pro hac vice owner of barge, on which seaman was injured, under 46 USCS Appx § 688, because (1) multiple references to letters on side of barge which were initials of corporate owner proved ownership, (2) tug's deck log and testimony indicated tug boat company's complete command and control over barge and proved pro hac vice ownership, and (3) evidence of inadequate lighting and dent on barge which caused seaman to trip proved slight negligence and therefore liability. Turner v Inland Tugs Co. (1988, ED La) 689 F Supp 612.
Proper test of liability in action brought under Jones Act (46 USCS Appx § 688) is whether employer's negligence played any part in causing injury. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.
Test of negligence of master is whether he did that which he ought not to have done or failed to do that which he should have done, and his act of commission or omission proximately contributed to accident. Wood Towing Corp. v West (1943) 181 Va 151, 23 SE2d 789.
Trial court's refusal, in action under 46 USCS Appx § 688, to give instruction on proximate cause to effect that if employer's negligence played any part, even slightest, in producing injury to plaintiff, plaintiff may recover, and court's giving traditional instruction that proximate cause is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces result complained of, and without which it would not have occurred, was reversible error. De Lima v Trinidad Corp. (1962, CA2 NY) 302 F2d 585.
Employer's negligence need not be sole proximate cause of injury to result in his liability, but may merely be contributing cause of accident. Spinks v Chevron Oil Co. (1975, CA5 La) 507 F2d 216, clarified (CA5 La) 546 F2d 675 and (disagreed with by multiple cases as stated in Doucet v Gulf Oil Corp. (CA5 La) 783 F2d 518, reh den (CA5 La) 788 F2d 250); Bennett v Perini Corp. (1975, CA1 Mass) 510 F2d 114 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den 469 US 1211, 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)); Reyes v Vantage S.S. Co. (1977, CA5 Tex) 558 F2d 238, on reh (CA5 Tex) 609 F2d 140, later app (CA5 Tex) 672 F2d 556, later proceeding (SD Tex) 575 F Supp 926, withdrawn; Smith v Cameron Crews, Inc. (1977, La App 3d Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.
Court will decline to apply lesser Jones Act standard of causation to general maritime law claims. McClow v Warrior & Gulf Navigation Co. (1988, CA11 Ala) 842 F2d 1250.
In Jones Act cases, necessary causal connection requires more than mere "but for" cause; alleged negligence must be "legal cause" of injury. Gavagan v United States (1992, CA5 Tex) 955 F2d 1016.
In 46 USCS Appx § 688 action predicated upon unseaworthiness of vessel or negligence on part of shipowner libelant must prove that unseaworthy condition was proximate cause of his injury, or that negligence of respondent caused in whole or in part injury complained of. Goodrich v Cargo Ships & Tankers, Inc. (1965, ED La) 241 F Supp 332, 1965 AMC 2749.
Causative element in Jones Act cases is less than common-law standard of proximate cause; question is whether actions of defendant contributed to injury even in slightest degree; employer's negligence need not be sole proximate cause of injury to result in liability but need merely be contributing cause. Complaint of Chevron Transport Corp. (1985, MD Fla) 613 F Supp 1428.
Under 46 USCS Appx § 688, it is not necessary to show that employer's negligence was proximate cause of injury or death complained of, but that it is sufficient to establish jury question by simply showing some negligence on part of employer, coupled by direct or circumstantial evidence to injury or death of employee. Gaymon v Quinn Menhaden Fisheries, Inc. (1960, Fla App D1) 118 So 2d 42, 81 ALR2d 1165.
Burden on plaintiff to prove proximate cause in action based on 46 USCS Appx § 688 is very light; jury in such cases is entitled to make permissible inferences from unexplained events, whether case is brought under 46 USCS Appx § 688 or under general maritime law. Alaska S.S. Co. v Petterson (1954) 347 US 396, 98 L Ed 798, 74 S Ct 601, reh den 347 US 994, 98 L Ed 1127, 74 S Ct 848.
In death actions sounding in negligence under 46 USCS Appx § 688, when exact circumstances of casualty are known, United States Supreme Court has fundamentally transformed traditional negligence law respecting causation by permitting finder of fact to supply by inference many elements normally required to be proven by plaintiff; as to defendant's negligence constituting legal cause of accident, slight evidence is sufficient so long as inference is that which reasonable, prudent men might reach on basis of evidence; by use of extension of res ipsa loquitur principle regarding permissible inferences from unexplained events, finder of facts may infer requisite legal causation and test is simply whether proofs justify with reason conclusion that employer negligence played any part, even slightest, in producing injury, it being immaterial that from evidence finder of fact may also with reason, on grounds of probability attribute results to other causes, including employee's contributory negligence. Admiral Towing Co. v Woolen (1961, CA9 Cal) 290 F2d 641.
266. --Particular circumstances
Even if lifeboats were carried in negligent manner, seaman injured when vessel was torpedoed could not recover if there was no substantial evidence connecting alleged negligence with injury as its proximate cause. Ryan v United States (1945, CA3 Pa) 150 F2d 366, 1945 AMC 690.
Where sailor sued employer for injuries sustained because of failure to properly repair malfunctioning high pressure hoses on vessel, trial court correctly ruled that failure to train workers in use of hose caused injury but damaged hose itself did not, since issues relating to seaworthiness (i.e. damaged condition of ship) requires a traditional showing of causation to establish liability, whereas liability for failure to train need only be shown by slight evidence of relatively attenuated causation. Landry v Oceanic Contractors, Inc. (1984, CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.
Captain's failure to consult chart depicting location of natural gas pipeline was not cause of accident where chart did not indicate that it would be unsafe to navigate over it, captain had fished waters for 13 years, and charted location of pipeline was actually 150 feet in error. Zapata Haynie Corp. v Arthur (1992, CA5 La) 980 F2d 287, reh, en banc, den (CA5) 1993 US App LEXIS 2349.
Suit by crewman of fishing vessel fails under 46 USCS Appx § 688, where crewman gave conflicting versions of what caused his injury and concealed parts of his medical history during doctor visits and deposition, because crewman failed to show his injuries resulted from either negligence of captain or crew or unseaworthiness of vessel. Biktjorn v Bendiksen (1991, WD Wash) 774 F Supp 581, 1992 AMC 347.
Assuming that vessel negligently failed properly to maintain ship's living facilities and that their uninhabitability rendered vessel unseaworthy, those facts alone fail to establish legally adequate causal link between alleged negligence and Seaman's injuries sustained in motorcycle accident while traveling from vessel to crew's living quarters. Brown v Stanwick International, Inc. (1979, Fla App D3) 367 So 2d 241.
For employer to be negligent under 46 USCS Appx § 688, defect for which seaman is suing must be of such nature that ship owner should reasonably have apprehended danger of injury. Pittsburgh S.S. Co. v Palo (1933, CA6 Ohio) 64 F2d 198.
Proof of negligence on part of shipowner involves at least showing that under existing circumstances, shipowner or his agents should reasonably have anticipated danger or bodily injury to member of crew. Sundberg v Washington Fish & Oyster Co. (1943, CA9 Wash) 138 F2d 801, 1943 AMC 1337.
In action to recover damages under 46 USCS Appx § 688, it could not be said that there was negligence as matter of law in absence of establishing that either crew members, seamen or officers were aware of dangerous condition. Williams v Tide Water Associated Oil Co. (1955, CA9 Wash) 227 F2d 791, cert den 350 US 960, 100 L Ed 834, 76 S Ct 348.
Forseeability of harm is pertinent test in negligence cases under 46 USCS § Appx 688. Gwinett v Albatross S.S. Co. (1957, CA2 NY) 243 F2d 8, cert den 355 US 828, 2 L Ed 2d 41, 78 S Ct 40.
Where vice-president of lighterage company had knowledge of defect causing injury and decided that it was not of sufficient importance to warrant repairs, company was liable. The New Zealand (1931, DC NY) 49 F2d 781.
Federal court has admiralty jurisdiction over asbestos liability case in which seaman claims injury following exposure to asbestos in ship's engine room, since asbestos manufacturers could reasonably expect their products would be utilized aboard ocean-going vessels, Seaman's duties were central to maritime function of vessels, and vessels were engaged in maritime commerce. Tritt v Atlantic Richfield Co. (1989, ED Pa) 709 F Supp 630.
Seaman severely injured in fight with fellow crewman is denied recovery under Jones Act (46 USCS Appx § 688) for negligent hiring or supervision, where only deck boss knew of crewman's previous fight and even he thought crewman was not violent, because crewman's violence was not foreseeable. Torres v M/V Fuiono Fishing Vessel (2001, SD Cal) 141 F Supp 2d 1028.
In order to prove breach of duty to provide safe vessel under Jones Act (46 USCS Appx § 688), plaintiff must demonstrate that vessel owner or operator knew or should have known of alleged unsafe and negligent condition on vessel. Clements v Chotin Transp., Inc. (1980, MD La) 496 F Supp 163.
Cause of action sounding in negligence under 46 USCS Appx § 688 will fail when plaintiff does not come forward with any evidence which would establish that defendant had either actual or constructive notice of allegedly unsafe condition complained of by plaintiff. Lotzman v Oxyness Shipping Co. (1978) 93 Misc 2d 461, 402 NYS2d 964.
268. --Knowledge of infirmity or illness
Captain of ship was not negligent in hiring deceased as steward even though he met deceased in hospital prior to his appointment, where captain did not have any personal knowledge that deceased was suffering from disease which made long ship journeys dangerous. Potter Title & Trust Co. v Ohio Barge Line, Inc. (1950, CA3 Pa) 184 F2d 432, 1950 AMC 273, cert den 340 US 955, 95 L Ed 689, 71 S Ct 567.
In action for death damages under 46 USCS Appx § 688 evidence that master of ship was negligent in allowing decedent to go on watch in deteriorated physical condition due to his dissipation, and failing to post lookout on mast during search for seaman was sufficient to permit jury to consider charges. Swords v American Sealanes, Inc. (1971, CA4 Va) 443 F2d 1324, cert den 404 US 948, 30 L Ed 2d 265, 92 S Ct 276.
Instruction by trial judge that if seaman who was lost at sea knowingly misrepresented his physical condition, and that because of misrepresentation shipowner was justified in not taking special precautions for Seaman's safety, then jury could not find shipowner negligent under 46 USCS Appx § 688 in that regard, was proper, since shipowner was not obligated to provide special precautions unless he knew of particular physical condition requiring such precautions. Estate of Larkins v Farrell Lines, Inc. (1986, CA4 Md) 806 F2d 510.
Where crew of vessel negligently permitted seaman suffering from epileptic seizure to fall overboard and drown, vessel owner was liable. Russell v Merchants & Miners Transp. Co. (1937, DC Va) 19 F Supp 349, 1937 AMC 246.
Shipowner was liable, under 46 USCS Appx § 688 and 46 USCS Appx § § 761 et seq., for crew's negligence contributing to death of seamen who disappeared at sea, where master was aware of severe psychiatric condition and suicidal note of seaman and was aware that proper course of conduct was one of constant observation. Bednar v United States Lines, Inc. (1973, ND Ohio) 360 F Supp 1313.
Even though steamship company had knowledge of disability of mess boy when it employed him, it would not be held negligent on that account in action under 46 USCS Appx § 688 for damages suffered by employee from heat stroke. Ducombs v Lykes Bros. S.S. Co. (1941, La App, Orleans) 1 So 2d 114.
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