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 C. Circumstances of Injury 2. Improper Management and Supervision a. In General
292. Instruction or training
Shipowner has duty to instruct youthful, inexperienced seaman employed to work around dangerous machinery and to warn him of dangers to be encountered. The State of Maryland (1936, CA4 Va) 85 F2d 944.
Negligence of employer was responsible for injury to inexperienced fireman opening wrong draft of burner first, which example was set for him by employee assigned to instruct him and where dangers of such method had not been disclosed to him. The Maryland (1936, DC Va) 1936 AMC 310.
Drilling company is liable for injuries to seaman where company failed properly to train and supervise employees who mishandled equipment on drilling barge, causing injury to seaman, because such failure to train and supervise created unseaworthy condition which was cause of accident. Brown v Cliff's Drilling Co. (1986, ED Tex) 638 F Supp 1009.
Vessel owner was not negligent in failing to instruct mate who had had 20 years' experience. West Kentucky Coal Co. v Parker's Adm'r (1929) 229 Ky 685, 17 SW2d 753.
293. --Safety equipment
In light of decedent's inexperience and ignorance of seagoing perils, shipowner had duty to instruct decedent as to use of life vest and could not leave such important decision, to wear or not wear life vest, up to this particular individual. Davis v Parkhill-Goodloe Co. (1962, CA5 Fla) 302 F2d 489, 5 FR Serv 2d 853 (disagreed with Deal v A.P. Bell Fish Co. (CA5 La) 728 F2d 717).
Employer was negligent in failing to instruct seaman in use of goggles and to adopt and enforce regulations requiring their use, where goggles were provided seaman did not use them and by not doing so sustained injuries when metal sliver entered Seaman's eye. Rogers v Gracey-Hellums Corp. (1970, ED La) 331 F Supp 1287, affd (CA5 La) 442 F2d 1196.
294. Orders and working conditions
Widow of tug fireman accidentally drowned while tending four moored, ice-covered, unlighted, undermanned tugs at night was entitled to have her suit under 46 USCS Appx § 688 submitted to jury even in absence of evidence showing causation of death by tug owner's negligence in requiring fireman to work under such circumstances. Schulz v Pennsylvania R. Co. (1956) 350 US 523, 100 L Ed 668, 76 S Ct 608, 1956 AMC 737.
Order of mate to seaman to take two shovels up ladder at same time justified finding that mate was negligent in ordering plaintiff to make such dangerous climb. Reskin v Minnesota-Atlantic Transit Co. (1939, CA2 NY) 107 F2d 743, 1940 AMC 111.
Where seaman was killed due to injuries received while standing by for inspection during storm, following stowing away of booms, only issue of negligence was act of mate in ordering inspection during approach of storm, not delay in storing of booms. Naylor v Isthmian S.S. Co. (1951, CA2 NY) 187 F2d 538, 1951 AMC 632.
Work order given by superior officer of plaintiff, even if resulting in injury to plaintiff, is not necessarily negligent conduct. 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.
Verdict was properly directed in favor of vessel owner on claim of seamen temporarily disabled as result of using toxic industrial solvent to clean vessel without respiratory protection where there was no evidence that employer knew or should have known of toxic qualities of product or that employer should have suspected that method employed in cleaning vessel would prove injurious to employees. Vargas v McNamara (1979, CA1 Mass) 608 F2d 15.
Failure of employer and employer's supervisors to disassemble hammer of stabbing guide in order to facilitate repair of guide by welder who was injured by forcing himself into awkward position necessitated by presence of hammer is negligence for which welder is due compensation. Theriot v J. Ray McDermott & Co. (1984, CA5 La) 742 F2d 877, 17 Fed Rules Evid Serv 85.
Evidence was sufficient for jury to infer that captain should have known that barge on which employee slipped while using maul to cut retaining band was slippery and that it was unsafe to use maul. Colburn v Bunge Towing, Inc. (1989, CA5 Miss) 883 F2d 372.
Foreman in charge of work of unloading vessel was not negligent in giving signal to lower bucket where his cry of "all right" to engineer was sufficiently loud to be heard by all on deck. Olsen v Maine Coal & Dock Co. (1930, DC Me) 43 F2d 220.
Vessel was negligent in sending man into combustion chamber having temperature of 110 to 160 degrees from which he suffered burns. T. A. D. Jones (1934, DC Tex) 1934 AMC 329.
Plaintiff suing for injuries suffered when he missed his step while carrying heavy water hose aboard vessel and fell on ship's gangway, made out prima facie case for jury based upon defendant's negligent conduct, in that defendant should have foreseen that operation which he directed plaintiff to perform might require such speed as to induce plaintiff to attempt to carry all three sections of water hose at one time, due to fact that other crew members were preparing to remove gangplank in preparation for imminent sailing of vessel, and that weight and bulk of that burden, in combination with plaintiff's effort to hurry and his slightly built physique, might result in tripping and falling which did in fact occur. Villaneuva v California Tanker Co. (1960, DC NJ) 187 F Supp 591.
Failure of shipowner to supply some type of ladder or gangplank or other appliance to assist crew in getting off tender, and fact that shipowner directed crew to jump from bow of vessel in order to go ashore, constituted negligence under 46 USCS Appx § 688 for which seaman could recover for his injuries. Hatfield v Brown & Root, Inc. (1965, ED Tex) 245 F Supp 733.
Seaman is entitled to recover damages from employer under Jones Act, 46 USCS Appx § 688, where seaman was injured when supervisor ordered him to go aloft on oil rig under construction in inclement weather, seaman believed he had to go aloft or lose his job, and Seaman's injury prevented him from working and required long-term medical treatment, because although employer was not grossly negligent, employer was 100 percent responsible for Seaman's injury, and damage award must take into account lost wages and benefits, likelihood that seaman will find only low-paying job, and necessity for further surgery. Muckleroy v OPI Int'l (1993, SD Tex) 834 F Supp 937.
In action to recover brought under 46 USCS Appx § 688, nature of task which seaman undertook, hazards which it entailed, effort which it required, kind of footing seaman had, and space in which he could stand were all facts and circumstances for jury to consider in determining whether death of seaman, who acted under directions of master, was caused by negligence of master of vessel. Keough v Cefalo (1953) 330 Mass 57, 110 NE2d 919.
Ordering seaman to return to burning vessel to put out fire thereon was negligence rendering owner liable for death of seaman from explosion of compressed air tank which had no safety valve and which was welded and not riveted. Meagher v Wagner T. B. Co. (1933, Wash) 1933 AMC 175.
Negligence of men in charge of tug in failing to warn deck hand carrying towline forward, and in approaching barge at unusual angle, was for determination by jury. Southern R. Co. v Colonna (1933, CA4 Va) 64 F2d 237, 1933 AMC 1165, cert den 289 US 762, 77 L Ed 1505, 53 S Ct 795.
District Court improperly retained jurisdiction and dismissed case containing Jones Act claim where, although there was no evidence that decedent was employed by defendants, plaintiffs made prima facie showing that he was borrowed servant; case should have been remanded to state court. Lackey v Atlantic Richfield Co. (1993, CA5 Tex) 990 F2d 202, reh, en banc, den (CA5) 1993 US App LEXIS 14525.
Master was not negligent in failing to warn seaman upon going to shore that viaduct was in damaged condition and unlighted, where seaman went on shore in daylight and could observe dangerous condition of viaduct. Wheeler v West India S.S. Co. (1951, DC NY) 103 F Supp 631, 1952 AMC 148, affd (CA2 NY) 205 F2d 354, 1953 AMC 1240, cert den 346 US 889, 98 L Ed 393, 74 S Ct 141.
Evidence clearly supported finding of operational negligence against shipowner due to shipowner's total failure to apprise plaintiff of hazards incident to moving barges through Gilbertsville Lock where shipowner chose to make locking maneuver at night by placing in lock chamber maximum number of barges on single trip; procedure posed unique operational problems because it was foreseeable that there would be considerable distance of downfall to pool stage, that deck crew would not be in contact or communication with each other, and that they would be working in darkness, well away from illumination provided by lock wall lights, and handling lines on barges being pulled at definite speed beyond lock gate. Smith v Flowers Transp., Inc. (1974, ND Miss) 377 F Supp 1112.
Owner of vessel has clear duty to supervise work of seamen under his command and must warn seamen of all impending dangers of which he is or should be aware, and shipowner is chargeable with knowledge, or lack of knowledge of his employees; shipowner's duty to supervise is not limited merely to inexperienced seaman, but extends to those jobs which require concerted efforts of crewmembers; duty to warn applies to all cases where employees are ignorant of peril. Smith v Flowers Transp., Inc. (1974, ND Miss) 377 F Supp 1112.
Shipowner could reasonably assume that seventeen-year-old boy was competent to cope with situation no more complicated than that presented by ordinary coal stove in small place and that boy needed no warning. Belliveau v Knutson (1952) 328 Mass 536, 105 NE2d 195.
While defendant must see that employee has reasonably safe place in which to perform his service, it is not employer's duty to warn employee directed to wash cabin of danger of falling off boat into water. Lewis v Phelps (1931) 256 Mich 646, 240 NW 60.
Failure to warn chief engineer of relief valve on cylinders in boiler room was not negligent. Patterson v Cleveland Cliffs Iron Co. (1930, Cuyahoga Co.) 37 Ohio App 316, 9 Ohio L Abs 207, 174 NE 592.
In action brought under 46 USCS Appx § 688, it was for jury to determine whether ship's officers should have stopped work upon finding that plaintiff seaman was moving equipment in to position which ultimately injured him. O'Connell v Naess (1949, CA2 NY) 176 F2d 138.
Advice of third mate to seaman as to quickest way to town from ship where such route traversed dangerous railroad trestle was not negligent instruction as to means of egress from ship which would make mate negligent where mate was unaware of trestle's condition and such condition was readily apparent to all who chose to use it. Dangovich v Isthmian Lines, Inc. (1964, CA2 NY) 327 F2d 355.
Vessel whose master had supplied intoxicants to likely detriment of seamen and whole crew without any supervisory control of its use, was "floating dram shop" and unseaworthy or shipowner was at least negligent. 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.
Failure of master to place seaman in protective custody after request by seaman because he feared physical violence in retaliation for telling of fight which he had witnessed constituted negligence for which seaman, consequently suffering mental breakdown, was entitled to damages. Zanca v Delta S.S. Lines, Inc. (1965, ED La) 246 F Supp 127.
JONES ACT- TABLE OF CONTENTS
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