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 5. Other Circumstances
Vessel was not negligent in regard to formerly intoxicated seaman who walked straight coming on board and who did not seem to need assistance, who was seen imbibing after coming aboard, and who fell down ladder found to be seaworthy, at a time when he should not have been intoxicated because it was his turn to go on watch. Bloomquist v T. J. McCarthy S.S. Co. (1959, CA7 Ill) 263 F2d 590.
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558 F2d 238, on reh (CA5 Tex) 609 F2d 140, later app (CA5 Tex) 672 F2d 556, later proceeding (SD Tex) 575 F Supp 926, withdrawn.
Although contributory negligence of intoxicated seaman who drowned after deliberately jumping overboard should be measured in computing damages under Jones Act (46 USCS Appx § 688), facts that vessel operated floating dram shop and that use of intoxicants obtained therefrom was not supervised require that vessel bear at least part of fault for Seaman's negligence which would preclude finding that seaman was 100 percent contributorily negligent. Reyes v Vantage S.S. Co. (1980, CA5 Tex) 609 F2d 140, later app (CA5 Tex) 672 F2d 556, later proceeding (SD Tex) 575 F Supp 926, withdrawn.
Where fall of seaman in climbing ship ladder could be due just as likely to his intoxicated state as to loose rung in ladder, liability will not be imposed on such mere speculation. Landy v United States (1951, DC Pa) 101 F Supp 486, affd (CA3 Pa) 197 F2d 524.
Shipowner was liable where intoxicated seaman was left on wharf in helpless condition by seaman, co-employee, who had offered to assist intoxicated seaman in reaching ship. McDonough v Buckeye S.S. Co. (1951, DC Ohio) 103 F Supp 473, 1951 AMC 2042, affd (CA6 Ohio) 200 F2d 558, 1953 AMC 343, cert den 345 US 926, 97 L Ed 1357, 73 S Ct 785.
345. War conditions
Maintenance of open hatch with no lifeline about it, under black-out and unfavorable weather conditions, constituted negligence. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224.
Captain of vessel operated by War Shipping Administration was not negligent in not streaming or at least requesting permission from convoy commodore to stream nets because of danger of submarine in area, where he did not know that torpedo nets were effective against aerial torpedoes by which messman was injured. Fraser v United States (1948, CA1 Mass) 167 F2d 141, 1948 AMC 636.
Where ship of American registry carrying war materials to British was in Egyptian port at time of German air raid, failure of master to light up ship or to send crew aboard was not negligence with respect to vessel's liability to seaman injured by bombing. Lewis v American-Hawaiian S.S. Co. (1943, DC NY) 49 F Supp 127, 1943 AMC 359.
Where harbor blackout regulations were in force at time of accident, shipowner will not be held negligent and liable for pantryman returning from shore leave mistaking coal chute for gangway and falling into water. Walton v Continental S.S. Co. (1946, DC Md) 66 F Supp 836.
Steamships, in time of war, in order to make ship seaworthy or in order to exercise due care toward some injured seaman, were not required to have on board doctor licensed to practice medicine; failure to break radio silence imposed by wartime orders, to attempt to obtain doctor's advice on treatment for injured seaman, was not negligence. Ludwig v United States (1946, DC Wash) 74 F Supp 29.
In action under 46 USCS Appx § 688 for injuries received by plaintiff seaman when abandoning ship after it was torpedoed and shelled by enemy submarine, failure on part of defendant to arm vessel was not proximate cause of plaintiff's injuries. Socony Vacuum Oil Co. v Henson (1944, Tex Civ App) 183 SW2d 256, writ ref.
346. Weather-related injuries
Steamer was negligent in failing to stand by until pilot association boat had come up, after putting off pilot in heavy weather, since steamer has duty to assist pilot boat in placing pilot on board. The Black Gull (1936, CA2 NY) 82 F2d 758, cert den 298 US 684, 80 L Ed 1404, 56 S Ct 954.
No liability flows from requiring sailor to perform his necessary sailor's duties with ship rolling and lurching in heavy storm, even though he may be injured from fall caused by wave sweeping across deck. Matson Navigation Co. v Hansen (1942, CA9 Cal) 132 F2d 487.
Standard of care required of captain, in case concerning captain's actions during storm, is that which would be used by reasonably careful and prudent master of fishing vessel in business then at hand. Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, 1944 AMC 599, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81.
When in action under 46 USCS Appx § 688 for death of dory fishermen, negligence of captain in not calling men back when storm came up or during its continuance was claimed, jury could properly find that captain acted as reasonable and prudent skipper of fishing vessel fulfilling obligation resting upon him and exonerating owner of vessel. Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, 1944 AMC 599, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81.
Maintenance of open hatch with no lifeline about it, under black-out and unfavorable weather conditions, constituted negligence which was proximate cause of Seaman's death. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224, 1945 AMC 887.
Deckhand, whose duty it was to close galley doors before rough weather, could not recover for door closing on hand in midst of rough weather. Mullen v Fitz Simons & Connell Dredge & Dock Co. (1951, CA7 Ill) 191 F2d 82, cert den 342 US 888, 96 L Ed 666, 72 S Ct 173.
District Court finding that diver, injured during dive undertaken when seas were rough, with 6 to 8 foot swells, was not contributorily negligent was not clearly erroneous in light of fact that diver's duty to protect himself required that he exercise only slight, not ordinary, care. Pickle v International Oilfield Divers, Inc. (1986, CA5 La) 791 F2d 1237.
Act of captain in directing that vessel be put on her course after mate had put into wind on encountering storm was not proximate cause of death of seamen swept overboard while replacing covers on hatches, but failure to properly secure such hatches before storm was proximate cause of accident. The William A. McKenney (1930, DC Mass) 41 F2d 754.
There was negligence in ordering seaman to plug ventilator in heavy seas without reducing ship's speed, and owner is liable for wrongful death of seaman swept overboard. The Antinous (1930, DC Fla) 1930 AMC 1551, mod (CA5 Fla) 49 F2d 762, 1931 AMC 1056.
To send seaman to forecastle in storm to secure canvas covers of hawse pipes is negligence. The Parismina (1932, DC Tex) 1932 AMC 1322.
Second steward in charge of dining room could not recover for injuries sustained when heavy seas caused him to stagger on deck and which threw him against bulkhead, where evidence showed beyond dispute that accident was not caused either by slippery deck or presence of potato peelings on it as alleged in his complaint. Gelb v United States (1948, DC Cal) 75 F Supp 833.
Vessel is not unseaworthy because it had no cargo in its holds when it left port in hurricane weather inasmuch as harbor master ordered captain to leave port and captain made best choice by choosing to obey harbor master's order. Re Complaint of Molai Shipping Corp. (1983, SD NY) 569 F Supp 523.
Chief engineer failed to establish that captain of vessel was negligent in suit brought pursuant to 46 USCS Appx § 688, where engineer was injured in fall allegedly owing to violent roll of ship in heavy seas, and alleged in suit that captain was negligent in allowing himself to be relieved of watch prior to entering heavy seas, and although engineer's expert witness testified that he would not have allowed himself to be relieved in such circumstances, he offered no testimony that captain's decision deviated from prevailing practice in maritime community, and testified that it was prevailing practice on seagoing vessels for captain to leave night orders to deck watch officers. Smith v United States (1996, DC RI) 943 F Supp 159, 1996 AMC 2570.
Summary judgment in favor of seaman is entered on issue of unseaworthiness, where he was injured when volleyball-size piece of ice fell from boom of crane and landed on his hand, because he has established as matter of law that accumulation of ice on boom rendered crane, and fishing vessel, unseaworthy. Gapay v Q & S Enters. (2000, DC Alaska) 133 F Supp 2d 1139, 2000 AMC 1910.
It was negligence for master of fishing vessel to attempt to make port in storm when prudent decision would have been to lay to and ride out storm. (1966) Petition of Risdal & Anderson, Inc. (1966, DC Mass) 248 F Supp 928, 1966 AMC 713.
Negligence of vessel in failing to reduce speed and in failing to stretch lifelines to protect crew, while they were in act of securing cargo during heavy sea, squarely presented jury question. Peterson v Pacific S. S. Co. (1927) 145 Wash 460, 261 P 115, affd 278 US 130, 73 L Ed 220, 49 S Ct 75.
Appellee shipowner was not liable under 46 USCS Appx § 688 for abandoning arrested seaman and permitting him to "take the rap" for possession of marijuana; such act cannot be considered abandonment imposing liability on appellees; abandonment stems from "master's obligation implied in shipping contract, to bring seaman back with him unless he has been left at foreign port because of illness, discharge before American consul, desertion or failure to join." Faraola v O'Neill (1978, CA9 Cal) 576 F2d 1364.
Jones Act (46 USCS Appx § 688) liability is sufficiently established where employer's supervisor did not notify others of barge placement or inquire where it was placed, and another employee subsequently collided with it while making nighttime inspection in powerboat. Verrett v McDonough Marine Service (1983, CA5 La) 705 F2d 1437.
Widow of deceased seaman who brought action against owners, charterers, and/or operators of vessel pursuant to 46 USCS Appx § 688 alleging unseaworthiness failed to make out case justifying submission to jury where no proof was offered that deceased returned to vessel or its proximity at any time before being discovered drowned in harbor; any jury verdict based on connection between defendants' alleged negligence and/or unseaworthiness and death of seaman would necessarily be product of sheer surmise, conjecture and speculation. Charles v West Indies Transport (1986, DC Puerto Rico) 631 F Supp 1023.
Judgment is entered in favor of cadet against vessel owner for personal injuries received in accident that occurred when chief officer of vessel was intoxicated, lost control of automobile, and crashed, where owner was obligated to provide cadet and officer with meals, but at time of accident, they were driving into town for food because ship's mess had closed, because even if cadet and officer were not acting within scope of their employment as Jones Act seamen, officer was acting as owner's agent for purposes of providing transportation and owner is liable for officer's negligence under respondeat superior theory. Thier v Lykes Bros. (1995, ND Tex) 900 F Supp 864.
Genuine issues of material fact existed as to whether owner of riverboat casino reasonably could have foreseen that swinging door on slot machine could injure employee conducting hopper fill, or whether patron's push on door was unforeseeable and intervening cause of casino worker's injury, precluding summary judgment in favor of owner on worker's claim under 46 USCS Appx § 688(a). Moreno v Grand Victoria Casino (2000, ND Ill) 94 F Supp 2d 883, 10 AD Cas 1113, 2000 AMC 1379.
JONES ACT- TABLE OF CONTENTS
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