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Jones Act - Seaman

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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

VII. PRACTICE AND PROCEDURE D. Election of Alternative Remedies 1. In General

556. Generally

46 USCS Appx § 688 brings into maritime law new rules drawn from another system and extends to injured seamen right to invoke, at their election, either relief afforded by old rules or that provided by new rules; election is between alternatives accorded by maritime law as modified, and not between that law and some nonmaritime system. Panama R. Co. v Johnson (1924) 264 US 375, 68 L Ed 748, 44 S Ct 391, Brown v C. D. Mallory & Co. (1941, CA3 Pa) 122 F2d 98; Rowley v Sierra S.S. Co. (1942, DC Ohio) 48 F Supp 193; Curtis Bay Towing Co. v Dean (1938) 174 Md 498, 199 A 521, cert den 305 US 628, 83 L Ed 402, 59 S Ct 92.

Doctrine of election of remedies prevails in maritime cases, but this doctrine presupposes plurality of alternative rights or remedies, and rests upon principle that he who seeks equity must do equity and does not apply to consistent and cumulative remedies; general rule against splitting single and indivisible causes of action is applicable in admiralty but does not require that separate and distinct causes of action be presented in single suit, even though they arose at same time and might be considered together. Smith v Lykes Brothers-Ripley S.S. Co. (1939, CA5 La) 105 F2d 604, cert den 308 US 604, 84 L Ed 505, 50 S Ct 141.

Election is between alternatives accorded by maritime law, as modified. Lopoczyk v Chester A. Poling, Inc. (1945, CA2 NY) 152 F2d 457.

Election to which 46 USCS Appx § 688 refers is election of remedies as between suit in admiralty and civil action; purpose of "election" clause of 46 USCS Appx § 688 was to make certain that injured seaman, instead of suing in admiralty, could at his option assert his cause of action for personal injuries in federal court in action at law regardless of diversity of citizenship. McCarthy v American Eastern Corp. (1949, CA3 Pa) 175 F2d 724, cert den 338 US 868, 94 L Ed 532, 70 S Ct 144, reh den 338 US 939, 94 L Ed 579, 70 S Ct 343.

Proceedings under 46 USCS Appx § 688 against United States for damages based on negligence must be filed in admiralty. Forgione v United States (1953, CA3 Pa) 202 F2d 249, 1953 AMC 323, cert den 345 US 966, 97 L Ed 1384, 73 S Ct 950.

46 USCS Appx § 688 gives election in case of death to same extent as where injury only occurs, so language, "at his election," applies to both clauses of 46 USCS Appx § 688. Renew v United States (1932, DC Ga) 1 F Supp 256, 1932 AMC 1110.

Libellant may discontinue libel in admiralty in order to bring action at law. The Everett (1935, DC Pa) 13 F Supp 359.

Seaman may enforce his substantive rights under 46 USCS Appx § 688 by libel in admiralty, in which case no jurisdictional amount is required, but if he elects action at law afforded by 46 USCS Appx § 688, it must meet requirement as to amount in controversy or be instituted in state court; plaintiff must elect between complaint at law and libel in admiralty, and nature of relief sought should control that election. Rowley v Sierra S.S. Co. (1942, DC Ohio) 48 F Supp 193.

In action for wrongful death of crew member, personal representative could bring general maritime action for wrongful death or action under 46 USCS Appx § 688 or Death on High Seas Act (46 USCS Appx § § 761-768) and was not required to make election among theories of recovery. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.


557. Effect on right to jury trial

Plaintiff's choice, under 46 USCS Appx § 688, of maintaining action at law with right of trial by jury permits him to have jury trial in common law forum in state court. Engel v Davenport (1926) 271 US 33, 70 L Ed 813, 46 S Ct 410.

Action under 46 USCS Appx § 688 supersedes state law on same subject, and, while injured seaman may elect between 46 USCS Appx § 688 and maritime remedy, he cannot elect to sue under state law if he is actually seaman and is shown to be such by his pleadings, and it is immaterial that state law is more beneficial to him. Lindgren v United States (1930) 281 US 38, 74 L Ed 686, 50 S Ct 207, 1030 AMC 399.

While 46 USCS Appx § 688 does not force seaman to choose between negligence and unseaworthiness as basis of his action, it does require him to make election of remedies as between suit in admiralty and civil action, election being between trial by jury and suit in admiralty; if election required by 46 USCS Appx § 688 means anything at all, it must mean that plaintiff suing under its provisions cannot in same action have issue of defendant's liability tried at law with jury and issue of damages resulting from identical liability tried by court in admiralty without jury. Yates v Dann (1955, CA3 Del) 223 F2d 64.

Once plaintiff invokes admiralty procedures, he is not entitled to jury trial without some alternative source of federal jurisdiction, but where non-admiralty claims and admiralty claims are so interrelated as to require trial by single factfinder, and each rests on independent basis sufficient to support federal jurisdiction, constitutionally-protected right to jury trial of civil claims outweighs tradition of non-jury trials in admiralty; Jones Act claim provides alternate statutory basis. Sovereign Pocohontas Co. v Bond (1941) 74 App DC 175, 120 F2d 39.

Remedy under 46 USCS Appx § 688 is action at law with trial by jury or in admiralty. The West Jester (1922, DC Wash) 281 F 877.


558. Who may make election

Under 46 USCS Appx § 688, election to be made between suit in admiralty without jury and civil action with jury, each asserting claim based on negligence, belongs to seaman, not his employer, and employer may not require jury trial. Johnson v Venezuelan Line S.S. Co. (1970, ED La) 314 F Supp 1403.


559. Manner of making election

Election required by 46 USCS Appx § 688 is sufficiently indicated when one entitled to benefit thereof brings action at law alleging negligence and praying for damages. Hammond Lumber Co. v Sandin (1927, CA9 Or) 17 F2d 760, cert den 274 US 756, 71 L Ed 1336, 47 S Ct 767.

Libel, alleging injuries sustained due to negligence and carelessness of respondent, must be construed as one in personam under 46 USCS Appx § 688 for which election of remedies is necessary and by pleading negligence, libellant has elected to proceed under 46 USCS Appx § 688. The M. E. Farr (1940, DC NY) 38 F Supp 8; Burkholder v United States (1944, DC Pa) 56 F Supp 106.


560. Time for making election

Plaintiff need not elect between claiming damages under 46 USCS Appx § 688 for negligence, or under maritime law for unseaworthiness, before submitting his claims to jury, since election is required by 46 USCS Appx § 688 only between trial by jury and suit in admiralty. Balado v Lykes Bros. S.S. Co. (1950, CA2 NY) 179 F2d 943; McAffoos v Canadian Pacific S.S. Ltd. (1957, CA2 NY) 243 F2d 270, cert den 355 US 823, 2 L Ed 2d 39, 78 S Ct 32; Pearson v Tide Water Associated Oil Co. (1950, Cal App) 223 P2d 669, hear gr by sup ct, app dismd.

Claim based on negligence under 46 USCS Appx § 688 may be combined in one cause with claim under general maritime law and no election of remedies is required up to or during trial even when recovery of damages on one ground only is permitted; both issues with proper instructions must be submitted to jury but damages are recoverable on one issue only. Borgman v Sword Line, Ins. (1948, Sup) 81 NYS2d 445.


561. --Amended or subsequent actions

Unsatisfied in personam judgment in favor of seaman in action against shipowner in state court for injuries does not become binding election barring seaman, under election provision of 46 USCS Appx § 688, from intervening claim in separate foreclosure action by United States against vessel on which he was injured. Pratt v United States (1964, CA1 Me) 340 F2d 174.

In action to recover for death of decedent on high seas, plaintiff initially alleged that she elected to proceed under 46 USCS Appx § 688, but she could, after running of two-year statute of limitations, amend her complaint so as to proceed under 46 USCS Appx § § 761-767 or 46 USCS Appx § 688 or under statute appropriate to facts, since such amendment did not present new suit upon same facts. Batkiewicz v Seas Shipping Co. (1943, DC NY) 53 F Supp 802, 1943 AMC 1218.

Mere bringing of suit in admiralty based on negligence under 46 USCS Appx § 688 is not irrevocable election of remedy so as to estop subsequent action at law based on that same negligence; defendant is not detrimented if civil action results in delayed request for jury trial beyond time that such request must have been made if original suit had been by civil action. Stalker v Southeastern Oil Delaware, Inc. (1951, DC Del) 103 F Supp 436.

JONES ACT- TABLE OF CONTENTS


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