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A new case from the Hawaii Supreme Court recognizes personal injury claims for a viable fetus. This new approach seems consistent with a judicial approach to unborn children that life begins at viability. Castro v. Melchor, SCWC-12-0000753 (March 13, 2018).
JONES ACT - TABLE OF CONTENTS
The Jones Act
I. IN GENERAL A. General Principles
Tort doctrine under which liability for violation of statutory duty is imposed only where injury is one which statute was designed to prevent, does not apply in actions under the Jones Act (46 USCS Appx § 688); Congress, in 46 USCS Appx § 688, enacted statute of general terms, leaving in large measure to courts duty of fashioning remedies for injured employees in manner analogous to development of tort remedies at common law. Kernan v American Dredging Co. (1958) 355 US 426, 2 L Ed 2d 382, 78 S Ct 394.
[The Jones Act was designed to interfere as little as possible with other tort actions. It is ultimately up to the court to decide which statute or common law will provide jurisdiction in certain claims. This is usually relevent where state workers' compensation claims may conflict with the Jones Act.]
46 USCS Appx § 688 aptly illustrates involvement of commerce power and power over maritime matters. Petty v Tennessee-Missouri bridge Com. (1959) 359 US 275, 3 L Ed 2d 804, 79 S Ct 785.
By 46 USCS Appx § 688, Congress has afforded seamen modified common law remedy for negligent injury where modifications are in favor of employee. De Zon v American President Lines, Ltd. (1942, CA9 Cal) 129 F2d 404, affd 318 US 660, 87 L Ed 1065, 63 S Ct 814, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025.
[Where common law and Jones Act law conflict, the court is encouraged to apply the common law remedy if it is more favorable to the injured employee]
Seaman-employee has only one claim and recovery for same accident against his employer under the Jones Act 46 USCS Appx § 688. Hickman v Ohio Barge Line, Inc. (1974, WD Pa) 376 F Supp 1092.
[Subrogation is allowable for all payments by third party carriers for the same claim injury under the Jones Act.]
Congress has authority to subject state to suit under Jones Act (46 USCS Appx § 688) because admiralty and maritime powers of Congress are exclusive. brody v North Carolina (1983, ED NC) 557 F Supp 184.
[The court may remand a Jones Act case to state court]
Insurer is denied summary dismissal of seaman's Jones Act claim, where he asserts that definition of "tort liability" found in section (f) of commercial general liability policy clearly covers his sustained injuries, because Jones Act (46 USCS Appx § 688) suit is for tort and is liability imposed by law. Nahan v Pan Am Grain Mfg. Co. (1999, DC Puerto Rico) 62 F Supp 2d 419.
46 USCS Appx § 688 is not unconstitutional as invading admiralty jurisdiction or denying due process. Panama R. Co. v Johnson (1924) 264 US 375, 68 L Ed 748, 44 S Ct 391, 1924 AMC 551.
Constitutional authority of Congress to provide remedy for seamen injured in ship's service derives from its authority to regulate commerce under USCS Constitution, Art. 1, § 8, cl. 3, and its power to make laws which shall be necessary and proper to carry into execution powers vested in government or any department of it under USCS Constitution, Art. 1, § 8, cl. 18, including judicial power extending to all cases of admiralty and maritime jurisdiction. O'Donnell v Great Lakes Dredge & Dock Co. (1943) 318 US 36, 87 L Ed 596, 63 S Ct 488, 1943 AMC 149.
46 USCS Appx § 688 is not unconstitutional as attempting to interfere with intrastate commerce on navigable waters of states. McCullough v Jannson (1923, CA9 Or) 292 F 377, error dismd 267 US 608, 69 L Ed 812, 45 S Ct 350.
46 USCS Appx § 688 does not unconstitutionally delegate power to states to declare the rights and liabilities arising out of maritime injury, because it resorts to domestic relations laws of states in aid of defining statutory beneficiaries in death actions. Bell v Tug Shrike (1963, ED Va) 215 F Supp 377, 1963 AMC 897, affd (CA4 Va) 332 F2d 330, 1964 AMC 2396, cert den 379 US 844, 13 L Ed 2d 49, 85 S Ct 84.
Language of 46 USCS Appx § 688 discloses no intention to impose upon shipowners same measure of liability for injuries suffered by crew while at sea as common law prescribes for employers in respect to their employees on shore. Chelentis v Luckenbach S.S. Co. (1918) 247 US 372, 62 L Ed 1171, 38 S Ct 501.
Purpose of 46 USCS Appx § 688 is to enlarge, not to narrow, protection afforded to seamen by maritime law. The Arizona v Anelich (1936) 298 US 110, 80 L Ed 1075, 56 S Ct 707, reh den 298 US 692, 80 L Ed 1409, 56 S Ct 945.
Congressional purpose of 46 USCS Appx § 688 is benefit and protection of seamen, who are peculiarly wards of admiralty. Cox v Roth (1955) 348 US 207, 99 L Ed 260, 75 S Ct 242.
General congressional intent behind 46 USCS Appx § 688 was to provide liberal recovery for injured workers and not to create static remedy, but one which would be developed and enlarged to meet changing conditions and changing concepts of industry's duty toward its workers. Kernan v American Dredging Co. (1958) 355 US 426, 2 L Ed 2d 382, 78 S Ct 394.
46 USCS Appx § 688 is intended to achieve uniformity in exercise of admiralty jurisdiction by giving seamen federal right to recover from their employers for negligence regardless of location of injury or death. Moragne v States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906.
Collective bargaining agreement which includes plan benefits, does not evade intent of 46 USCS Appx § 688, which denounces devices to exempt employer from any liability to seamen. Thomas v Humble Oil & Refining Co. (1970, CA4 Va) 420 F2d 793, 1970 AMC 25 (disagreed with Haughton v Blackships, Inc. (CA5 Tex) 462 F2d 788) as stated in Clark v Burlington Northern, Inc. (CA8 Neb) 726 F2d 448.
Remedies afforded by 46 USCS Appx § 688 and maintenance and cure are designed to protect those who perform services upon ship and are exposed to unique hazards of work upon sea; benefits should be available to anyone so engaged, even if not in employ of ship itself. Mahramas v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 475 F2d 165.
46 USCS Appx § 688 was enacted to provide remedial and welfare legislation for protection of seaman and his dependents. Diddlebock v Alcoa S.S. Co. (1964, ED Pa) 237 F Supp 538, 1966 AMC 444.
By establishing negligence standard of liability for claims by seamen injured in course of their employment, 46 USCS Appx § 688 not only affords protection to seaman, but indirectly to passengers whose well-being is entrusted to vessel's crew; where vast majority of vessel's passengers are consistently American citizens, United States has interest in extending its law to protect vessel's foreign crew from injuries which might in turn affect safety of passengers, especially when corporate structure which runs, and ultimately benefits from vessel's extensive American business has substantial business presence in this country and competes directly with American vessels which are bound by American law. Mattes v National Hellenic American Line, S. A. (1977, SD NY) 427 F Supp 619.
Purpose of 46 USCS Appx § 688 and its incorporation by reference of 45 USCS § § 51 et seq. was to bar consideration of plaintiff's contributory negligence in action for injury to or death of seaman resulting from employer's violation of safety statute. Rodriguez v B-R Dredging Co. (1977, Tex Civ App Corpus Christi) 552 SW2d 601, revd on other grounds (Tex) 564 SW2d 693.
4. Scope of coverage
With respect to action brought, under federal admiralty jurisdiction, by mother of individual who was killed while doing sandblasting work on vessel berthed in navigable waters of United States and within state's territorial waters--where fatal accident was allegedly due in part to negligence of shipbuilding corporation for which individual's employer was subcontractor--the negligent breach of general maritime duty of care is actionable when such negligence causes death. Norfolk Shipbuilding & Drydock Corp. v Garris (2001) 532 US 811, 150 L Ed 2d 34, 121 S Ct 1927, 2001 CDOS 4514, 2001 Daily Journal DAR 5549, 2001 AMC 1817, 2001 Colo J C A R 2759, 14 FLW Fed S 305.
Recovery for occupational diseases is permitted under Jones Act (46 USCS Appx § 688). Barger v Baltimore (1980, CA4 Md) 616 F2d 730, cert den 449 US 834, 66 L Ed 2d 39, 101 S Ct 105.
Although Jones Act does not focus on location of vessel at time of injury, Jones Act jurisdiction still requires relationship to navigable waters; thus, ship with no connection to navigable waters is not source of Jones Act jurisdiction. Weaver v Hollywood Casino-Aurora, Inc. (2001, CA7 Ill) 255 F3d 379.
46 USCS Appx § 688 confers both action for wrongful death of member of crew and an action by survivors for any damages he suffered before death. 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, on other grounds 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).
Crew members of cruise vessel have no viable Jones Act (46 USCS Appx § 688) claim, even though they were physically detained and unable to leave their cabins for 2 days under suspicion of narcotics trafficking, because Act does not encompass false arrest and false imprisonment. Richards v Royal Caribbean Cruises, Ltd. (1999, DC Puerto Rico) 118 F Supp 2d 150.
Employer is under duty to provide seaman with reasonably safe place to work, and liability under Jones Act is shown if seaman can show his injuries were result of even slightest negligence of his employer. Ellender v Texaco, Inc. (1982, La App 3d Cir) 425 So 2d 291.
Under 46 USCS Appx § 688, seaman injured in course of his employment may maintain action at law for damages with right of trial by jury. Sanz v Isbrandtsen Co. (1949) 196 Misc 390, 88 NYS2d 486.
False arrest and false imprisonment are not covered by 46 USCS Appx § 688. Forgione v United States (1953, CA3 Pa) 202 F2d 249, cert den 345 US 966, 97 L Ed 1384, 73 S Ct 950.
While it is true that seamen have long been treated as wards of admiralty courts, it is also true that, under 46 USCS Appx § 688, shipowner is not liable for any and all injuries that befall them. broussard v Marine Transport Lines, Inc. (1974, ED Tex) 369 F Supp 103.
Unique protections provided by general maritime law to seamen are remedies for physical dangers and hazards of working at sea and do not apply to age discrimination claims. Belanger v Keydril Co. (1984, ED La) 596 F Supp 823, 36 BNA FEP Cas 132, 36 CCH EPD P 35137, affd without op (CA5 La) 772 F2d 902, 41 BNA FEP Cas 64.
Injured seaman's action against master of ship on which he was injured must be summarily denied, where seaman complains of captain's negligence in leaving incompetent person at wheel who allowed vessel to proceed full speed into jetties, because there is no right of action under general maritime law or 46 USCS Appx § 688 against vessel's master for unseaworthiness or negligence. Kennedy v Gulf Crews, Inc. (1990, WD La) 750 F Supp 214.
46 USCS Appx § 688, remedial statute, is to be liberally construed in order to carry out its full purpose of protecting its wards. Warner v Goltra (1934) 293 US 155, 79 L Ed 254, 55 S Ct 46.
Provisions of 46 USCS Appx § 688 are to be liberally construed to obtain purpose of section, and are to be interpreted in harmony with established doctrine of maritime law of which it is integral part. The Arizona v Anelick (1936) 298 US 110, 80 L Ed 1075, 56 S Ct 707, reh den 298 US 692, 80 L Ed 1409, 56 S Ct 945.
46 USCS Appx § 688 is to have uniform application throughout country unaffected by local views of common-law rules. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246, 1942 AMC 1645.
"Service of the ship" formula, used in maintenance and cure cases, is equivalent of provision under 46 USCS Appx § 688 for personal injury coverage for seaman injured in "course of employment," and decisions in maintenance and cure cases dealing with whether injury occurred in "the service of the ship" are relevant guides to meaning of term "course of employment" as used in 46 USCS Appx § 688. braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.
Provisions of 46 USCS Appx § 688 are applicable only to specific class of actions--claims by seamen against their employers--based on violations of special standard of negligence which has been imposed under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Moragne v States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906.
46 USCS Appx § 688 should be interpreted to achieve results which are consistent with those of admiralty law. Lopoczyk v Chester A. Poling, Inc. (1945, CA2 NY) 152 F2d 457.
Limits under 46 USCS Appx § 688, incorporating Federal Employers' Liability Act (45 USCS § § 51 et seq.) by reference, are broadly drawn and broadly construed and employer may be held liable if his negligence played any part, even slightest, in producing injury or death for which damages are sought. Hampton v Magnolia Towing Co. (1964, CA5 Miss) 338 F2d 303, 1965 AMC 248.
46 USCS Appx § 688 is not to be construed as workmen's compensation statute. Lamon v Standard Oil Co. (1954, DC La) 117 F Supp 831.
State courts are required to adopt constructions placed on 46 USCS Appx § 688 by federal courts. Spencer v Beadle S.S. Co. (1934, Cal App) 40 P2d 273, superseded 4 Cal 2d 313, 48 P2d 678, affd 298 US 124, 80 L Ed 1082, 56 S Ct 712.
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 Death on High Seas Act (46 USCS Appx § § 761 et seq.). Re Rademaker's Estate (1938) 166 Misc 201, 2 NYS2d 309, 1938 AMC 396.
7. --With other laws
46 USCS Appx § 688 is remedial legislation which calls for liberal construction, and clearly is intended to cover later changes in Federal Employers' Liability Act (45 USCS § § 51 et seq.). Chisholm v Cherokee-Seminole S.S. Corp. (1940, DC NY) 36 F Supp 967, 1940 AMC 1580.
Value of limitation fund should be increased to account for appurtenances--all things on board for object of voyage--and 89 barges involved in conduct of ship owner's marine transportation venture, where underlying suit is brought by representatives of 6 crew members killed in engine room fire under 46 USCS Appx § 688, because "flotilla doctrine" is applicable here, and inclusion of appurtenances in appraisal of value of limitation fund is well-recognized rule of admiralty law. Re Waterman S.S. Corp. (1992, ED La) 794 F Supp 601, 1992 AMC 2658, reconsideration den (ED La) 1992 US Dist LEXIS 12886, later proceeding (ED La) 1992 US Dist LEXIS 14827.
Survivors of deceased pleasure boaters may recover nonpecuniary damages under general maritime law, where 2 nonseamen on pleasure craft died in collision with tow barge on Ohio River, and decedents' representatives sought nonpecuniary damages from owner of tow boat, because Jones Act, 46 Appx USCS § 688, does not apply to nonseamen, and reasons of justice and humanitarianism suggest that persons injured in maritime jurisdiction should receive compensation for losses if compensation is not specifically precluded by statute. In re Morehead Marine (1994, SD Ohio) 844 F Supp 1193.
Jones Act Table of Cases