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Recent Personal Injury and Car Accident News
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 B. Relationship to Other Available Remedies 1. Traditional Maritime Remedies
Since 46 USCS Appx § 688 is integral part of maritime law, rights fashioned by it are to be implemented by admiralty rules not inconsistent with 46 USCS Appx § 688. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246, 1942 AMC 1645.
46 USCS Appx § 688 does not change general maritime law. Hanrahan v Pacific Transport Co. (1919, CA2 NY) 262 F 951, cert den 252 US 579, 64 L Ed 726, 40 S Ct 345.
There is no separation of 46 USCS Appx § 688 from admiralty law and § 688 should be interpreted to achieve results which are consistent with those of admiralty law; proceeding under 46 USCS Appx § 688 is to be governed by principles familiar to in personam admiralty actions; election is between alternatives accorded by maritime law as modified. Lopoczyk v Chester A. Poling, Inc. (1945, CA2 NY) 152 F2d 457.
All "substantive" issues arising out of maritime claims are controlled by maritime law regardless of form or forum of suit. Larios v Victory Carriers, Inc. (1963, CA2 NY) 316 F2d 63, 1963 AMC 1704.
Unlike law of unseaworthiness, which focuses on conditions of vessel, Jones Act places distinct duty on owner to provide reasonably safe work place; under Jones Act, plaintiff is entitled to go to jury if proof justifies conclusion that employer negligence played even slightest part in producing injury. Oxley v New York (1991, CA2 NY) 923 F2d 22.
Claim under either Jones Act or unseaworthiness doctrine is fundamentally single cause of action, by remedies under other; if no damages are permitted under Jones Act, unseaworthiness claim cannot supply them either. Szymanski v Columbia Transp. Co. (1998, CA6 Ohio) 154 F3d 591, 1998 FED App 270P.
Jones Act (46 USCS Appx § 688) does not preclude recovery under general maritime law in suit by wife for loss of husband's society resulting from nonfatal injuries allegedly sustained aboard vessel on high seas, regardless of whether nonfatal injuries were sustained in territorial waters or on high seas; Jones Act also does not provide remedy for loss of society, whether seaman's injuries occurred on high seas or within territorial waters. Carollo v Global Cape Ann Corp. (1986, DC Mass) 627 F Supp 1507.
Seaman's claim for punitive damages based on unseaworthiness of vessel under general maritime law fails to state claim as matter of law, where seaman in water beside dive boat helping customers adjust their diving gear was injured when customer wearing scuba tank fell on top of him, because allowance of punitive damages on general maritime claim brought in conjunction with 46 USCS Appx § 688 negligence claim--for which punitive damages are precluded--would destroy uniformity of maritime remedies sought to be established by recent Supreme Court ruling. La Voie v Kualoa Ranch & Activity Club, Inc. (1992, DC Hawaii) 797 F Supp 827, 1992 AMC 1493.
9. Modification of maritime law
Injuries to seaman are governed by maritime law as modified by 46 USCS Appx § 688. Jamison v Encarnacion (1930) 281 US 635, 74 L Ed 1082, 50 S Ct 440; 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; Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712.
46 USCS Appx § 688, by enlarging injured seaman's remedy, did not go beyond modification of substantive rules of maritime law well within scope of admiralty jurisdiction whether vessel, plying navigable waters, be engaged in interstate commerce or not. O'Donnell v Great Lakes Dredge & Dock Co. (1943) 318 US 36, 87 L Ed 596, 63 S Ct 488, 1943 AMC 149.
Under 46 USCS Appx § 688, without any interference with seaman's rights in admiralty, new and enlarged rules for recovery of compensatory damages for personal injuries may be invoked by seaman for tortious acts of his employer in course of employment. Van Camp Sea Food Co. v Nordyke (1944, CA9 Cal) 140 F2d 902, 1944 AMC 559, cert den 322 US 760, 88 L Ed 1587, 64 S Ct 1278.
Effect of 46 USCS Appx § 688 is to enable seamen to maintain action for damages at law for personal injuries which formerly were within exclusive jurisdiction of maritime courts; 46 USCS Appx § 688 increases remedies available to seamen but does not enlarge jurisdiction of federal district courts. Rowley v Sierra S.S. Co. (1942, DC Ohio) 48 F Supp 193, 1943 AMC 1025.
Extent of liability of owners of tug, for death of seaman who was drowned when tug on which he was employed capsized was governed by maritime law of United States supplemented by 46 USCS Appx § 688. Hickman v Taylor (1947, DC Pa) 75 F Supp 528, 1947 AMC 1614, affd (CA3 Pa) 170 F2d 327, 1949 AMC 292, cert den 336 US 906, 93 L Ed 1071, 69 S Ct 485, reh den 336 US 921, 93 L Ed 1083, 69 S Ct 636.
Under general maritime law seaman is entitled to maintenance, cure, and damages as result of shipowner's failure to furnish seaworthy vessel, which rights have been enlarged by 46 USCS Appx § 688 to entitle seaman to damages for injury and death as result of injury received in course of employment as result of employer's negligence. Alaska Packers Asso. v Alaska Industrial Board (1950, DC Alaska) 88 F Supp 172, affd (CA9 Alaska) 186 F2d 1015.
10. Maintenance and cure
Obligations of maintenance and cure do not rest upon negligence or culpability on part of owner or master and are not restricted to those instances where seaman's employment is cause of injury or illness. Calmar S.S. Corp. v Taylor (1938) 303 US 525, 82 L Ed 993, 58 S Ct 651; Aguilar v Standard Oil Co. (1943) 318 US 724, 87 L Ed 1107, 63 S Ct 930.
Seamen is entitled to maintenance while on accumulated leave time, paid vacation, absent explicit contractual provision specifying that accumulated leave time pay or other wages is to be deemed substitute for maintenance. Morel v Sabine Towing & Transp. Co. (1982, CA5) 669 F2d 345, 9 Fed Rules Evid Serv 1592.
Shipowner's failure to pay maintenance and cure not only gives rise to claim therefore, it supports cause of action under Jones Act for breach of duty. Garay v Carnival Cruise Line, Inc. (1990, CA11 Fla) 904 F2d 1527, reh den, en banc (CA11) 1990 US App LEXIS 19248.
Seaman is entitled to maintenance and cure payments in addition to any damages for negligence he might obtain under Jones Act. Staninslawski v Upper River Servs. (1993, CA8 Minn) 6 F3d 537.
Although neither Jones Act nor Death on High Seas Act permits recovery of punitive damages, court will not deem it controlling in context of maintenance and cure, which is essentially form of workers' compensation-like employee benefit, and without counterpart in either Jones Act or DOHSA. Guevara v Maritime Overseas Corp. (1994, CA5 Tex) 34 F3d 1279.
Seaman's right to receive, and shipowner's duty to pay, maintenance and cure is independent of any other source of recovery, including from Jones Act claim. Bertram v Freeport McMoran, Inc. (1994, CA5 Tex) 35 F3d 1008.
Consequential damages for failure to pay maintenance and cure are not limited to claims under Jones Act; thus, district court properly awarded seaman lost wages, damages for pain and suffering, and prejudgment interest arising from employer's failure to pay maintenance and cure. Deisler v McCormack Aggregates (1995, CA3 NJ) 54 F3d 1074.
Failure to pay maintenance and cure is cognizable under both Jones Act and general maritime law, although action under Jones Act requires personal injury as well. Guevara v Maritime Overseas Corp. (1995, CA5 Tex) 59 F3d 1496.
Seaman, injured when he fell from top of storage tank while hooking it to crane, is not entitled to recover maintenance payments for 3 years he was disabled due to accident, where he has already received wages plus fringe benefits, which included food and lodging as part of his general damage award under Jones Act (46 USCS Appx § 688) and general maritime law, because recovery of this item of damage under vessel owner's maintenance and cure obligation would be double recovery and is not allowed. Averett v Diamond Offshore Drilling Servs. (1997, ED La) 980 F Supp 855.
Under doctrine of seaworthiness, vessel's duty to furnish seamen with tools reasonably fit for their intended use is absolute duty, which is completely independent of owner's duty under 46 USCS Appx § 688 to exercise reasonable care. Michalic v Cleveland Tankers, Inc. (1960) 364 US 325, 5 L Ed 2d 20, 81 S Ct 6.
Although Moragne v States Marine Lines (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, which held that action will lie under general maritime law for death caused by violations of maritime duties, involved alleged breach of duty of seaworthiness and thus technically left open issue of wrongful death action for negligence, there is no rational basis for distinguishing negligence from seaworthiness, as avoidance of negligence is no less distinctively maritime duty. 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.
Included in concept of seaworthiness is owner's duty to provide competent crew. American President Lines, Ltd. v Redfern (1965, CA9 Cal) 345 F2d 629.
Shipowner's liability to seamen under principle of seaworthiness does not arise from contract. Hudson Waterways Corp. v Schneider (1966, CA9 Cal) 365 F2d 1012, 1966 AMC 2411.
Seaworthiness requires only that vessel be manned by adequate number of men who know their business; if someone is injured solely by reason of act of omission on part of any member of crew found to be possessed of competence of his calling, there can be no recovery unless act or omission is proved to be negligent. Price v SS Yaracuy (1967, CA5 La) 378 F2d 156, on remand (ED La) 306 F Supp 638, 13 FR Serv 2d 1092.
Although strict liability is imposed upon shipowner to furnish seaworthy vessel, risk that availability of marijuana aboard vessel would lead to its use by seaman, resulting in his arrest and incarceration, is not within those risks from which doctrine of seaworthiness was developed to protect seamen. Faraola v O'Neill (1978, CA9 Cal) 576 F2d 1364.
Failure to instruct about use of life preservers and failure to provide working bathroom resulted in unseaworthiness of vessel as matter of law under 46 USCS Appx § 688. Deal v A. P. Bell Fish Co. (1982, CA5 La) 674 F2d 438, later app (CA5 La) 728 F2d 717.
Dismissal of action by seaman who was scalded when automatic valve on ship's boiler failed is proper where seaman claimed that failure of valve made ship unseaworthy, where seaworthiness is matter of whether ship and appurtenances are reasonably fit for intended use, and where boiler lines, though fitted with imperfect valves, are nevertheless still fit for their intended use. Jordan v United States Lines, Inc. (1984, CA1 Mass) 738 F2d 48.
12. --Relationship to negligence action
Negligence and unseaworthiness are not equivalent; finding of negligence is neither substitute foundation for, nor finding of, unseaworthiness. Royal Mail Lines, Ltd. v Peck (1959, CA9 Cal) 269 F2d 857.
Jury would have to find unseaworthiness in action brought under 46 USCS Appx § 688 and for unseaworthiness, where it found negligence resulting from defective equipment in absence of contested issue of proximate cause; in defective equipment cases, concept of unseaworthiness "swallows" any notion of liability based upon maritime negligence; evidentiary showing required to establish negligence also establishes unseaworthiness because former requires actual or constructive knowledge while latter is without regard to fault or use of due care. Lee v Pacific Far East Line, Inc. (1977, CA9 Cal) 566 F2d 65.
46 USCS Appx § 688 negligence and unseaworthiness are 2 distinct claims and individual acts of negligence do not always create conditions of unseaworthiness; there is no requirement that because jury returned verdict finding negligence in § 688 proceeding that it should have also returned verdict finding unseaworthiness. Thezan v Maritime Overseas Corp. (1983, CA5 La) 708 F2d 175, cert den 464 US 1050, 79 L Ed 2d 189, 104 S Ct 729.
In seaman's personal injury suit against employer steamship company in which seaman asserted that incident on which suit is based gave rise to negligence action under Jones Act (46 USCS Appx § 688) and action under general admiralty law and maritime law for unseaworthiness of vessel, jury's findings for seaman on negligence claim and for steamship company on unseaworthiness claim can be harmonized, since jury could have found that although steamship company was negligent in allowing deck of vessel to be made slippery, flooding of deck did not make vessel unseaworthy. Kokesh v American S.S. Co. (1984, CA6 Mich) 747 F2d 1092.
Although facts that give rise to unseaworthiness claims sometimes support Jones Act negligence claims, each is distinct claim. Springborn v American Commercial Barge Lines, Inc. (1985, CA5 La) 767 F2d 89 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).
Claims brought for death of seaman under 46 USCS Appx § 688 cannot be maintained by simply showing that vessel was unseaworthy, unless such unseaworthiness was result of negligence. The William A. McKenney (1930, DC Mass) 41 F2d 754.
Unseaworthiness under general maritime law and negligence under 46 USCS Appx § 688 give rise to separate and distinct causes of action and may be combined to bring about same result without showing of prior or constructive notice on part of shipowner. Madsen v United States (1960, ED Pa) 186 F Supp 577, 1960 AMC 1741.
Any distinction between negligence under 46 USCS Appx § 688 and unseaworthiness has all but disappeared; unseaworthiness may result from negligent operation of vessel, and it is proper to plead the two causes of action together. Puamier v Barge BT 1793 (1974, ED Va) 395 F Supp 1019, 17 UCCRS 745.
Injured harbor worker's exclusive remedy is action for negligence against United States as ship owner under 33 USCS § 905(b), where worker was shore based employee of shore based company which only worked on ship while it was tied to dock, because worker could not be classified as "seaman" so as to give rise to Jones Act (46 USCS Appx § 688) liability since worker was not aboard vessel primarily to aid in navigation. Spearman v United States (1988, ED Pa) 690 F Supp 1435.
Ship's cook's Jones Act (46 USCS Appx § 688) claim against vessel owners is dismissed in part, where cook slipped and fell some 300 feet from vessel on unlighted stairway on land that was sole means by which he could reach grocery store, because failure of ship's personnel to use searchlight on stairs is not enough to show liability for unseaworthiness but may support negligence claim. Salamon v Motor Vessel Poling bros. No. 11, Inc. (1990, ED NY) 751 F Supp 343, reh den (ED NY) 1991 US Dist LEXIS 1937.
Injured deckhand's cause of action alleging liability for unseaworthiness on part of boat owner is denied summarily, where owner bare boat chartered vessel to deckhand's employer on June 15, 1987 and deckhand injured his back while moving heavy equipment on boat on December 28, 1988, because owner of vessel is not liable for unseaworthiness originating and causing injury while bare boat charterer is operating ship. Quiming v International Pacific Enterprises, Ltd. (1990, DC Hawaii) 773 F Supp 230.
Negligence under 46 USCS Appx § 688 is completely independent ground of recovery from judicial admiralty action for unseaworthiness, and finding of employer's negligence is unrelated to shipowner's duty to provide seaworthy vessel. brown & Root, Inc. v Wade (1974, Tex Civ App Houston (14th Dist)) 510 SW2d 408, writ ref n r e.
13. ----Absolute nature of duty of seaworthiness
Owner's duty to furnish seaworthy ship is absolute and completely independent of his duty under 46 USCS Appx § 688 to exercise reasonable care, and that duty is no less onerous with respect to unseaworthy condition arising after vessel leaves her home port, nor is it any less with respect unseaworthy condition which may be only temporary. Mitchell v Trawler Racer, Inc. (1960) 362 US 539, 4 L Ed 2d 941, 80 S Ct 926, 1960 AMC 1503 (superseded by statute as stated in Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).
Responsibility of owner for seaworthy ship and safe equipment is absolute and not due to 46 USCS Appx § 688. 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.
Negligent failure to comply with absolute duty to furnish seaworthy vessel allows 46 USCS Appx § 688 to apply to injury resulting from such unseaworthiness. Fall v Esso Standard Oil Co. (1961, CA5 Fla) 297 F2d 411, 1962 AMC 951, cert den 371 US 814, 9 L Ed 2d 55, 83 S Ct 24.
In interpreting and applying damages provision of Warsaw Convention, 49 USCS § 1502, air crash, court will not look solely to Death on High Seas Act, 46 USCS Appx § § 761 et seq., and Jones Act, 46 USCS Appx § 688, under both of which recovery is to limited pecuniary damages, but will look to broad language of Convention itself, and hold that Convention permits awards for loss of society and companionship. In re Air Disaster at Lockerbie Scot. (1994, CA2 NY) 37 F3d 804, 40 Fed Rules Evid Serv 318.
Absolute duty of shipowner to furnish seaworthy ship is completely independent of any duty under 46 USCS Appx § 688 to exercise reasonable care, and breach of later duty can aggravate, or lead to, breach of former; in view of this and fact that furnishing ship which is unseaworthy raises rebuttable presumption of causation when ship is lost at sea, similar presumption must also arise with regard to negligence. Re Marine Sulphur Transport Corp. (1970, SD NY) 312 F Supp 1081, affd in part and revd in part on other grounds (CA2 NY) 460 F2d 89, cert den 409 US 982, 34 L Ed 2d 246, 93 S Ct 318, 93 S Ct 326.
Concept of seaworthiness effectively swallows up negligence approach under 46 USCS Appx § 688 because it is absolute and does not require showing of fault. Curry v United States (1971, ND Cal) 327 F Supp 155, supp op (ND Cal) 338 F Supp 1219.
Vessel's food manager is entitled to summary judgment on his unseaworthiness claim, where vegetable cook suddenly and unexpectedly threw ketchup bottle at manager, who fractured left forearm in shielding himself from unprovoked attack, because record supports finding that cook had such dangerous propensity toward violence that it rendered vessel unseaworthy. Wiradihardja v Bermuda Star Line, Inc. (1992, SD NY) 802 F Supp 989.
Employee's voluntary dismissal under FRCP 41(a)(2) of his federal-law claim against his employer precludes litigation of subsequent state-law claim, where first action charged defendants with federal violation and is virtually identical to current action arising from same nucleus of operative facts but charges violations of state claims, because plaintiff's state-law claim could have been litigated by federal court and in granting Rule 41(a)(2), which allows dismissal conditioned on terms and conditions, court made no indication that it would not have considered state claim on merits if it had been asserted. Fitzgerald v Alleghany Corp. (1995, SD NY) 882 F Supp 1433, 4 AD Cas 575.
Claim based on owner's breach of duty to provide seaworthy vessel and appliances is not same as one based on negligence, but is of nature of absolute liability. Taylor v Central R. Co. (1959, 1st Dept) 9 App Div 2d 101, 191 NYS2d 690.
JONES ACT - TABLE OF CONTENTS