IV. NEGLIGENCE B. Vicarious Liability 2. Particular Acts of Crew - Maritime Lawyer Hawaii
   

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An important victory in the fight for individual rights (as opposed to insurer rights) is the case of Yukumoto and HMSA v. Tawahara. In that case on May 26, 2017, the Hawaii Supreme Court rejected the efforts of a health insurer who tried to convert its insurance coverage into a 'loan agreement' and recover its medical expense payments from Mr. Yukumoto when he had a 3rd party claim - in spite of the fact that he was not being fully compensated for his losses. This insidious insurance practice has been damaging the citizens and members of the Hawaii community for many years. For more info, see the decision here: Yukumoto and HMSA v. Tawahara, Hawaii Sup. Ct. No. SCAP-15-0000460 (May 26, 2017).



 

 

JONES ACT - TABLE OF CONTENTS

The Jones Act

IV. NEGLIGENCE B. Vicarious Liability 2. Particular Acts of Crew

276. Horseplay

Seaman was not entitled to recover under 46 USCS Appx § 688 for injuries sustained in good-natured scuffle with shipmate. Meyer v Dollar S.S. Line (1930, DC Wash) 43 F2d 425, 1930 AMC 1095, 1269, affd (CA9 Wash) 49 F2d 1002, 1931 AMC 1059.

Where libellant is injured by "horseplay" of seamen on ship, he may not recover from shipowner on ground of negligence since shipowner cannot be held responsible for this type of conduct of his seamen. Ford v United Fruit Co. (1947, DC Cal) 75 F Supp 311, affd (CA9 Cal) 171 F2d 641.


277. Operation of equipment

There was no evidence that either crowded condition of vessel's hold or fogginess produced by frozen cargo proximately caused longshoreman's injuries resulting from his being struck by spreader bar while disengaging it from ropes, but there was convincing evidence that accident and resultant injuries were solely and proximately caused by operational negligence of plaintiff's fellow employees in their lack of coordination. Shephard v S/S Nopal Progress (1974, CA5 La) 497 F2d 963, reh den (CA5 La) 502 F2d 1167, and reh den (CA5 La) 502 F2d 1168, and cert den 420 US 937, 43 L Ed 2d 414, 95 S Ct 1147.

Plaintiff who sustained injuries aboard employer's drilling rig when he was struck by "lead tongs" while attempting to disengage drill pipe, states cause of action in negligence against employer under 46 USCS Appx § 688, based on employer's breach of duty to furnish plaintiff with reasonably safe workplace, in light of evidence that employer permitted lead tongs to swing recklessly, either by driller's failure to use backup tongs in violation of employer's safety rule or by driller's application of too much torque. Ober v Penrod Drilling Co. (1984, CA5 La) 726 F2d 1035.

In action by seaman for injuries received when landing block was catapulted from dock into hold of vessel when operator of lumber carrier drove onto one end of it, failure of defendant's employees who placed block on dock to anticipate movement of carrier was proximate and efficient cause of plaintiff's injuries; conduct of operator in driving carrier onto block was not efficient intervening cause, but even if it were concurrent cause of injuries, defendant would not thereby be relieved from liability. Burke v W. R. Chamberlin & Co. (1942) 51 Cal App 2d 419, 125 P2d 120.

Where vessel is seaworthy and equipment is in perfect condition, seaman cannot sustain action under 46 USCS Appx § 688 for injury to his eye caused by fishhook and line in hands of another seaman since such injury is part of inherent normal hazards of deep sea fishing. Alvarez v Van Camp Sea Food Co. (1952) 113 Cal App 2d 647, 248 P2d 943.


278. --Winches

Employer was negligent in causing injury to signalman by putting winch into operation without signal. W. J. McCahan Sugar Refining & Molasses Co. v Stoffel (1930, CA3 Pa) 41 F2d 651, 1930 AMC 1482.

Foreman improperly raising load which broke and fell on laborer who was assisting unloading in hold constituted negligence in operation of winch. American Sugar Refining Co. v Nassif (1930, CA1 Mass) 45 F2d 321.

Negligence of winchman in operation of winch will not preclude recovery for reason that claimant, as his superior officer, could not control immediate conduct of winchman. Petition of Crosby Fisheries, Inc. (1929, DC Wash) 31 F2d 1004.

Injury to signalman was caused by negligence of winchman in obeying signal of another. Richardson v United States (1933, DC NY) 1933 AMC 912.


279. Assisting in leaving vessel

Where cook in leaving tugboat found it necessary to pass first to barge alongside before reaching dock and sought to reach barge by means of ladder held by another, who released ladder as he was climbing, causing him to fall, recovery will be allowed for negligence of fellow servant under 46 USCS Appx § 688, since both men in leaving, were acting within course and scope of employment. Wong Bar v Suburban Petroleum Transport, Inc. (1941, CA2 NY) 119 F2d 745.

Recovery will be denied under 46 USCS Appx § 688 when plaintiff jumped from deck of ship to dock, sustaining injuries for which he sued, after another member of crew refused to place ladder over side upon plaintiff's request. Jackson v Pittsburgh S.S. Co. (1942, CA6 Ohio) 131 F2d 668.


280. Handling of weapon

Injury caused by chief officer negligently discharging his pistol while cleaning it is within shipowner's liability. Stratton v United States (1934, DC NY) 8 F Supp 429, 1934 AMC 1161.

Employer steamship company was not liable for death of employee who was shot by fellow employee with pistol which passenger had directed him to clean where fellow employee had abandoned his duties in displaying pistol. Rourange v Colombian S. S. Co. (1938) 254 App Div 906, 5 NYS2d 537, affd 280 NY 591, 20 NE2d 28, cert den 308 US 565, 84 L Ed 474, 60 S Ct 77.


281. Miscellaneous

Concurrent and cumulative negligence of cook in using material so combustible as gasoline to kindle fire, following negligent failure of master to use due care to provide safe and suitable fuel, is actionable. Osland v Star Fish & Oyster Co. (1939, CA5 Ala) 107 F2d 113, 1940 AMC 127, later app (CA5 Ala) 118 F2d 772, cert den 314 US 615, 86 L Ed 495, 62 S Ct 86, reh den 314 US 716, 86 L Ed 570, 62 S Ct 477.

In libel by steward for personal injuries incurred when coffeepot upset and scalded him, cook was negligent in setting coffeepot on floor of galley in heavy weather. Carroll v United States (1943, CA2 NY) 133 F2d 690, 1943 AMC 339.

Ordinary seaman is not required to anticipate that dropping his end of rectangular bundle not more than three feet to floor would injure other seaman. Rosenquist v Isthmian S.S. Co. (1953, CA2 NY) 205 F2d 486.

JONES ACT - TABLE OF CONTENTS


 

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Jones Act maritime law and seaman cases

STATUTE'S LANGUAGE

CASE LAW


I. IN GENERAL

A. General Principles

B. Other Remedies

1. Traditional Maritime
Remedies

2. Federal Law Remedies

3 Remedies by State Law

C. Foreign Involvement

1. In General

2. Place of Injury

3. Flag or Ownership
of Vessel

a. In General

b. Foreign Ownership

c. Foreign Vessels
with American Interests

4. Nationality of Seaman

5. Other Factors



II. PERSONS ABLE
TO RECOVER

A. Seamen

1. General Principles

a. In General

b. Status as Seaman

2. "Vessel in Navigation"

a. In General

b. Status of Vessel

c. Particular Vessels

3. Particular Seamen

B. Representatives of
Seamen



III. EMPLOYMENT

A. In General

B. Particular Entities
as Employers

C. In Course of
Employment



IV. NEGLIGENCE

A. In General

B. Vicarious Liability

1. In General

2 Particular Acts of Crew

C. Circumstances of
Injury

1. Assault

a. In General

b. Assaults Among Crew
& Officers

2. Improper Supervision

a. In General

b. Particular Acts

3. Medical Care

4. Particular Properties
of Vessel & Dock

5. Other Circumstances



V. DEFENSES

A. Seaman's Conduct

1. Comparative
Negligence

2. Assumption of Risk

3. Particular
Circumstances

B. Release

C. Limitations of Actions

1. Statutory Limitations

2. Laches

D. Collateral Estoppel
& Res Judicata

E. Limitation of Liability

F. Other Defenses



VI. DAMAGES

A. In General

B. Damages for Injury

1. Elements of Damages

2 Award Deductions

C. Wrongful Death

1. Elements of Damages

2. Computation of Award



VII. PRACTICE &
PROCEDURE

A. State Court Actions

B. Jurisdiction

1. In General

2. Bases of Jurisdiction

C. Venue

1. In General

2. Bases of Venue

3 Forum Non Conveniens

D. Election of Remedies

1. In General

2. Particular Remedies

E. Institution of Action

F. Pleadings and Motions

1. Complaint

2. Answer

3. Motions

G. Removal and Remand

H. Discovery

I. Jury

1. Right To Jury Trial

2. Submission of Issues

J. Evidence

1. In General

2. Plaintiff's Burden
of Proof

3. Defendant's Burden

4. Admissibility

K. Appeal and Review

L. Settlement

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