IV. NEGLIGENCE C. Circumstances of Injury 2. Improper Management and Supervision b. Particular Acts Supervised - 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 C. Circumstances of Injury 2. Improper Management and Supervision b. Particular Acts Supervised

297. Keeping lookout

In Jones Act action, it was for trier of fact to determine whether failure to post lookout amounted to violation of 33 USCS § 221, providing for safety precautions. Wilson v Oil Transport Co. (1957, CA5 La) 242 F2d 727, cert den 355 US 835, 2 L Ed 2d 46, 78 S Ct 56.

In action for death damages under 46 USCS Appx § 688 evidence that master of ship was negligent in allowing decedent to go on watch in deteriorated physical condition due to his dissipation, and failing to post lookout on mast during search for seaman was sufficient to permit jury to consider charges. Swords v American Sealanes, Inc. (1971, CA4 Va) 443 F2d 1324, cert den 404 US 948, 30 L Ed 2d 265, 92 S Ct 276.

Defendant had duty to warn decedent of existence of manila line which connected dredge to river bed and which would snap taut upon swinging of dredge and of consequent unsafe condition by posting lookout and upon failing to do so, defendant breached his duty. Stark v American Dredging Co. (1946, DC Pa) 66 F Supp 296.

Fishing vessel and cargo vessel are jointly and severally liable for death of seaman as result of collision at sea where evidence showed (1) fishing vessel was unseaworthy by having incompetent lookout who could otherwise have avoided collision and by possessing defective lifesaving equipment, (2) fishing vessel's owner negligently hired incompetent lookout, and (3) cargo vessel's crew negligently operated her in violation of several rules of the road and failed to maintain proper lookout. Re Ocean Foods Boat Co. (1988, DC Or) 692 F Supp 1253.


298. Navigation and maneuvering

Operator of gasoline launch was negligent in permitting launch to come in contact with scow, as result of which plaintiff's intestate was thrown from launch and drowned. Newport News Shipbuilding & Dry Dock Co. v Watson (1927, CA4 Va) 19 F2d 832.

It is not negligence per se to pivot ferryboat while seaman is in act of throwing mooring line over spile at wharf. Buffalo & Grand Island Ferry Co. v Williams (1928, CA2 NY) 25 F2d 612.

Making stern landing causing injury to deckhand, although not per se negligent, was negligent where ship was reversed before deckhand had chance to make line fast. The Pontin Bros. (1931, CA2 NY) 47 F2d 595.

Negligence of captain in starting tug without taking due precautions to determine whether deckhand was clear of hawser, when hawser did, in fact, sever deckhand's foot, supports verdict for deckhand. Bay State Dredging & Contracting Co. v Porter (1946, CA1 Mass) 153 F2d 827.

Vessel was not negligent in failing to change course while boatswain was attempting to lash lifeboat to prevent it from washing away, even though such change of course might have reduced sea wash on that side of vessel. The Eastern Dawn (1928, DC Pa) 1928 AMC 1136.

Act of captain of vessel in ordering vessel back on her course after mate had put vessel into wind, and failure to drive wedges into dogs holding battens fastening hatch bars, constituted negligence. The William A. McKenney (1930, DC Mass) 41 F2d 754, 1930 AMC 1395.

Master of ship was negligent in failing to reduce speed and head out to sea after ship struck object resembling reef. Gerardo v United States (1951, DC Cal) 101 F Supp 383.

Failure to provide against sudden reversal of anchor chain due to fouling in rocky reef known to defendant's agents constituted negligence. Lejeune v General Petroleum Corp. (1932, Cal App) 13 P2d 1057, subsequent op on reh 128 Cal App 404, 18 P2d 429, 1932 AMC 1472.

Where seaman on tug was making line fast under order of master, and before he could complete his task master suddenly and without warning caused tug to move ahead drawing taut line which he was fastening, mashing his finger between line and bitt, master was guilty of negligence. Wood Towing Corp. v West (1943) 181 Va 151, 23 SE2d 789.


299. Providing personnel and assistance

Third cook, in action to recover for back injured in lifting meat to hook, having submitted evidence that it was customary for cook to have help in loading icebox, either from other cooks or stewards, and that only stevedore was present, who was not required by custom to help, proved prima facie case of negligence by shipowner for failure to furnish sufficient help. Gold v Groves (1950, CA3 Pa) 182 F2d 767.

Failure of shipowner to supply sufficient help is negligence. Gold v Groves (1950, CA3 Pa) 182 F2d 767.

In action brought under 46 USCS Appx § 688, rig owner did not fail to fulfill duty of furnishing proper personnel by not requiring second man to assist injured libellant in his work, where such work could usually be done safely by one man and mechanical lifting devices were readily available for use by libellant. Thomas v Diamond M Drilling Co. (1978, CA5 La) 569 F2d 926.

Under Jones Act, 46 USCS Appx § 688, vessel is negligent where she is not adequately manned. Western Tankers Corp. (1975, SD NY) 387 F Supp 487.

Tugboat operator's summary judgment motion denied, where seaman was injured resecuring barge to tug without help, since material issue of fact existed as to whether operator was negligent under Jones Act for not providing assistance to seaman in performing task. Bodden v Moran Transp. Co. (1993, SD NY) 822 F Supp 1068.

Owners of deep sea fishing vessel are bound to provide adequate equipment and trained and competent help in connection with diving operations, and failure to so provide is negligence under 46 USCS Appx § 688. Correia v Van Camp Sea Food Co. (1952) 113 Cal App 2d 71, 248 P2d 81.

Failure to man vessel as required by Certificate of Inspection, issued under Coast Guard regulations, is negligence on part of ship owner. Smith v Cameron Crews, Inc. (1977, La App 3d Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.


300. Rescue

In action to recover for death under 46 USCS Appx § 688, it was for jury to determine whether procedures taken by master and crew of vessel in attempt to rescue seaman who had fallen overboard was adequate. Harris v Pennsylvania R. Co. (1931, CA4 Va) 50 F2d 866 (disagreed with Berg v Chevron U.S.A., Inc. (CA9 Wash) 759 F2d 1425).

Vessel owner was liable for loss of seaman at sea where master of vessel made no effort to search for seaman who disappeared under unknown circumstances and was not reported as missing until 5 1/2 hours after he was last seen. Gardner v National Bulk Carriers, Inc. (1962, CA4 Va) 310 F2d 284, 91 ALR2d 1023, cert den 372 US 913, 9 L Ed 2d 721, 83 S Ct 728, reh den 372 US 961, 10 L Ed 2d 13, 83 S Ct 1012.

Fact that employees of one vessel undertook rescue work in high seagoing tradition upon another vessel which was on fire did not mean that any place where lifesaving efforts might find employees would be temporarily converted into place to work, with consequent prior obligations of inspection and readying on part of employer. Rodway v Amoco Shipping Co. (1974, CA1 Me) 491 F2d 265, cert den 417 US 968, 41 L Ed 2d 1139, 94 S Ct 3172.

Doctrine of maritime rescue is based on law of negligence, and like other aspects of this law, responsibility is tested by standard of reasonable care; if there is reasonable possibility of rescue, ship is under duty to search and attempt rescue when its officers know or in exercise of reasonable care should have known crewman is missing. Abbott v United States Lines, Inc. (1975, CA4 Va) 512 F2d 118.

In action under 46 USCS Appx § 688 for death of seaman who fell overboard and drowned, it was for jury to determine whether actions of master and crew in attempting to rescue seaman were negligent. Macomber v De Bardeleben Coal Co. (1942) 200 La 633, 8 So 2d 624, cert den 317 US 661, 87 L Ed 532, 63 S Ct 61.

Shipowner was not liable for drowning of employee merely because best method was not employed to save him after he fell into water without negligence of defendant; however, it was question for jury whether, applying standard of ordinarily prudent and skillful seaman, captain of vessel was guilty of merely erroneous judgement rendered hastily in emergency, or committed act of negligence. Raolaslovic v New York C. R. Co. (1927) 245 NY 91, 156 NE 625.

In action under 46 USCS Appx § 688, it was question for jury determination as to whether master exercised requisite amount of care in backing vessel while attempting to rescue seaman. Raolaslovic v New York C. R. Co. (1927) 245 NY 91, 156 NE 625.


301. --Lifesaving equipment

Duty to rescue, where seaman falls or deliberately jumps overboard but remains visible to those on board ship, arises from instant that seaman goes overboard and not only as of time seaman begins to drown or cry for help; vessel's breach of duty to rescue was established by fact that line-throwing appliance, required by Coast Guard regulations, could have been used to deliver line to seaman who had jumped overboard, regardless of fact that such appliances are not usually used to rescue men in water; however, as to whether such breach was cause of injury, District Court would be required to determine (1) whether there was time to ready and fire line-throwing appliance, had one been available, before seaman drowned; (2) whether it was reasonable to use appliance; and (3) whether actually firing line would probably in fact have saved seaman's life; in resolving causation element, such causation would be presumed and vessel would have burden of overcoming that presumption. 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.

Question of negligence, in failure to throw luminous ring to seaman who had fallen overboard at night, was for jury. Tompkins v Pilots Asso. for Bay & River Delaware (1940, DC Pa) 32 F Supp 439, 1940 AMC 716.


302. Stowage

Vessel was negligent in permitting narrow deck space between high deck load and side of vessel as to seaman required to handle heavy bight of chain. Hanson v Luckenbach S. S. Co. (1933, CA2 NY) 65 F2d 457, 1933 AMC 764.

Owner of ship was liable to seaman injured while assisting in stowing hawser, left on deck 22 days after leaving port, since failure to stow before leaving port constituted negligence. Menefee v W. R. Chamberlin Co. (1949, CA9 Wash) 176 F2d 828, 1949 AMC 1388.

Overcrowded and foggy refrigerated vessel's hold did not constitute unsafe working place and shipowner, by permitting such condition, was not guilty of negligence proximately causing longshoreman's injuries sustained when, while assisting in unloading of ship, longshoreman was struck by spreader bar from pallet board because of lack of coordination among men performing unloading operations. 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.

Seaman is entitled to recover for injury sustained to leg in securing drums which had broken loose during storm, where drums were negligently stored at outset of voyage. Ludwig v United States (1946, DC Wash) 74 F Supp 29.

Where chief steward was responsible for proper stowage of icebox and completely controlled access to box, shifting of loose ice injuring chief steward was proximately caused by his own negligence rather than negligence of shipowner. Battice v United States (1948, DC NY) 79 F Supp 932.

Relief captain's Jones Act (46 USCS Appx § 688) claim against employer must fail, where his own description of events demonstrates that only pier owner was in position to properly inspect and make safe skiff, also owned by pier and used for deployment of oil containment boom, because relief captain has alleged no facts that would support finding of negligence on part of employer for not properly stowing oar in skiff on which captain slipped and fell. Babbitt v Hanover Towing (1998, ED NC) 7 F Supp 2d 650, 1998 AMC 848.

Absence of chains on board vessel at time of trip resulting in injury to plaintiff from shifting cans containing drilling mud which made vessel unseaworthy as well as unsafe place to work was attributable to negligence of both vessel's owner and vessel's captain. Melancon v I. M. C. Drilling Mud (1973, La App 1st Cir) 282 So 2d 532, application den (La) 283 So 2d 769 and application den (La) 283 So 2d 771.

Employer was guilty of negligence in placing jackscrews in passageway contrary to usual custom. Russell v Pere Marquette R. Co. (1929) 245 Mich 624, 223 NW 230, cert den 279 US 864, 73 L Ed 1003, 49 S Ct 480.

Loading lumber by overlapping method instead of by stripping method, and permitting stevedores to unload lumber when vessel had list of two feet was not negligence of vessel. Litwinowitch v Oriental Nav. Co. (1933) 311 Pa 257, 166 A 911, 1933 AMC 957.


303. Miscellaneous

Failure to have lifeboat drills is negligence. Tatem v Southern Transp. Co. (1947, DC Pa) 72 F Supp 44, 1947 AMC 1724, affd (CA3 Pa) 166 F2d 1020, 1948 AMC 936.

Master and officers of tug were negligent in failing to sound general alarm and to arouse men in forecastle from their sleep when it was discovered tug was sinking. Hickman v Taylor (1947, DC Pa) 75 F Supp 528, 1947 AMC 1614, affd (CA3 Pa) 170 F2d 327, 1949 AMC 292, reh den 336 US 921, 93 L Ed 1083, 69 S Ct 636 and cert den 336 US 906, 93 L Ed 1071, 69 S Ct 485.

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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