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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
V. DEFENSES A. Seaman's Acts or Omissions 2. Assumption of Risk
Assumption of risk is no defense under 46 USCS Appx § 688. 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.
Seaman does not assume risk of injury, unless risk was so dangerous that no man of ordinary prudence would have obeyed order. Coast S.S. Co. v Brady (1925, CA5 Ala) 8 F2d 16, cert den 269 US 578, 70 L Ed 421, 46 S Ct 103.
As seaman cannot quit his employment, he does not assume risk of negligence of those in charge of ship by which his place of work is made unsafe, and he does not assume risk of failure to take such precautions as perils of sea make necessary and reasonable. States S.S. Co. v Berglann (1930, CA9 Or) 41 F2d 456, 1930 AMC 1392, cert den 282 US 868, 75 L Ed 767, 51 S Ct 75.
Defendant cannot avoid effect of his negligence by pleading assumption of risk since amendment of 45 USCS § § 51 et seq. abolished such defense. The Black Gull (1936, CA2 NY) 82 F2d 758, cert den 298 US 684, 80 L Ed 1404, 56 S Ct 954; Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81; Schwartz v Myrden (1947, CA1 Mass) 160 F2d 678.
Defense of assumption of risk has long been eliminated from maritime injury law by 45 USCS § 54. Rivera v Farrell Lines, Inc. (1973, CA2 NY) 474 F2d 255, 17 FR Serv 2d 394, cert den 414 US 822, 38 L Ed 2d 55, 94 S Ct 122; Wurz v Santa Fe International Corp. (1976, DC Del) 423 F Supp 91, 22 FR Serv 2d 1103.
Despite glaring negligence of seamen that may have contributed to his injury, seaman cannot be said to have assumed risk, where risk could be reasonably controlled by shipowner. Reyes v Vantage S.S. Co. (1977, CA5 Tex) 558 F2d 238, on reh (CA5 Tex) 609 F2d 140, later app (CA5 Tex) 672 F2d 556, later proceeding (SD Tex) 575 F Supp 926, withdrawn.
In action brought under 46 USCS Appx § 688, assumption of risk cannot be pleaded as separate and complete defense. Siclana v United States (1944, DC NY) 56 F Supp 444.
359. Relation to contributory negligence
In action under 46 USCS Appx § 688, assumption of risk must be applied in conjunction with established admiralty doctrine of comparative negligence, and under that doctrine comparative negligence however gross is not bar to recovery but only mitigates damages. Socony-Vacuum Oil Co. v Smith (1939) 305 US 424, 83 L Ed 265, 59 S Ct 262.
Under 46 USCS Appx § 688, assumption of risk on part of seaman is considered as comparative negligence. Imperial Oil, Ltd. v Drlik (1956, CA6 Ohio) 234 F2d 4, cert den 352 US 941, 1 L Ed 2d 236, 77 S Ct 261; Stahlin v Lehigh V. R. Co. (1940) 125 NJL 211, 15 A2d 344.
Relevant factors in determining assumption of risk are important only insofar as they tend to establish contributory negligence on part of plaintiff. Fonsell v New Yrok Dock Railway (1961, ED NY) 198 F Supp 332.
Defense of assumption of risk is not available as bar to recovery but may be considered in determining damages. Rouchleau v Silva (1950) 35 Cal 2d 355, 217 P2d 929; Fegan v Lykes Bros. S.S. Co. (1940, La App) 195 So 392, remanded on other grounds 196 La 541, 199 So 635, conformed to (La App) 199 So 680, mod on other grounds 198 La 312, 3 So 2d 632; Stahlin v Lehigh V. R. Co. (1940) 125 NJL 211, 15 A2d 344; Proctor v Sword Line, Inc. (1948, City Ct) 83 NYS2d 288.
360. Applicability to longshoremen and other shore personnel
Voluntary assumption of known risk, is still defense available under 46 USCS Appx § 688 as respects actions by longshoremen and other workers who serve on craft merely during day and live ashore. Olszewski v United Fruit Co. (1940, DC Pa) 34 F Supp 113.
Assumption of risk is no defense in personal injury action by longshoreman. Sousa v M/V Caribia (1973, DC Mass) 360 F Supp 971.
361. Ordinary risks of occupation
Seaman accepts obvious and well-known risks of business but does not run risks of negligence of others, and he has right to assume that he will receive protection to which he is entitled. 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; Gelb v United States (1948, DC Cal) 75 F Supp 833.
Seaman assumes ordinary risks of his occupation, of which negligence of owner or master is not one; if seaman is injured in one of normal hazards of business, without fault on part of anyone else, ship being seaworthy and equipment perfect, he assumes loss himself, subject to right of maintenance and cure, whether under 46 USCS Appx § 688 or under maritime law. Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81.
Although seaman in boarding vessel assumes risk of his calling, assumption of risk as defense in suit under 46 USCS Appx § 688 is different matter; when seaman assumes risk of his calling it means that seaman injured as result of being exposed to risk not avoidable by employer's due care, cannot recover for negligence. Rush v Cargo Ships & Tankers, Inc. (1966, CA2 NY) 360 F2d 766, cert den 385 US 842, 17 L Ed 2d 75, 87 S Ct 96.
Seamen are deemed to realize and accept or assume risk of natural hazards of their occupation. Savard v Marine Contracting, Inc. (1972, CA2 Conn) 471 F2d 536, cert den 412 US 943, 37 L Ed 2d 404, 93 S Ct 2778.
Relief is not warranted pursuant to 46 USCS Appx § 688 where plaintiff simply hurt his back carrying scrap metal to deck of ship, which was duty that plaintiff readily concedes to be no more than normal hazard of his work. Chisholm v Sabine Towing & Transp. Co. (1982, CA5 Tex) 679 F2d 60.
Evidence supported jury's finding that vessel was not unsafe in placement of pump hose over which plaintiff fell where defendant produced photographs showing similar placement of hose on other vessels; further, slime on fishing vessel did not render it unseaworthy since decks of fishing vessels are slippery by nature. Morning v Zapata Protein (USA) (1997, CA4 Va) 128 F3d 213.
Despite 46 USCS Appx § 688, seaman assumes ordinary risks of his employment, and those which are obvious or fully appreciated. Peterson v P. Sandford Ross, Inc. (1928, DC NY) 28 F2d 283; Lloyd v T. Hogan & Sons, Inc. (1927) 128 Misc 665, 219 NYS 750.
Where defendant is not negligent, seaman sustaining heart attack as result of exertion doing ordinary seamen's work has no right of action under 46 USCS Appx § 688. Lamon v Standard Oil Co. (1954, DC La) 117 F Supp 831.
Deckhand's Jones Act (46 USCS Appx § 688) claim is denied summarily, where he injured back while handing down very heavy bow hemp loop, even though he argues that lighter "Kevlar" line or assistance of another deckhand would have avoided his injury, because it was not negligent simply to ask seaman to move or lift heavy object. Rutherford v Lake Mich. Contrs., Inc. (2000, WD Mich) 132 F Supp 2d 592, 2000 AMC 2314.
Vessel being seaworthy, and equipment in perfect condition, fisherman cannot sustain action under 46 USCS Appx § 688 for injury to his eye caused by fishhook and line in hands of another seaman; such injury is part of inherent normal hazard of deep sea fishing. Alvarez v Van Camp Sea Food Co. (1952) 113 Cal App 2d 647, 248 P2d 943.
Determination of whether decedent was ordered into place of danger by captain on vessel or whether he assumed risk normally incident to his calling as seaman was question for jury. Kuljis v Xitco (1941) 8 Wash 2d 606, 113 P2d 26.
362. Unsafe appliances or working conditions
Assumption of risk is no defense to suit brought by seaman under 46 USCS Appx § 688 to recover for injuries sustained by reason of vessel's unseaworthiness or defective appliance which was part of equipment of vessel on which he was employed. 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.
Assumption of risk is no defense to suit brought by seaman under 46 USCS Appx § 688 for negligent failure of master to provide safe appliances or safe place in which to work; seaman not under articles and working while vessel was in port did not assume risk of unsafe place to work. Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712, 1936 AMC 635.
Seaman, in performance of his duties, is not deemed to assume risk of unseaworthy appliances. Mahnich v Southern S.S. Co. (1944) 321 US 96, 88 L Ed 561, 64 S Ct 455, 1944 AMC 1.
Seaman does not assume risk of improper appliances by accepting employment upon ship that is not properly equipped. Cricket S. S. Co. v Parry (1920, CA2 NY) 263 F 523, cert den 252 US 580, 64 L Ed 726, 40 S Ct 345; Coast S.S. Co. v Brady (1925, CA5 Ala) 8 F2d 16, cert den 269 US 578, 70 L Ed 421, 46 S Ct 103.
When injury is caused by failure of master to provide safe place to work or safe appliances, defense of assumption of risk cannot be made. Grant v United States Shipping Board Emergency Fleet Corp. (1927, CA2 NY) 22 F2d 488; Wychgel v States S.S. Co. (1931) 135 Or 475, 296 P 863, cert den 284 US 625, 76 L Ed 533, 52 S Ct 11 and (ovrld on other grounds Hust v Moore-McCormack Lines, Inc. 180 Or 409, 177 P2d 429).
While seaman assumes ordinary risks of his employment, he does not assume risk of injury from failure of employer to supply and keep in order proper appliances of ship, though risk of injury is obvious. Pittsburgh S.S. Co. v Palo (1933, CA6 Ohio) 64 F2d 198.
Seaman does not assume risk of injury even from obvious dangers if proximate cause thereof is failure of shipowner or master to supply and keep in order proper appliances appurtenant to ship or failure to provide safe place in which to work. Cleveland-Cliffs Iron Co. v Martini (1938, CA6 Ohio) 96 F2d 632, 1938 AMC 985, cert den 305 US 605, 83 L Ed 384, 59 S Ct 65; The Seeandbee (1939, CA6 Ohio) 102 F2d 577, 14 Ohio Ops 171, 1939 AMC 711.
Seamen and others who work on vessel must accept, without critical examination and without protest, working conditions and appliances as commanded by their superior officers; therefore, they do not assume risk of working under such conditions. Marchese v Moore-McCormack Lines, Inc. (1975, CA2 NY) 525 F2d 831.
Seaman does not assume risk of injury resulting from unseaworthiness of vessel, defective appliances, or place to work not made reasonably safe, even though he had knowledge of danger and continued in employment since seaman cannot quit employment at will. Grimberg v Admiral Oriental S.S. Line (1924, DC Wash) 300 F 619.
Seaman does not assume risk of injury even from obvious dangers if proximate cause of injury is failure of shipowner or master to supply and keep in order proper appliances or to provide safe place in which to work. Proctor v Sword Line, Inc. (1948, City Ct) 83 NYS2d 288.
363. --Seaman's choice between safe and unsafe appliances or methods
Seaman may recover, under 46 USCS Appx § 688, for injuries received in his work as oiler where he had choice between dangerous and less dangerous method of performing certain act, and he carelessly chose more dangerous way. Smith v Socony Vacuum Oil Co. (1938, CA2 NY) 96 F2d 98, 1938 AMC 589, affd 305 US 424, 83 L Ed 265, 59 S Ct 262, 1939 AMC 1.
Assumption of risk is not available as affirmative defense to action under 46 USCS Appx § 688; this is so notwithstanding that complaining seaman's injuries are result of his use of known unsafe appliance or method although he had free choice to avoid such use. Armit v Loveland (1940, CA3 Pa) 115 F2d 308.
Choice of defective appliance when more appropriate one is available does not render assumption of risk defense under 46 USCS Appx § 688 when employee was on duty, even though such defense is applicable when employee was not on duty. Wong Bar v Suburban Petroleum Transport, Inc. (1941, CA2 NY) 119 F2d 745, 1941 AMC 844.
Assumption of risk is not defense to action brought by seaman under 46 USCS Appx § 688 even when seaman knowingly uses defective appliance instead of performing his duty in way he knows to be safe. Movible Offshore Co. v Ousley (1965, CA5 La) 346 F2d 870 (disapproved on other grounds Rodrigue v Aetna Casualty & Surety Co., 395 US 352, 23 L Ed 2d 360, 89 S Ct 1835 (superseded by statute on other grounds as stated in Herb's Welding v Gray (CA5) 703 F2d 176, reh den (CA5) 711 F2d 666, revd 470 US 414, 84 L Ed 2d 406, 105 S Ct 1421, on remand (CA5) 766 F2d 898 and cert gr 465 US 1098, 80 L Ed 2d 122, 104 S Ct 1589, motion gr 467 US 1258, 82 L Ed 2d 854, 104 S Ct 3551)) as stated in Laredo Offshore Constructors, Inc. v Hunt Oil Co. (CA5 Tex) 754 F2d 1223.
Seaman injured as result of taking dangerous route when two safe routes were available could not recover damages for accident during storm at sea. Bohannon v United States (1950, DC NY) 92 F Supp 700, 1950 AMC 1009, affd (CA2 NY) 185 F2d 678, 1951 AMC 319.
Seaman's claim that choice of site for and supervision of crew's liberty at remote anchorage was negligent and created liability for injuries he suffered on liberty under 46 USCS § 688 is dismissed, where captain permitted off-duty crewmen to investigate shipwreck in groups and seaman lowering himself from shipwreck by use of rope he found on 20-year-old shipwreck fell 30-40 feet, fracturing 2 vertebrae and left heel, because ship's captain and supervisory personnel breached no duties in providing crew with interesting liberty opportunity and minimally overseeing leisure activities, but rather seaman breached duty to use good sense by relying on old, untested rope when descending from dangerous height. Howard v M/V Bristol Monarch (1987, WD Wash) 652 F Supp 677.
Instructions by trial court, that defendant could be found liable if jury found there was "safer method" to do work and if use of "safer method" would have avoided injury, was not reversible error where trial judge expressly stated throughout charge that test was one of "reasonableness," and that when determination of whether or not "reasonable" method was made proper element of consideration was whether safer alternative method was known and available to defendant; "safer method" charge had basis in evidence, where conditions indicated that plaintiff was ordered to perform his assignments under unreasonably dangerous conditions, jury charge that any one cause of plaintiff's injury could be attributed to defendant's negligence, was not reversible error particularly in view of fact that jury had been told numerous times that to find liability, they must find that defendant's negligence did cause, at least in part, plaintiff's injuries. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.
364. Obeying orders
Seaman does not assume risk inherent in carrying out orders of superior since he has obligation to obey such orders. 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.
Fact that seaman, injured through negligent failure to provide him with safe place in which to work, was employed on coastwise vessel which was in port at time of accident, so that he was free to avoid risk by leaving vessel without liability for punishment for desertion, does not make assumption of risk available as defense to action brought by him under 46 USCS Appx § 688. Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712.
There is no assumption of risk when seaman obeys orders of superior in exposing himself to danger, although danger may have been obvious to him. United States v Boykin (1931, CA5 Fla) 49 F2d 762; Salem v United States Lines Co. (1961, CA2 NY) 293 F2d 121, 1962 AMC 1464, affd in part and revd in part on other grounds 370 US 31, 8 L Ed 2d 313, 82 S Ct 1119, 1962 AMC 1456, reh den 370 US 965, 8 L Ed 2d 834, 82 S Ct 1578 and on remand (CA2) 304 F2d 672.
Seaman does not assume any risks involved in obeying orders. Hanson v Luckenbach S. S. Co. (1933, CA2 NY) 65 F2d 457, 1933 AMC 764; Proctor v Sword Line, Inc. (1948, City Ct) 83 NYS2d 288.
Appropriateness of orders of vessel master must be considered in determining applicability of assumption of risk. Roberts v United Fisheries Vessels Co. (1944, CA1 Mass) 141 F2d 288, cert den 323 US 753, 89 L Ed 603, 65 S Ct 81.
Assumption of risk does not mean that mere giving of orders by ship's officers releases seamen of all responsibility. Darlington v National Bulk Carriers, Inc. (1946, CA2 NY) 157 F2d 817.
Because of unique status of seaman (in that he is obliged to obey whatever order he is given, under pain of severe penalty), necessitated by rigors of sea, burden of risks incident to their calling should be borne by shipowners. Hudson Waterways Corp. v Schneider (1966, CA9 Cal) 365 F2d 1012.
Stevedores undertaking work at direction of superior did not assume risk. The Richelieu (1928, DC Md) 27 F2d 960, 1928 AMC 1143, mod (CA4 Md) 48 F2d 497, 1931 AMC 721, cert den 284 US 621, 76 L Ed 530, 52 S Ct 9.
Second assistant engineer did not assume risk in obeying lawful orders of his chief. Joseph P. Duffy v United States (1934, DC NY) 1934 AMC 1268.
Seaman does not assume risk arising from work he is ordered to do with insufficient assistance. The Harrisburg (1936, DC Tex) 1936 AMC 311.
Sailor at sea does not assume risk of obvious dangers when carrying out orders of one in authority not necessary for preservation of ship or cargo, for reason that he is obliged to obey orders and has not freedom of action, choice to obey or quit, as have workmen on land. South Atlantic S.S. Co. v Munkacsy (1936, Sup) 37 Del 580, 187 A 600, cert den 299 US 607, 81 L Ed 448, 57 S Ct 233.
365. Disobeying orders
Seaman's disobedience of order as to mode of protecting himself caused his own death and employer is not liable. Grunert v Bush Terminal Co. (1931, CA2 NY) 47 F2d 565, 1931 AMC 428.
Seaman's failure to heed multiple admonitions to move away from dangerous position near tow bit was contributory negligence. Ceja v Mike Hooks, Inc. (1982, CA5 La) 690 F2d 1191.
Seventeen-year-old seaman was not entitled to recover for injury incurred as result of explosion of German flare he had brought on board in direct violation of orders as result of unauthorized trip to beachhead. Chandler v United States (1949, DC NY) 94 F Supp 581, 1949 AMC 1167, affd (CA2) 185 F2d 1019.
JONES ACT - TABLE OF CONTENTS