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MARITIME LAW SUMMARY

A. Seamen Are Wards of the Admiralty.

Seamen are wards of the admiralty to be given special consideration by the federal courts with rules crafted specifically for their protection.

We must apply the law of today as we understand it. If it leaves the merchant mariner as the most favored and highly protected of individuals in civilized society, then, so be it. It is likely that the solicitude for the sailor shown by the modern rules arises as much from an understanding of the mariner's life as a precarious one as it is due to any mistake made by the courts in the genesis of these rules.

Sullivan v. Lyon S.S., Ltd. , 63 Wn.2d 316, 321, 387 P.2d 76 (1963), cert. denied , 377 U.S. 932 (1964).

The Ninth Circuit Court of Appeals has emphasized these policy considerations:

The physical conditions under which the seaman labors are extremely hazardous. He works on an unstable and often slippery surface, subject to extreme sea and weather conditions. His duties may require his attention at all hours of the day and night. “He is often under the necessity of making quick decisions with little opportunity or capacity to appraise the relative safety or alternative choices of action.” Socony-Vacuum Co. v. Smith , 305 U.S. 424, 431 . . . (1939). Under such extreme circumstances, even an ordinarily careful worker may have momentary lapses of due care. . . .

The maritime law recognizes the unique conditions of the seaman's employment. The Supreme Court has written: “the seaman, while on his vessel, is subject to the rigorous discipline of the sea and has little opportunity to appeal to the protection from abuse of power which the law makes readily available to the landsman. . . . He cannot leave the vessel while at sea” to avoid dangerous conditions on board. Id . at 430. . . . For these reasons, “seamen are the wards of the admiralty, whose traditional policy it has been to avoid, within reasonable limits, the application of rules of common law which would affect them harshly because of the special circumstances attending their calling.” Id . at 431, 59 S. Ct. at 266. See also Mahnich v. Southern S.S. Co. , 321 U.S. 96 . . . (1944).

California Home Brands, Inc. v. Ferreira , 871 F.2d 830, 837-8 (9th Cir. 1989).

B. Legal Bases of Liability.

A seaman's employer and vessel owner owe her the duty to provide a seaworthy vessel, i.e., a vessel where all of its spaces and equipment are reasonably fit for their intended use. The employer also owes a duty of reasonable care to provide a safe place to work. A violation of the first duty gives rise to liability under the general maritime law doctrine of unseaworthiness; the second to liability for Jones Act negligence. The Ninth Circuit Court of Appeals summarized the law as it applies to a seaman's injury case:

A ship owner has an absolute duty “to furnish a vessel and appurtenances reasonably fit for their intended use.” Mitchell v. Trawler Racer, Inc. , 362 U.S. 539 . . . (1960); See Hetchinger v. Caskie , 890 F.2d 202, 207 (9th Cir. 1989), cert. denied , 498 U.S. 848 . . . (1990). The failure of a piece of equipment under proper and expected use is sufficient to establish unseaworthiness. Lee v. Far East Line, Inc. , 566 F.2d 65, 69 (9th Cir. 1977) (citing Usner v. Luckenbach Overseas Corp. , 400 U.S. 494, 499 . . . (1971)).

Where a ship's equipment malfunctions under normal use, the trier of fact may infer that the equipment is defective. Villers Seafood Co. v. Vest , 813 F.2d 339, 342 (11th Cir. 1987). . . . This is especially so where, as here, no evidence supports an alternative explanation for the malfunction. Villers , 813 F.2d at 342.

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. . . To recover on his Jones Act claim, [plaintiff] was required to establish by a preponderance of the evidence: (1) negligence on the part of his employer (or one for whom the employer is responsible), and (2) that the negligence was the cause, however slight, of his injuries. Hetchinger , 890 F.2d 208 (citing Litherland v. Petroleum Offshore Constr. Servs., Inc. , 546 F.2d 129, 133 (5th Cir. 1977) and Lies v. Farrell Lines, Inc. , 641 F.2d 765, 771 (9th Cir. 1981)).

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. . . The quantum of evidence necessary to support a finding of Jones Act negligence is less than that required for common law negligence, Ward v. American Hawaii Cruises, Inc. , 719 F. Supp. 915, 917 (D. Haw. 1988), and even the slightest negligence is sufficient to sustain a finding of liability. Id . ; Colburn v. Bunge Towing, Inc. , 883 F.2d at 375.

Havens v. F/T POLAR MIST , 996 F.2d 215, 217-8 (9th Cir. 1993). The Ninth Circuit is not alone in recognizing these standards:

Initially, we note that the duty of care a ship owner owes to a seaman has traditionally been recognized to be a very high one. Because seamen are subject to rigorous discipline while at sea and must accept, without criticism, working on conditions on orders from superior officers, admiralty law assigns a heavy responsibility for the safety of seamen to the owner of the ship. See , e.g. , Mahnich v. Southern S.S. Co. , 321 U.S. 96 . . . (1944). As a corollary of this general duty, owners are held to a high degree of care in providing a safe work environment. Spinks v. Chevron Oil Co. , 507 F.2d 216, 223 (5th Cir. 1975). In light of these general principles, the courts have allowed a seaman to recover on a Jones Act claim with a lower showing of proximate cause than would be required in an non-admiralty case. See id . at 222-23 (comparing proximate cause requirements in admiralty and non-admiralty cases); see also Sanford Bros. Boards, Inc. v. Vidrine , 412 F.2d 958, 962 (5th Cir. 1969) (in Jones Act case, sufficient evidence exists to support jury verdict on issue of causation if employer negligence played even slightest part in producing the injury). . . .

Dempsey v. Mac Towing, Inc. , 876 F.2d 1538, 1542 (11th Cir. 1989). The employer has a duty to use a “high degree of care in providing a safe work environment”. Adams v. United States , 393 F.2d 903, 905 (9th Cir. 1968). "The duty to provide for a safe course of conduct lies primarily with the vessel owner". Johnson v. Offshore Express, Inc. , 845 F.2d 1347, 1355 (5th Cir. 1988); Ceja v. Mike Hooks , 690 F.2d 1194 (5th Cir. 1987). See also Fifth Circuit Judge's Association Pattern Jury Instruction 4.4, Jones Act -- Negligence (1993 ed.).

C. Defendant Has An Absolute Obligation To Provide Proper Tools And Equipment.

The warranty of seaworthiness extends not just to the vessel itself, but also to its equipment and appurtenances. The vessel owner has an absolute obligation to provide a seaman with a seaworthy vessel and safe appliances. Mitchell v. Trawler Racer, Inc. , 362 U.S. 539 (1960). The vessel owner has a nondelegable duty to provide the seaman with safe appliances without regard to fault on the part of the vessel owner. Seas Shipping Co. v. Sieracki , 328 U.S. 85 (1946); Mahnich v. Southern S.S. Co. , 321 U.S. 96 (1944). In Mahnich , the seaman was injured when the staging on which he was working gave way because of a piece of defective rope. In upholding the lower court's finding of unseaworthiness, the Supreme Court stated:

The staging from which the petitioner fell was an appliance appurtenant to the ship. It was unseaworthy in the sense that it was inadequate for the purpose for which it was ordinarily used, because of the defective rope with which it was rigged. Its inadequacy rendered it unseaworthy, whether the mate's failure to observe the defect was negligible or unavoidable. Had it been adequate, petitioner would not have been injured and his injury was proximately and immediately the consequence of the unseaworthiness. Any negligence of the mate in selecting the rope and ordering its use as part of the staging, or boatswain in using it for that purpose, could not relieve the respondent of the duty to furnish a seaworthy staging. Whether petitioner knew of the defective condition of the rope does not appear, but in any case, the seaman, in the performance of his duties, is not deemed to assume the risk of unseaworthy appliances.

Mahnich , 321 U.S. 103.

The failure of a vessel owner to provide proper tools and equipment is a classic case of unseaworthiness. Michalic v. Cleveland Tankers, Inc. , 364 U.S. 325 (1960); Vargas v. McNamara , 308 F.2d 15, 18 (1st Cir. 1979) (and cases cited):

[T]he vessel is under an absolute duty to supply and keep and order tools and appliances, must finish a ship and seaworthy appliances. . . . But the failure of the ship owner to comply with its heavy obligation to select and furnish seaworthy appliances cannot be thus turned into a fault by the seaman.

Cox v. Esso Shipping , 247 F.2d 629, 635-36 (5th Cir. 1957). Accord , Johnson v. Offshore Express, Inc. , 845 F.2d 1547, 1354-5.

A failure of a piece of vessel equipment under proper and expected use is sufficient to establish unseaworthiness.

Lee v. Pacific Far East Line, Inc. , 566 F.2d 65, 67 (9th Cir. 1977). A few exemplary cases are instructive. A seaman injured by an unseaworthy block which broke while being used to load cargo was entitled to the absolute warranty of seaworthiness by the ship owner. Petterson v. Alaska S.S. Co., Inc. , 205 F.2d 478 (9th Cir. 1953), aff'd per curium as Alaska Steamship Co. v. Petterson , 346 U.S. 396 (1954).

In Gutierrez v. Waterman Steamship Corp. , 373 U.S. 206 (1963), the court held that a ship owner was liable under the warranty of seaworthiness when beans spilled from defective bags onto the dock as they were being unloaded causing an unsafe dock surface. “All things about a ship, whether the hull, the decks, the machinery, the tools furnished , the stowage or the cargo containers, must be reasonably fit for the purpose for which they are to be used.” Id. at 213 (emphasis added). The warranty of seaworthiness extends to all equipment and tools used by seamen and those during seamen's work. The warranty covers an auger located in a railroad boxcar, which conveys rice for loading into the ship. Chagois v. Lykes Bros. Steamship Co. , 432 F.2d 388 (5th Cir. 1970). The warranty extends to loading equipment that is permanently affixed to the dock. Drachenberg v. Canal Barge Co., Inc. , 571 F.2d 912 (5th Cir. 1978). The warranty extends to a hopper on the dock receiving nitrate of soda being discharged from the ship. Spann v. Lauritzen , 344 F.2d 204 (3d Cir. 1964).

D. Maritime Standards For Comparative Negligence.

A seaman's duty to protect himself is “slight”. His duty is to do the work assigned, not to find the safest tool or method of work.

Generally, a seaman has no duty to find the safest way to perform his work. Comeaux v. T. L. James & Co. , [666 F.2d 294] at 300 [(5th Cir. 1982)]; Spinks v. Chevron Oil Co. , 507 F.2d 216, 223 (5th Cir. 1975), clarified , 546 F.2d 675 (5th Cir. 1977) (“his duty is to do the work assigned, not to find the safest method of work”). Rather, the duty to provide for a safe course of conduct lies primarily with the vessel owner. A seaman, therefore, is not contributorily negligent merely because he uses an unsafe tool or appliance or proceeds in an unsafe area of the ship. Only where it is shown that there existed a safe alternative available to him of which he knew or should have known , can a seaman's choice of an unsafe course of action be properly considered in determining whether he was negligent. Accord , Joyce v. Atlantic Richfield Co. , 651 F.2d 676, 682-83 (10th Cir. 1981).

Ceja v. Mike Hooks, Inc. , 690 F.2d 1191, 1194-5 (5th Cir. 1982) (emphasis added). A seaman has no duty to find the safest way to perform his work. Johnson v. Offshore Express, Inc. , 845 F.2d 1347, 1355 (5th Cir. 1988).

These rules have been repeatedly applied by the Federal Courts. Dempsey , 876 F.2d at 1543-4 (11th Cir. 1989) (“The standard for contributory negligence in admiralty must be assessed in light of the heavy burden of care ship owners bear with regard to their crew generally”); Johnson v. Offshore Exp., Inc. , 845 F.2d 1347, 1355 (5th Cir. 1988), cert. denied , 488 U.S. 968 (1988) (“The seaman's duty to protect himself is slight since his duty is tempered by the realities of maritime employment.”); Shipman v. Central Gulf Lines, Inc. , 709 F.2d 383, 386 (5th Cir. 1983); Hall v. American S.S. Co. , 688 F.2d 1062, 1065-6 (6th Cir. 1982); McCoy v. United States , 689 F.2d 1196, 1198 (4th Cir. 1982) (“[A] seaman cannot be faulted for recognizing his job as dangerous and doing it anyway, unless he deliberately spurns a safe alternative provided to him. . . . The burden of showing that a safe alternative existed, as part of the affirmative comparative negligence defense, rests with the ship owner.”); Tolar v. Kinsman Marine Transit Co. , 618 F.2d 1193, 1195-6 (6th Cir. 1980) (“A seaman may not be denied recovery because he proceeds in an unsafe area of the ship or uses an unsafe appliance in absence of a showing that there was a safe alternative available to him.”); Spinks v. Chevron Oil Co. , 507 F.2d 216, 223 (5th Cir. 1975); Williams v. Brasea, Inc. , 497 F.2d 67 (5th Cir. 1974), modified , 513 F.2d 301, cert. denied , 423 U.S. 906 (1975), after remand , 549 F.2d 977 (5th Cir. 1977); DuBose v. Matson Navigation Co. , 403 F.2d 875 (9th Cir. 1968); Adams v. U.S. , 393 F.2d 903, 906 (9th Cir. 1968). These rules of contributory negligence are also succinctly summarized in Fifth Circuit Judge's Association Pattern Jury Instruction 4.7, Contributory Negligence (1993 ed.).

E. Defense Of Assumption Of The Risk Has Been Abolished.

The absolute bar defense of assumption of risk has been abolished under maritime law. Socony-Vacuum Co. v. Smith , 305 U.S. 424 (1938). There, the Court specifically found that a Jones Act seaman who deliberately chooses an unsafe method of work instead of a safe method of work which was known to him could not be barred from recovery.

In the performance of duty [a seaman] is often under the necessity of making of quick decisions with little opportunity or capacity to appraise the relative safety of alternative courses of action. Withal seaman are the wards of the admiralty, whose traditional policy it has been to avoid, within reasonable limits, the application of rules of common law which would effect them harshly because of the special circumstances attended to that calling.

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We think that the consistent development of the maritime law conformity to its traditional policy for protection to seamen through an exaction of a high degree of responsibility of owners for the seaworthiness of vessels and safety of their appliances will be best served by applying the rule of comparative negligence rather than that of assumption of risk, to seamen who make use of a defective appliance knowing that a safe one is available.

Id. at 305 U.S. 431-2.

An injured seaman may not be charged with assumption of risk under another name.

Clearly to say that [plaintiff] was at fault for using the ladder when he knew of its deficiency does not differ in substance from invoking the doctrine of assumption of risk against him. Had an alternative, safe route been available to Smith, his deliberate choice of a course known to be unsafe could possibly have indicated contributory fault, but mere knowledge of the unseaworthy condition and use of the ladder in absence of a showing that there was an alternative is not contributory negligence.

Smith v. United States , 336 F.2d 165, 168 (4th Cir. 1964). Accord, Reyes v. Vantage S.S. Co. , 558 F.2d 238, 244 (5th Cir. 1977), modified , 609 F.2d 140 (5th Cir. 1980), aff'd after remand , 672 F.2d 556 (5th Cir. 1982) (“ No risk that can be reasonably controlled by the ship owner is assumed by the seaman. ”); Ballwanz v. Isthmian Lines, Inc. , 319 F.2d 457, 460-2 (4th Cir. 1963), cert. denied , Isthmian Lines, Inc. v. Ballwanz , 376 U.S. 920 (1964).

The Ballwanz case is often cited with approval, including by the Ninth Circuit in Adams . There the Court described a seaman's duties with regard to his work.

His duty was to do his work as he was instructed. He was in no sense obligated to protest against the method of operation which he had been instructed to follow or to device a safer method, nor was he obligated to call for additional or different equipment. If the doctrine of seaworthiness means anything, it is totally repugnant to the doctrine of assumption of risk on the part of seamen. . . . The courts have held that where a seaman has a choice between a seaworthy or an unseaworthy part of a ship, his use of the ladder will not relieve the owner of his responsibility [citation omitted]. Certainly, if a seaman may deliberately choose an unseaworthy part of a ship without losing his right of recovery, then he is under no obligation to complain about his orders or to insist upon better equipment.

Id . at 462.

Thus, in Dixon v. U.S. , a chief officer who was serving as a relief master was found not to have assumed the risk of a ladder he knew to be defective and was inspecting.

[E]ven though it was part of Dixon's duty to check the ladder and he had proceeded to the job with factual knowledge of the dangerous condition of the upper ladder, the ship owner could not have said that Dixon thereby assumed the risks involved.

Dixon v. U.S. , 219 F. Supp. 10, 16 (2nd Cir. 1955).

Most instructive in this case is Sessler v. Island Towing Corp. , 538 F.2d 630 (4th Cir. 1976). There, the plaintiff was in charge of an entire operation stripping gasoline from the barges tanks with a "non-explosion proof" pump. A spark from the pump ignited the gasoline which exploded injuring the plaintiff. The Court found the vessel unseaworthy and the plaintiff 75 percent contributorily negligent. On appeal, the Court of Appeals reversed and found no comparative negligence, addressing the issue of whether the plaintiff's conduct could be considered comparative negligence or was an improper application of the outmoded assumption of the risk doctrine.

The principal question on appeal is whether Sessler assumed the risk of injury or whether he was negligent. He challenges the district court's conclusion of law that his conduct constituted negligence instead of assumption of risk. The distinction is critical; an employee's assumption of risk is not a defense, but his negligence reduces his recovery. Because of these consequences, Mr. Justice Holmes cautioned "[U]nless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name". Schlemmer v. Buffalo, Rochester & Pittsburgh Ry. Co. , 205 U.S. 1, 12-13, 27 S.Ct. 407, 409, 51 L.Ed. 681 (1907).

The district court said:

In view of the fact that Mr. Sessler knew as much or more of the dangers of his work as any other person connected with the defendant, that he elected to work with the Jabsco pump under the weather conditions existing on the day of the accident, that he selected the position of the pump, that he as directing the whole operation on behalf of the defendant and that he knew he was working with a non-explosion proof pump (or in the exercise of reasonable care should have known he was working with a non-explosion proof pump) the Court finds that his negligence contributed to 75% to the explosion and his injuries.

This finding is tantamount to holding Sessler negligent because he realized his job was dangerous but did it anyway. Since the Jabsco pump was the only pump available for his work he could avoid using it only by refusing to do the job. He placed the pump only 10 to 15 feet away from the hatch because he knew that the pump could not be used to strip a barge at a greater distance. Viewed in his light, Sessler's conduct is properly characterized as assumption of risk, not contributory negligence. This conclusion is fully supported by Smith v. United States , 336 F.2d 165 (4th Cir. 1964). In that case, a longshoreman was injured while using a defective ladder in the only passageway available to him. Though he knew of the defect, we held that he was not contributory negligent, stating:

Clearly, to say that Smith was at fault for using the ladder when he knew of its deficiency does not differ in substance from involving the doctrine of assumption of risk against him.

Id. at 168. Noel v. McCain , 538 F.2d 633 (1976).

Id., 538 F.2d at 632-3 (footnotes omitted).

F. Causation Under The Jones Act

In adopting F.E.L.A., the Jones Act adopted the entire body of law developed concerning injuries to railroad workers. This body of law establishes a different rule of causation than applies under ordinary tort law. The Jones Act requires a standard of causation that the defendant's negligence contributed even to the slightest degree to the injury. Causation is established if defendant's negligence plays “any part, even the slightest in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific Railway Co., 352 U.S. 500, 506 (1957). The same rule applies in Jones Act cases. Havens v. F/T POLAR MIST , 996 F.2d 215, 218 (9th Cir. 1993); Lies v. Farrell Lines, Inc. , 641 F.2d 765, 771 (9th Cir. 1981). The standard form instruction utilized in federal courts mirrors this standards. Manual of Model Civil Jury Instructions for the Ninth Circuit , Ch. 9, Jones Act and other Admiralty Claims (1993 ed.); 4 Modern Federal Jury Instructions , Ch. 90, The Jones Act; Devitt, Blackmer & Wolff, Federal Jury Practice & Instructions , Ch. 95, Maritime Claims.

G. Prejudgment Interest

As this is an admiralty case, plaintiff is entitled to prejudgment interest awarded as an element of compensation and not as a penalty. Alkmeon Naviera S.A. v. M/V MARINA L , 633 F.2d 789, 797-8 (9th Cir. 1980). While the award of prejudgment interest is discretionary with the court, such discretion must be “exercised with a view to the right to interest unless the circumstances are exceptional.” The President Madison , 91 F.2d 835, 847 (9th Cir. 1937). An award is appropriate in personal injuries cases. Evich v. Morris , 819 F.2d 256 (9th Cir. 1987); Vance v. American Hawaii Cruises, Inc. , 789 F.2d 790 (9th Cir. 1986); Turner v. Japan Lines, Ltd. , 702 F.2d 752 (9th Cir. 1983); Ceja v. Mike Hooks, Inc. , 690 F.2d 1191 (5th Cir. 1982); Ward v. American Hawaii Cruises, Inc. , 719 F. Supp. 915 (D. Haw. 1988). The interest should be compounded annually. Stoddard v. Ling-Temco-Vought, Inc. , 513 F.Supp 314,331 (1980).

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