Jones Act
Merchant Seaman Protection and Relief 46 USCS Appx § 688 (2002) Title 46. Appendix. Shipping Chapter 18.
(a)	Application of railway employee statutes; jurisdiction. Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

(b) Limitation for certain aliens; applicability in lieu of other remedy.

(1) No action may be maintained under subsection (a) or under any other maritime law of the United States for maintenance and cure or for damages for the injury or death of a person who was not a citizen or permanent resident alien of the United States at the time of the incident giving rise to the action, if the incident occurred—

(A) while that person was in the employ of an enterprise engaged in the exploration, development, or production of offshore mineral or energy resources--including but not limited to drilling, mapping, surveying, diving, pipelaying, maintaining, repairing, constructing, or transporting supplies, equipment or personnel, but not including transporting those resources by a vessel constructed or adapted primarily to carry oil in bulk in the cargo spaces; and

(B) in the territorial waters or waters overlaying the continental shelf of a nation other than the United States, its territories, or possessions. As used in this paragraph, the term "continental shelf" has the meaning stated in Article I of the 1958 Convention on the Continental Shelf.

(2) The provisions of paragraph (1) of this subsection shall not be applicable if the person bringing the action establishes that no remedy was available to that person—

(A) under the laws of the nation asserting jurisdiction over the area in which the incident occurred; or

(B) under the laws of the nation in which, at the time of the incident, the person for whose injury or death a remedy is sought maintained citizenship or residency.
(b)	Jones Act -> I. In General -> A. General Principles
(c)	1. Generally
(d)	Tort doctrine under which liability for violation of statutory duty is imposed only where injury is one which statute was designed to prevent, does not apply in actions under the Jones Act (46 USCS Appx § 688); Congress, in 46 USCS Appx § 688, enacted statute of general terms, leaving in large measure to courts duty of fashioning remedies for injured employees in manner analogous to development of tort remedies at common law. Kernan v American Dredging Co. (1958) 355 US 426, 2 L Ed 2d 382, 78 S Ct 394.

46 USCS Appx § 688 aptly illustrates involvement of commerce power and power over maritime matters. Petty v Tennessee-Missouri bridge Com. (1959) 359 US 275, 3 L Ed 2d 804, 79 S Ct 785.

By 46 USCS Appx § 688, Congress has afforded seamen modified common law remedy for negligent injury where modifications are in favor of employee. De Zon v American President Lines, Ltd. (1942, CA9 Cal) 129 F2d 404, affd 318 US 660, 87 L Ed 1065, 63 S Ct 814, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025.

Seaman-employee has only one claim and recovery for same accident against his employer under the Jones Act 46 USCS Appx § 688. Hickman v Ohio Barge Line, Inc. (1974, WD Pa) 376 F Supp 1092.

Congress has authority to subject state to suit under Jones Act (46 USCS Appx § 688) because admiralty and maritime powers of Congress are exclusive. brody v North Carolina (1983, ED NC) 557 F Supp 184.

Insurer is denied summary dismissal of seaman's Jones Act claim, where he asserts that definition of "tort liability" found in section (f) of commercial general liability policy clearly covers his sustained injuries, because Jones Act (46 USCS Appx § 688) suit is for tort and is liability imposed by law. Nahan v Pan Am Grain Mfg. Co. (1999, DC Puerto Rico) 62 F Supp 2d 419.

(e)	2. Constitutionality
(f)	46 USCS Appx § 688 is not unconstitutional as invading admiralty jurisdiction or denying due process. Panama R. Co. v Johnson (1924) 264 US 375, 68 L Ed 748, 44 S Ct 391, 1924 AMC 551.

Constitutional authority of Congress to provide remedy for seamen injured in ship's service derives from its authority to regulate commerce under USCS Constitution, Art. 1, § 8, cl. 3, and its power to make laws which shall be necessary and proper to carry into execution powers vested in government or any department of it under USCS Constitution, Art. 1, § 8, cl. 18, including judicial power extending to all cases of admiralty and maritime jurisdiction. O'Donnell v Great Lakes Dredge & Dock Co. (1943) 318 US 36, 87 L Ed 596, 63 S Ct 488, 1943 AMC 149.

46 USCS Appx § 688 is not unconstitutional as attempting to interfere with intrastate commerce on navigable waters of states. McCullough v Jannson (1923, CA9 Or) 292 F 377, error dismd 267 US 608, 69 L Ed 812, 45 S Ct 350.

46 USCS Appx § 688 does not unconstitutionally delegate power to states to declare the rights and liabilities arising out of maritime injury, because it resorts to domestic relations laws of states in aid of defining statutory beneficiaries in death actions. Bell v Tug Shrike (1963, ED Va) 215 F Supp 377, 1963 AMC 897, affd (CA4 Va) 332 F2d 330, 1964 AMC 2396, cert den 379 US 844, 13 L Ed 2d 49, 85 S Ct 84.

(g)	3. Purpose
(h)	Language of 46 USCS Appx § 688 discloses no intention to impose upon shipowners same measure of liability for injuries suffered by crew while at sea as common law prescribes for employers in respect to their employees on shore. Chelentis v Luckenbach S.S. Co. (1918) 247 US 372, 62 L Ed 1171, 38 S Ct 501.

Purpose of 46 USCS Appx § 688 is to enlarge, not to narrow, protection afforded to seamen by maritime law. 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.

Congressional purpose of 46 USCS Appx § 688 is benefit and protection of seamen, who are peculiarly wards of admiralty. Cox v Roth (1955) 348 US 207, 99 L Ed 260, 75 S Ct 242.

General congressional intent behind 46 USCS Appx § 688 was to provide liberal recovery for injured workers and not to create static remedy, but one which would be developed and enlarged to meet changing conditions and changing concepts of industry's duty toward its workers. Kernan v American Dredging Co. (1958) 355 US 426, 2 L Ed 2d 382, 78 S Ct 394.

46 USCS Appx § 688 is intended to achieve uniformity in exercise of admiralty jurisdiction by giving seamen federal right to recover from their employers for negligence regardless of location of injury or death. Moragne v States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906.

Collective bargaining agreement which includes plan benefits, does not evade intent of 46 USCS Appx § 688, which denounces devices to exempt employer from any liability to seamen. Thomas v Humble Oil & Refining Co. (1970, CA4 Va) 420 F2d 793, 1970 AMC 25 (disagreed with Haughton v Blackships, Inc. (CA5 Tex) 462 F2d 788) as stated in Clark v Burlington Northern, Inc. (CA8 Neb) 726 F2d 448.

Remedies afforded by 46 USCS Appx § 688 and maintenance and cure are designed to protect those who perform services upon ship and are exposed to unique hazards of work upon sea; benefits should be available to anyone so engaged, even if not in employ of ship itself. Mahramas v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 475 F2d 165.

46 USCS Appx § 688 was enacted to provide remedial and welfare legislation for protection of seaman and his dependents. Diddlebock v Alcoa S.S. Co. (1964, ED Pa) 237 F Supp 538, 1966 AMC 444.

By establishing negligence standard of liability for claims by seamen injured in course of their employment, 46 USCS Appx § 688 not only affords protection to seaman, but indirectly to passengers whose well-being is entrusted to vessel's crew; where vast majority of vessel's passengers are consistently American citizens, United States has interest in extending its law to protect vessel's foreign crew from injuries which might in turn affect safety of passengers, especially when corporate structure which runs, and ultimately benefits from vessel's extensive American business has substantial business presence in this country and competes directly with American vessels which are bound by American law. Mattes v National Hellenic American Line, S. A. (1977, SD NY) 427 F Supp 619.

Purpose of 46 USCS Appx § 688 and its incorporation by reference of 45 USCS § § 51 et seq. was to bar consideration of plaintiff's contributory negligence in action for injury to or death of seaman resulting from employer's violation of safety statute. Rodriguez v B-R Dredging Co. (1977, Tex Civ App Corpus Christi) 552 SW2d 601, revd on other grounds (Tex) 564 SW2d 693.

(i)	4. Scope of coverage
(j)	With respect to action brought, under federal admiralty jurisdiction, by mother of individual who was killed while doing sandblasting work on vessel berthed in navigable waters of United States and within state's territorial waters--where fatal accident was allegedly due in part to negligence of shipbuilding corporation for which individual's employer was subcontractor--the negligent breach of general maritime duty of care is actionable when such negligence causes death. 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.

Recovery for occupational diseases is permitted under Jones Act (46 USCS Appx § 688). Barger v Baltimore (1980, CA4 Md) 616 F2d 730, cert den 449 US 834, 66 L Ed 2d 39, 101 S Ct 105.

Although Jones Act does not focus on location of vessel at time of injury, Jones Act jurisdiction still requires relationship to navigable waters; thus, ship with no connection to navigable waters is not source of Jones Act jurisdiction. Weaver v Hollywood Casino-Aurora, Inc. (2001, CA7 Ill) 255 F3d 379.

46 USCS Appx § 688 confers both action for wrongful death of member of crew and an action by survivors for any damages he suffered before death. Hamilton v Canal Barge Co. (1975, ED La) 395 F Supp 978 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, on other grounds in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

Crew members of cruise vessel have no viable Jones Act (46 USCS Appx § 688) claim, even though they were physically detained and unable to leave their cabins for 2 days under suspicion of narcotics trafficking, because Act does not encompass false arrest and false imprisonment. Richards v Royal Caribbean Cruises, Ltd. (1999, DC Puerto Rico) 118 F Supp 2d 150.

Employer is under duty to provide seaman with reasonably safe place to work, and liability under Jones Act is shown if seaman can show his injuries were result of even slightest negligence of his employer. Ellender v Texaco, Inc. (1982, La App 3d Cir) 425 So 2d 291.

Under 46 USCS Appx § 688, seaman injured in course of his employment may maintain action at law for damages with right of trial by jury. Sanz v Isbrandtsen Co. (1949) 196 Misc 390, 88 NYS2d 486.

(k)	5. –Exclusions
(l)	False arrest and false imprisonment are not covered by 46 USCS Appx § 688. Forgione v United States (1953, CA3 Pa) 202 F2d 249, cert den 345 US 966, 97 L Ed 1384, 73 S Ct 950.

While it is true that seamen have long been treated as wards of admiralty courts, it is also true that, under 46 USCS Appx § 688, shipowner is not liable for any and all injuries that befall them. broussard v Marine Transport Lines, Inc. (1974, ED Tex) 369 F Supp 103.

Unique protections provided by general maritime law to seamen are remedies for physical dangers and hazards of working at sea and do not apply to age discrimination claims. Belanger v Keydril Co. (1984, ED La) 596 F Supp 823, 36 BNA FEP Cas 132, 36 CCH EPD P 35137, affd without op (CA5 La) 772 F2d 902, 41 BNA FEP Cas 64.

Injured seaman's action against master of ship on which he was injured must be summarily denied, where seaman complains of captain's negligence in leaving incompetent person at wheel who allowed vessel to proceed full speed into jetties, because there is no right of action under general maritime law or 46 USCS Appx § 688 against vessel's master for unseaworthiness or negligence. Kennedy v Gulf Crews, Inc. (1990, WD La) 750 F Supp 214.

(m)	6. Construction
(n)	46 USCS Appx § 688, remedial statute, is to be liberally construed in order to carry out its full purpose of protecting its wards. Warner v Goltra (1934) 293 US 155, 79 L Ed 254, 55 S Ct 46.

Provisions of 46 USCS Appx § 688 are to be liberally construed to obtain purpose of section, and are to be interpreted in harmony with established doctrine of maritime law of which it is integral part. The Arizona v Anelick (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.

46 USCS Appx § 688 is to have uniform application throughout country unaffected by local views of common-law rules. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246, 1942 AMC 1645.

"Service of the ship" formula, used in maintenance and cure cases, is equivalent of provision under 46 USCS Appx § 688 for personal injury coverage for seaman injured in "course of employment," and decisions in maintenance and cure cases dealing with whether injury occurred in "the service of the ship" are relevant guides to meaning of term "course of employment" as used in 46 USCS Appx § 688. braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.

Provisions of 46 USCS Appx § 688 are applicable only to specific class of actions--claims by seamen against their employers--based on violations of special standard of negligence which has been imposed under Federal Employers' Liability Act (45 USCS § § 51 et seq.). Moragne v States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906.

46 USCS Appx § 688 should be interpreted to achieve results which are consistent with those of admiralty law. Lopoczyk v Chester A. Poling, Inc. (1945, CA2 NY) 152 F2d 457.

Limits under 46 USCS Appx § 688, incorporating Federal Employers' Liability Act (45 USCS § § 51 et seq.) by reference, are broadly drawn and broadly construed and employer may be held liable if his negligence played any part, even slightest, in producing injury or death for which damages are sought. Hampton v Magnolia Towing Co. (1964, CA5 Miss) 338 F2d 303, 1965 AMC 248.

46 USCS Appx § 688 is not to be construed as workmen's compensation statute. Lamon v Standard Oil Co. (1954, DC La) 117 F Supp 831.

State courts are required to adopt constructions placed on 46 USCS Appx § 688 by federal courts. Spencer v Beadle S.S. Co. (1934, Cal App) 40 P2d 273, superseded 4 Cal 2d 313, 48 P2d 678, affd 298 US 124, 80 L Ed 1082, 56 S Ct 712.

Intent of Congress in enacting 46 USCS Appx § 688 was to make applicable to seafaring occupation only such features of Federal Employers' Liability Act (45 USCS § § 51 et seq.) as were not already expressly covered by Death on High Seas Act (46 USCS Appx § § 761 et seq.). Re Rademaker's Estate (1938) 166 Misc 201, 2 NYS2d 309, 1938 AMC 396.

(o)	7. --With other laws
(p)	46 USCS Appx § 688 is remedial legislation which calls for liberal construction, and clearly is intended to cover later changes in Federal Employers' Liability Act (45 USCS § § 51 et seq.). Chisholm v Cherokee-Seminole S.S. Corp. (1940, DC NY) 36 F Supp 967, 1940 AMC 1580.

Value of limitation fund should be increased to account for appurtenances--all things on board for object of voyage--and 89 barges involved in conduct of ship owner's marine transportation venture, where underlying suit is brought by representatives of 6 crew members killed in engine room fire under 46 USCS Appx § 688, because "flotilla doctrine" is applicable here, and inclusion of appurtenances in appraisal of value of limitation fund is well-recognized rule of admiralty law. Re Waterman S.S. Corp. (1992, ED La) 794 F Supp 601, 1992 AMC 2658, reconsideration den (ED La) 1992 US Dist LEXIS 12886, later proceeding (ED La) 1992 US Dist LEXIS 14827.

Survivors of deceased pleasure boaters may recover nonpecuniary damages under general maritime law, where 2 nonseamen on pleasure craft died in collision with tow barge on Ohio River, and decedents' representatives sought nonpecuniary damages from owner of tow boat, because Jones Act, 46 Appx USCS § 688, does not apply to nonseamen, and reasons of justice and humanitarianism suggest that persons injured in maritime jurisdiction should receive compensation for losses if compensation is not specifically precluded by statute. In re Morehead Marine (1994, SD Ohio) 844 F Supp 1193.
(q)	Jones Act -> II. Persons Entitled to Recover -> A. Seamen -> 1. General Principles -> a. In General
(r)	111. Generally
(s)	Use of term "seaman" in Jones Act must be read in light of mischief to be corrected and the end to be attained. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Question of who is "member of a crew" under 33 USCS § 902(3)(G) and therefore "seaman" under Jones Act is mixed question of law and fact. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Jones Act (46 USCS Appx § 688(a))--which establishes negligence cause of action for wrongful death, but limits it to seamen--does not preclude present cause of action, for individual, not having been seaman, was not covered by Jones Act. 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.

46 USCS Appx § 688 does not apply to members of naval forces of United States. Dobson v United States (1928, CA2 NY) 27 F2d 807, 1928 AMC 1583, cert den 278 US 653, 73 L Ed 563, 49 S Ct 179.

46 USCS Appx § 688 is broad and rule of interpretation is liberal as to who is seaman under it, but whenever tort occurs on navigable waters, person injured may not automatically avail himself of 48 USCS Appx § 688. Frankel v Bethlehem-Fairfield Shipyard, Inc. (1942, CA4 Md) 132 F2d 634, 1943 AMC 65, cert den 319 US 746, 87 L Ed 1702, 63 S Ct 1030.

There is nothing in 46 USCS Appx § 688 to indicate that Congress intended it to apply only to conventional members of ship's company. Offshore Co. v Robison (1959, CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)).

General rule relating to navigable waters of United States is that only master or member of crew is entitled to recover under 46 USCS Appx § 688. Klarman v Santini (1973, DC Conn) 363 F Supp 910, affd (CA2 Conn) 503 F2d 29, cert den 419 US 1110, 42 L Ed 2d 807, 95 S Ct 785.

(t)	112. Scope and definition of "seaman"
(u)	Status as "seaman" under Jones Act requires that worker's duties must contribute to function of vessel or to accomplishment of its mission and that worker's employment-related connection to vessel in navigation be substantial in terms of both duration and nature. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Inquiry as to whether maritime worker is covered by Jones Act is fundamentally status-based; thus, land-based maritime workers do not become seamen because they happen to be working on board vessel when they are injured, and seamen do not lose Jones Act protection when course of their service to vessel takes them ashore. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Although protections afforded to maritime employees under Jones Act extend to only those maritime employees who do ship's work, such threshold requirement is very broad, in that all who work at sea in service of ship are eligible for seaman status under Jones Act. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Coverage of employees under 46 USCS Appx § 688(a) is confined to seamen, those workers who face regular exposure to perils of sea; land-based employment is inconsistent with coverage under § 688(a). Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

Jones Act (46 USCS Appx § 688) does not purport to change definition of seaman so as to do away with necessity of contractual relation of employment to serve on board vessel. Buffalo & Grand Island Ferry Co. v Williams (1928, CA2 NY) 25 F2d 612.

"Seaman" is one whose occupation is to navigate vessels upon sea, and term includes all those on board whose labor contributes to accomplishment of main object in which vessel is engaged. 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; Carumbo v Cape Cod S.S. Co. (1941, CA1 Mass) 123 F2d 991 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))); Vojkovich v Ursich (1942) 49 Cal App 2d 268, 121 P2d 803, 1942 AMC 299.

Oil well service employees were clearly seamen under Jones Act, since they were more or less permanently attached to vessels in navigation and their activities contributed to function of vessels, even though were not seamen within meaning of exception to Fair Labor Standards Act (29 USCS § 213(b)(6)). Dole v Petroleum Treaters, Inc. (1989, CA5 La) 876 F2d 518, 29 BNA WH Cas 582, 112 CCH LC P 35237, reh den (CA5) 1989 US App LEXIS 13173.

Test of seaman status under Jones Act is employment-related connection to vessel in navigation under following circumstances: (1) plaintiff contributed to function, or helped accomplish mission, of vessel; (2) plaintiff's contribution was limited to particular vessel or identifiable group of vessels; (3) plaintiff's contribution was substantial in terms of its duration or nature; and (4) course of employment regularly exposed plaintiff to hazards of sea. Latsis v Chandris, Inc. (1994, CA2 NY) 20 F3d 45.

Plaintiff is seaman for purposes of 46 USCS Appx § 688 where plaintiff's work clearly contributes to function of dredge in accomplishment of its mission. Ramos v Universal Dredging Corp. (1982, DC Hawaii) 547 F Supp 661.

To qualify as Jones Act seaman plaintiff must be assigned permanently to or perform substantial part of his work on vessel, and he must contribute to function of vessel or its mission or operation. Bogan v Barge T-13315B (1985, ED La) 607 F Supp 85.

Claimant hoping to establish status as "seaman" under 46 Appx USCS § 688 must prove that he was permanently assigned to or performed substantial part of his work on vessel in navigation and that capacity in which he was employed or duty which he performed contributed to the function of vessel or accomplishment of mission. Russo v F & T Services Corp. (1986, ED La) 636 F Supp 897.

Injury claim fails under 46 USCS Appx § 688, where claimant is co-owner of boat on which he was injured. Strom v M/V "Western Dawn" (1986, WD Wash) 698 F Supp 212, 1987 AMC 2794.

Construction worker's personal injury claim against employer fails under 46 USCS Appx § 688, where worker was working on bridge while assigned to floating crane, because worker was not "seaman." Stephenson v McLean Contracting Co. (1988, DC Md) 702 F Supp 552, 1988 AMC 2640.

(v)	113. --Construction with Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.)
(w)	Jones Act and Longshore and Harbor Workers' Compensation Act (LHWCA) are mutually exclusive compensation regimes; term "master or member of a crew" in 33 USCS § 902(3)(G) is refinement of term "seaman" in Jones Act and excludes from LHWCA coverage those properly covered under Jones Act; injured workers who fall under neither category may still recover under applicable state workers' compensation scheme or in admiralty. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.

Employee who is within exclusion from coverage under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) as "master or member of a crew of any vessel" pursuant to 33 USCS § 902(3)(G) is seaman entitled to sue for damages under 46 USCS Appx § 688(a). Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

Word "seaman" as used in 46 USCS Appx § 688 does not mean same thing as "member of a crew" in Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.), but "seaman" is broad enough to cover both one who is member of crew and one who is not member of crew. Carumbo v Cape Cod S.S. Co. (1941, CA1 Mass) 123 F2d 991, 1942 AMC 215 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))).

Finding of deputy commissioner in proceeding under Longshore and Harborworkers' Compensation Act (33 USCS § § 901 et seq.) that plaintiff was injured while performing service as member of shore staff for employer and engaged in shifting vessel from drydock, does constitute finding, for purposes of seaman's separate action under 46 USCS Appx § 688, that plaintiff was not member of crew. Hagens v United Fruit Co. (1943, CA2 NY) 135 F2d 842.

Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) in effect amended 46 USCS Appx § 688 such that term "seaman" became synonymous with term "member of a crew." Brown v ITT Rayonier, Inc. (1974, CA5 Ga) 497 F2d 234.

Ship repairer expressly covered under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) is precluded from filing suit under Jones Act. Williams v Weber Management Services, Inc. (1987, CA5 La) 839 F2d 1039.

Term "seaman," as used in Jones Act, and "member of a crew of a vessel," as used in LHWCA, are equivalent. Harwood v Partredereit AF 15.5.81 (1991, CA4 Va) 944 F2d 1187.

Congress, in passing Longshore and Harbor Workers' Compensation Act, limited application of term "seaman" in Jones Act to "a master or member of a crew of any vessel." Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937.

Employer is denied summary post-trial judgment against Jones Act claimant, where claimant was injured in normal course of his employment as crane operator while unloading riprap from barge and laying it on bank of navigable waters, because claimant was not engaged in longshoring activities per se so as to preclude his "seaman" status. Pierre v Pontchartrain Dredging Corp. (1989, ED La) 713 F Supp 207.

General maintenance worker's Jones Act suit against employer is summarily dismissed, even though worker injured back while attempting to attach steel cable from towboat to fitting on barge, because worker was engaged largely as harbor worker/ship repairman and was not seaman but rather 33 USCS § 902(3) "employee" covered exclusively by LHWCA. Petty v Dakota Barge Service (1989, DC Minn) 730 F Supp 983.

For purposes of 46 USCS Appx § 688 seaman is usually member of crew, as distinguished from longshoreman or harbor worker. Curtis Bay Towing Co. v Dean (1938) 174 Md 498, 199 A 521, 1938 AMC 851, cert den 305 US 628, 83 L Ed 402, 59 S Ct 92.

(x)	114. --As question of fact
(y)	Whether workman was seaman and member of crew of vessel engaged in commerce was question of fact to be determined by jury. Gianfala v Texas Co. (1955) 350 US 879, 100 L Ed 775, 76 S Ct 141, reh den 350 US 960, 100 L Ed 834, 76 S Ct 346 and (not followed Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)); Schantz v American Dredging Co. (1943, CA3 Pa) 138 F2d 534; McKie v Diamond Marine Co. (1953, CA5 Tex) 204 F2d 132 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))); Bernardo v Bethlehem Steel Co. (1963, CA2 NY) 314 F2d 604; Slatton v Martin K. Eby Constr. Co. (1974, CA8 Ark) 506 F2d 505, cert den 421 US 931, 44 L Ed 2d 88, 95 S Ct 1657; Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937; Garcia v Queen, Ltd. (1973, CA5 Fla) 487 F2d 625, 17 FR Serv 2d 1593; Ardoin v J. Ray McDermott & Co. (1981, CA5 La) 641 F2d 277, reh den (CA5 La) 646 F2d 566 and later app (CA5 La) 684 F2d 335, 11 Fed Rules Evid Serv 843.

Inquiry whether employee is seaman within meaning of 46 USCS Appx § 688(a) is mixed question of law and fact. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

When employee sues under 46 USCS Appx § 688 whether he is to be classified as seaman or harbor worker covered by 33 USCS § § 901 et seq. presents issues of fact for determination by jury or court, as case may be. Bowen v Shamrock Towing Co. (1943, CA2 NY) 139 F2d 674, 1944 AMC 39; Smrekar v Bay & River Navigation Co. (1945) 69 Cal App 2d 654, 160 P2d 85, cert den 326 US 782, 90 L Ed 473, 66 S Ct 338.

Normally question of seaman status in particular case is to be resolved by factfinder and standard for testing jury's finding that worker is or is not Jones Act seaman is whether there is reasonable evidentiary basis to support that finding. Savoie v Otto Candies, Inc. (1982, CA5 La) 692 F2d 363, 12 Fed Rules Evid Serv 269.

Question of plaintiff's status as seaman is ordinarily question of fact; District Court may determine seaman status, as matter of law, only where there is no reasonable evidentiary basis to support jury finding that plaintiff is seaman. Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.

Activity of plaintiff at time of injury is only one factor in analysis of whether or not that individual, seeking damages under Jones Act (46 USCS Appx § 688), is engaged in occupation covered by Longshore and Harbor Workers' Compensation Act (33 USCS § 905) and thus ineligible for Jones Act benefits; general issue of material fact exists as to plaintiff's status as seaman, where, at time of accident, plaintiff was either on shore constructing new crew quarters for barge or on shore loading barge with sand for subsequent pipelaying job offshore, and plaintiff also maintains that he spent approximately 90 percent of his employment time with employer offshore onboard barge as member of crew of that barge, and employer does not dispute that plaintiff's job title for purposes of receiving compensation was crane operator onboard barge. Thibodeaux v Torch, Inc. (1988, CA5 La) 858 F2d 1048, reh den, en banc (CA5 La) 862 F2d 874.

Appellate review of determination of whether injured worker is seaman under Jones Act, which is mixed question of law and fact, is plenary. Roberts v Cardinal Servs. (2001, CA5 La) 266 F3d 368.

It is well established that question of seaman's status is one of fact and must be left to fact finder if there is any evidence to support finding that worker is member of crew of vessel. Mietla v Warner Co. (1975, ED Pa) 387 F Supp 937.

46 USCS Appx § 688 is applicable only if seaman is involved and applies only with respect to liability of owners of vessels; status of person as "seaman" or "owner" is ordinarily matter determinable only by detailed examination of facts of each particular case. De Court v Beckman Instruments, Inc. (1973, 4th Dist) 32 Cal App 3d 628, 108 Cal Rptr 109.

Question of fact as to extent of release exists, where ship's cook, who was injured in course of employment, settled Jones Act claim for lump sum and released vessel, vessel's underwriter, and employer from liability, and employer ceased disability payments, claiming that release covered disability payments as well as tort claims, because case turns on whether cook was "seaman" within meaning of Jones Act, and question of whether his job contributed to function of vessel or to accomplishment of its mission was question for jury. Antoniou v Thiokol Corp. Group Long Term Disability Plan (1993, MD Fla) 829 F Supp 1323, 7 FLW Fed D 373.

115. --As question of law
Maritime worker whose occupation as ship repairman is listed in Longshore and Harbor Workers' Compensation Act is not precluded from being "seaman" under Jones Act. Southwest Marine, Inc. v Gizoni (1991, US) 116 L Ed 2d 405, 112 S Ct 486, 91 Daily Journal DAR 14793, 15 BNA OSHC 1369, 1992 AMC 305.

Inquiry whether employee is seaman within meaning of 46 USCS Appx § 688(a) is mixed question of law and fact. Harbor Tug & Barge Co. v Papai (1997, US) 137 L Ed 2d 800, 117 S Ct 1535, 97 CDOS 3507, 97 Daily Journal DAR 6021, 1997 AMC 1817, 10 FLW Fed S 433.

Although it is rare that factual setting is so clear that status as seaman can be resolved as matter of law, it will be so resolved in appropriate circumstances. Burns v Anchor--Wate Co. (1972, CA5 La) 469 F2d 730.

Ordinarily, whether claimant is seaman is factual dispute to be resolved by jury, but if there is no genuine factual dispute to be resolved, District Court may properly refuse to submit issue to jury where only rational inference to be drawn from evidence is that claimant was not seaman. Owens v Diamond M Drilling Co. (1973, CA5 La) 487 F2d 74, reh den (CA5 La) 487 F2d 1401; Noack v American S.S. Co. (1974, CA6 Ohio) 491 F2d 937; Higginbotham v Mobil Oil Corp. (1977, CA5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570); Holland v Healy Tibbitts Constr. Co. (1974, DC Hawaii) 379 F Supp 192; Bedia v Ford Motor Co. (1973, DC NY) 58 FRD 423; Brown v L. A. Wells Const. Co. (1944) 143 Ohio St 580, 28 Ohio Ops 486, 56 NE2d 451.

Determination whether claimant has proved sufficient connection with water-borne or vessel-related activities to invoke jurisdiction as seaman under 46 USCS Appx § 688 is mixed question law and fact. Holland v Allied Structural Steel Co. (1976, CA5 Miss) 539 F2d 476, reh den (CA5 Miss) 542 F2d 1173 and cert den 429 US 1105, 51 L Ed 2d 557, 97 S Ct 1136.

While question of whether claimant is seaman is ordinarily resolved by trier of fact, trial court may nevertheless enter directed verdict where record demonstrates that reasonable persons could not draw conflicting inferences which might lead to different conclusion. Landry v Amoco Production Co. (1979, CA5 La) 595 F2d 1070.

District Court properly ruled as matter of law that roustabout assigned to fixed offshore platform in Gulf of Mexico was not "seaman" with respect to crewboat where there was not scintilla of evidence that he was other than mere passenger on boat. Beard v Shell Oil Co. (1979, CA5 Tex) 606 F2d 515.

Although determining seaman status is usually question of fact, if requisite proof is absent, court may decide status is lacking as matter of law and there was no reasonable basis on which jury could have found that plaintiff was seaman where testimony clearly showed that she was assigned to fixed platforms, lived on offshore, fixed platform when working, her job responsibilities related to well sites at other fixed locations, her only contact with boats occurred when they ferried her from one job site to another, she did not perform any job-related duties on boats, except to sometimes receive radio messages as to what was to be done at well site, and any minor aid she extended on boats was as courtesy and not as part of her duties as employee. Kerr-McGee Corp. v Ma-Ju Marine Services, Inc. (1987, CA5 La) 830 F2d 1332.

Appellate review of determination of whether injured worker is seaman under Jones Act, which is mixed question of law and fact, is plenary. Roberts v Cardinal Servs. (2001, CA5 La) 266 F3d 368.

While determination of person's status as Jones Act seaman is normally question of fact which should be submitted to jury, issue can properly be addressed in motion for summary judgment where there is no reasonable evidentiary basis to support jury finding that platform worker is seaman. Myrick v Teledyne Movible Offshore, Inc. (1981, SD Tex) 516 F Supp 602.

Issue of whether claimant is "seaman" is normally matter for finder of fact to determine after trial; matter may be taken from trier of fact, however, where record demonstrates that reasonable persons could not draw conflicting inferences which might lead to different conclusion. Ramos v Universal Dredging Corp. (1982, DC Hawaii) 547 F Supp 661.

Trial court may properly decide whether individual is seaman within meaning of 46 USCS Appx § 688, when any other determination would be so lacking in evidentiary support that it should be decided as question of law rather than of fact. Howard v Global Marine, Inc. (1972, 2d Dist) 28 Cal App 3d 809, 105 Cal Rptr 50.

That worker involved is "seaman" within meaning of 46 USCS Appx § 688 may be question of law where facts are undisputed and reasonable men could not draw conflicting inferences. Soucie v Trautwein Bros. (1969, 4th Dist) 275 Cal App 2d 20, 79 Cal Rptr 671.

116. "Member of crew" as seaman
Duties of man during vessel's travel are relevant in determining whether he is member of crew for purposes of 46 USCS Appx § 688 while vessel is anchored. Senko v La Crosse Dredging Corp. (1957) 352 US 370, 1 L Ed 2d 404, 77 S Ct 415, reh den 353 US 931, 1 L Ed 2d 724, 77 S Ct 716.

To have right of recovery for personal injuries under 46 USCS Appx § 688, injured party must have status as member of vessel, for it is seamen, not others who may work on vessel, to whom Congress extended protection of this section. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.

46 USCS Appx § 688 does not require plaintiff to be member of crew. Antus v Interocean S.S. Co. (1939, CA6 Ohio) 108 F2d 185, 1940 AMC 459.

46 USCS Appx § 688 applies only to seamen who are members of crew of vessel plying navigable waters. Gahagan Const. Corp. v Armao (1948, CA1 Mass) 165 F2d 301, cert den 333 US 876, 92 L Ed 1152, 68 S Ct 905; McKie v Diamond Marine Co. (1953, CA5 Tex) 204 F2d 132 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))).

Recovery under 46 USCS Appx § 688 requires affiliation with "vessel", either as crew member or as one injured aboard doing seaman's work. Powers v Bethlehem Steel Corp. (1973, CA1 Mass) 477 F2d 643, reh den (CA1 Mass) 483 F2d 963 and cert den 414 US 856, 38 L Ed 2d 106, 94 S Ct 160.

Remedy provided by 46 USCS Appx § 688 is applicable to class of persons defined as seamen for admiralty jurisdictional purposes, i. e. one who is permanently attached to and employed by vessel as member of its crew. Whittington v Sewer Constr. Co. (1976, CA4 W Va) 541 F2d 427.

Inquiry into seaman status for Jones Act purposes requires determination of whether injured plaintiff is master or member of crew of any vessel. Roberts v Cardinal Servs. (2001, CA5 La) 266 F3d 368.

Although Jones Act itself does not define seaman, term is used interchangebly throughout case law with phrase "member of the crew." Hines v Saylor Marine Corp. (1985, SD Ga) 615 F Supp 33.

117. Effect of prior or future status as seaman
Whether person is seaman for purposes of 46 USCS Appx § 688 depends largely upon facts of particular case and activity in which he was engaged at time of injury; whether person has been in past, or expects in future to be, seaman does not render maritime work which is not maritime in its nature. Desper v Starved Rock Ferry Co. (1952) 342 US 187, 96 L Ed 205, 72 S Ct 216, reh den 342 US 934, 96 L Ed 695, 72 S Ct 374.

Employee who brought action under 46 USCS Appx § 688, was not seaman despite employment as cook aboard dredge for more than one year prior to accident when, for 2 week period preceding accident which gave rise to action, employee in new position had no significant duties upon dredge, and connection with dredge was so casual and insignificant as to give rise to no jury question as to his seaman status after he commenced work on new project; in determining whether plaintiff was seaman in new position, past work experience aboard dredge was irrelevant. Guidry v South Louisiana Contractors, Inc. (1977, WD La) 444 F Supp 850, remanded (CA5 La) 614 F2d 447, reh den (CA5 La) 616 F2d 568.

Neither plaintiff's assertions that he was formerly "seaman" by occupation and that he intended to resume such status at some point in future, nor that he was member of seafaring union at time of his injuries and that he was doing work which seaman might also perform, are controlling. Baker v Pacific Far East Lines, Inc. (1978, ND Cal) 451 F Supp 84.

Individual who had no pending assignment to vessel at time of injury and who never had any assignment to vessel during course of employment for particular employer is not seaman under Jones Act (46 USCS Appx § 688) notwithstanding that individual may have been seaman with regard to prior employers; employee's status with regard to employer A does not affect status with regard to employer B. Ramos v Delmar Systems, Inc. (1984, WD La) 596 F Supp 1105, affd in part and vacated in part on other grounds (CA5 La) 750 F2d 389, reh den, en banc (CA5 La) 756 F2d 882 and reh den, en banc (CA5 La) 756 F2d 882 and reh den, en banc (CA5 La) 756 F2d 882.
Jones Act -> III. Employment Relationship -> A. In General
213. Generally
In order to recover for personal injuries under provisions of 46 USCS Appx § 688, plaintiff must first establish that there existed between seaman and defendant at time of injury relationship of employee and employer. Cosmopolitan Shipping Co. v McAllister (1949) 337 US 783, 93 L Ed 1692, 69 S Ct 1317, reh den 338 US 839, 94 L Ed 513, 70 S Ct 32; The Norland (1939, CA9 Alaska) 101 F2d 967; Nolan v General Seafoods Corp. (1940, CA1 Mass) 112 F2d 515, 1940 AMC 1410; Christianson v Western Pacific Packing Co. (1938, DC Wash) 24 F Supp 437, 1938 AMC 1258; Sieracki v Seas Shipping Co. (1943, DC Pa) 57 F Supp 724, 1944 AMC 1182, affd in part and revd in part on other grounds (CA3 Pa) 149 F2d 98, 1945 AMC 407, affd 328 US 85, 90 L Ed 1099, 66 S Ct 872, 1946 AMC 698, reh den 328 US 878, 90 L Ed 1646, 66 S Ct 1116 and (superseded by statute as stated in Cooper Stevedoring Co. v Fritz Kopke, Inc. 417 US 106, 40 L Ed 2d 694, 94 S Ct 2174) and (superseded by statute as stated in Capotorto v Compania Sud Americana de Vapores, Chilean Line, Inc. (CA2 NY) 541 F2d 985) and (superseded by statute as stated in Bridges v Penrod Drilling Co. (CA5 La) 740 F2d 361); Shelton v Seas Shipping Co. (1947, DC Pa) 75 F Supp 195, 1947 AMC 1528; Schotis v North Coast Stevedoring Co. (1931) 163 Wash 305, 1 P2d 221, 78 ALR 1427.

46 USCS Appx § 688 has provided right of recovery for seamen against their employers for negligence resulting in injury or death, right which follows from seaman's employment status and not limited to injury or death occurring on high seas. Moragne v States Marine Lines, Inc. (1970) 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906. Armit v Loveland (1940, CA3 Pa) 115 F2d 308; Callan v Cope (1948, CA9 Cal) 165 F2d 703; Miller v Browning S.S. Co. (1947, CA2 NY) 165 F2d 209, cert den 334 US 834, 92 L Ed 1761, 68 S Ct 1341; Haskins v Point Towing Co. (1970, CA3 Pa) 421 F2d 532, 1970 AMC 14, cert den 400 US 834, 27 L Ed 2d 66, 91 S Ct 68, Francis v Pan American Trinidad Oil Co. (1973, DC Del) 59 FRD 631, later op (DC Del) 392 F Supp 1252, 21 FR Serv 2d 489.

Determination of whether individual is in employ of party, or is participant in joint venture is for jury's determination. The Norland (1939, CA9 Alaska) 101 F2d 967.

46 USCS Appx § 688 applies only between employees and their employers and only when person, be it individual or corporation, can be sued as employer. Mahramas v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 475 F2d 165.

Remedial nature of Jones Act and maritime law required less technical, contractual definition of "employee" than owner claimed; duties of maritime employers are owed not to perfect contracts, but to imperfect sailors and claim that plaintiff obtained employment by use of fraudulently obtained papers does not preclude finding that he was "employee". Omar v Sea-Land Service, Inc. (1987, CA9 Wash) 813 F2d 986.

Approach to determining seaman status under Jones Act, which takes into consideration all of one's sea-related activities, not just those pertaining to employment with particular employer, is approach that most comports with central purpose of Jones Act and is most fully consistent with Supreme Court precedent; court will therefore adopt such approach and decline to adhere slavishly to "fleet doctrine" of some sister circuits. Fisher v Nichols (1996, CA2 NY) 81 F3d 319.

Jones Act (46 USCS Appx § 688) claim lies only against seaman's employer. Mattes v National Hellenic American Line, S. A. (1977, SD NY) 427 F Supp 619.

Claim under Jones Act (46 USCS Appx § 688) can be brought only against seaman's employer and not against co-employee who is not owner or operator of vessel. Vincent v Penrod Drilling Co. (1979, La App 3rd Cir) 372 So 2d 807, cert den (La) 375 So 2d 646.

214. Relationship with other laws
"Service of the ship" formula, used in maintenance and cure cases, is equivalent of provision under 46 USCS Appx § 688 for personal injury coverage for seaman injured in "course of employment," and decisions in maintenance and cure cases dealing with whether injury occurred in "the service of the ship" are relevant guides to meaning of term "course of employment" as used in 46 USCS Appx § 688. Braen v Pfeifer Oil Transp. Co. (1959) 361 US 129, 4 L Ed 2d 191, 80 S Ct 247.

Extension of scope of shipowner's obligation of seaworthiness to stevedores does not abrogate rule that Jones Act (46 USCS Appx § 688) applies only where relationship of employer and employee exists. Continental Casualty Co. v Thorden Line (1951, CA4 Va) 186 F2d 992.

Neither 46 USCS Appx § 688 nor Federal Employers' Liability act (45 USCS § § 51 et seq.), which it incorporates, has to do with right of action which seaman or his representative may have against anyone other than employer of seaman; such sections are concerned with relative rights and obligations of seamen and their employers arising out of personal injuries or death sustained by former in course of employment. The New Brooklyn (1940, DC Mass) 37 F Supp 955, 1941 AMC 319.

Determination of proper Jones Act (46 USCS Appx § 688) defendant in public vessel cases is affected by exclusive liability provision of 46 USCS Appx § 745. Saffrhan v Buck Steber, Inc. (1977, ED La) 433 F Supp 129.

215. Control element
In determining seaman's employer for purposes of 46 USCS Appx § 688, court must look to plain and rational meaning of employment and employer, which means that right of control is one of most important factors to consider. Mahramas v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 475 F2d 165.

When entity being sued as "employer" is not payroll employer, employee must prove employment relationship; possiblity of some control over his actions, however small, does not suffice. Guidry v South Louisiana Contractors, Inc. (1980, CA5 La) 614 F2d 447, reh den (CA5 La) 616 F2d 568.

Employment relationship is stated by roustabout's allegation that he performed repair work under direct supervision, management, direction and control of his regular employer. Addison v Gulf Coast Contracting Services, Inc. (1984, CA5 Miss) 744 F2d 494.

Where it did not appear that two defendants in 46 USCS Appx § 688 action had any control over plaintiff prior to or at time of his accident, but undisputed facts established that another defendant hired plaintiff to operate drag line, paid him, and had right to fire him, at time of plaintiff's action neither of first two defendants was § 688 employer of plaintiff. Cryer v Prestressed Concrete Products Co. (1974, ED La) 391 F Supp 972, affd without op (CA5 La) 507 F2d 1278, cert den 421 US 1016, 44 L Ed 2d 685, 95 S Ct 2425.

Jones Act claims against nonprofit sailing training organization are dismissed because organization is not "employer" of would-be sailors, but acts as type of placement service only, matching would-be sailors and ships for fee, and captain, not organization, exercises control over such sailors on board ship. Heath v American Sail Training Asso. (1986, DC RI) 644 F Supp 1459.

216. Ownership element
To be employer under 46 USCS Appx § 688, employer need not be owner or operator of vessel. Spinks v Chevron Oil Co. (1975, CA5 La) 507 F2d 216, clarified (CA5 La) 546 F2d 675 and (disagreed with by multiple cases as stated in Doucet v Gulf Oil Corp. (CA5 La) 783 F2d 518, reh den (CA5 La) 788 F2d 250); Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.

District Court properly granted summary judgment in favor of corporation alleged to be owner of tanker involved in death of diver, where, despite contentions that maintenance invoices and disbursement vouchers suggested contrary conclusion and that corporation was involved in operation and management of tanker, corporation was not listed as owner on certificate of registry or Coast Guard report and inspection report. Kilkenny v Arco Marine, Inc. (1986, CA9 Cal) 800 F2d 853.

Fact that plaintiff was equitable owner of boat, that he bought it and put legal title in defendant just as convenience indicates that plaintiff was not defendant's employee. Cerqueira v Cerqueira (1987, CA1 Mass) 828 F2d 863.

In order for seaman to recover, he must sue his employer, who must own, charter, operate, or control operation of vessel to which seaman was more or less permanently attached at time of injury. Case v St. Paul Fire & Marine Ins. Co. (1971, ED La) 324 F Supp 352, app dismd (CA5 La) 456 F2d 252.

Employer need not own vessels on which its employee serves as seaman for Jones Act (46 USCS Appx § 688) to apply. Taylor v Packer Diving & Salvage Co. (1971, ED La) 342 F Supp 365, affd (CA5 La) 457 F2d 512, reh den (CA5 La) 471 F2d 650.

217. Multiple employers
For purposes of 46 USCS Appx § 688 there can be but one employer. Cosmopolitan Shipping Co. v McAllister (1949) 337 US 783, 93 L Ed 1692, 69 S Ct 1317, 1949 AMC 1031, reh den 338 US 839, 94 L Ed 513, 70 S Ct 32.

Under 46 USCS Appx § 688, right of action accrues only where employer and employee relationship exists, but it is possible for seaman to have more than one employer and to recover for injuries against individual and two corporation employers. Armit v Loveland (1940, CA3 Pa) 115 F2d 308, 1940 AMC 1429.

Where employee, injured aboard oil drilling platform, was hired by first corporation which contracted to provide services aboard drilling platform, first corporation, not second corporation (owner of drilling barge), withheld taxes and social security payments from his salary, and first corporation employed employee's coworker and his supervisor who could have fired employee and second corporation merely could have first corporation recall and replace employee, District Court erred in ruling that first corporation was not employee's employer for purposes of 46 USCS Appx § 688; seaman may have more than one 46 USCS Appx § 688 employer. Spinks v Chevron Oil Co. (1975, CA5 La) 507 F2d 216, clarified (CA5 La) 546 F2d 675 and (disagreed with by multiple cases as stated in Doucet v Gulf Oil Corp. (CA5 La) 783 F2d 518, reh den (CA5 La) 788 F2d 250).

There is no reason why group of employers who join together to obtain common labor pool on which they draw, by means of union hiring hall, should not be treated as common employer for purposes of determining worker's seaman status; thus, if type of work he customarily performs would entitle him to seaman status if performed for single employer, worker should not be deprived of that status simply because industry operates under daily, rather than permanent, assignment system. Papai v Harbor Tug & Barge Co. (1995, CA9 Cal) 67 F3d 203, 95 CDOS 7465, 95 Daily Journal DAR 12807, 1995 AMC 2888.

If respondents so scrambled their relations as to render it difficult for any one to say for certain whether libellant was employed by only one or by all of them, that should not serve to defeat libellant's right by relieving responsible defendant. Kyriakos v Polemis (1945, DC NY) 63 F Supp 19, 1945 AMC 439, affd in part and revd in part on other grounds (CA2 NY) 151 F2d 132, 1945 AMC 1041.

46 USCS Appx § 688 by its terms gives right of action in favor of seaman against his employer alone and there can be only one employer within meaning of § 688. Petition of Oskar Tiedemann & Co. (1964, DC Del) 236 F Supp 895, revd on other grounds (CA3 Del) 367 F2d 498, supp op (CA3 Del) 367 F2d 505, cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 953 and cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 957, reh den 386 US 1000, 18 L Ed 2d 354, 87 S Ct 1303.

Only one person, firm or corporation can be sued as employer for damages under 46 USCS Appx § 688. Hickman v Ohio Barge Line, Inc. (1974, WD Pa) 376 F Supp 1092.

218. Prospective employment
Prospective employee, sent by union to ship, who was injured before acceptance as employee was not entitled to recover under 46 USCS Appx § 688. Miller v Browning S.S. Co. (1947, CA2 NY) 165 F2d 209, cert den 334 US 834, 92 L Ed 1761, 68 S Ct 1341.

In suit by seaman against employer for injuries sustained subsequent to and as result of negligent pre-employment physical examination conducted by independent contractor, no recovery could be had under 46 USCS Appx § 688 since there was no employee-employer relationship existing between plaintiff and defendant at time of examination. Pennington v Pacific Coast Transport Co. (1969, CA5 La) 419 F2d 122.

219. Borrowed servant rule
While numerous factors must be considered to determine whether individual is borrowed servant or employee of another for purposes of 46 USCS Appx § 688, essential to that relationship is some type of agreement, written or verbal, formal or informal, between general employer and temporary employer evidencing intention to create that relationship. Dugas v Pelican Constr. Co. (1973, CA5 La) 481 F2d 773, cert den 414 US 1093, 38 L Ed 2d 550, 94 S Ct 724.

That seaman is borrowed servant of one employer does not mean that he thereby ceases to be his immediate employer's servant for purposes of 46 USCS Appx § 688. Spinks v Chevron Oil Co. (1975, CA5 La) 507 F2d 216, clarified (CA5 La) 546 F2d 675 (disagreed with by multiple cases as stated in Doucet v Gulf Oil Corp. (CA5 La) 783 F2d 518, reh den (CA5 La) 788 F2d 250).

While there is no fixed test to determine existence of borrowed servant relationship in determining employer-employee status under 46 USCS Appx § 688, certain guidelines have been given great weight, most important standard is that employer who controls employee and employment and who has power and right to control and direct him in performance of his work, other factors are relinquishment of right to control by other employer, borrowing employer's assumption of obligation for payment of employee's wages, employee's performance of work for borrowing employer and latter's business, furnishing of necessary instruments and place of performance for work in question by borrowing employer, and existence or nonexistence of formal agreement between employers. Hicks v Ocean Drilling & Exploration Co. (1975, CA5 La) 512 F2d 817, cert den 423 US 1050, 46 L Ed 2d 639, 96 S Ct 777 and (disagreed with Theriot v Bay Drilling Corp. (CA5 La) 783 F2d 527).

Although recovery under 46 USCS Appx § 688 is predicated upon establishing employer-employee relationship, under certain circumstances employee of one employer may be considered employee of second employer; in such circumstances, second employer may be liable for negligence under § 688 under what has been termed "borrowed" or "loaned servant" doctrine. Francis v Pan American Trinidad Oil Co. (1973, DC Del) 59 FRD 631, later op (DC Del) 392 F Supp 1252, 21 FR Serv 2d 489.

Anchorhandler, employed by subcontractor of offshore labor, and working on vessel moving drilling rig, is not borrowed servant under Jones Act because: most crucially, he was directly supervised by subcontractor's employee, subcontractor had sole right to discharge him and paid his wages, and job was done in series of short-term jobs undertaken by subcontractor; thus drilling company hired by rig owner to supervise rig is not anchorhandler's employer. Hall v Diamond M Co. (1986, ED La) 635 F Supp 362.

220. --Particular circumstances
Employee of railroad was not seaman or borrowed servant of shipowner under 46 USCS Appx § 688 where his only involvement with ship was to cast off her lines and communicate by gesture with her crew to extent necessary to perform that function. Caldwell v Ogden Sea Transport, Inc. (1980, CA4 Va) 618 F2d 1037 (disapproved on other grounds Rodriguez v Compass Shipping Co., 451 US 596, 68 L Ed 2d 472, 101 S Ct 1945, reh den 453 US 923, 69 L Ed 2d 1005, 101 S Ct 3160) and on remand (ED Va) 518 F Supp 1229.

Shipowner was not liable under 46 USCS Appx § 688 for injury to sailor while working for repairman. Wilder v Lykes (1934, DC Tex) 1934 AMC 330.

In view of service agreement between steamship company and United States War Shipping Administration, United States, and not steamship company was plaintiff's employer for purposes of 46 USCS Appx § 688. Steele v American South African Line (1945, DC Cal) 62 F Supp 636.

Although employee received wages and had taxes withheld from wages by one employer, employee was employee of second employer for purposes of 46 USCS Appx § 688 when employee, pursuant to contract between two employers, was controlled by second employer and employee was member of crew of second employers barge. Porche v Gulf Mississippi Marine Corp. (1975, ED La) 390 F Supp 624.

Plaintiff who had been regular employee of barge owner for over one year immediately prior to commencement of new job on vessel, who was subject to direct supervision of dredge captain while on vessel, whose salary was paid by barge owner, and was covered by barge owner's insurance policy, was borrowed employee of barge owner. Guidry v South Louisiana Contractors, Inc. (1977, WD La) 444 F Supp 850 remanded (CA5 La) 614 F2d 447, reh den (CA5 La) 616 F2d 568.

Ocean submarine tour provider is entitled to summary dismissal from 46 USCS Appx § 688 claim of its employee, where employee was injured while jumping from ferryboat to dock pursuant to order of ferryboat captain, even though provider had paid employee's wages and benefits for 4 years, because in this instance employee was under direction and control of ferryboat captain as person designated to assist with ferrying of passengers out to submarines, and it was ferryboat owner who owed duty to provide safe work place to such "borrowed servant". Wolsiffer v Atlantis Submarines (1994, DC Hawaii) 848 F Supp 1489, 1994 AMC 1476.

Under state law, operator who came with track hoe leased to waterway dredger was joint employee of lessor at time of accident, for purpose of determining lessor's liability to injured worker under 46 USCS Appx § 688, since operator's original service with lessor continued, even though operator was acting as dredger's borrowed servant. Nunez v B & B Dredging, Inc. (2000, ED La) 108 F Supp 2d 656.

221. Employees of persons other than shipowner
Compensation insurance carrier could not sue owner of ship for death of stevedore, who fell through open hatch while engaged in work as stevedore, since deceased was not employee of shipowner for purposes of 46 USCS Appx § 688. Continental Casualty Co. v Thorden Line (1951, CA4 Va) 186 F2d 992.

Plaintiff, whose husband had died as result of asphyxiation suffered while working on ship in harbor as employee of salvage company, could not recover under 46 USCS Appx § 688 because no employer-employee relationship had existed between decedent and shipowner. Turner v Wilson Line of Massachusetts, Inc. (1957, CA1 Mass) 242 F2d 414, 1957 AMC 740.

Suit could not be filed under 46 USCS Appx § 688 to recover for death of members of fishing crew against owner of other vessel, since employer-employee relationship did not exist. Noble v Moore-McCormack Lines, Inc. (1951, DC Mass) 96 F Supp 369, 1952 AMC 69.

Although longshoremen are entitled to protection which flows from shipowner's obligation of seaworthiness, suit for negligence under 46 USCS Appx § 688 applies only where relationship of employer and employee exists. Raines v John I. Hay Co. (1960, ND Ill) 194 F Supp 706.

Where plaintiff seaman left barge to go ashore to obtain instructions regarding discharge of barge's cargo of oil and to obtain drinking water and fell by improper walkway while walking between tank owned by storage company, storage company would not be liable to plaintiff under 46 USCS Appx § 688 as no employer-employee relationship existed between the parties. Spearing v Manhattan Oil Transp. Corp. (1974, SD NY) 375 F Supp 764, 19 FR Serv 2d 33.

222. Contractual nature of employment
When owner, with knowledge of future employee, had chartered vessel to another and that person had hired employee, no relationship of contract or otherwise existed between employee and owner which would entitle employee to recover as against owner in suit under 46 USCS Appx § 688. Callan v Cope (1948, CA9 Cal) 165 F2d 703.

Where only helicopter company had contract with mechanic, hired him, paid his wages, and could exercise any real control over his actions, and although his work took place on board ship, work was contractually limited to helicopter and agreement between helicopter owner and vessel owner specifically stated that mechanic was not employee of vessel, but rather independent contractor working for helicopter company, there was nothing to indicate that anyone other than helicopter company was mechanic's employer for purposes of Jones Act. Trentacosta v Frontier Pacific Aircraft Industries, Inc. (1987, CA9 Cal) 813 F2d 1553.

Rights under 46 USCS Appx § 688 to maintain action at law for damages grow out of seaman's contract of employment. Silas v Paroh S.S. Co. (1958, DC Va) 175 F Supp 35, vacated on other grounds (CA4 Va) 276 F2d 857.

223. Owner pro hac vice
Relationship necessary for application of doctrine of ownership pro hac vice is ordinarily that of bare-boat charterer-shipowner, that relationship is distinguishable from stevedore-shipowner relationship, or ship repairer-shipowner relationship. Rao v Hillman Barge & Constr. Co. (1972, CA3 Pa) 467 F2d 1276.

Where possession and control of vessel is transferred from one shipping company to another, referred to as "owner pro hac vice", original owner is relieved of all liability for unseaworthiness. Thomas v Peninsular & Oriental Steam Navigation Co. (1965, DC Pa) 246 F Supp 592, 9 FR Serv 2d 38d.3, Case 1.

224. --Particular circumstances
Vessel owner was not liable under 46 USCS Appx § 688 for death of seaman employed by captain for fishing venture, in which crew was to share in catch since relation of employer and employee did not exist between owner and members of crew; captain became owner pro hac vice. Cromwell v Slaney (1933, CA1 Mass) 65 F2d 940, 1933 AMC 1514.

That trawler was fished on shores did not, as contended by its owners, ipso facto make master owner of vessel pro hac vice so as to constitute seamen his employees, but was merely one factor tending to show ownership in master, and evidence was receivable to determine extent of control over boat and seamen exercised by him. Hudgins v Gregory (1955, CA4 Va) 219 F2d 255.

Action under 46 USCS Appx § 688 could not be maintained against plaintiff's employer for injuries plaintiff received while on fishing trip due to negligence of another who was sole owner and in possession and control of boat at time, as there was no evidence to show any connection between plaintiff's employer and operation of boat, or that owner was operating boat as agent, servant, or employee of defendant, or that defendant was either owner or owner pro hac vice of boat at time of accident. Kanischer v Kaplan (1954, DC Fla) 118 F Supp 847, 1954 AMC 793, affd (CA5 Fla) 215 F2d 300, 1954 AMC 1812, cert den 348 US 942, 99 L Ed 737, 75 S Ct 363, reh den 348 US 977, 99 L Ed 761, 75 S Ct 529.

Summary judgment is granted to New Jersey Corporation in action by Honduran seaman arising out of injury while ship was in United States port, where ship was time-chartered to New Jersey corporation but where Honduran subsidiary corporation once removed was operator of vessel under contract with Panamanian owner and where vessel was Honduran registered and flagged, seaman was Honduran, employment contract signed in Honduras stipulating Honduran law controlled, and where there were no interlocking directorates or other evidence of control or influence by New Jersey corporation over Honduran corporation, because Honduran corporation's allegiance was with Honduras, flag was legitimate and not one of convenience to disguise beneficial American ownership, Honduran corporation was owner pro hac vice, and seaman had access to Honduran courts. Banegas v United Brands Co. (1986, DC SC) 663 F Supp 198.

In action for death under 46 USCS Appx § 688, resulting from injuries received on fishing vessel, evidence of fish company's correspondence with owner together with company's subsequent proprietary action over vessel supported jury's implied finding that company was owner pro hac vice of vessel at time of accident. Radisich v Franco-Italian Packing Co. (1945) 68 Cal App 2d 825, 158 P2d 435.
Jones Act -> IV. Negligence -> A. In General
252. Generally
Damages may be recovered in seaman's action against shipowner under 46 USCS Appx § 688 for personal injuries only when negligence is proven. Jacob v New York City (1942) 315 US 752, 86 L Ed 1166, 62 S Ct 854; De Zon v American President Lines, Ltd. (1943) 318 US 660, 87 L Ed 1065, 63 S Ct 814, reh den 319 US 780, 87 L Ed 1725, 63 S Ct 1025.

Recovery may be had for injuries due to negligence of one in authority over injured seaman or to any defective condition of vessel. Stevens v R. O'Brien & Co. (1933, CA1 Mass) 62 F2d 632.

Federal Employers' Liability Act (45 USCS § § 51 et seq), incorporated into 46 USCS Appx § 688, makes shipowner liable for injury resulting in whole or in part from negligence of any officer, agent or employee of shipowner or by reason of any defect or insufficiency, due to its negligence, in its cars, appliances, machinery or other equipment. Lopoczyk v Chester A. Poling, Inc. (1945, CA2 NY) 152 F2d 457, 1946 AMC 40.

Mere fact that seaman has suffered injury does not per se call for liability under 46 USCS Appx § 688, if employer negligence has not been found to exist. Carver v Partlow Corp. (1965, CA5 Fla) 344 F2d 932.

Rule that nothing in Jones Act suggests standard of care to be attributed to either employer or employee is anything different than ordinary prudence under circumstances, must be given retroactive effect to all cases open on direct review when rule was announced by court. Crawford v Falcon Drilling Co. (1997, CA5 La) 131 F3d 1120.

Provisions of 46 USCS Appx § 688 apply only to maritime torts. Mullen v Eastern Transp. Co. (1938, DC Pa) 25 F Supp 62.

Actions under 46 USCS Appx § 688 are limited to seaman's actions on navigable waters and do not extend to nonmaritime torts. Oliver v Calmar S.S. Co. (1940, DC Pa) 33 F Supp 356, 1940 AMC 411.

Vessel owner sued under 46 USCS Appx § 688 is not liable as insurer of injured seaman's safety but is liable only for negligence. Hopson v Gulf Oil Corp. (1951) 150 Tex 1, 237 SW2d 352.

253. Elements
Right of recovery under 46 USCS Appx § 688 depends on negligence in one or both of two particulars: (1) that of any officer, agent or employee of carrier; (2) by reason of defect or insufficiency of equipment. Mullen v Fitz Simons & Connell Dredge & Dock Co. (1948, CA7 Ill) 172 F2d 601, cert den 337 US 959, 93 L Ed 1758, 69 S Ct 1534.

Under 46 USCS Appx § 688, there must be (1) negligent act by defendant, and (2) negligence must have contributed to injury. West v Eastern Transp. Co. (1950, CA4 Va) 179 F2d 478, cert den 340 US 810, 95 L Ed 595, 71 S Ct 37.

Claim under 46 USCS Appx § 688 requires finding both of negligent breach of duty and proximate cause. Myles v Quinn Menhaden Fisheries, Inc. (1962, CA5 La) 302 F2d 146.

For plaintiff to succeed in suit under 46 USCS Appx § 688, he must establish by fair preponderance of evidence that defendant was negligent and that such negligence was proximate cause, in whole or in part, of his injuries. Oliveras v United States Lines Co. (1963, CA2 NY) 318 F2d 890.

Claim under Jones Act requires finding both of negligent breach of duty and proximate cause. Complaint of Chevron Transport Corp. (1985, MD Fla) 613 F Supp 1428.

254. Duty to employee
Negligent failure to comply with absolute duty to furnish seaworthy vessel reasonably fit for intended voyage, which negligent failure proximately causes injury to seaman, is actionable under 46 USCS Appx § 688. Cortes v Baltimore Insular Line, Inc. (1932) 287 US 367, 77 L Ed 368, 53 S Ct 173.

It is shipowner's duty to provide crew of vessel with reasonably safe place in which to work and failure to do so gives rise to cause of action under 46 USCS Appx § 688. Mahnich v Southern S.S. Co. (1944) 321 US 96, 88 L Ed 561, 64 S Ct 455.

Vessel has duty to provide safe working place for members of its crew. Johnson v Griffiths S.S. Co. (1945, CA9 Wash) 150 F2d 224, 1945 AMC 887.

Ship must provide safe place to work to seaman, or one who performs tasks traditionally performed by ship's crew; that duty encompasses reasonably safe means of boarding, and departing from, vessel, and failure to discharge it constitutes negligence. Southard v Independent Towing Co. (1971, CA3 Pa) 453 F2d 1115.

It is familiar and well established rule that shipowner has obligation to furnish seamen and longshoremen performing seamen's work, seaworthy vessel, including seaworthy appurtenances and equipment, as well as safe place to work, obligation which extends to area where loading and unloading operations are performed. 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.

Shipowner has duty to every seaman employed onboard vessel to furnish vessel with appurtenances that are reasonably fit for their intended use; duty includes maintaining ship's equipment in proper operating condition, and failure of piece of vessel equipment under proper and expected use is sufficient to establish unseaworthiness. Lee v Pacific Far East Line, Inc. (1977, CA9 Cal) 566 F2d 65.

Vessel owner's duty to prevent unseaworthy conditions is absolute, continuing, and non-delegable; lack of knowledge of or opportunity to correct such conditions does not mitigate vessel owner's duty. Allen v Seacoast Products, Inc. (1980, CA5 La) 623 F2d 355, 6 Fed Rules Evid Serv 536 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).

Employer must have notice and opportunity to correct unsafe condition before liability will attach. Perkins v Am. Elec. Power Fuel Supply, Inc. (2001, CA6 Ohio) 246 F3d 593, 2001 FED App 101P, reh den, reh, en banc, den (2001, CA6) 2001 US App LEXIS 11223.

Vessel owner is required to take affirmative action when prevailing conditions require such to prevent accidental injury to members of crew, even though ship and its appurtenances are ordinarily considered to be reasonably safe; failure to exert such diligence as circumstances require can result in unseaworthiness, actionable negligence under 46 USCS Appx § 688, or both. Trahan v Superior Oil Co. (1962, WD La) 204 F Supp 627, affd (CA5 La) 322 F2d 234, 8 ALR3d 497, 1964 AMC 100.

255. --Standard applied
Standard of liability under 46 USCS Appx § 688 is that established by Congress under Federal Employers' Liability Act. Ferguson v Moore-McCormack Lines, Inc. (1957) 352 US 521, 1 L Ed 2d 511, 77 S Ct 457.

In case under 46 USCS Appx § 688, test of reasonable safety varies with prevailing conditions, and test of order to seaman is whether such order is one which reasonably prudent superior would give in all circumstances. Matson Navigation Co. v Hansen (1942, CA9 Cal) 132 F2d 487.

Nature of business and particular dangers involved determine amount of care required in particular case, whether on land or sea; test or standard to be adopted in determining whether care used is proper and commensurate with danger is supposed conduct under circumstances of reasonable and prudent man; failure to use care that reasonable and prudent man would use under like circumstances is usual concept of negligence and standard of care recognized under maritime law under 46 USCS Appx § 688 and under Federal Employers' Liability Act (45 USCS § § 51 et seq.). 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.

Negligence as applied in 46 USCS Appx § 688 must be given liberal construction and includes any knowing or careless breach of any obligation which employer owes to seamen. Koehler v Presque-Isle Transp. Co. (1944, CA2 NY) 141 F2d 490, 1944 AMC 432, cert den 322 US 764, 88 L Ed 1591, 64 S Ct 1288; Catania v Halcyon S.S. Co. (1975, 2d Dist) 44 Cal App 3d 348, 118 Cal Rptr 513.

Under Jones Act (46 USCS Appx § 688), vessel owner is deemed negligent if he fails to exercise reasonable care to maintain reasonably safe work environment. Ober v Penrod Drilling Co. (1984, CA5 La) 726 F2d 1035.

Evidence of "slightest" negligence is sufficient to sustain finding of Jones Act liability, and burden on plaintiff for showing causation is "featherweight." Johnson v Offshore Express, Inc. (1988, CA5 La) 845 F2d 1347, cert den (US) 109 S Ct 497.

Negligence within meaning of 46 USCS Appx § 688 is failure to exercise degree of care which ordinary prudent person would use under circumstances in discharging duty he owes to those who work on vessel. Clements v Chotin Transp., Inc. (1980, MD La) 496 F Supp 163.

Standard of liability and test of negligence and causation are same for both 46 USCS Appx § 688 and Federal Employers' Liability Act (45 USCS § § 51 et seq.). Catania v Halcyon S.S. Co. (1975, 3d Dist) 44 Cal App 3d 348, 118 Cal Rptr 513.

In action for death of seaman who jumped into sea while in employ of defendant on fishing trip on defendant's vessel, issue of defendant's liability must be decided upon facts as they presented themselves to master and crew of fishing vessel, and standard of care required was that of reasonably prudent man under circumstances, seeing what these men saw and or ought to have seen of appearance and actions of deceased. Bugden v Trawler Cambridge, Inc. (1946) 319 Mass 315, 65 NE2d 533.

Standard of care imposed upon defendant in action under 46 USCS Appx § 688 is that of reasonable or ordinary care, having regard to circumstances; measure of shipowner's duty in this respect does not vary, but degree of care must be adjusted to risk involved. Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001.

Test of negligence of master is whether he did that which he ought not to have done or failed to do that which he should have done, and his act of commission or omission proximately contributed to accident. Wood Towing Corp. v West (1943) 181 Va 151, 23 SE2d 789.

Standard of care imposed by 46 USCS Appx § 688 is duty to provide seaworthy vessel which owner impliedly promised to his seamen in their contract of employment. Brown v Intercoastal Fisheries, Inc. (1949) 34 Wash 2d 48, 207 P2d 1205.

256. --Higher than for ordinary employer
Obligation of shipowner to his seamen is substantially greater than that of ordinary employer to his employees. Koehler v Presque-Isle Transp. Co. (1944, CA2 NY) 141 F2d 490, 1944 AMC 432, cert den 322 US 764, 88 L Ed 1591, 64 S Ct 1288.

Operator of vessel is required to display higher standard of care than is required of employer on shore with regard to employees, but under 46 USCS Appx § 688 claimant must show negligence on part of employer. Esta v Persohn (1950, La App, Orleans) 47 So 2d 64.

Higher degree of care is required of shipowner than is required of employers of servants for work on shore. Taber v Cities Service Oil Co. (1950) 198 Misc 332, 97 NYS2d 891.

257. --Nondelegable
46 USCS Appx § 688 employer has nondelegable duty to furnish plaintiff with safe place in which to work and failure to do so constitutes negligence. Wilkins v P.M.B. Systems Engineering, Inc. (1982, ED Tex) 553 F Supp 201, vacated on other grounds (CA5 Tex) 741 F2d 795.

Shipowner has nondelegable duty to furnish seaman safe place in which to work, and higher degree of care is required of him than is required of employers of servants for work on shore. Taber v Cities Service Oil Co. (1950) 198 Misc 332, 97 NYS2d 891.

Duties imposed by 45 USCS § § 51 et seq., as extended to seamen by 46 USCS Appx § 688, are absolutely nondelegable. Greenhaw v Pacific-Atlantic S.S. Co. (1950) 190 Or 182, 224 P2d 918.

258. --Limits of duty
Shipowner need only provide reasonably safe place for seaman to work and is not insurer of safety. Kahyis v Arundel Corp. (1933, DC Md) 3 F Supp 492.

"Safe place to work" rule is subject to limitation that master is not required to eliminate all danger attendant upon work that is inherently dangerous. The Ellenor (1941, DC Fla) 39 F Supp 576, 1941 AMC 1195, affd (CA5 Fla) 125 F2d 774, 1942 AMC 245.

Under 46 USCS Appx § 688, employer is not held absolutely responsible to furnish employees with safe place to work but is only bound to exercise reasonable care to see that place is reasonably safe. Vojkovich v Ursich (1942) 49 Cal App 2d 268, 121 P2d 803, 1942 AMC 299.

Shipowner is not insurer of safety of ship's seamen, however, seamen have long been considered wards of court and it is clear that duty owed them reaches high standard. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.

Shipowner is not insurer of safety of ship's seamen, but has duty of providing reasonably safe place to work, and reasonably safe method to do work; ship owner is not under duty to supply very best tools or very best method to accomplish particular task. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.

259. --Particular circumstances
Where master had opportunity to make repairs in several ports in which vessel stopped, master had duty to see that vessel, which had become unsafe during voyage, was put in seaworthy condition and to see that any repair order was carried out. Walker v Lykes Bros. S.S. Co. (1952, CA2 NY) 193 F2d 772.

Under 46 USCS Appx § 688, vessel owner is deemed negligent if he fails to exercise reasonable care to maintain reasonably safe work environment; fact that employer permitted lead tongs to swing recklessly, either by driller's failure to use back-up tongs in violation of employer's safety rule or by driller's application of too much torque, is sufficient to constitute breach of duty to furnish plaintiff with reasonably safe place to work within § 688 standards. Ober v Penrod Drilling Co. (1982, CA5 La) 694 F2d 68, vacated on other grounds, superseded on other grounds (CA5 La) 726 F2d 1035.

In causing study to be made of noise levels aboard vessel and in providing individual hearing protection and insulation in engine room of vessel which protected seamen from permanent hearing loss, employers performed their duty to provide their seamen with reasonably safe place to work; employers do not have absolute duty to eliminate all excessive noise aboard vessel, nor even absolute duty to completely insulate their seamen from all excessive noise although employers do have duty to protect their seamen against permanent hearing loss. Hicks v Crowley Maritime Corp. (1982, SD Tex) 538 F Supp 285, affd without op (CA5 Tex) 707 F2d 514 and affd without op (CA5 Tex) 707 F2d 514 and affd without op (CA5 Tex) 707 F2d 514.

Employer who elects not to send engineer or mechanic with its equipment on job is at fault for not instructing personnel with respect to repairing of particular equipment to be used on job; where job requires use of high-pressure hose and employer does not send out its own engineer familiar with intricacies of compressor operations and repairs, where it is reasonable to assume that such engineer would have had expertise and proper tools to effect repair to hose, employer has duty to instruct its personnel with respect to repair of such hoses. Landry v Oceanic Contractors, Inc. (1982, ED La) 548 F Supp 337, affd (CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.

Seaman's claim under 46 USCS § 688 to recover damages for injuries allegedly sustained aboard United States merchant vessel against United States is dismissed, where (1) seaman's claim of accident was contradictory, confused, and belied by other evidence in several places, (2) seaman's description of weather conditions and smoothness of vessel's ride at time of accident was belied by deck logs for proposed dates, and (3) convincing proof was not presented as to presence of oil, grease, excessive wetness, or unreasonably dangerous condition of any kind on ladderwell steps, because United States did not breach its duty to provide seaman with safe place to work and equipment that is reasonably fit for safe performance of task at hand. Saleh v United States (1994, SD NY) 849 F Supp 886.

260. Statutory duties
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.

46 USCS Appx § 688 gives action for damages for death resulting from negligence as well as for death, without regard to negligence, where violation of statues or regulations contributes to death. Gillespie v United States Steel Corp. (1963, CA6 Ohio) 321 F2d 518, 25 Ohio Ops 2d 22, 7 FR Serv 2d 141, affd 379 US 148, 13 L Ed 2d 199, 85 S Ct 308. (ovrld on other grounds Moragne v States Marine Lines, Inc., 398 US 375, 26 L Ed 2d 339, 90 S Ct 1772, on remand (CA5 Fla) 446 F2d 906) as stated in Sistrunk v Circle Bar Drilling Co. (CA5 La) 770 F2d 455, reh den, en banc (CA5 La) 775 F2d 301 and reh den, en banc (CA5 La) 775 F2d 301 and cert den (US) 89 L Ed 2d 318, 106 S Ct 1205.

In injured roustabout's Jones Act suit asserting that company on whose rig he was working was negligent as matter of law because its failure to install railing along exhaust pipe from which he fell constituted negligence per se, 5 elements of negligence per se claim are (1) violation of Coast Guard regulations, (2) plaintiff's membership in class of intended beneficiaries of regulations, (3) injury of type against which regulations are designed to protect, (4) unexcused nature of regulatory violation, and (5) causation. Smith v Trans-World Drilling Co. (1985, CA5 La) 772 F2d 157.

Seaman's damages, which had been predicated on lower court determination that violation of provision of Corps of Engineers Safety Manual was equivalent to violation of safety statute, should be reduced by percentage of seaman's contributory negligence as provision is not elevated to status of statute by incorporation by reference in Armed Services Procurement Regulations. B-R Dredging Co. v Rodriguez (1978, Tex) 564 SW2d 693.

261. --Causal relation to injury
46 USCS Appx § 688 permits recovery for death of seaman resulting from violation of statutory duty in absence of any showing of negligence; thus, cause of action for death of seaman arises under 46 USCS Appx § 688 where he lost his life from lamp igniting vapors where lamp, in violation of Coast Guard navigation rule was maintained at height of less than 8 feet above water, and vapor would not have been ignited if lamp had been carried at required height, it being immaterial that Coast Guard regulation was intended for prevention of collisions and for no other purpose. Kernan v American Dredging Co. (1958) 355 US 426, 2 L Ed 2d 382, 78 S Ct 394.

Shipowner who was violating his statutory duty in not having adequate number of fire extinguishers on his ship was not liable under 46 USCS Appx § 688 for death of seaman which was in no way related to fire extinguisher violation. Nolan v Greene (1967, CA6 Ky) 383 F2d 814.

Violation of federal law providing that all ships' masters, mates, chief engineers, and assistant engineers shall be licensed seamen was negligence as matter of law when violation of federal law was proximate cause of injury to seaman. Gonsalves v Coito (1956, 4th Dist) 144 Cal App 2d 138, 300 P2d 742.

In action by seaman for personal injuries incurred when he fired Lyle gun on board ship, evidence showed that defendant failed to comply with regulations which required it to furnish powder bags properly filled to be used in firing of gun, and this failure was one of proximate causes of accident making defendant liable therefor. Fegan v Lykes Bros. S. S. Co. (1941) 198 La 312, 3 So 2d 632, 1941 AMC 1154.

Failure to require operator of vessel to be licensed was violation of Coast Guard regulations and negligence per se, and since obtaining license would have required physical examination of plaintiff, failure to require license was contributing cause of plaintiff's illness; vessel was required by certificate of inspection to have aboard at all times two ocean operators and two deckhands, except when operating not more than 12 hours in any 24 hour period, and vessel's failure to operate with more than two crewmembers when evidence indicates that additional crewmembers were needed, is violation of Coast Guard regulations and negligence. Smith v Cameron Crews, Inc. (1977, La App 3d Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.

262. Compliance with custom and general practice
Compliance with customs and practice of industry is not in itself due care. Schlichter v Port Arthur Towing Co. (1961, CA5 La) 288 F2d 801, cert den 368 US 828, 7 L Ed 2d 32, 82 S Ct 50.

In negligence actions under 46 USCS Appx § 688, prevailing trade customs cannot furnish legal standard of due care. Bryant v Partenreederei-Ernest Russ (1964, CA4 Md) 330 F2d 185.

Seaman is not granted relief against tug owner and employer in action arising out of injuries sustained while dragging cable from one tug to another across wooden dock with warped plank, because although there were other possible methods of transporting cables, method employed by owner was reasonable, prudent, safe, and customary, so there is no merit to seaman's claim that he was required to perform his job in dangerous or unreasonable manner. Lombas v Moran Towing & Transp. Co. (1995, SD NY) 899 F Supp 1089.

263. Degree of negligence required for liability
Any negligence on part of employer under 46 USCS Appx § 688 which plays any part, however slight, in producing injury to employee is sufficient to fix liability for such injuries. Ferguson v Moore-McCormack Lines, Inc. (1957) 352 US 521, 1 L Ed 2d 511, 77 S Ct 457; Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 985, 13 FR Serv 2d 1116; Stacey v Sea-Drilling Corp. (1970, CA5 La) 424 F2d 1272; Davis v Hill Engineering, Inc. (1977, CA5 Tex) 549 F2d 314, reh den (CA5 Tex) 554 F2d 1065; and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) Santana v United States (1977, CA1 Puerto Rico) 572 F2d 331; 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.

In action under 46 USCS § 688 case should be submitted to jury if, on evidence presented, there is rational basis for inference that defendant was probably in some respect negligent, and that injuries complained of were at least partially caused by such negligence. Smith v Reinauer Oil Transport, Inc. (1958, CA1 Mass) 256 F2d 646, cert den 358 US 889, 3 L Ed 2d 117, 79 S Ct 133.

Under 46 USCS Appx § 688, which incorporates Federal Employers' Liability Act (45 USCS § § 51 et seq.), employer is liable for injury to employee resulting in whole or in part from employer's negligence, and such standard of liability is not identical to employer's negligence being "substantial factor" in causing employee's injury. Farnarjian v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 474 F2d 361 (disagreed with Joyce v Atlantic Richfield Co. (CA10 Colo) 651 F2d 676).

That only slightest negligence need be shown to uphold award of damages in 46 USCS Appx § 688 cases does not mean that seaman may prevail on no evidence at all; there must be some evidence from which jury can infer that unsafe condition existed and that owner either knew or, in exercise of due care, should have known of it. Perry v Morgan Guaranty Trust Co. (1976, CA5 La) 528 F2d 1378.

Remedial nature of 46 USCS Appx § 688 and its imposition of higher standard of care on employers results in liability upon showing of only slight negligence. Allen v Seacoast Products, Inc. (1980, CA5 La) 623 F2d 355, 6 Fed Rules Evid Serv 536 (disagreed with by multiple cases as stated in Nix v Kansas City S. R. Co. (CA5 Tex) 776 F2d 510).

District Court adequately explained to jury lesser standard of negligence needed to establish liability under Jones Act, where District Court instructed jury, inter alia, that (1) negligence is legal cause of damage if it played any part, no matter how small, in bringing about or actually causing injury or damage, (2) jury may find injury or damage legally caused by defendant's act or omission if it should find "any" negligence of defendant contributed in any way to plaintiff's injury, and (3) unseaworthiness claim differs from Jones Act claim. Rogers v Eagle Offshore Drilling Services, Inc. (1985, CA5 La) 764 F2d 300, reh den, en banc (CA5 La) 770 F2d 549.

Seaman has right to recover damages from his employer if employer was guilty of some negligence and such negligence played any role, no matter how slight, in producing injury; although plaintiff bears burden of proof on such issue, burden is "featherweight." Yelverton v Mobile Laboratories, Inc. (1985, SD Miss) 608 F Supp 400, affd (CA5 Miss) 782 F2d 555.

More than ample evidence supported jury's finding of liability of owner and pro hac vice owner of barge, on which seaman was injured, under 46 USCS Appx § 688, because (1) multiple references to letters on side of barge which were initials of corporate owner proved ownership, (2) tug's deck log and testimony indicated tug boat company's complete command and control over barge and proved pro hac vice ownership, and (3) evidence of inadequate lighting and dent on barge which caused seaman to trip proved slight negligence and therefore liability. Turner v Inland Tugs Co. (1988, ED La) 689 F Supp 612.

Proper test of liability in action brought under Jones Act (46 USCS Appx § 688) is whether employer's negligence played any part in causing injury. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.

Test of negligence of master is whether he did that which he ought not to have done or failed to do that which he should have done, and his act of commission or omission proximately contributed to accident. Wood Towing Corp. v West (1943) 181 Va 151, 23 SE2d 789.

264. Causation
Trial court's refusal, in action under 46 USCS Appx § 688, to give instruction on proximate cause to effect that if employer's negligence played any part, even slightest, in producing injury to plaintiff, plaintiff may recover, and court's giving traditional instruction that proximate cause is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces result complained of, and without which it would not have occurred, was reversible error. De Lima v Trinidad Corp. (1962, CA2 NY) 302 F2d 585.

Employer's negligence need not be sole proximate cause of injury to result in his liability, but may merely be contributing cause of accident. Spinks v Chevron Oil Co. (1975, CA5 La) 507 F2d 216, clarified (CA5 La) 546 F2d 675 and (disagreed with by multiple cases as stated in Doucet v Gulf Oil Corp. (CA5 La) 783 F2d 518, reh den (CA5 La) 788 F2d 250); Bennett v Perini Corp. (1975, CA1 Mass) 510 F2d 114 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den 469 US 1211, 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)); 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; Smith v Cameron Crews, Inc. (1977, La App 3d Cir) 348 So 2d 179, cert den (La) 351 So 2d 169.

Court will decline to apply lesser Jones Act standard of causation to general maritime law claims. McClow v Warrior & Gulf Navigation Co. (1988, CA11 Ala) 842 F2d 1250.

In Jones Act cases, necessary causal connection requires more than mere "but for" cause; alleged negligence must be "legal cause" of injury. Gavagan v United States (1992, CA5 Tex) 955 F2d 1016.

In 46 USCS Appx § 688 action predicated upon unseaworthiness of vessel or negligence on part of shipowner libelant must prove that unseaworthy condition was proximate cause of his injury, or that negligence of respondent caused in whole or in part injury complained of. Goodrich v Cargo Ships & Tankers, Inc. (1965, ED La) 241 F Supp 332, 1965 AMC 2749.

Causative element in Jones Act cases is less than common-law standard of proximate cause; question is whether actions of defendant contributed to injury even in slightest degree; employer's negligence need not be sole proximate cause of injury to result in liability but need merely be contributing cause. Complaint of Chevron Transport Corp. (1985, MD Fla) 613 F Supp 1428.

Under 46 USCS Appx § 688, it is not necessary to show that employer's negligence was proximate cause of injury or death complained of, but that it is sufficient to establish jury question by simply showing some negligence on part of employer, coupled by direct or circumstantial evidence to injury or death of employee. Gaymon v Quinn Menhaden Fisheries, Inc. (1960, Fla App D1) 118 So 2d 42, 81 ALR2d 1165.

265. --Inferences
Burden on plaintiff to prove proximate cause in action based on 46 USCS Appx § 688 is very light; jury in such cases is entitled to make permissible inferences from unexplained events, whether case is brought under 46 USCS Appx § 688 or under general maritime law. Alaska S.S. Co. v Petterson (1954) 347 US 396, 98 L Ed 798, 74 S Ct 601, reh den 347 US 994, 98 L Ed 1127, 74 S Ct 848.

In death actions sounding in negligence under 46 USCS Appx § 688, when exact circumstances of casualty are known, United States Supreme Court has fundamentally transformed traditional negligence law respecting causation by permitting finder of fact to supply by inference many elements normally required to be proven by plaintiff; as to defendant's negligence constituting legal cause of accident, slight evidence is sufficient so long as inference is that which reasonable, prudent men might reach on basis of evidence; by use of extension of res ipsa loquitur principle regarding permissible inferences from unexplained events, finder of facts may infer requisite legal causation and test is simply whether proofs justify with reason conclusion that employer negligence played any part, even slightest, in producing injury, it being immaterial that from evidence finder of fact may also with reason, on grounds of probability attribute results to other causes, including employee's contributory negligence. Admiral Towing Co. v Woolen (1961, CA9 Cal) 290 F2d 641.

266. --Particular circumstances
Even if lifeboats were carried in negligent manner, seaman injured when vessel was torpedoed could not recover if there was no substantial evidence connecting alleged negligence with injury as its proximate cause. Ryan v United States (1945, CA3 Pa) 150 F2d 366, 1945 AMC 690.

Where sailor sued employer for injuries sustained because of failure to properly repair malfunctioning high pressure hoses on vessel, trial court correctly ruled that failure to train workers in use of hose caused injury but damaged hose itself did not, since issues relating to seaworthiness (i.e. damaged condition of ship) requires a traditional showing of causation to establish liability, whereas liability for failure to train need only be shown by slight evidence of relatively attenuated causation. Landry v Oceanic Contractors, Inc. (1984, CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.

Captain's failure to consult chart depicting location of natural gas pipeline was not cause of accident where chart did not indicate that it would be unsafe to navigate over it, captain had fished waters for 13 years, and charted location of pipeline was actually 150 feet in error. Zapata Haynie Corp. v Arthur (1992, CA5 La) 980 F2d 287, reh, en banc, den (CA5) 1993 US App LEXIS 2349.

Suit by crewman of fishing vessel fails under 46 USCS Appx § 688, where crewman gave conflicting versions of what caused his injury and concealed parts of his medical history during doctor visits and deposition, because crewman failed to show his injuries resulted from either negligence of captain or crew or unseaworthiness of vessel. Biktjorn v Bendiksen (1991, WD Wash) 774 F Supp 581, 1992 AMC 347.

Assuming that vessel negligently failed properly to maintain ship's living facilities and that their uninhabitability rendered vessel unseaworthy, those facts alone fail to establish legally adequate causal link between alleged negligence and seaman's injuries sustained in motorcycle accident while traveling from vessel to crew's living quarters. Brown v Stanwick International, Inc. (1979, Fla App D3) 367 So 2d 241.

267. Forseeability
For employer to be negligent under 46 USCS Appx § 688, defect for which seaman is suing must be of such nature that ship owner should reasonably have apprehended danger of injury. Pittsburgh S.S. Co. v Palo (1933, CA6 Ohio) 64 F2d 198.

Proof of negligence on part of shipowner involves at least showing that under existing circumstances, shipowner or his agents should reasonably have anticipated danger or bodily injury to member of crew. Sundberg v Washington Fish & Oyster Co. (1943, CA9 Wash) 138 F2d 801, 1943 AMC 1337.

In action to recover damages under 46 USCS Appx § 688, it could not be said that there was negligence as matter of law in absence of establishing that either crew members, seamen or officers were aware of dangerous condition. Williams v Tide Water Associated Oil Co. (1955, CA9 Wash) 227 F2d 791, cert den 350 US 960, 100 L Ed 834, 76 S Ct 348.

Forseeability of harm is pertinent test in negligence cases under 46 USCS § Appx 688. Gwinett v Albatross S.S. Co. (1957, CA2 NY) 243 F2d 8, cert den 355 US 828, 2 L Ed 2d 41, 78 S Ct 40.

Where vice-president of lighterage company had knowledge of defect causing injury and decided that it was not of sufficient importance to warrant repairs, company was liable. The New Zealand (1931, DC NY) 49 F2d 781.

Federal court has admiralty jurisdiction over asbestos liability case in which seaman claims injury following exposure to asbestos in ship's engine room, since asbestos manufacturers could reasonably expect their products would be utilized aboard ocean-going vessels, seaman's duties were central to maritime function of vessels, and vessels were engaged in maritime commerce. Tritt v Atlantic Richfield Co. (1989, ED Pa) 709 F Supp 630.

Seaman severely injured in fight with fellow crewman is denied recovery under Jones Act (46 USCS Appx § 688) for negligent hiring or supervision, where only deck boss knew of crewman's previous fight and even he thought crewman was not violent, because crewman's violence was not foreseeable. Torres v M/V Fuiono Fishing Vessel (2001, SD Cal) 141 F Supp 2d 1028.

In order to prove breach of duty to provide safe vessel under Jones Act (46 USCS Appx § 688), plaintiff must demonstrate that vessel owner or operator knew or should have known of alleged unsafe and negligent condition on vessel. Clements v Chotin Transp., Inc. (1980, MD La) 496 F Supp 163.

Cause of action sounding in negligence under 46 USCS Appx § 688 will fail when plaintiff does not come forward with any evidence which would establish that defendant had either actual or constructive notice of allegedly unsafe condition complained of by plaintiff. Lotzman v Oxyness Shipping Co. (1978) 93 Misc 2d 461, 402 NYS2d 964.

268. --Knowledge of infirmity or illness
Captain of ship was not negligent in hiring deceased as steward even though he met deceased in hospital prior to his appointment, where captain did not have any personal knowledge that deceased was suffering from disease which made long ship journeys dangerous. Potter Title & Trust Co. v Ohio Barge Line, Inc. (1950, CA3 Pa) 184 F2d 432, 1950 AMC 273, cert den 340 US 955, 95 L Ed 689, 71 S Ct 567.

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.

Instruction by trial judge that if seaman who was lost at sea knowingly misrepresented his physical condition, and that because of misrepresentation shipowner was justified in not taking special precautions for seaman's safety, then jury could not find shipowner negligent under 46 USCS Appx § 688 in that regard, was proper, since shipowner was not obligated to provide special precautions unless he knew of particular physical condition requiring such precautions. Estate of Larkins v Farrell Lines, Inc. (1986, CA4 Md) 806 F2d 510.

Where crew of vessel negligently permitted seaman suffering from epileptic seizure to fall overboard and drown, vessel owner was liable. Russell v Merchants & Miners Transp. Co. (1937, DC Va) 19 F Supp 349, 1937 AMC 246.

Shipowner was liable, under 46 USCS Appx § 688 and 46 USCS Appx § § 761 et seq., for crew's negligence contributing to death of seamen who disappeared at sea, where master was aware of severe psychiatric condition and suicidal note of seaman and was aware that proper course of conduct was one of constant observation. Bednar v United States Lines, Inc. (1973, ND Ohio) 360 F Supp 1313.

Even though steamship company had knowledge of disability of mess boy when it employed him, it would not be held negligent on that account in action under 46 USCS Appx § 688 for damages suffered by employee from heat stroke. Ducombs v Lykes Bros. S.S. Co. (1941, La App, Orleans) 1 So 2d 114.
Jones Act -> V. Defenses -> A. Seaman's Acts or Omissions -> 1. Contributory and Comparative Negligence
348. Contributory negligence
When seaman, by his own volition, creates extraneous circumstance, he brings about intervening cause that directly affects his relation to his employers and to ship; he is responsible for such intervening cause if it consists of his own willful misconduct, is something which is done in pursuance of some private avocation or business, or grows out of relations unconnected with service, or is not logical incident of duty. Jackson v Pittsburgh S.S. Co. (1942, CA6 Ohio) 131 F2d 668.

Defendant under 46 USCS Appx § 688 is not relieved from liability simply because he is not wholly at fault. Hern v Moran Towing & Transp. Co. (1943, CA2 NY) 138 F2d 900.

If breach of duty owed by employee to employer was sole and proximate cause of his injury, then recovery would be barred, not because of contributory negligence, but rather because no negligence of employer was in chain of causation, but if employee was injured because of his employer's negligence which combined with his own neglect of duty to his employer, then doctrine of comparative negligence would be applicable. Chesapeake & O. R. Co. v Newman (1957, CA6 Ohio) 243 F2d 804.

45 USCS § 53(3), dealing with contributory negligence and incorporated into 46 USCS Appx § 688, is equally applicable whether claimant's negligence occurs at commencement or at end of chain of causation. Ammar v American Export Lines, Inc. (1964, CA2 NY) 326 F2d 955, 1964 AMC 631, cert den 379 US 824, 13 L Ed 2d 34, 85 S Ct 48, reh den 379 US 985, 13 L Ed 2d 34, 85 S Ct 48, reh den 379 US 985, 13 L Ed 2d 579, 85 S Ct 640.

Possibility of finding that injured seaman was also negligent, would not defeat his claim as matter of law. Lambert v Diamond M Drilling Co. (1982, CA5 La) 683 F2d 935, reh den (CA5 La) 688 F2d 1023.

In action brought under 46 USCS Appx § 688, contributory negligence cannot be pleaded as separate and complete defense. Siclana v United States (1944, DC NY) 56 F Supp 444.

Defendant in action under 46 USCS Appx § 688 who relies on defense of contributory negligence, has burden to establish contributory negligence by preponderance of evidence. Willis v American Barge Line Co. (1949, DC Pa) 87 F Supp 919.

Each of following elements of contributory negligence must be found before defense can be said to exist: (1) act (or omission); (2) duty to so act (or refrain); (3) breach of said duty; (4) actual causation ("cause in fact"); (5) legal causation ("proximate cause"); (6) injury or damage. Curry v United States (1971, ND Cal) 327 F Supp 155, supp op (ND Cal) 338 F Supp 1219.

Seaman's claim against vessel owner is rejected, where seaman was injured by broken capstan line while operating capstan to draw barges and tugboat together, because evidence indicated that there was no negligent act or omission of owner which was cause of injury, that capstan line and capstan were in good condition, and that seaman's improper operation of capstan was cause of injury. Gaddis v Orgulf Transport Co. (1988, SD Ill) 680 F Supp 1279.

Failure to heed warning given too late to avoid injury was not contributory negligence. Anderson v Matson Navigation Co. (1932) 125 Cal App 447, 13 P2d 1041.

In action by member of vessel's crew for injuries received while on isolated errand on land for his employer, defense of contributory negligence was open to defendant. Powers v Murray (1934) 266 Mich 688, 254 NW 559.

349. Comparative negligence
Under 46 USCS Appx § 688, doctrine of comparative negligence applies. Socony-Vacuum Oil Co. v Smith (1939) 305 US 424, 83 L Ed 265, 59 S Ct 262; Keel v Greenville Mid-Stream Service, Inc. (1963, CA5 Miss) 321 F2d 903; Petressen v American President Lines, Ltd. (1944, City Ct) 48 NYS2d 757 (city court of New York); Duplanty v Matson Navigation Co. (1959) 53 Wash 2d 434, 333 P2d 1092.

Under 46 USCS Appx § 688, assumption of risk and contributory negligence on part of seaman are 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.

If breach of duty owed by employee to employer was sole and proximate cause of his injury, then recovery would be barred, not because of contributory negligence, but rather because no negligence of employers was in chain of causation, but if employee was injured because of his employer's negligence which combined with his own neglect of duty to his employer, then doctrine of comparative negligence would be applicable. Chesapeake & O. R. Co. v Newman (1957, CA6 Ohio) 243 F2d 804.

Comparative fault is applied in strict liability action for unseaworthiness, in personal injury actions under Jones Act [46 USCS Appx § 688], and actions brought under Death on the High Seas Act [46 USCS Appx § 766], and in longshoremen's suits against vessels under 33 USCS § § 901 et seq. Lewis v Timco, Inc. (1983, CA5 La) 716 F2d 1425, CCH Prod Liab Rep P 9831, 74 ALR Fed 293, on remand (CA5 La) 736 F2d 163, CCH Prod Liab Rep P 10160, reh den (CA5 La) 744 F2d 94 and reh den (CA5 La) 744 F2d 94.

Seaman cannot be found comparatively negligent when following order to complete task in specific manner. Alholm v American S.S. Co. (1998, CA8 Minn) 144 F3d 1172, 1998 AMC 2352.

350. Reduction of damages
Contributory negligence, although not barring recovery under 46 USCS Appx § 688, is given due weight in arriving at damages recoverable. Engel v Davenport (1926) 271 US 33, 70 L Ed 813, 46 S Ct 410, 1926 AMC 679; Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712, 1936 AMC 635.

Contributory negligence is not defense to action brought either under 46 USCS Appx § 688 or under maritime laws for injuries attributable to negligently defective equipment, but is ground only for apportionment of damages. Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712.

Lost earnings and medical expenses are subject to reduction under 46 USCS Appx § 688 if seaman has been contributorily negligent. Fitzgerald v United States Lines Co. (1963) 374 US 16, 10 L Ed 2d 720, 83 S Ct 1646, 7 FR Serv 2d 774, reh den 375 US 870, 11 L Ed 2d 99, 84 S Ct 26 and motion den 376 US 901, 11 L Ed 2d 604, 84 S Ct 655.

In action under 46 USCS Appx § 688 contributory negligence acts merely to mitigate damages, rather than to bar claim. Schaeffer v Michigan-Ohio Navigation Co. (1969, CA6 Mich) 416 F2d 217, 7 ALR Fed 493 (disagreed with Lewis v Timco, Inc. (CA5 La) 697 F2d 1252, different results reached on reh, remanded, en banc (CA5 La) 716 F2d 1425, CCH Prod Liab Rep P 9831, 74 ALR Fed 293, on remand (CA5 La) 736 F2d 163, CCH Prod Liab Rep P 10160, reh den (CA5 La) 744 F2d 94 and reh den (CA5 La) 744 F2d 94).

Effect of finding of contributory negligence in 46 USCS Appx § 688 claim is only to reduce damages proportionately, not to bar claim. Fontenot v Teledyne Movible Offshore, Inc. (1983, CA5 La) 714 F2d 17.

Under Jones Act, contributory negligence, however gross, does not bar recovery, but only mitigates damages. Johnson v Offshore Express, Inc. (1988, CA5 La) 845 F2d 1347, cert den (US) 109 S Ct 497.

In case of equal liability between defendant and seaman, verdict should be cut in half rather than being reduced to nothing. Vivian v Gulf Oil Corp. (1952, DC Pa) 103 F Supp 391; Cohen v American Petroleum Transport Corp. (1947) 188 Misc 465, 68 NYS2d 250 (city court).

Contributory negligence on part of injured workman may be relied on in diminution of damages, notwithstanding defendant's failure to specially plead it. Greenhaw v Pacific-Atlantic S.S. Co. (1950) 190 Or 182, 224 P2d 918.

351. Application to state proceedings
Notwithstanding state statute conferring jurisdiction on state Court of Claims to hear claims for wrongful death of seaman due to wrongful acts of state employees, contributory negligence will only mitigate damages since recovery in state court is limited to damages authorized under federal statutes. Otis v State (1944, Ct Cl) 47 NYS2d 755.

Doctrine of comparative negligence will be applied in suit in state court for maritime tort unless recovery is sought under state statute which negatives such doctrine in particular action. Boles v Munson S.S. Line, Inc. (1932) 235 App Div 175, 256 NYS 709, revd without op on other grounds 260 NY 516, 184 NE 74; Lloyd v T. Hogan & Sons, Inc. (1927) 128 Misc 665, 219 NYS 750.

352. Seaman's duty and standard of conduct
In action under 46 USCS Appx § 688, determination of whether injured person has been guilty of contributory negligence is made by judging conduct of seaman against that of reasonably prudent person under circumstances. Mroz v Dravo Corp. (1970, CA3 Pa) 429 F2d 1156.

In action to recover for injuries under 46 USCS Appx § 688, distinction should be drawn between injuries which result from momentary lapse of conduct and injuries which result from breach of duty; seaman may not recover against shipowner for injuries occasioned by his own neglect of some independent duty arising out of employer-employee relationship; result turns upon shipowner's independent right to recover against seaman for non-performance of duty resulting in damage to shipowner, which in effect offsets seaman's right to recover against shipowner for failure to provide safe place to work. Reinhart v United States (1972, CA9 Cal) 457 F2d 151.

While seaman's duty to protect himself is slight, duty does exist; contributory negligence is available to mitigate vessel owner's liability when injured seaman has been negligent in breaching duty to act or refrain from acting; seaman generally has no duty to find safest way to perform his work, but where it is shown that there existed safe alternative available of which he knew or should have known, seaman's course of action can be properly considered in determining whether he was negligent. 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.

Seaman has duty to follow safe course of conduct of which he knows or should have known and that is readily available to avoid unsafe course. Fontenot v Teledyne Movible Offshore, Inc. (1983, CA5 La) 714 F2d 17.

Trial court erred in instructing jury, over proper objection, than seaman was required to use ordinary care for his own safety rather than slight care, which is proper standard. Brooks v Great Lakes Dredge-Dock Co. (1984, CA5 La) 754 F2d 536, on reh, mod on other grounds (CA5 La) 754 F2d 539.

Although seaman has duty to use reasonable care, seaman's duty to protect himself is slight, since duty is tempered by reality of maritime employment, and generally, seaman has no duty to find safest way to perform work, but rather, duty to provide for safe course of conduct lies primarily with vessel owner. Johnson v Offshore Express, Inc. (1988, CA5 La) 845 F2d 1347, cert den (US) 109 S Ct 497.

Seamen in Jones Act negligence cases are bound to standard of ordinary prudence in exercise of care for their own safety, not to lesser duty of slight care. Gautreaux v Scurlock Marine (1997, CA5 La) 107 F3d 331, 1997 AMC 1521.

Although seaman's duty to exercise reasonable care is slight, that duty is breached where seaman fails to use proper equipment when such equipment is available. Hicks v Crowley Maritime Corp. (1982, SD Tex) 538 F Supp 285, affd without op (CA5 Tex) 707 F2d 514 and affd without op (CA5 Tex) 707 F2d 514 and affd without op (CA5 Tex) 707 F2d 514.

353. --Considerations of age and experience
In action brought by seaman under 46 USCS Appx § 688, seaman's youth, unfamiliarity, and total lack of experience put heavier burden on ship and relieved seaman of possibility of contributory negligence. Stevens v Seacoast Co. (1969, CA5 Miss) 414 F2d 1032.

Under general maritime law and 46 USCS Appx § 688, doctrine of "comparative negligence" applies; whether danger was obvious from point of view of seaman, in light of comparative negligence issue, is to be determined with respect to seaman's age, experience, and training. Stark v American Dredging Co. (1946, DC Pa) 66 F Supp 296.

354. Employer's violation of safety rules
Vessel owner's alleged violation of safety rule found in owner's safety manual did not present legal bar to affirmative defense of contributory or comparative negligence to deckhand's claim under 46 USCS Appx § 688(a) for negligence that allegedly caused deckhand's knee injury when he stepped off hatch cover while scraping, sanding, and painting vessel's bottom. VanDeKreeke v USS Great Lakes Fleet, Inc. (2001, ED Mich) 172 F Supp 2d 907, 2001 AMC 2312.

Injury or death of seaman resulting from employer's violation of safety statute bars consideration of contributory negligence in action under 46 USCS Appx § 688. Rodriguez v B-R Dredging Co. (1977, Tex Civ App Corpus Christi) 552 SW2d 601, revd on other grounds (Tex) 564 SW2d 693.

Seaman's damages, predicated on determination that violation of Corps of Engineers Safety Manual was equivalent to violation of statute, should be reduced by percentage of seaman's contributory negligence where provision was not elevated to status of statute. B-R Dredging Co. v Rodriguez (1978, Tex) 564 SW2d 693.

355. Performance of supervisory functions
Master of ship who contributes to his own injury by reason of breach of supervisory duties owed to his employer, may not recover damages. Walker v Lykes Bros. S.S. Co. (1952, CA2 NY) 193 F2d 772.

Failure of plaintiff to duly perform supervisory responsibilities as master is but species of contributory fault which only diminishes damages. Boat Dagny, Inc. v Todd (1955, CA1 Mass) 224 F2d 208.

Chief mate injured while in process of carrying out responsibility for safe working conditions will not be barred in his action for injuries sustained in area on ship he had ordered cleaned up. Stanworth v American Stern Trawlers, Inc. (1975, CA9 Wash) 523 F2d 46.

356. Obedience to orders
That stevedore went to work in place of danger in obedience to orders of superior officer would not, of itself, relieve him from fault in being there. B. A. Carroll Stevedore Co. v Makinda (1927, CA1 Mass) 20 F2d 19.

Seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes possible danger. Williams v Brasea, Inc. (1974, CA5 Tex) 497 F2d 67, mod on other grounds and reh den (CA5 Tex) 513 F2d 301, cert den 423 US 906, 46 L Ed 2d 136, 96 S Ct 207 and later app (CA5 Tex) 549 F2d 977.

Where master of vessel had absolute authority on whether linoleum floors would be waxed or not and chambermaid failed to carry out master's orders not to wax floors and master subsequently was injured by slipping on waxed floor, owner of vessel is not liable for injuries under 46 USCS Appx § 688. Elliott v Jones & Laughlin Steel Corp. (1957, DC Pa) 166 F Supp 731, affd (CA3 Pa) 259 F2d 959.

Actions of seaman in following orders of captain will not constitute contributory negligence. Pedersen v Diesel Tankers, Ira S. Bushey, Inc. (1967, SD NY) 280 F Supp 421.

357. Failure to protest, report, or remedy dangerous condition
Maritime worker who continues to work under conditions known to be dangerous may be contributorily negligent. Du Bose v Matson Navigation Co. (1968, CA9 Cal) 403 F2d 875.

In action under 46 USCS Appx § 688 to recover for injuries, seaman cannot be held contributorily negligent for failure to protest conditions, where danger was not evident to him and there was no basis for considering him imprudent in his course of conduct which was at direction of superiors. White v Rimrock Tidelands, Inc. (1969, CA5 La) 414 F2d 1336, 13 FR Serv 2d 1082.

Seaman who has possibility of securing relief by informing his supervisors of unsafe condition but continues to work without doing so may be contributorily negligent. Mroz v Dravo Corp. (1970, CA3 Pa) 429 F2d 1156.

Although provisions barring assumption of risk as defense in cases of defective or hazardous conditions eliminate also question of contributory negligence where seaman had no alternative but to subject himself to dangerous conditions in his place of employment; where seaman has possibility of securing relief by informing his superiors of unsafe conditions but continues to work without doing so he may be found to be contributorily negligent. Mroz v Dravo Corp. (1970, CA3 Pa) 429 F2d 1156.

In action to recover under 46 USCS Appx § 688, seaman was not barred from recovery as being contributorily negligent when seaman who knew of dangerous condition was not required by independent duty arising out of employment relationship to remedy that condition. Noack v American S.S. Co. (1974, CA6 Ohio) 491 F2d 937.

Seaman seeking recovery under 46 USCS Appx § 688 was not contributorily negligent for failing to report condition already known to shipowner which had existed for more than 20 days. Scarberry v Ohio River Co. (1963, SD W Va) 217 F Supp 189.

If seaman does not have duty to remedy allegedly dangerous condition, his injury arising from such condition even if allegedly partially caused by his own negligence in not rectifying dangerous condition, will not be considered in seaman's suit for his injury. Petressen v American President Lines, Ltd. (1944, City Ct) 48 NYS2d 757 (city court); Carlson v Wheeler-Hallock Co. (1943) 171 Or 349, 137 P2d 1001; Beauchamp v Sause Bros. Ocean Towing Co. (1973) 267 Or 106, 514 P2d 1346.
Jones Act -> VI. Damages -> A. In General
445. Generally
In 46 USCS Appx § 688 actions, question of damages is for jury to decide. Garcia v Queen, Ltd. (1973, CA5 Fla) 487 F2d 625, 17 FR Serv 2d 1593.

Jury has exclusive obligation to compute damages and that computation need not conform to strict arithmetical calculations but may be in form of lump sum award. McDonald v Federal Barge Lines, Inc. (1974, CA5 La) 496 F2d 1376.

Doctrine of joint and several liability is crystallized in Jones Act, and court considers this in forming its decision not to adopt "modified joint liability" in general maritime law cases. Coats v Penrod Drilling Corp. (1995, CA5 Miss) 61 F3d 1113.

In action to recover damages under 46 USCS Appx § 688, judge may award damages without specifically detailing basis for arriving at figure; medical and funeral expenses would be in addition to general, undifferentiated award. Williamson v Western-Pacific Dredging Corp. (1969, DC Or) 304 F Supp 509, affd (CA9 Or) 441 F2d 65, cert den 404 US 851, 30 L Ed 2d 91, 92 S Ct 90.

In action brought under 46 USCS Appx § 688, assessment of damages is primarily question of fact for jury. Baldwin v Huffman Towing Co. (1977, 5th Dist) 51 Ill App 3d 861, 9 Ill Dec 469, 366 NE2d 980.

446. Relation to damages under general maritime law
In general maritime action for seaman's wrongful death due to negligence of employer under 46 Appx USCS § 688, damages are not available for loss of society or loss of future earnings because 46 Appx USCS § 762 explicitly limits damages to pecuniary loss. Miles v Apex Marine Corp. (1990, US) 112 L Ed 2d 275, 111 S Ct 317.

In action in admiralty against employer, injured seaman can allege and prove both negligence and unseaworthiness, amount of damages recoverable being limited to one or other where court finds that both negligence and unseaworthiness was proximate cause of injuries. Platt v Chesapeake & O. R. Co. (1948, DC Ohio) 82 F Supp 968.

Measure of damages under general maritime law is at least as broad, and perhaps good deal broader, than 46 USCS Appx § 688. Re Farrell Lines, Inc. (1971, ED La) 339 F Supp 91.

Seaman's right to maintenance and cure is implicit in contractual relationship between seaman and his employer, and is designed to insure recovery of those individuals upon injury or sickness sustained in service of ship; maintenance and cure are due without regard to negligence of employer or unseaworthiness of ship; where plaintiff has not reached maximum cure defendant must make continuous cure payments until such time as plaintiff reaches maximum cure and failure of defendant to continue cure payments being unreasonable, arbitrary and capricious, will result in plaintiff being entitled to compensatory damages and attorneys fees. Parker v Texaco, Inc. (1982, ED La) 549 F Supp 71.

Injured seaman's spouse may pursue claim for loss of consortium, service, and society in general maritime law negligence action against third parties, even though loss of consortium is not provided for under Jones Act (46 USCS Appx § 688) and injured plaintiff is Jones Act seaman, because claim is brought under general maritime law of negligence under which loss-of-consortium damages are recoverable. Rebstock v Sonat Offshore Drilling (1991, ED La) 764 F Supp 75.

Punitive damage claims filed by injured crew members and estates of 9 deceased crew members are stricken, even though general rule is that punitive damages are available under general maritime law, where injured seek recovery under 46 USCS Appx § 688 and seaworthiness doctrine and estates rely on 46 USCS Appx § § 688 and 762 and seaworthiness doctrine, because it would be inconsistent with court's place in constitutional scheme to sanction more expansive remedies in judicially-created general maritime cause of action than Congress allows under § § 688 and 762, which preclude recovery of punitive damages. Re Complaint of Aleutian Enterprise, Ltd. (1991, WD Wash) 777 F Supp 793.

Wife of deceased seaman may recover nonpecuniary damages in wrongful death action against defendant other than seaman's employer, because general maritime law allows cause of action for wrongful death of seaman, Jones Act does not cover action against defendant other than employer, and unavailability of nonpecuniary damages under Jones Act does not preclude recovery from nonemployer defendant. Sexton v American Steamship Co. (In re Cleveland Tankers) (1994, ED Mich) 843 F Supp 1157.

447. --Cumulative awards
Right to maintenance, cure and wages, arises out of nature of employment and is contractual obligation independent of right to indemnity or compensatory damages for injury caused by negligence; these two rights are consistent and cumulative. Pacific S.S. Co. v Peterson (1928) 278 US 130, 73 L Ed 220, 49 S Ct 75.

Seaman is under no necessity of tendering benefits given him by his employers in order to maintain action under 46 USCS Appx § 688. Guerrero v American-Hawaiian S.S. Co. (1955, CA9 Cal) 222 F2d 238, 1955 AMC 1035.

Although seaman is not required to elect between claim for maintenance and cure and claim for negligence under 46 USCS Appx § 688, where damages in each overlap, double compensation is not permissible. Bartholomew v Universe Tankships, Inc. (1960, CA2 NY) 279 F2d 911.

Seaman is entitled to appropriate award on causes of action under 46 USCS Appx § 688 and maintenance and cure under general maritime law as long as damage did not result in double recovery for same item. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 4 ALR3d 517.

In action to recover damages under 46 USCS Appx § 688 and under maintenance and cure, award for maintenance and cure is not necessarily cause for reduction of award for negligence; there is no basis for any modification of awards, as being duplicative, where awards were made based on different elements of potential areas for recovery. Petition of Oskar Tiedemann & Co. (1966, CA3 Del) 367 F2d 498, supp op (CA3 Del) 367 F2d 505, cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 953 and cert den 386 US 932, 17 L Ed 2d 805, 87 S Ct 957, reh den 386 US 1000, 18 L Ed 2d 354, 87 S Ct 1303.

Seaman in action for recovery of injuries under 46 USCS Appx § 688 and doctrine of unseaworthiness cannot have cumulative recoveries under each. Peymann v Perini Corp. (1974, CA1 Mass) 507 F2d 1318, 19 FR Serv 2d 604, cert den 421 US 914, 43 L Ed 2d 780, 95 S Ct 1572 and (disagreed with Joyce v Atlantic Richfield Co. (CA10 Colo) 651 F2d 676).

Injured seaman may not recover cumulative damages in action against shipowner for negligence under 46 USCS Appx § 688 and unseaworthiness under general maritime law; he has but one claim for damages founded on alternative causes of action. McCarty v Service Contracting, Inc. (1970, ED La) 317 F Supp 629.

Supplemental payments made by employer to injured seaman were for lost wages and thus were treated as setoff against damages seaman recovered in action under 46 USCS Appx § 688 in order to avoid double recovery, where employer presented unrefuted evidence that it paid $ 20,945.28 to seaman as supplemental payments for lost wages, rather than as maintenance, and although seaman contended that court could not determine that jury award included award for lost wages, court was entitled to construe jury award as if it fully compensated seaman for his loss of income. Ballard v River Fleets (1997, ED Mo) 974 F Supp 1274.

Right to maintenance, cure, and wages arises out of implied contractual obligation, and is separate and independent from right to receive compensatory damages in negligence or unseaworthiness action; seaman's right to bring action for damages, in addition to receiving maintenance and cure, does not entitle him to double recovery for any given element of damage, and amount paid under maintenance and cure obligation will ultimately be subtracted from total damage award. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.

448. Law governing
46 USCS Appx § 688 has no specific limitation on damages, but does incorporate by reference statute governing death of railway workers, 45 USCS § § 51 et seq.; because of this relationship, courts have uniformly interpreted damage recoveries under 46 USCS Appx § 688 as being similarly limited to pecuniary losses. Ivy v Security Barge Lines, Inc. (1978, CA5 Miss) 585 F2d 732, on reh (CA5 Miss) 606 F2d 524, cert den 446 US 956, 64 L Ed 2d 815, 100 S Ct 2927, reh den 448 US 912, 65 L Ed 2d 1173, 101 S Ct 27 and on remand (ND Miss) 89 FRD 322.

Federal law and jurisprudence govern substantive rights of seaman as to damages awardable under 46 USCS Appx § 688 and not those under state law relating to awards for personal injuries. Stevens v Patterson Menhaden Corp. (1966, La App 1st Cir) 191 So 2d 692, cert den 250 La 5, 193 So 2d 524.

449. Collateral source rule
Tortfeasor should not have benefit of payments to injured seaman which he did not make, and collateral source rule, resting upon Federal Employers' Liability Act, is applicable to computation of damages in litigation under 46 USCS Appx § 688 and recovery is not subject to diminution by payments of State Unemployment Disability fund into which employer did not contribute. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 4 ALR3d 517.

Social security and insurance benefits payable to widows and minor children surviving decedent, even though paid for in part by decedent's employer, do not represent partial payment of shipowners' liability for loss to families of decedent's earning capacity under 46 USCS Appx § 688. Petition of United States Steel Corp. (1970, CA6 Ohio) 436 F2d 1256, cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1649, reh den 403 US 940, 29 L Ed 2d 720, 91 S Ct 2247 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1660, reh den 403 US 924, 29 L Ed 2d 703, 91 S Ct 2227 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1665 and later app (CA6 Ohio) 479 F2d 489, cert den 414 US 859, 38 L Ed 2d 110, 94 S Ct 71 and (disapproved on other grounds Sea-Land Services, Inc. v Gaudet 414 US 573, 39 L Ed 2d 9, 94 S Ct 806, reh den 415 US 986, 39 L Ed 2d 883, 94 S Ct 1582 and (not followed Alfone v Sarno, 87 NJ 99, 432 A2d 857, 26 ALR4th 1237)).

In action under 46 USCS Appx § 688, payments provided under Social Security Act cannot be considered in ascertaining pecuniary loss to widow and children, and cannot be deducted from award. Gardner v National Bulk Carriers, Inc. (1963, ED Va) 221 F Supp 243, affd (CA4 Va) 333 F2d 676.

Vessel owner may set off benefits already paid to injured seaman against damages it may be required to pay for maintenance and care, pecuniary loss of wages and medical-hospital care under 46 USCS Appx § 688, even though owner's insurer actually paid benefits and has not been made party, because to allow seaman to recover his medical expenses and lost wages for same period he received workers' compensation would be to sanction double recovery. Miron v All-Alaskan Seafoods, Inc. (1988, WD Wash) 705 F Supp 518, 1988 AMC 2644.

Evidence of pension, retirement and social security benefits is not admissible even for limited purpose of demonstrating plaintiff's motive to retire in view of federal policy precluding admission of collateral benefits in Jones Act and FELA cases. Brumley v Federal Barge Lines, Inc. (1979, 5th Dist) 78 Ill App 3d 799, 33 Ill Dec 609, 396 NE2d 1333.

450. Limitation of damages agreements
Agreement between seaman and shipowner by which maximum monetary recovery for injuries was stipulated in contract of employment may be unenforceable for want of sufficient consideration where in return for absolute right to recover negligible damages, seaman surrendered substantial right to recover full indemnity for any loss or damage suffered in consequence of unseaworthiness of ship; whenever stipulation is found in shipping articles which limits rights and privileges of seaman, courts of admiralty hold them void unless two things concurred: (1) that nature and operation of clause was fully and fairly explained to seaman; and (2) that additional compensation was allowed, entirely adequate to new restrictions and risks imposed upon them thereby. Blanco v Phoenix Compania De Navegacion, S. A. (1962, CA4 Va) 304 F2d 13, 9 ALR3d 410.

451. Attorney's fees and costs
Where evidence fails to show that shipowner has exhibited callousness and indifference to seaman's plight in denying liability for maintenance and cure, award of attorney's fees cannot stand. Morales v Garijak, Inc. (1987, CA5 Tex) 829 F2d 1355.

In Jones Act case, District Court did not abuse its discretion when it imposed attorney fees against plaintiff's attorney where attorney either refused to comply with or completely ignored court's orders regarding discovery. O'Neill v AGWI Lines (1996, CA5 Tex) 74 F3d 93, 1996 AMC 929.

Where, in addition to claims for maintenance and damages for failure to pay maintenance, libellant alleged and sought to prove that his active tuberculosis was caused by conditions aboard vessel, such latter claim was entirely separate, and plaintiff was not entitled to attorney's fees based on such separate claim as part of damages on former claims. Vaughan v Atkinson (1962, ED Va) 206 F Supp 575.

In personal injury action tried under 46 USCS Appx § 688 for negligence and general maritime law for unseaworthiness, sanction power vested in court by 28 USCS § 1331 to impose costs survived because unseaworthiness claim under general maritime law was pendent to claim under 46 USCS Appx § 688, even though not arising under Constitution, laws or treaties of United States; where plaintiff's verdict in 46 USCS Appx § 688 case was less than jurisdictional amount, court reduced plaintiff's judgment in amount of defendant's costs. McCord v Moore-McCormack Lines, Inc. (1965, SD NY) 242 F Supp 493, 1965 AMC 1837.

In action brought under 46 USCS Appx § 688, sum determined to be reasonable attorney's fee is within discretion of trial court; in case in which wards of court are involved, court has both power and duty to determine attorney's fees irrespective of any fee arrangement, contingent or otherwise, entered into between plaintiffs and their attorneys; local rule requiring court approval of attorney's fees for "incompetent person," does not embrace such fees attributable to seamen and their families per se; in determining reasonableness of attorneys' fees, court should consider attorneys' time, duplication of services and contingent nature of success. Donnarumma v Barracuda Tanker Corp. (1978, CD Cal) 79 FRD 455.

Injured worker is not entitled to payment of additional attorney's fees under New York Work Comp Law § 29(l), where worker was injured on boat leased by employer, worker filed for and received workers' compensation, but also filed Jones Act claim, 46 USCS Appx § 688, against employer, employer and insurance company settled worker's claim, and worker sought waiver of insurance company's lien on previously paid compensation benefits, because Work Comp Law § 29(l) only applies to actions by worker against third party, not to actions by worker against employer, and worker is not entitled to additional attorneys' fees under statute. Turner v Niagara Frontier Transp. Auth. (1994, WD NY) 843 F Supp 847.

452. --Failure to pay maintenance and cure
Seaman was entitled to damages in amount of counsel fees incurred in bringing his action for maintenance and cure against shipowner who wilfully defaulted in its obligation to pay maintenance and cure. Vaughan v Atkinson (1962) 369 US 527, 8 L Ed 2d 88, 82 S Ct 997, 1962 AMC 1131, reh den 370 US 965, 8 L Ed 2d 834, 82 S Ct 1578 and on remand (ED Va) 206 F Supp 575.

Puerto Rican obstinacy rule for award of attorneys' fees has no application to action which is not based on diversity of citizenship. Stephenson v Star-Kist Caribe, Inc. (1979, CA1 Puerto Rico) 598 F2d 676.

While determination of amount of attorney's fees may be similar to costs, or collateral to main dispute in case in some situations, in action for arbitrary and willful failure to pay maintenance and cure, such determination is not collateral to main issues of case but issue relating to substantive component of case. Holmes v J. Ray McDermott & Co. (1982, CA5 La) 682 F2d 1143, 34 FR Serv 2d 985, cert den 459 US 1107, 74 L Ed 2d 956, 103 S Ct 732, later app (CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682 and (disagreed with International Asso. of Bridge, etc. Local Union 75 v Madison Industries, Inc. (CA9 Ariz) 733 F2d 656, 116 BNA LRRM 2422, 101 CCH LC P 11041, 39 FR Serv 2d 368 (disagreed with C.I.T. Corp. v Nelson (CA11 Ala) 743 F2d 774 (disagreed with Morgan v Union Metal Mfg. (CA6 Ohio) 757 F2d 792, 37 BNA FEP Cas 625, 36 CCH EPD P 35090, 1 FR Serv 3d 310 (disagreed with my multiple cases as stated in Crossman v Maccoccio (CA1 RI) 792 F2d 1)) and (disagreed with Exchange Nat. Bank v Daniels (CA7 Ill) 763 F2d 286, reh gr, in part, reh den, in part (CA7 Ill) 768 F2d 140))).

453. Punitive damages
In action brought under 46 USCS Appx § 688, punitive damages may be recovered against owner of vessel where it can be shown that owner authorized or ratified reckless acts of master either before or after their occurrence, or if acts complained of were those of unfit master and owner was reckless in employing him. United States Steel Corp. v Fuhrman (1969, CA6) 407 F2d 1143, 13 FR Serv 2d 1151, 10 ALR Fed 500, cert den 398 US 958, 26 L Ed 2d 542, 90 S Ct 2162 and cert den 398 US 958, 26 L Ed 2d 542, 90 S Ct 2163 and later app (CA6 Ohio) 436 F2d 1256, cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1649, reh den 403 US 940, 29 L Ed 2d 720, 91 S Ct 2247 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1660, reh den 403 US 924, 29 L Ed 2d 703, 91 S Ct 2227 and cert den 402 US 987, 29 L Ed 2d 153, 91 S Ct 1665 and later app (CA6 Ohio) 479 F2d 489, cert den 414 US 859, 38 L Ed 2d 110, 94 S Ct 71 and (disapproved on other grounds Sea-Land Services, Inc. v Gaudet 414 US 573, 39 L Ed 2d 9, 94 S Ct 806, reh den 415 US 986, 39 L Ed 2d 883, 94 S Ct 1582 and (not followed Alfone v Sarno, 87 NJ 99, 432 A2d 857, 26 ALR4th 1237)).

Where action under DOHSA is joined with Jones Act action, neither statutory scheme may be supplemented by general maritime law or by state law and therefore punitive damages cannot supplement awards for pain and suffering of crew members prior to death. Bergen v F/V St. Patrick (1987, CA9 Alaska) 816 F2d 1345.

Damages recoverable under 46 USCS Appx § 688, are limited to pecuniary loss, but administratrix of decedent's estate was entitled to recover punitive damages under state Wrongful Death Act. McDonald v The 204 (1961, SD Ala) 194 F Supp 383.

In action brought under 46 USCS Appx § 688, claimant was permitted to amend complaint to include demand for punitive damages, since such amendment was not frivolous on its face. Gunnip v Warner Co. (1968, ED Pa) 43 FRD 365, 12 FR Serv 2d 176.

Punitive damages claims in class action asbestosis litigation are dismissed, where plaintiffs seek damages under 46 USCS Appx § 688, because, due to its reference to "railway employees," § 688 consistently has been construed as incorporating rights and remedies of FELA (45 USCS § § 51 et seq.) and it has long been held that punitive damages are not available under FELA. Re Mardoc Asbestos Case Clusters 1, 2, 5, & 6 (1991, ED Mich) 768 F Supp 595, 1991 AMC 1610.

Injured crewmembers may not recover punitive damages based upon general maritime law against shipowner, where crewmembers claimed that owner acted willfully and wantonly in failing to maintain seaworthy vessel, because punitive damages are not available under 46 USCS Appx § 688 and where Congress has legislated in area of maritime law, case-law created remedies must be uniform with such legislation. Re Petition of Cleveland Tankers, Inc. (1992, ED Mich) 791 F Supp 679.

Injured seaman may not recover punitive damages under general maritime law in personal injury action, where Jones Act (46 USCS Appx § 688) specifically applies, since Jones Act limits recoverable damages to pecuniary loss. Jackson v Unisea, Inc. (1992, DC Alaska) 824 F Supp 895.

Claim of seaman against vessel owner and employer, seeking to recover for injuries allegedly received while aboard vessel, is denied summarily, where seaman sought punitive damages under Jones Act on account of unseaworthiness of vessel, because nonpecuniary damages such as punitive damages are not recoverable under Jones Act. Bell v Zapata Haynie, Corp. (1994, WD La) 855 F Supp 152.

Seaman who was statutorily barred from receiving punitive damage award under 46 USCS Appx § 688 could not recover punitive damages against nonemployers in personal injury action alleging negligence and unseaworthiness under general maritime law, absent evidence of wrongdoing. Saudi v S/T Marine Atl. (2000, SD Tex) 159 F Supp 2d 483, 2001 AMC 1289, motion to strike gr, in part (2000, SD Tex) 2000 US Dist LEXIS 20864.

In action under Jones Act (46 USCS Appx § 688), plaintiff is entitled to present issue of punitive damages to jury. Baptiste v Superior Court of Los Angeles County (1980, 2d Dist) 106 Cal App 3d 87, 164 Cal Rptr 789, cert den 449 US 1124, 67 L Ed 2d 110, 101 S Ct 940.

454. --For inadequate maintenance and cure
In action under 46 USCS Appx § 688 by seaman who suffered back injury, finding that employer willfully and arbitrarily refused to pay maintenance and cure justifies special punitive damages award of $ 11,550; there is no merit to defendant's contention that amount of award is excessive because of plaintiff's failure to show that defendant's conduct aggravated his injuries. Holmes v J. Ray McDermott & Co. (1984, CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682.

Punitive damages awards must be grounded on egregious shipowner conduct exhibiting wanton and intentional disregard of seaman's rights, and district court errs in allowing jury to impose punitive damages merely because shipowner pays maintenance rate jury later finds to be inadequate. Harper v Zapata Off-Shore Co. (1984, CA5 La) 741 F2d 87.

In action by seaman against shipowner under 46 USCS Appx § 688 resulting from injuries sustained by seaman from fall occurring on defendant's vessel, jury did not err in awarding $ 100,000 punitive damage award for defendant's willful and capricious failure to provide maintenance and cure to seaman. Hodges v Keystone Shipping Co. (1983, SD Tex) 578 F Supp 620.

Jury properly found employer's failure to pay injured seaman maintenance and cure for over one year arbitrary and capricious and sufficient to justify punitive damages award under 46 USCS Appx § 688, where seaman chose to see doctor other than one chosen by employer, informed employer of that fact, yet received no further payments, because, while seaman's claim for cure may be subject to mitigation, it remains employer's burden to prove that seaman's doctor provided unnecessary treatment or charged unnecessary fees. Turner v Inland Tugs Co. (1988, ED La) 689 F Supp 612.

Summary judgment is granted to employer in injured seaman's action for exemplary damages under 46 USCS Appx § 688, because exemplary damages are not available in personal injury actions under § 688, and although exemplary damages may be available in a maintenance and cure action, which is based on contract rather than on statute, summary judgment is granted to employer because seaman admits that he received and continues to receive maintenance and cure payments, and has pleaded no facts entitling him to exemplary damages. Ortega v Oceantrawl, Inc. (1992, DC Alaska) 822 F Supp 621, 1993 AMC 902.

Vessel owner is denied summary dismissal of injured seaman's claim for attorney's fees and punitive damages, even though owner asserts reliance on doctor's representations that seaman had reached maximum medical improvement in electing to terminate maintenance and cure, because termination decision is almost always precipitated by diagnosis of some physician and that alone does not insure reasonableness of decision. Musielak v Rowan Int'l, Inc. (1993, SD Tex) 814 F Supp 556.

Seaman's claim against vessel owner and employer under 46 Appx USCS § 688, seeking punitive damages for injuries received as result of condition of defendant's unseaworthy vessel, is denied summarily, because concerns for uniformity dictate denial of punitive damages in maintenance and cure actions under Jones Act since such damages are disallowed in wrongful death actions under same Act and because by analogy to actions under Federal Employers' Liability Act in which punitive damages are not recoverable for nonfatal injuries, such damages should be denied. Boyd v Cinmar of Gloucester (1996, ED Va) 919 F Supp 208, 1996 AMC 1805.

455. Mitigation
Remarriage of widow neither bars nor mitigates her pecuniary loss recoverable under 46 USCS Appx § 688 due to wrongful death of husband. Petition of United States (1950, DC NY) 92 F Supp 495.

456. --Duty to seek medical treatment
It is duty of plaintiff in action under 46 USCS Appx § 688 to minimize his damages by submitting to reasonable treatment and test in each case is one of reasonableness to be determined by triers of fact. Ambrose v Norfolk Dredging Co. (1960, CA4 Va) 284 F2d 802.

When seaman was instructed by company doctor to seek private medical care, seaman's duty vis-a-vis his employer to seek free medical help was as matter of law indefinitely suspended, but when employer notified him of its intention to provide free medical care, seaman's duty to mitigate his damages by seeking public hospital facilities was reinstated. Sanford Bros. Boats, Inc. v Vidrine (1969, CA5 La) 412 F2d 958, 13 FR Serv 2d 1116.

457. --Seaman's own fault
Contributory negligence is not defense to suit brought under 46 USCS Appx § 688 but is ground only for apportionment of damage. Beadle v Spencer (1936) 298 US 124, 80 L Ed 1082, 56 S Ct 712.

Assumption of risk is not a complete defense in suit brought by seaman under 46 USCS Appx § 688; rule to be applied is that of comparative negligence which operates to reduce recoverable damages. Socony-Vacuum Oil Co. v Smith (1939) 305 US 424, 83 L Ed 265, 59 S Ct 262.

In seaman's personal injury action, all lost earnings and medical expenses are recoverable on negligence count, but under Jones Act (46 USCS Appx § 688) they are subject to reduction by jury if seaman has been contributorily negligent. Fitzgerald v United States Lines Co. (1963) 374 US 16, 10 L Ed 2d 720, 83 S Ct 1646, 7 FR Serv 2d 774, reh den 375 US 870, 11 L Ed 2d 99, 84 S Ct 26 and motion den 376 US 901, 11 L Ed 2d 604, 84 S Ct 655.

Under 46 USCS Appx § 688, contributory negligence is not bar to recovery, but is to be given due weight in arriving at damage recoverable by claimant. The J. H. Hillman (1939, CA3 Pa) 108 F2d 231; Reinhart v United States (1972, CA9 Cal) 457 F2d 151; Scott v Fluor Ocean Services, Inc. (1974, CA5 La) 501 F2d 983.

In action under 46 USCS Appx § 688, further modification of award was not justified since jury had been properly charged to make reduction in damages based on contributory negligence of plaintiff, and court in entering judgment reduced verdict by nearly one half. Herring v Luckenbach S.S. Co. (1943, CA2 NY) 137 F2d 598, 1943 AMC 1215.

Duty which law imposes upon injured person, regardless of any conscious assumption of duty towards wrongdoer is type of contributory negligence which reduces award under 46 USCS Appx § 688. Walker v Lykes Bros. S.S. Co. (1952, CA2 NY) 193 F2d 772.

In action brought under 46 USCS Appx § 688, damages awarded were reduced to reflect plaintiff's own negligence. Andrews v Chemical Carriers, Inc. (1972, CA3 Del) 457 F2d 636, cert den 409 US 874, 34 L Ed 2d 126, 93 S Ct 120.

District Court erred in molding verdict, in case brought by injured diver against her employer, to apply percentage of comparative negligence found by jury with respect to Jones Act claim to unseaworthiness claim where defendant waived issue and where court did not submit issue to jury and later made sua sponte determination. Neely v Club Med Management Servs. (1995, CA3 Pa) 63 F3d 166.

Federal Employers Liability Act, 45 USCS § 53, precludes reduction of damages on ground of comparative fault where vessel on which petitioner was injured was in unexcused violation of Coast Guard safety regulation. Fuszek v Royal King Fisheries (1996, CA9 Wash) 98 F3d 514, 96 CDOS 7787, 96 Daily Journal DAR 12893, 1997 AMC 92.

Amount of damage which seaman sustained which is recoverable under 46 USCS Appx § 688 must be reduced in proportion that his own fault contributed to happening of accident. Davis v Associated Pipe Line Contractors, Inc. (1968, WD La) 305 F Supp 1345, affd (CA5 La) 418 F2d 920, cert den 397 US 988, 25 L Ed 2d 396, 90 S Ct 1119.

If deceased seaman was guilty of negligence contributing to his death, such contributory negligence would not constitute absolute bar to decedent's next of kin in action under 46 USCS Appx § 688 but could only be considered in diminution of damages to which next of kin is entitled. Presley v Upper Mississippi Towing Corp. (1961, La App 1st Cir) 141 So 2d 411.

46 USCS Appx § 688 and accompanying 45 USCS § § 51 et seq. contain no provision as to apportionment equivalent to that in 46 USCS Appx § § 761-767. Re Nelson (1938) 168 Misc 161, 5 NYS2d 398, 1938 AMC 1068.

458. ----Particular circumstances
If injuries sustained by seaman were caused solely by reason of seaman's intoxication and not because of any fault of shipowner, then recovery under 46 USCS Appx § 688 would be denied; however, where intoxication is merely contributing cause of injury sustained, then recovery will be allowed at reduced amount. Cruz v American Export Isbrandtsen Lines, Inc. (1970, SD NY) 310 F Supp 1364.

Damages will be diminished because of seaman's negligence where seaman was negligent when he attempted to repair hose which caused injury rather than returning immediately to base of operations upon discovery of such damage; although damaged hose caused vessel to be unseaworthy, damaged hose of itself did not cause injury where seaman's improper use of seaworthy equipment to repair damaged hose caused accident and consequently seaman may not recover for unseaworthiness under such circumstance. Landry v Oceanic Contractors, Inc. (1982, ED La) 548 F Supp 337, affd (CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.

In action by seaman for personal injuries incurred when he fired Lyle gun on board ship, accident was result of joint and concurrent negligence of plaintiff and defendant, and damages should be apportioned accordingly. Fegan v Lykes Bros. S. S. Co. (1941) 198 La 312, 3 So 2d 632, 1941 AMC 1154.

459. Apportionment of damages among defendants
Although original negligence of shipowner may be in law proximate cause of damages flowing from subsequent maltreatment by ophthalmologist at Public Health Service Facility, there is no reason why ultimate burden of damages should not be distributed between owner and government, with each made to bear portion caused by its own negligent conduct. Penn Tanker Co. v United States (1969, CA5 Tex) 409 F2d 514 on remand (SD Tex) 310 F Supp 613.

Joint and several loss allocating mechanism which serves to provide injured seaman his full judgment is consonant with policy behind Jones Act, to provide protection to seamen who are victims of negligence. Joia v Jo-Ja Service Corp. (1987, CA1 Mass) 817 F2d 908.

Where shipowner and riparian landowners were independently at fault for seaman's injuries caused by ignition of oil floating on river by lighted lantern, but were in fact and in legal contemplation total strangers to each other, there is no relational basis and no legal justification for imposing indemnitor's liability on riparian landowners after shipowner had paid damages for injuries in action under 46 USCS Appx § 688. American Dredging Co. v Gulf Oil Corp. (1959, DC Pa) 175 F Supp 882, affd (CA3 Pa) 282 F2d 73, cert den 364 US 942, 5 L Ed 2d 373, 81 S Ct 460, reh den 365 US 838, 5 L Ed 2d 748, 81 S Ct 746.

In action by seaman to recover under 46 USCS Appx § 688, ultimate burden of damages is to be distributed between guilty parties, with each made to bear that portion of damages caused by its own negligent conduct. Penn Tanker Co. v United States (1970, SD Tex) 310 F Supp 613.

Joinder of Jones Act (46 USCS Appx § 688) claim with product liability claim does not affect application of proportionate fault doctrine except where otherwise insignificant comparative negligence of plaintiff would reduce recovery. Bass v Phoenix Seadrill/78, Ltd. (1983, ED Tex) 562 F Supp 790, amd on other grounds (ED Tex) 573 F Supp 866 and affd in part and revd in part on other grounds (CA5 Tex) 749 F2d 1154.

In injured seaman's action under Jones Act and general principles of maritime law against vessel owner, right of contribution which owner might otherwise have against hospital which treated seaman for portion of recovery against owner not attributable to owner's conduct is barred by seaman's prior settlement of state court malpractice action against hospital by virtue of New York statute providing, with respect to contribution in multi-defendant action when some but not all of jointly liable defendants settle, that settling defendant is relieved of liability for contribution to codefendants and that plaintiff gives up right to recover from codefendants for portion of award attributable to settling defendant's actions. Soto v United States Lines, Inc. (1985, SD NY) 608 F Supp 904.

Jones Act plaintiff who releases one joint tortfeasor but has viable claim against second joint tortfeasor may recover that portion of total damages proportionate to fault of second joint tortfeasor. Complaint of Chevron Transport Corp. (1985, MD Fla) 613 F Supp 1428.

460. Indemnification
In federal maritime case brought under 46 USCS Appx § 688, indemnity shall be permitted by tortfeasor, claiming to be only passively or secondarily liable against joint tortfeasor guilty of active or affirmative negligence even where no contractual relationship exists between parties and rule prohibiting contribution between joint tortfeasors is not bar to indemnification. Tri-State Oil Tool Industries, Inc. v Delta Marine Drilling Co. (1969, CA5 La) 410 F2d 178 (disagreed with Loose v Offshore Navigation, Inc. (CA5 La) 670 F2d 493, 68 ALR Fed 318) as stated in Cities Service Co. v Lee-Vac, Ltd. (CA5 La) 761 F2d 238, CCH Prod Liab Rep P 10526.

In action brought under 46 USCS Appx § 688, vessel owner who was only passively negligent was entitled to total indemnity from actively negligent party, and attorneys' fees would be included in funds to which shipowner would be entitled to as indemnification; actively negligent tortfeasor who was operating vessel would be entitled to reimbursement for attorneys fees where insurance policy existed, and insurance company did not provide counsel when notified of action. Kelloch v S & H Subwater Salvage, Inc. (1973, CA5 La) 473 F2d 767, on remand (ED La) 397 F Supp 738, later op (ED La) 397 F Supp 742.

Vessel owner was not entitled to indemnification from other negligent parties in action brought by seaman under 46 USCS Appx § 688 where conduct on which his liability is based was not sufficiently different in kind or degree to be distinguished from conduct of other tortfeasors, and all were guilty of active misconduct. Re Dearborn Marine Service, Inc. (1974, CA5 Tex) 499 F2d 263, 30 ALR Fed 499, reh den (CA5 Tex) 512 F2d 1061 and cert dismd 423 US 886, 46 L Ed 2d 118, 96 S Ct 163.

Shipowner was entitled to indemnity from wharfinger where breach of warranty of workmanlike performance by wharfinger resulted in loss; shipowner's negligence did not preclude indemnification where negligence did not prevent or hamper wharfinger's performance of its duty in accordance with its warranty of workmanlike service. Oglebay Norton Co. v CSX Corp. (1986, CA6 Ohio) 788 F2d 361.

Shipowner-employer is not entitled to indemnity or contribution from employee for Jones Act (46 USCS Appx § 688) damages paid to other employee where Act was enacted only to create negligence cause of action against vessel owners since to permit owner to sue employee for indemnification would be contrary to Act's history and its purpose of enlarging remedies available to seamen. California Home Brands, Inc. v Ferreira (1989, CA9 Cal) 871 F2d 830.

District Court's denial of contribution and indemnity claim against seaman's employer, brought by vessel against which seaman won damages, was not merely authorized but required by jury's verdict assigning 100 percent negligence against vessel and none against employer. Larue v Joann M. (1996, CA11 Fla) 73 F3d 325, 9 FLW Fed C 772, mod (1996, CA11 Fla) 9 FLW Fed C 948.

In order to obtain contribution or indemnity in action brought under 46 USCS Appx § 688 one defendant must first prove that other defendant was negligent and that its negligence was cause of seaman's injury; degree to which first defendant itself was negligent determines its right to contribution or indemnity, if first defendant was only secondarily or constructively negligent it may recover indemnity and if it was primarily negligent contribution is appropriate recovery. Spualding v Parry Navigation Co. (1950, DC NY) 90 F Supp 567, revd on other grounds (CA2 NY) 187 F2d 257, cert den 342 US 918, 96 L Ed 686, 72 S Ct 362.

Shipowner can seek indemnity or contribution from third party liable over for breach of warranty where shipowner has paid to settle personal injury action brought by seaman employee under 46 USCS Appx § 688, provided that seaman was injured on shipowner's vessel, shipowner was potentially liable to seaman and amount paid in settlement was reasonable. Western Tankers Corp. v United States (1975, SD NY) 387 F Supp 487.

Charterer is not entitled to indemnity from operator of vessel where charterer contributed to fault of injury. Landry v Oceanic Contractors, Inc. (1982, ED La) 548 F Supp 337 affd (CA5 La) 731 F2d 299, reh den, en banc (CA5 La) 746 F2d 812 and reh den, en banc (CA5 La) 746 F2d 812.

Indemnity by employer is not warranted where contributory negligence of employee would have prevented recovery against third party. Gauthier v Crosby Marine Service, Inc. (1983, ED La) 576 F Supp 681.

Ambiguity in employer's liability insurance policy, consisting of conflict between alternate employer endorsement and definition of "insured" that did not include "alternate employer," created genuine issue of material fact as to policy's coverage of vessel owner in connection with on-board injury to employee, precluding summary judgment on vessel owner's indemnity claim against insurer in connection with employee's suit against employer and vessel owner under 46 USCS Appx § 688. Foster v Subsea Int'l (1998, ED La) 101 F Supp 2d 454.

Barge line which entered into court-sanctioned settlement with its injured employee in action under 46 USCS Appx § 688 to compensate him for injury suffered in accident brought about solely because of negligence of another may recover indemnity from other for sums paid and expenses incurred in settlement; right to indemnity arises without any contractual relationship between parties, where one of parties is guilty of active or affirmative negligence, while other is without actual fault but may be vicarious liable because of technical or passive negligence. Wisconsin Barge Line, Inc. v The Barge Chem 301 (1975, MD La) 390 F Supp 1388, revd on other grounds (CA5 La) 546 F2d 1125, reh den (CA5 La) 550 F2d 41 and reh den (CA5 La) 550 F2d 42.

461. --Between shipowner and stevedoring company
Shipowner who settled claim with employee of stevedoring company injured during course of unloading operations, was not volunteer in this settlement because he was at least potentially liable to claims brought by stevedore and was entitled to indemnity from stevedoring company pursuant to provisions of charter. Ace Tractor & Equipment Co. v Olympic S.S. Co. (1955, CA9 Cal) 227 F2d 274.

Shipowner was entitled to indemnification from stevedoring company following reasonable settlement between shipowner and injured stevedore based upon pre-existing contract between shipowner and stevedoring company. West Coast Terminals Co. v Luckenbach S.S. Co. (1965, CA9 Cal) 349 F2d 568.

Shipowner may recover as indemnity from stevedoring contractor those damages which shipowner has been required to pay longshoremen employed by stevedore for injuries suffered aboard ship, even in absence of expressed agreement of indemnity, since essence of stevedoring contract is stevedore's warranty of workmanlike service; this rule has been extended to include indemnity actions by shipowners against other suppliers of services to ships such as ship repair contractors, and against shipyards; shipowner will not be entitled to indemnity for expenses of defense in the absence of showing breach of duty, either in tort or in contract, by wharfinger. Sims v Chesapeake & O. R. Co. (1975, CA6 Mich) 520 F2d 556.

462. Interest
Judgment on action brought under 46 USCS Appx § 688 should not include interest on verdict from date of death, as neither 46 USCS Appx § 688 nor 45 USCS § § 51 et seq. permit awarding of interest before damages are judicially ascertained. Cortes v Baltimore Insular Line, Inc. (1933, CA2 NY) 66 F2d 526.

Discretionary allowance of interest on award for claim based under 46 USCS Appx § 688, from date of death to date of judgment was not clear error, especially in view of judge's computation of present value of award as of date of judgment. Gardner v National Bulk Carriers, Inc. (1964, CA4 Va) 333 F2d 676.

Unlike collision cases and wrongful death cases, where loss, although unliquidated, occurs at one time and is measurable at that one time, case in which damages awarded by jury included substantial compensation for future pain and suffering and future loss of earnings is not appropriate case for awarding of pre-judgment interest. Barrios v Louisiana Constr. Materials Co. (1972, CA5 La) 465 F2d 1157.

It was within trial court's discretion to award prejudgment interest to plaintiff suing under 46 USCS Appx § 688. Brown v Aggie & Millie, Inc. (1973, CA5 La) 485 F2d 1293.

Shipowner entitled to indemnity from wharfinger in connection with wrongful death of seaman was entitled to prejudgment interest from date that shipowner settled wrongful death claim. Oglebay Norton Co. v CSX Corp. (1986, CA6 Ohio) 788 F2d 361.

District Court erred by awarding prejudgment interest on damages for future pain and suffering, contrary to federal rule prohibiting prejudgment interest on postjudgment losses; however, District Court did not abuse its discretion in awarding prejudgment interest on damages for losses that occurred prior to trial. Pickle v International Oilfield Divers, Inc. (1986, CA5 La) 791 F2d 1237.

Award of prejudgment interest to worker who recovered under 46 USCS Appx § 688 was within discretion of District Court with respect to past damages, but was not permissible with respect to future damages, and, on remand, District Court was to divide judgment into past and future damages and reduce award of prejudgment interest accordingly. Martin v Walk, Haydel & Associates, Inc. (1986, CA5 La) 794 F2d 209.

Where there are no exceptional or extraordinary circumstances which militate against award of prejudgment interest on maritime claim, plaintiff is entitled to have interest included in his recovery. Magee v United States Lines, Inc. (1992, CA2 NY) 976 F2d 821.

In fixing award for pecuniary damages recoverable due to seaman's being lost at sea, plaintiff was not entitled to prejudgment interest. Bednar v United States Lines, Inc. (1973, ND Ohio) 360 F Supp 1313.

Prejudgment interest may not be awarded in action under 46 USCS Appx § 688 which was tried to jury; proper case for awarding pre-judgment interest is one in which there were elements of inordinate delay, or most of damages were sustained prior to judgment. Barton v Zapata Offshore Co. (1975, ED La) 397 F Supp 778.

Only jury may award prejudgment interest to verdict on claims exclusively within province of jury. Parisi v Lady in Blue, Inc. (1977, DC Mass) 433 F Supp 681.

Award under Jones Act to injured seaman consisting of single sum of $ 175,000 for general damages including both past and future harm is amended to $ 125,000 for past harm and $ 50,000 for future harm to avoid Ninth Circuit prohibition on awards of prejudgment interest for postjudgment harm. Ward v American Hawaii Cruises, Inc. (1988, DC Hawaii) 719 F Supp 915, reconsideration den (DC Hawaii) 1989 AMC 930.

Award of prejudgment interest is appropriate at rate of 4.9 percent on seaman's past damages, even though recovery of prejudgment interest is normally not allowed in Jones Act (46 USCS Appx § 688) action at law, because same rule does not apply to Jones Act cases brought under court's admiralty jurisdiction, tried without jury. Bush v Diamond Offshore Co. (1999, ED La) 46 F Supp 2d 515.

Award of prejudgment interest is rule rather than exception under maritime law, and, in practice, well-nigh automatic, and rule applies equally to claims brought under 46 USCS Appx § 688. Motts v M/V Green Wave (1999, SD Tex) 50 F Supp 2d 634.

Injured electrician is awarded 6 percent prejudgment interest on all damages accrued from date of loss through entry of judgment, where no peculiar circumstances would make such award inequitable, because equitable rate of prejudgment interest is usually awarded Jones Act (46 USCS Appx § 688) plaintiff in Fifth Circuit to ensure injured seaman is compensated for use of funds to which he is entitled. Laffitte v Maersk Line, Ltd. (2000, SD Tex) 98 F Supp 2d 793.

In 46 USCS Appx § 688 cases there is no prejudgment interest. 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.

Federal jurisprudence disallowing prejudgment interest on claims under Jones Act (46 USCS Appx § 688) is substantive and therefore controlling on action brought in state court. Morris v Transworld Drilling Co. (1978, La App) 365 So 2d 46.

Allowance of interest on judgments in actions under Jones Act (46 USCS Appx § 688) is matter of federal substantive law; prejudgment interest, although authorized under state statute, was properly denied. Shemman v American S.S. Co. (1979) 89 Mich App 656, 280 NW2d 852.

463. --Where joined with general maritime action
46 USCS Appx § 688, and FELA (45 USCS § § 51 et seq.) does not provide for interest before damages are determined; in admiralty, allowance of interest is discretionary with court. Sabine Towing Co. v Brennan (1936, CA5 Tex) 85 F2d 478, cert den 299 US 599, 81 L Ed 441, 57 S Ct 191, reh den 299 US 624, 81 L Ed 459, 57 S Ct 234.

Prejudgment interest is available in 46 USCS Appx § 688 action tried in admiralty, and allowance of interest rests with trial court's sound discretion. Williamson v Western Pacific Dredging Corp. (1971, CA9 Or) 441 F2d 65, cert den 404 US 851, 30 L Ed 2d 91, 92 S Ct 90.

Pre-judgment interest may not be awarded in action under 46 USCS Appx § 688 at law; pre-judgment interest may be awarded in 46 USCS Appx § 688 action in admiralty, subject to usual admiralty rule of discretion. Doucet v Wheless Drilling Co. (1972, CA5 La) 467 F2d 336, 16 FR Serv 2d 971.

In action under 46 USCS Appx § 688, federal admiralty rule under which award of pre-judgment interest would rest within discretion of trial of facts should be employed; awarding of pre-judgment interest is for jury, and trial court's award of pre-judgment interest violated province of jury and therefore may not stand. Robinson v Pocahontas, Inc. (1973, CA1 Mass) 477 F2d 1048 (disagreed with Incandela v American Dredging Co. (CA2 NY) 659 F2d 11) and (disagreed with Kraljic v Berman Enterprises, Inc. (CA2 NY) 575 F2d 412 (disagreed with Holmes v J. Ray McDermott & Co. (CA5 La) 734 F2d 1110, 15 Fed Rules Evid Serv 1682) as stated in Harper v Zapata Off-Shore Co. (CA5 La) 741 F2d 87) as stated in Thyssen, Inc. v S.S. Fortune Star (CA2 NY) 777 F2d 57.

In admiralty case, warrant of prejudgment interest is committed to sound discretion of trial court and, in fact, generally in maritime law, prejudgment interests should be awarded. Curry v Fluor Drilling Services, Inc. (1983, CA5 La) 715 F2d 893.

Where plaintiff seeks recovery under Jones Act and general maritime law for injuries sustained in single accident, trial court may exercise discretion to award prejudgment interest only when pure admiralty item of damage, such as damages caused by unseaworthiness, can be isolated and identified in verdict. Domangue v Penrod Drilling Co. (1984, CA5 La) 748 F2d 999.

When Jones Act (46 USCS Appx § 688) claim is brought under court's admiralty jurisdiction, and case is tried to court and not to jury, allowance of prejudgment interest is within discretion of trial court even if there is no finding of unseaworthiness. Williams v Reading & Bates Drilling Co. (1985, CA5 La) 750 F2d 487.

Seaman bringing unseaworthiness and Jones Act claims is not entitled to prejudgment interest unless jury apportions damages between such claims. McPhillamy v Brown & Root, Inc. (1987, CA5 La) 810 F2d 529.

Plaintiff, who recovered on claims brought under 46 USCS Appx § 688 for general unseaworthiness, and for maintenance and cure, was entitled to interest on jury verdict from date of judgment at rate allowed by state law of forum; only jury may award prejudgment interest to verdict on claims exclusively within province of jury. Parisi v Lady in Blue, Inc. (1977, DC Mass) 433 F Supp 681.

Prejudgment interest could not be awarded where Jones Act negligence and unseaworthiness claims were brought against owner of rig in whose service seaman was working at time of his injury but where jury did not find that rig was unseaworthy. Baum v Transworld Drilling Co. (1985, WD La) 612 F Supp 1555.

464. --Post judgment interest
Interest runs from date of judgment on second verdict where new trial granted on issue of damages since no judgment was ever entered on first verdict. Reinertsen v George W. Rogers Constr. Corp. (1975, SD NY) 403 F Supp 1263.

465. Additur and remittitur
In action under 46 USCS Appx § 688, award made by trial court was increased by appellate court where injuries turned out to be much more serious than initially thought. Stuart v Alcoa S.S. Co. (1944, CA2 NY) 143 F2d 178.

Duty of appellate court in reviewing damage award after remittitur was to examine record to determine whether award exceeded maximum amount that trier of fact could have properly awarded. Knight v Texaco, Inc. (1986, CA5 La) 786 F2d 1296.

Jones Act jury verdict awarding $ 855,000 total damages, of which $ 425,000 was attributed to lost earnings, is excessive and new trial is granted unless plaintiff agrees to remittitur to $ 525,000, where 62-year-old tugboat deck hand, possibly on verge of retirement, injured right elbow in one accident and then ankle and elbow in accident 4 months later, because Jones Act claimant is entitled only to full compensation for, inter alia, pain, suffering, and unexaggerated estimate of lost wages. Earl v Bouchard Transp. Co. (1990, ED NY) 735 F Supp 1167.

State Supreme Court cannot reduce amount of jury's verdict, as such authority would be substantive, not merely procedural and would be contrary to intent of Congress in providing for jury trial in suits under 46 USCS Appx § 688. Hust v Moore-McCormack Lines, Inc. (1947) 180 Or 409, 177 P2d 429.
Jones Act -> VII. Practice and Procedure -> A. State Court Actions
507. Generally
Actions under both 46 USCS Appx § 688 and 46 USCS Appx § § 761-767 may be brought in state courts. Bugden v Trawler Cambridge, Inc. (1946) 319 Mass 315, 65 NE2d 533.

Fact that cause of action is brought in state court under 46 USCS Appx § 688 does not change rules applying to actions based upon alleged negligence. Edmond v American-Hawaiian S.S. Co. (1946) 187 Misc 723, 65 NYS2d 433, affd 274 App Div 1035, 85 NYS2d 915.

508. Concurrent state court jurisdiction
State and federal courts have concurrent jurisdiction to enforce right of action established by 46 USCS Appx § 688. Engel v Davenport (1926) 271 US 33, 70 L Ed 813, 46 S Ct 410.

Provision in 46 USCS Appx § 688 that jurisdiction of actions for personal injuries shall be under court of district in which defendant employer resides, or in which his principal office is located, does not restrict enforcement of newly given rights to federal courts. Panama R. Co. v Vasquez (1926) 271 US 557, 70 L Ed 1085, 46 S Ct 596.

Suit under 46 USCS Appx § 688 may be filed in either federal or state courts, but construction of § 688 rests with federal court. Messel v Foundation Co. (1927) 274 US 427, 71 L Ed 1135, 47 S Ct 695.

Seaman's action under 46 USCS Appx § 688 to recover for injuries sustained in course of employment may be brought in state as well as federal courts. Lauritzen v Larsen (1953) 345 US 571, 97 L Ed 1254, 73 S Ct 921.

State and federal courts have concurrent jurisdiction over Jones Act (46 USCS Appx § 688), which authorizes seaman who suffers personal injury in course of employment to bring action for damages at law. American Dredging Co. v Miller (1994, US) 127 L Ed 2d 285, 114 S Ct 981, 94 CDOS 1288, 93 Daily Journal DAR 2371, 1994 AMC 913, 7 FLW Fed S 754.

When seaman sues under 46 USCS Appx § 688 in state court, concurrent jurisdiction is expressly granted to enforce this statutory addition to maritime law. Reynolds v Royal Mail Lines, Ltd. (1956, DC Cal) 147 F Supp 223, 1957 AMC 320, affd (CA9 Cal) 254 F2d 55, 1958 AMC 1668, cert den 358 US 818, 3 L Ed 2d 59, 79 S Ct 28.

State court possesses jurisdiction of claim under 46 USCS Appx § 688 by seaman injured in course of employment, jurisdiction of federal courts not being exclusive. Whalen v Twin City Barge & Gravel Co. (1935) 280 Ill App 596, cert den 297 US 714, 80 L Ed 1000, 56 S Ct 590.

State and federal courts have concurrent jurisdictions in actions to recover under 46 USCS Appx § 688 and under general maritime law, with federal principles of law applying. Keough v Cefalo (1953) 330 Mass 57, 110 NE2d 919.

State courts have concurrent jurisdiction with federal courts to try actions brought under 46 USCS Appx § 688 for injuries sustained, and for maintenance and cure under traditional maritime law. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.

509. Applicable substantive law
It is incumbent upon State courts in trying suit under 46 USCS Appx § 688 to proceed in such manner that all substantive rights of parties under controlling federal law are protected. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246.

Subject matter jurisdiction of state courts to determine 46 USCS Appx § 688 cases is founded on "savings to suitors" clause of 28 USCS § 1333. De Court v Beckman Instruments, Inc. (1973, 4th Dist) 32 Cal App 3d 628, 108 Cal Rptr 109.

Substantive law as developed in federal cases is controlling of cases under 46 USCS Appx § 688 filed in state courts. De Court v Beckman Instruments, Inc. (1973, 4th Dist) 32 Cal App 3d 628, 108 Cal Rptr 109.

510. Applicable rules of procedure
So far as procedure is concerned, all cases based upon 46 USCS Appx § 688 which are filed in state courts should be considered as though cause of action arose under statute of state, since nothing in 46 USCS Appx § 688 conflicts with state law of procedure. Macomber v De Bardeleben Coal Co. (1941, La App, Orleans) 4 So 2d 483, revd on other grounds 200 La 633, 8 So 2d 624, cert den 317 US 661, 87 L Ed 532, 63 S Ct 61.

In 46 USCS Appx § 688 case tried in state court, procedural matters are governed by state law. Continental Oil Co. v Lindley (1964, Tex Civ App Houston (1st Dist)) 382 SW2d 296, writ ref n r e.

46 USCS Appx § 688 prescribes substantive rights of parties in cases brought under 46 USCS Appx § 688, but when such cases are filed in state courts, they are generally to be tried in accordance with state's own rules of civil procedure. Union Oil Co. v Richard (1975, Tex Civ App Beaumont) 536 SW2d 955.

511. Sufficiency of contacts with state
Seaman injured from fall when valve handwheel he was holding unexpectedly came loose properly sued vessel owner under 46 USC Appx § 688, where vessel owner's only connection with Maryland was negotiation of agreement with Maryland based seafarer's union to supply vessel owner with unlicensed seamen, because personal jurisdiction is proper under Maryland long-arm statute as vessel owner contracted for services within state and developed sufficient relationship with Maryland for purposes of due process. Bass v Energy Transp. Corp. (1992, DC Md) 787 F Supp 530, 1992 AMC 2325.

Seaman, resident of Florida, injured on board vessel owned and operated by defendant, New Jersey corporation, could not maintain action under 46 USCS Appx § 688 in New York Supreme Court. Mowat v United Fruit Co. (1942, Sup) 37 NYS2d 93, 1942 AMC 983.

In action under 46 USCS Appx § 688 for damages resulting from wrongful death of plaintiff's intestate who lost his life while employed on barge located at pier in Jersey City, New Jersey, New York Supreme Court could take jurisdiction. Hamilton v Berwind-White Coal Mining Co. (1945, Sup) 60 NYS2d 561.

In 46 USCS Appx § 688 action by nonresident seaman against foreign corporation for injuries received while on vessel of corporation, failure of corporation which had offices in New York, to show that it does not do business in that state warrants court to use its discretion to either accept or decline jurisdiction. Seeley v Waterman S. S. Corp. (1947, Sup) 73 NYS2d 80, revd on other grounds 274 App Div 934, 83 NYS2d 502.

New York court would refuse jurisdiction of action predicated in part upon provisions of 46 USCS Appx § 688 against New Jersey corporation for injuries sustained by plaintiff during course of his employment as seaman while at Boston, Massachusetts, no sufficient special circumstances to warrant retention of jurisdiction having been disclosed; general appearance of defendant in such action did not constitute waiver of its right to invoke court's discretion to refuse jurisdiction. Brandao v United Fruit Co. (1944) 183 Misc 683, 50 NYS2d 886.

512. Suits against United States
Seaman who sustained injury due to negligence and unseaworthiness of vessel owned by railroad corporation owned by United States, could bring action for damages under 46 USCS Appx § 688 in state court; and 28 USCS § § 1346, 1504, 2110, 2671 et seq. did not affect such right. Wagner v Panama R. Co. (1949) 299 NY 432, 87 NE2d 444.

Where seaman, injured on vessel owned by United States, sues under 46 USCS § 688 shipping company operating vessel as agent, as responsible for injury, without including United States as defendant, suit may be brought in state court for damages. Odgaard v Cosmopolitan Shipping Co. (1939) 171 Misc 244, 12 NYS2d 389, 1939 AMC 1038.

513. State boards and commissions
Federal District Court had jurisdiction under 46 USCS Appx § 688 of libel by seaman for personal injuries incurred while taking net from nearby warehouse to vessel on which he was employed as seaman, as against contention that state industrial accident commission had exclusive jurisdiction of compensation for his injuries. The Betsy Ross (1944, CA9 Cal) 145 F2d 688, 1944 AMC 1468.

Workmen's compensation acts of state may properly bestow exclusive jurisdiction upon state administrative tribunal to exclude jurisdiction which formerly rested in Federal District Courts; this applies to relief for claims otherwise cognizable under 46 USCS Appx § 688. Surgeon v Alaska Packers Ass'n (1939, DC Cal) 26 F Supp 241.

Since plaintiff was engaged in work purely local in nature, workmen's compensation laws of California applied and since by such law Industrial Accident Commission was given exclusive jurisdiction, federal court had no jurisdiction under 46 USCS Appx § 688. Surgeon v Alaska Packers Ass'n (1939, DC Cal) 26 F Supp 241, 1939 AMC 474.

Industrial Accident Commission is not court of state which may give remedies under either 46 USCS Appx § 688 or maritime law for maintenance and cure, its sole power is to apply workmen's compensation law. Occidental Indem. Co. v Industrial Acci. Com. (1944) 24 Cal 2d 310, 149 P2d 841.

State industrial accident commission is not state court which may give remedies for injured seaman under either 46 USCS Appx § 688 or maritime law for maintenance and cure. Occidental Indem. Co. v Industrial Acci. Com. (1944) 24 Cal 2d 310, 149 P2d 841.

In cases where injured seaman is performing seaman's duties on navigable water he can bring action for injuries under 46 USCS Appx § 688 and not under state workmen's compensation law. Valley Towing Co. v Allen (1959) 236 Miss 51, 109 So 2d 538.